HomeMy WebLinkAbout4.4 Fire Dept Maint Facility Agmt
STAFF REPORT CITY CLERK
File # 600-40
CITY COUNCIL
DATE:April 16, 2013
TO:
Honorable Mayor and City Councilmembers
FROM:
Joni Pattillo, City Manager
SUBJECT:
Amendment to Maintenance Facility Use Agreement with
Alameda County Fire Department
Prepared by Linda Smith, Economic Development Director/Public Information
Officer and Jacqui Diaz, Special Projects Manager
EXECUTIVE SUMMARY:
The City of Dublin contracts for fire services with the Alameda County Fire Department (ACFD).
The City Council and ACFD entered into two agreements in June 2012 which would allow the
ACFD administrative offices and maintenance facility to relocate from San Leandro to Dublin in
early 2014. This report provides an update and proposed amendment to the July 12, 2012
ACFD Maintenance Facility Use Agreement.
FINANCIAL IMPACT:
As previously agreed, the City of Dublin has received a one-time payment of $3.7 million from
ACFD to help offset the costs of constructing a new Maintenance Facility. The July 2012
Agreement outlined that the City would provide a Temporary Maintenance Facility to be
occupied prior to completion of the Permanent Maintenance Facility. The one-time payment
included $200,000 that was to be applied to the temporary facility as rent. The temporary facility
is no longer required by ACFD; therefore the proposed Amendment to the Agreement reflects
that the $200,000 would now be applied as pre-paid base rent for the permanent Maintenance
Facility. Upon completion of the permanent facility, the City will receive monthly rent from ACFD
for both the administrative offices as well as the maintenance facility for 5-years and 20-years,
respectively. This Amendment is fiscally neutral to the actions of the previous Agreement.
RECOMMENDATION:
Staff recommends that the City Council adopt the Resolution approving the proposed
amendment to the agreement with the Alameda County Fire Department.
Submitted By Reviewed By
Economic Development Director Assistant City Manager
DESCRIPTION:
ITEM NO. 4.4
Page 1 of 2
The City of Dublin and the Alameda County Fire Department (ACFD) entered into two
agreements in June 2012 to relocate the ACFD Administrative Offices, as well as the ACFD
Maintenance Facility, from San Leandro to Dublin beginning in early 2014.
At the June 19, 2012 meeting, the City Council adopted a resolution approving Facility Use
Agreements for the Alameda County Fire Department’s (ACFD) Administrative Offices and the
Maintenance Facility. At the time of adoption, ACFD had a need for administrative offices, as
well as for both temporary and permanent facility maintenance space for the maintenance,
repair and testing of vehicles and apparatus.
The Resolution stated that the City would allow ACFD to use 6363 Clark Avenue as a
Temporary Maintenance Facility prior to the completion of the permanent Maintenance Facility
at 5777 Scarlett Court. The Use Agreement identified a $3.7 million dollar up-front payment
from ACFD to offset a portion of the City’s construction expenses, which included a $200,000
payment that ACFD would make to the City as a base rent payment for the temporary facility for
approximately 12-16 months while the new ACFD Maintenance Facility is constructed.
Due to alterations made to the bid and construction calendar, the use of the Temporary
Maintenance Facility is no longer desired by ACFD. Both City Staff and ACFD desire to amend
the Agreement to reflect the City’s elimination of the obligation to provide the Temporary
Maintenance Facility. The proposed Amendment (Exhibit A to Attachment 1) reflects this
change.
The proposed amendment results in no change to the agreed rent payments. This action
redirects the aforementioned $200,000 to become pre-paid base rent for the permanent facility
rather than to the temporary facility.
The proposed Resolution (Attachment 1) approves the First Amendment to the Maintenance
Facility Use Agreement with ACFD. Exhibit A to Attachment 1 is the Amended and Restated
Maintenance Use Agreement reflecting the proposed changes.
NOTICING REQUIREMENTS/PUBLIC OUTREACH:
A copy of this Staff Report was provided to the Alameda County Fire Department.
ATTACHMENTS:
1. ResolutionApproving an Amended and Restated Maintenance
Facility Use Agreement between the City of Dublin and the Alameda
County Fire Department
2. Exhibit A to Resolution, Amended Agreement
Page 2 of 2
RESOLUTION NO. XX – 13
A RESOLUTION OF THE CITY COUNCIL
OF THE CITY OF DUBLIN
***************
APPROVING AN AMENDED AND RESTATED MAINTENANCE FACILITY USE
AGREEMENT BETWEEN THE CITY OF DUBLIN AND THE ALAMEDA COUNTY FIRE
DEPARTMENT (SCARLETT COURT)
WHEREAS,
the City of Dublin and the Alameda County Fire Department entered into a
Maintenance Facility Use Agreement on June 12, 2012 for the maintenance, repair and testing
of vehicles and apparatus; and
WHEREAS,
pursuant to the Agreement, the City agreed to construct a maintenance
facility for ACFD’s use on City-owned property on Scarlett Court in exchange for certain
consideration described in the Agreement; and
WHEREAS,
the Agreement also provide that the City would, in exchange for certain
consideration, provide ACFD with a Temporary Maintenance Facility to occupy beginning in the
first quarter of 2013 until such time as the Permanent Maintenance Facility improvements were
completed and the premises delivered to ACFD; and
WHEREAS,
ACFD no longer desires to occupy the Temporary Maintenance Facility, and
the Parties desire to amend the Agreement to reflect the elimination of the City’s obligation to
deliver the Temporary Maintenance Facility; and
NOW THEREFORE BE IT RESOLVED,
that the City Council of the City of Dublin does
hereby approve the Amended and Restated Maintenance Facility Use Agreement.
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PASSED, APPROVED AND ADOPTED
this 16 day of April, 2013, by the following
vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
____________________
Mayor
ATTEST:
___________________
City Clerk
AMENDED AND RESTATED
MAINTENANCE FACILITY USE AGREEMENT
(Scarlett Court)
This Amended and Restated Maintenance Facility Use Agreement (this
Amended and Restated Agreement
“”) amending and restating that certain Maintenance
Agreement
Facility Use Agreement dated as of July 1, 2012 (the “”) is entered into as of
City
April 16, 2013 by and between the CITY OF DUBLIN (“”), a California municipal
ACFD”
corporation, and ALAMEDA COUNTY FIRE DISTRICT (“), a dependent fire
district formed under the Fire Protection District Law of 1961 (Health and Safety Code
Sections 13801 et seq.) and governed by the Alameda County Board of Supervisors. City
Parties
and ACFD are hereinafter referred to collectively as the “.”
RECITALS
WHEREAS,
pursuant to the Agreement, City agreed to construct a maintenance
facility for ACFD’s use on property owned by City in exchange for certain consideration
described in the Agreement; and
WHEREAS,
the Agreement also provided that City would, in exchange for
certain consideration, provide ACFD with a Temporary Maintenance Facility to occupy
beginning in the first quarter of 2013 until such time as the Permanent Maintenance
Facility improvements were completed and the Premises delivered to ACFD; and
WHEREAS,
ACFD no longer desires to occupy the Temporary Maintenance
Facility, and the Parties desire to amend the Agreement to reflect the elimination of the
City’s obligation to deliver the Temporary Maintenance Facility; and
WHEREAS
, all capitalized terms used and not defined in this Amendment have
the same meaning as set forth in the Agreement.
NOW THEREFORE,
the City and ACFD agree as follows.
ARTICLE I
BASIC PROVISIONS
City’s mailing address
1.1 : City of Dublin, 100 Civic Plaza, Dublin, CA 94568.
City’s contact: .
1.2 Joni Pattillo, City Manager. Telephone: (925)833-6650
ACFD’s mailing address
1.3 : 835 East 14th Street, Suite 200, San Leandro, CA
94577, with a copy to ACFD at the Premises.
ACFD’s contact
1.4 : Deputy Chief of Administration, currently Chief Demetrious
N. Shaffer. Telephone: (510) 618-3490.
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
Maintenance Facilityaddress: 5777
1.5 Scarlett Court, Dublin, CA 94568.
Deleted.
1.6
Commencement Date:
1.7 the date upon which City delivers possession of the
Premises to ACFD, anticipated to be January 2014. The specific date will be
identified in the Memorandum Confirming Commencement Date and Total
Project Costs (attached hereto as Exhibit A-2) which will be completed and
executed by the Parties when a definitive date and Total Project Costs are
determined.
Term:
1.8 Starting on the Effective Date and continuing until the Expiration Date
(defined in the following section).
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Expiration Date:
1.9 The last day of the month in which the twentieth (20)
anniversary of the Commencement Date occurs.
Option(s) to Extend Term:
1.10 None.
Base Rent for Maintenance Facility:
1.11 As Base Rent for use of the Premises,
ACFD will pay the City as follows (adjusted as described below):
Year Annual Base Rent Monthly Base Rent
1 $129,821 $10,818.42
2 $129,821 $10,818.42
3 $137,610 $11,467.50
4 $137,610 $11,467.50
5 $145,867 $12,155.58
6 $145,867 $12,155.58
7 $154,619 $12,884.92
8 $154,619 $12,884.92
9 $163,896 $13,658.00
10 $163,896 $13,658.00
11 $173,730 $14,477.50
12 $173,730 $14,477.50
13 $184,154 $15,346.17
14 $184,154 $15,346.17
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
15 $195,203 $16,266.92
16 $195,203 $16,266.92
17 $206,915 $17,242.92
18 $206,915 $17,242.92
19 $219,330 $18,277.50
20 $219,330 $18,277.50
Total $3,422,290.00
The Base Rent specified in this Section 1.11A is an estimate based upon an
anticipated Total Project Cost equal to Six Million, Seven Hundred and Forty
Five Thousand, Five Hundred and Thirty Dollars ($6,745,530), of which ACFD
will initially contribute Three Million, Five Hundred Thousand Dollars
($3,500,000) as specified in Section 1.13. The specific formula for determining
the Base Rent is set forth in the attached Exhibit B-2. The Total Project Cost is
subject to change as the following line items are estimated amounts and subject to
change based on actual costs:
Building Costs and ACFD Improvements
Indirect Costs
If the actual costs for the above line items differ from the amounts specified in
Exhibit B-2, the Base Rent is subject to modification. When the final and actual
Total Project Cost is determined, the Base Rent shall be calculated based thereon,
and shall be specified in the Memorandum Confirming Commencement Date and
Total Project Costs. Every two (2) years during the Term, Base Rent shall
increase 6%, as set forth in Exhibit B-2.
ACFD’s Share of Expenses:
1.12 ACFD shall pay 100% of Operating Expenses for
the Maintenance Facility.
ACFD’s Initial Payment:
1.13 ACFD shall pay to City the sum of Three Million,
Initial Payment”)
Seven Hundred Thousand Dollars ($3,700,000) (the “ within
60 days following the Effective Date. This Initial Payment includes the sum of
Two Hundred Thousand Dollars ($200,000) in prepaid Base Rent to be applied
toward the Monthly Base Rent until exhausted. The balance of the Initial
Payment constitutes a portion of the cost to construct the Maintenance Facility,
and is identified on Exhibit B-2 as “ACFD Contribution.”
Permitted Uses:
1.14 Operation of a facility for maintenance, repair and testing of
vehicles and apparatus including cars, trucks, fire engines, fire trucks, boats,
trailers, heavy equipment, rescue and safety vehicles and other machinery that
may be used by ACFD or other entities that provide public services
Apparatus
(“”) and related administration and training activities, all in
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
accordance with Applicable Laws. This includes Apparatus that are maintained
and or serviced for other public entities through agreements with ACFD.
Parking:
1.15 All parking on the Property shall be for the exclusive use of
ACFD.
ARTICLE II
DEFINITIONS
2.1 Definitions. As used in this Agreement, the following terms shall have the
definitions set forth below. Additional terms are defined in the remainder of the
Agreement.
“ACFD Improvements
” is defined in Exhibit B.
“ACFD Parties”
is defined in Section 6.1.
“ACFD’s Share”
is defined in Section 4.5.1.1.
Additional Rent”
“means any and all sums other than Base Rent which ACFD
is or becomes obligated to pay to City under this Agreement (whether or not specifically
called “Additional Rent” in this Agreement).
Alterations”
“ means any alterations, decorations, modifications, additions or
improvements made in, on, about, under or contiguous to the Premises by or for the
benefit of ACFD including but not limited to, telecommunications and/or data cabling,
lighting, HVAC and electrical fixtures, pipes and conduits, partitions, cabinetwork and
carpeting.
Applicable Laws”
“is defined inSection 5.3.
“Base Rent”
means for each year during the Term, the monthly amount payable
for the Premises as set forth in Section 1.11.
“Claims”
is defined in Section 6.3.
“Commencement Date”
is the date set forth in Section 1.7 as such may be
modified as specified in the Memorandum Confirming Commencement Date and Total
Project Costs referenced in Section 1.7.
“Common Area”
means all areas and facilities located on the Property and used
by ACFD, including sidewalks, landscaped areas and similar areas and facilities that are
also shared with others. The Common Areas of the Property will be included and
identified in the Plans.
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
Environmental Laws”
“ is defined in Section 6.6.
“Hazardous Material”
is defined in Section 6.5.
“Improvements”
means the Permanent Maintenance Facility and all other
improvements constructed or installed on the Property, including, without limitation, a
parking lot, driveways, lighting and landscaping.
“Indemnitees”
is defined in Section 6.3.
Maintenance Facility
“” means the facility to be constructed by City on the
Property pursuant to this Agreement.
Memorandum”
“means the Memorandum Confirming Commencement Date and
Total Project Costs to be executed by the Parties substantially in the form attached hereto
as Exhibit B-2, and which shall specify the Commencement Date and the Base Rent.
Operating Expenses”
“ is defined in Section 4.5.1.
“Passthrough Expenses”
is defined in Section 4.7.
“Plans”
is defined in Exhibit B.
Premises”
“ means the Property and the Improvements, including the
Maintenance Facility, and all other Improvements on the Property.
“Project”
means the development of the Maintenance Facility on the Property,
including without limitation, completion of all related site preparation and construction
work necessary to prepare the Maintenance Facility and the Premises for ACFD’s
occupancy pursuant to this Agreement.
Property”
“ means the westernmost portion of the real property owned by City
and located in the City of Dublin at 5777 Scarlett Court, as depicted in Exhibit A-1
attached hereto and that will be used exclusively by ACFD. The Property is a portion of
Alameda County Assessor’s Parcel No. 941-0550-029, and is more particularly described
in Exhibit A-1.
“Property Taxes”
is defined in Section 4.6.
“Rent”
means Base Rent and Additional Rent, collectively.
“Term”
means the term of this Agreement as set forth in Section 1.8, as such
may be extended pursuant to the terms hereof.
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
“Total Project Cost”
means City’s cost to complete the Project, including
without limitation, demolition, site preparation, and construction as more particularly
described in Exhibit B-2.
ARTICLE III
PREMISES AND TERM
3.1 Use of Premises. Subject to and upon the terms and conditions set forth
herein, City hereby agrees to allow ACFD the use of the Premises, and ACFD hereby
agrees to use the Premises in accordance with the terms of this Agreement. ACFD
acknowledges that City has made no representation or warranty regarding the condition
of the Property or the Improvements except as specifically stated in this Agreement,
including all exhibits, or as specified in the Plans as they may be amended and accepted
by ACFD and City.
3.2 Term and Commencement. The Term of this Agreement shall commence
on the Effective Date, and unless sooner terminated as provided herein, the Term shall be
for the period set forth in Section 1.8.
3.3 Delay in Delivery of Premises. If City fails to deliver possession of the
Premises to ACFD on or before the anticipated Commencement Date set forth in Section
1.7, City shall not be subject to any liability for its failure to do so. This failure shall not
affect the validity of this Agreement or the obligations of ACFD hereunder.
3.4 Early Access. ACFD shall not occupy the Premises prior to the
Commencement Date except with the express prior written consent of City. Provided
that (i) this Agreement has been executed by ACFD and City, and (ii) ACFD, if
requested, has provided to City proof of insurance coverage for all insurance that ACFD
is required to maintain under this Agreement, ACFD shall be permitted access to the
Premises prior to the Commencement Date for the purpose of installing ACFD’s fixtures
and equipment, but not for the purpose of performing maintenance of Apparatus on the
Premises. If ACFD is provided access to the Premises prior to the Commencement Date,
all of the terms and provisions of this Agreement shall apply to ACFD’s use of the
Premises except for the requirement for the payment of Rent, and ACFD shall abide by
all of such terms and provisions.
3.5 No Representations. ACFD acknowledges that neither City nor any of
City’s agents has made any representation or warranty as to the suitability or fitness of
the Premises for the conduct of ACFD’s business, and that neither City nor any of City’s
agents has agreed to undertake any alterations or additions or to construct any
improvements to the Premises except as expressly provided in this Agreement and the
Plans.
3.6 Intentionally omitted.
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
ARTICLE IV
RENT, OPERATING EXPENSES, TAXES AND SECURITY DEPOSIT
4.1 Monthly Rent. From and after the Commencement Date, ACFD shall pay
to City for each calendar month of the Term, the monthly Base Rent set forth in Section
1.11. Each monthly installment of Base Rent shall be due and payable to City in lawful
money of the United States, in advance, on the first (1st) day of each calendar month
during the Term, without abatement, deduction, claim or offset(unless the Parties
mutually agree to allow an abatement, deduction, claim or offset), and without prior
notice, invoice or demand, at City’s address set forth in Section 1.1 or such other place as
City may designate from time to time. ACFD’s payment of Base Rent for the first
month of the Term shall be delivered to City on the Commencement Date.
4.2 Prorations. Monthly installments for any fractional calendar month at the
beginning or end of the Term shall be prorated based on the number of days in such
month.
4.3 Additional Rent. All Additional Rent, including without limitation,
ACFD’s Share of Passthrough Expenses (defined below) and ACFD’s Share of Property
Taxes shall be due and payable to City in lawful money of the United States without
abatement, deduction, claim or offset within thirty (30) days of receipt of City’s invoice
or statement for same (or if this Agreement provides another time for the payment of
certain items of Additional Rent, then at such other time) at City’s address set forth in
Section 1.1 or such other place as City may designate from time to time.
4.4 Late Charge. ACFD acknowledges that the late payment of Rent will
cause City to incur administrative costs and other damages, the exact amount of which
would be impracticable or extremely difficult to ascertain. City and ACFD agree that if
City does not receive any such payment within ten (10) calendar days after such payment
is due, ACFD shall pay to City as Additional Rent an amount equal to five percent (5%)
of the overdue amount as a late charge for each month or partial month that such amount
remains unpaid. The Parties acknowledge that this late charge represents a fair and
reasonable estimate of the costs that City will incur by reason of the late payment by
ACFD. Acceptance of any late Rent and late charge therefore shall not prevent City from
exercising any of the other rights and remedies available to City for any other Event of
Default under this Agreement.
4.5 Common Area Charges, Operating Expenses and Taxes.
4.5.1 ACFD to Pay all Operating Expenses. ACFD shall be solely
responsible for payment of all operating expenses associated with the Premises
Operating Expenses
(“”), including without limitation, all costs associated with the
maintenance, repair, management and operation of the Improvements and the Property,
including, but not limited to the following: repair and maintenance of the roof,
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
foundation and exterior walls of the Improvements; periodic painting of the
Improvements; periodic cleaning of the exterior windows of the Improvements;
landscaping services; pest control; operation, maintenance and repair of equipment and
elevators (if any), utility systems, HVAC systems, mechanical and electrical systems and
sanitary and storm drain systems through maintenance contracts or otherwise;
maintenance services, repairs to and replacement of asphalt paving, bumpers, striping,
light bulbs, light standards, monument and directional signs and lighting systems,
perimeter walls, retaining walls, sidewalks, planters, landscaping and sprinkler system in
planting areas; any and all assessments levied against the Improvements and/or the
Property; water, electrical and other utility services; removal of trash, rubbish and other
refuse; cleaning and replacement of signs, including relamping and repairs; costs
incurred in connection with compliance with any laws or changes in laws applicable to
the Improvements or the Property, including without limitation any laws or changes in
laws regarding Hazardous Material; subject to Section 4.5.1.2, the cost of capital
improvements to the Improvements, to the extent of the amortized amount thereof over
the useful life of such capital improvements calculated at a market cost of funds, all as
reasonably determined by City, for each year of useful life during the Term; the cost of
any environmental consultant or other services used in connection with City’s monitoring
of the Property with respect to Hazardous Materials, and any other items reasonably
necessary from time to time to properly repair, replace, maintain and operate the
Improvements and the Property, on no more than an annual basis. If a property manager
is hired by City, Operating Expenses shall also include a management fee, of no more
than actual costs, consistent with comparable projects in the City of Dublin to cover
City’s management, overhead and administrative expenses or City’s payment of
professional management fees.
4.5.1.1 Common Area Maintenance. Tenant shall pay fifty percent (50%)
ACFD’s Share”)
(“of the cost to repair and maintain the Common Area, including
without limitation, the cost of sidewalk repairs, repaving, and landscape maintenance and
irrigation.
4.5.1.2 Capital Improvements. City and ACFD agree that they will meet
and confer to discuss the extent to which the cost of any particular capital improvement
that City proposes to undertake with respect to the Improvements shall be included within
Operating Expenses or otherwise paid by ACFD.
4.5.2 Exclusions From Operating Expenses. Despite any other provision of
Section 4.5.1, Operating Expenses shall not include: (a) depreciation, interest, or
amortization on mortgages or ground lease payments; (b) legal fees; (c) real estate
brokers’ leasing commissions; (d) any costs expressly excluded from Operating Expenses
elsewhere in this Agreement; (e) costs of capital improvements, except as otherwise
stated herein; and (f) costs of any items for which City receives reimbursement from
insurance proceeds or a third party.
4.6 Taxes. Both Parties are exempt from payment of most taxes; however, for
PropertyTaxes”
purpose of this Agreement, the term “ shall mean any form of tax,
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
assessment, charge, license, fee, rent tax, levy, penalty (if a result of ACFD’s
delinquency), real property or other tax now or hereafter imposed with respect to the
Improvements or the Property or any part thereof (including any Alterations), this
Agreement or any Rent payable under this Agreement by any authority having the direct
or indirect power to tax, or by any city, county, state or federal government or any
improvement district or other district or division thereof, whether such tax or any portion
thereof (i) is determined by the area of the Improvements or the Property, or any part
thereof or the Rent payable under this Agreement by ACFD, including, but not limited to
any gross income or excise tax levied by any of the foregoing authorities with respect to
receipt of Rent due under this Agreement, (ii) is levied or assessed in lieu of, in
substitution for, or in addition to, existing or additional taxes with respect to the
Improvements or the Property or any part thereof whether or not now customary or
within the contemplation of City or ACFD, or (iii) is based upon any legal or equitable
interest of City in the Improvements or the Property or any part thereof. ACFD and City
intend that all Property Taxes, including without limitation all new and increased
assessments, taxes, possessory interest taxes charged or levied in place of real property
taxes, fees, levies, and charges and all similar assessments, taxes, fees, levies and charges
shall be included within the definition of “Property Taxes” for purposes of this
Agreement.
4.6.1 Apportionment of Taxes. If the Improvements and the Property
are assessed as part of a larger parcel, then City shall equitably apportion the Property
Taxes and reasonably determine the Property Taxes attributable to the Improvements. If
other buildings exist on the assessed parcel, the Property Taxes apportioned to the
Improvements shall be based upon the ratio of the square footage of the Improvements to
the square footage of all buildings on the assessed parcel.
4.6.2 Tax on Improvements. Notwithstanding anything to the contrary
set forth in this Agreement, ACFD shall pay prior to delinquency any and all taxes, fees
and charges which are levied or assessed against City or ACFD: (a) upon ACFD's
equipment, furniture, fixtures, improvements and other personal property located on the
Property or in the Improvements, (b) by virtue of any alterations or leasehold
improvements made to the Property or Improvements by ACFD, and (c) upon this
transaction or any document to which ACFD is a party creating or transferring an interest
or an estate in the Premises. City shall promptly notify ACFD of any tax, fee or charge.
If any such tax, fee or charge is paid by City, ACFD shall reimburse City for City’s
payment upon demand.
4.7 Payment of Operating Expenses and Taxes. ACFD shall pay to City ACFD’s
Share (as defined in Section 4.5.1) of Common Area Expenses, ACFD’s share of Real
Property Taxes (as determined pursuant to Section 4.6.1), and all Operating Expenses
attributable to the Premises that are not directly billed to ACFD (all of the foregoing,
Passthrough Expenses
collectively “”) as follows: on the Commencement Date (or as
soon thereafter as is reasonably practicable) and thereafter prior to the commencement of
each calendar year during the Term, City shall give ACFD a written estimate of ACFD’s
Share of Passthough Expenses for the ensuing calendar year. Commencing on the
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
Commencement Date and continuing thereafter throughout the Term, ACFD shall pay, as
an item of Additional Rent, such estimated amount in equal monthly installments, in
advance, on or before the first day of each calendar month. If City has not furnished its
written estimate by the time set forth above, ACFD shall pay monthly installments of
Passthrough Expenses at the rate established for the prior calendar year, if any; provided
that when the new estimate is delivered to ACFD, as applicable, ACFD shall at the next
monthly payment date pay City any accrued deficiency based on the new estimate, or
City shall credit any accrued overpayment based on such estimate toward ACFD’s next
installment payment hereunder. Within a reasonable period of time after the end of each
calendar year during the Term (but in no event more than 180 days after the end of each
Annual Statement”
year), City shall furnish ACFD a statement (“) showing in reasonable
detail ACFD’s Share of the actual Passthrough Expenses incurred for the period in
question; provided, however, with respect to the calendar year during which this
Agreement expires or sooner terminates, City may, at its election, provide ACFD with an
Annual Statement prior to the end of such year based on estimated Operating Expenses,
as determined by City. If ACFD’s estimated payments are less than ACFD’s Share of
actual Passthrough Expenses as shown by the applicable Annual Statement, ACFD shall
pay the difference to City within thirty (30) days following delivery of the Annual
Statement. If ACFD shall have overpaid City, City shall credit such overpayment toward
ACFD’s next installment payment hereunder or if no installment payment is due, refund
the amount to ACFD within thirty (30) days. When the Annual Statement is furnished to
ACFD for the calendar year in which this Agreement expires or sooner terminates: (i)
ACFD shall, even if this Agreement has expired or terminated, pay to City within thirty
(30) days after notice, any additional sum payable by ACFD in excess of the estimate
previously provided, and (ii) City shall rebate any overpayment to ACFD within thirty
(30) days following delivery of the Annual Statement. If City determines at any time
that the estimate of ACFD’s Share of Passthrough Expenses for the current year is or will
become inadequate to meet ACFD’s Share of all such Passthrough Expenses for any
reason, City may, at its election, determine the approximate amount of such inadequacy
and issue a supplemental estimate, and ACFD shall pay any increase as reflected by such
supplemental estimate.
City shall keep or cause to be kept separate and complete books covering all
Passthrough Expenses and showing the method of calculating ACFD’s Share of
Passthrough Expenses, and shall preserve for at least twelve (12) months after the close
of each year all material documents evidencing such Passthrough Expenses for that year.
For a period of 180 days following ACFD’s receipt of an Annual Statement, ACFD, at its
sole cost and expense, through a representative designated by ACFD and reasonably
approved by City, shall have the right upon written notice to City, during reasonable
business hours at City’s offices, to examine and/or audit the books and documents
evidencing such costs and expenses for the period covered by the applicable Annual
Statement, provided that ACFD is not then in default under this Agreement. Any delay
or failure by City in delivering any estimate or statement pursuant to this Section shall
not constitute a waiver of its right to require ACFD to pay ACFD’s Share of Passthrough
Expenses, pursuant hereto.
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ARTICLE V
USE OF PREMISES
5.1 Permitted Use. The Premises shall be used solely for the purposes set forth
in Section 1.14 and for no other purpose without the written consent of City, which may
be granted or withheld in City’s reasonable discretion. ACFD shall not do or suffer or
permit anything to be done in or about the Premises nor bring or keep anything therein
that would in any way subject City to any liability, increase the premium rate of or affect
any fire, casualty, rent or other insurance relating to the Property or the Improvements, or
cause a cancellation of, or give rise to any defense by the insurer to any claim under, or
conflict with, any insurance coverage. If any act or omission of ACFD results in any
such increase in premium rates, ACFD shall pay to City upon demand the amount of such
increase. Other than as specified in the Plans, no underground fuel storage tanks may be
located at the Premises without City’s prior written approval, and City may condition
such approval upon ACFD’s provision of proof of adequate insurance coverage for such
purpose. ACFD may keep on the Premises receptacles for storage of chemicals
including fuel, oil, coolants, fire foams and other fluids associated with the maintenance,
repair and testing of Apparatus, provided that all such receptacles are stored, used,
transported and maintained in compliance with all Applicable Laws.
5.2 Signage. ACFD shall obtain the prior approval of the City, which approval
will not be unreasonably withheld, before placing any sign or symbol on or about the
Premises. Upon expiration or termination of this Agreement, all signs installed by ACFD
shall be removed and any damage resulting therefrom shall be promptly repaired by
ACFD, or such removal and repair may be done by City and the cost charged to ACFD as
Rent.
5.3 Compliance with Laws. ACFD shall procure and maintain all
governmental approvals, licenses and permits required for the proper and lawful conduct
of ACFD’s permitted use of the Premises. ACFD shall throughout the Term comply with
and shall not use the Premises or suffer or permit anything to be done in or about the
same which would in any way conflict with any of the following (collectively
Applicable Laws”)
“: (i) the provisions of all recorded covenants, conditions and
restrictions applicable to the Property, or (ii) any federal, state, county, local or other
governmental agency rules, regulations, statutes, ordinances, orders, standards,
requirements or laws now in force or hereafter enacted, promulgated or issued which are
applicable to the Premises, or the use or occupancy thereof, including without limitation
building, zoning, and fire codes and regulations.
5.4 Repairs, Replacements and Maintenance. ACFD shall, at ACFD’s sole
expense, keep the Property and the Improvements in good condition in compliance with
Applicable Laws, and ACFD shall, at ACFD’s sole expense promptly make all repairs,
replacements, alterations, or improvements necessary to comply with all Applicable Laws
and/or to maintain the Property and the Improvements in good condition and repair.
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ARTICLE VI
ENVIRONMENTAL MATTERS
6.1 Use of Hazardous Materials. ACFD shall not cause or permit any
Hazardous Material to be generated, brought onto, used, stored, or disposed of in or about
the Property or the Improvements by ACFD or ACFD’s agents, employees, contractors,
ACFD Parties”)
or invitees (collectively “, except for limited quantities of standard
office and janitorial supplies and other standard materials and supplies used in connection
with the maintenance, repair and testing of Apparatus, including gasoline and oil. At
ACFD’s sole cost and expense, ACFD shall use, store and dispose of all such Hazardous
Materials in strict compliance with all Environmental Laws, and shall in all other respects
comply with all Environmental Laws.
6.2 Notice of Release or Investigation. If during the Term of this Agreement
(including any extensions), ACFD becomes aware of (a) any actual or threatened
unauthorized release of any Hazardous Material in, on, under, or about the
Improvements or the Property, or (b) any inquiry, investigation, proceeding, or claim by
any government agency or other person regarding the presence of Hazardous Material in,
on, under, or about the Improvements or the Property, other than routines inspections,
ACFD shall give City written notice of the release or investigation within five (5) days
after learning of it and shall simultaneously furnish to City copies of any claims, notices
of violation, reports, or other writings received by ACFD that concern the release or
investigation.
6.3 Indemnification. ACFD shall defend (with counsel acceptable to City),
indemnify and hold harmless City and City’s elected and appointed officers, officials,
Indemnitees
employees, agents and representatives (collectively, “”) from and against
any and all liabilities, losses, damages, fines, deficiencies, penalties, claims, demands,
suits, actions, causes of action, legal or administrative proceedings, judgments, costs and
expenses (including without limitation reasonable attorneys’ fees and expenses, court
costs, expert witness fees and post judgment collection costs) (all of the foregoing,
Claims”)
collectively “resulting or arising from or in connection with any release of any
Hazardous Material in or about the Improvements or the Property or any other violation
of any Environmental Law by ACFD, or ACFD’s agents, assignees, sublessees,
contractors, or invitees. This indemnification includes: (i) losses attributable to
diminution in the value of the Property or the Improvements, (ii) loss or restriction of use
of the Property or the Improvements, and (iii) all other liabilities, obligations, penalties,
fines, claims, actions (including remedial or enforcement actions of any kind and
administrative or judicial proceedings, orders, or judgments), damages (including
consequential and punitive damages), and costs (including attorney, consultant, and
expert fees and expenses) resulting from the release or violation. The indemnity
provided in this Section shall not extend to Claims to the extent the same are caused by
the negligence or willful misconduct of Indemnitees. The provisions of this Section shall
survive the expiration or termination of this Agreement.
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6.4 Remediation Obligations. If the presence of any Hazardous Material,
brought onto the Premises by ACFD or ACFD’s employees, agents, contractors, or
invitees results in contamination of the Property, the Improvements or any part thereof,
ACFD shall promptly take all necessary actions to remove or remediate such Hazardous
Materials, whether or not they are present at concentrations exceeding state or federal
maximum concentration or action levels, or any governmental agency has issued a
cleanup order, at ACFD’s sole expense, to return the Property and the Improvements to
the condition that existed before the introduction of such Hazardous Material. ACFD
shall first obtain City’s approval of the proposed removal or remedial action. This
provision does not limit the indemnification obligation set forth in Section 6.3. This
Section is not intended to impair ACFD’s right to use Hazardous Materials on the
Premises consistent with the provisions of this Agreement and in compliance with all
Applicable Laws.
6.5 Definition of Hazardous Material. As used in this Agreement, the term
Hazardous Material
“” means any hazardous or toxic substance, material, or waste at
any concentration that is or becomes regulated by the United States, the State of
California, or any government authority having jurisdiction over the Property or the
Improvements. Hazardous Material includes: (a) any “hazardous substance,” as that
term is defined in the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (CERCLA) (42 United States Code sections 9601-9675); (b)
“hazardous waste,” as that term is defined in the Resource Conservation and Recovery
Act of 1976 (RCRA) (42 United States Code sections 6901-6992k); (c) any pollutant,
contaminant, or hazardous, dangerous, or toxic chemical, material, or substance, within
the meaning of any other applicable federal, state, or local law, regulation, ordinance, or
requirement (including consent decrees and administrative orders imposing liability or
standards of conduct concerning any hazardous, dangerous, or toxic waste, substance, or
material, now or hereafter in effect); (d) petroleum products; (e) radioactive material,
including any source, special nuclear, or byproduct material as defined in 42 United
States Code sections 2011-2297g-4; (f) asbestos in any form or condition; and (g)
polychlorinated biphenyls (PCBs) and substances or compounds containing PCBs.
6.6 Definition of Environmental Laws. As used in this Agreement, the term
Environmental Laws
“” means all federal, state and local laws, ordinances, regulations,
rules orders and directives pertaining to Hazardous Materials, including without
limitation, the laws, statutes, and regulations cited in the preceding Section 6.5, as any of
the foregoing may be amended from time to time.
ARTICLE VII
UTILITIES AND MAINTENANCE
7.1 Utilities. ACFD shall be solely responsible for payment for all utilities
utilized in the Improvements or on the Property, including without limitation all
electricity, air conditioning and heating, water, sewer and trash collection.
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7.2 Maintenance. ACFD shall, at all times during the Term of this Agreement,
at ACFD’s sole expense, keep the Property and the Improvements in good order,
condition and repair, including without limitation (i) maintenance of all exterior areas of
the Improvements and the Property, including without limitation, lighting and
landscaping; (ii) cleaning, painting, maintenance and repair of the Improvements, (iii)
maintenance and repair of mechanical, electrical, HVAC and plumbing equipment and
systems and the structural components of the Improvements, including the roof,
foundation, floors and walls, and (iv) maintenance and repair of all parking lots,
walkways, driveways, fences, utility systems, fire sprinklers, stairs, elevators, corridors,
.
restrooms, windowsIf ACFD fails to maintain or keep the Property and Improvements
in good repair or if such failure results in a nuisance or health or safety risk, at City’s
option, and after written notice to ACFD , if ACFD does not respond to such notice
within thirty (30) days (except in the event of nuisance or health and safety risk), City
may perform any such required maintenance and repairs, and within thirty (30) days after
receipt of City’s invoice, ACFD shall pay City’s costs incurred in connection with such
repairs, plus a percentage of such costs sufficient to reimburse City for all overhead,
general conditions, fees and other costs and expenses in connection therewith
7.3 Repair Obligations. Except as expressly set forth in this Agreement,
(including all attachments and exhibits hereto) or the Plans, City shall have no obligation
to repair or maintain the Property, the Improvements, or any equipment installed therein.
7.4 Compliance with Applicable Laws. City and ACFD shall each comply
with (and shall cause their respective employees, agents and contractors to comply with)
all Applicable Laws, including without limitation all Environmental Laws, whenever
either party undertakes any work of construction, alteration or improvement with respect
to the Property or the Improvements.
ARTICLE VIII
ALTERATIONS AND ADDITIONS
8.1 Alterations and Improvements. Other than routine repair of Improvements,
ACFD may not make any improvements, alterations, additions or changes to the Property
Alterations
or the Improvements (“”)exceeding Ten Thousand Dollars ($10,000) in cost
without the prior written approval of City, which shall not be unreasonably withheld. If
ACFD desires to make any Alteration costing in excess of $10,000, the Parties will meet
and develop an appropriate plan for accomplishing the Alterations.
Unless otherwise agreed upon by City in writing, all Alterations shall be done at
ACFD’s expense, in a good and workmanlike manner, by ACFD, Alameda County GSA,
or by licensed contractors, in conformity with plans and specifications reviewed and
approved by City, and in compliance with all Applicable Laws. ACFD shall obtain all
necessary governmental approvals and permits for such Alterations. ACFD shall give
City not less than ten (10) business days' notice prior to the commencement of
construction so that City may post a notice of nonresponsibility on the Premises. City
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may at its option by written notice to ACFD, require that ACFD, upon the expiration or
sooner termination of this Agreement, at ACFD’s expense, remove any or all Alterations
and return the Premises to its condition as of the Commencement Date, normal wear and
tear excepted.
ARTICLE IX
INSURANCE AND INDEMNITY
9.1 Mutual Indemnity. To the fullest extent permitted by law, ACFD shall
defend (with counsel reasonably acceptable to City), indemnify and hold the Indemnitees
harmless from and against any and all Claims arising out of or relating directly or
indirectly to this Agreement and ACFD’s use of the Premises (including without
limitation, Claims for or relating to loss of or damage to property, injury or death of any
person, and economic losses and consequential or resulting damage of any kind),
including any Claim arising from or in connection with or in any way attributable to: (i)
the use or occupancy, or manner of use or occupancy of the Improvements or the
Property by ACFD or ACFD Parties, (ii) any act, error, omission or negligence of ACFD
Parties or any invitee, guest or licensee of ACFD in, on or about the Premises, (iii) any
Alterations, activity, work, or thing done, omitted, permitted, allowed or suffered by
ACFD or ACFD Parties in, at, or about the Improvements or the Property, or (iv) any
breach or default in performance of any obligation on ACFD's part in the performance of
any covenant or agreement to be performed by ACFD under this Agreement, except to
the extent caused by the negligence or willful conduct of City or the Indemnitees. This
indemnification does not extend to Claims arising out of Common Areas unless such
Claims arise from the negligence or intentional actions of ACFD or ACFD Parties.
To the fullest extent permitted by law, City shall defend (with counsel reasonably
acceptable to ACFD), indemnify and hold ACFD, AFCD Parties and its elected and
appointed officers, officials, employees, agents and representatives (collectively
Indemnified Parties”)
“harmless from and against any and all Claims (including without
limitation, Claims for or relating to loss of or damage to property, injury or death of any
person, and economic losses and consequential or resulting damage of any kind),
including any Claim arising from or in connection with or in any way attributable to: (i)
any act, error, omission or negligence of City or any of its contractors, agents, invitees,
guests or licensees in, on or about the Property or the Improvements, (ii) any activity,
work, or thing done, omitted, permitted, allowed or suffered by the City or its contractors,
agents, invitees, guests or licensees in, at, or about the Improvements or the Property, or
(iv) any breach or default in performance of any obligation on the part of City in the
performance of any covenant or agreement to be performed by City under this
Agreement, except to the extent caused by the negligence or willful conduct of ACFD or
the ACFD Parties.
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The provisions of this Section shall not be construed or interpreted as in any way
restricting, limiting or modifying the insurance obligations of the Parties under this
Agreement and are independent of such obligations. Compliance with the insurance
requirements set forth in this Agreement shall not in any way restrict, limit or modify the
respective indemnification obligations of the Parties hereunder. The provisions of this
Section shall survive the expiration or earlier termination of this Agreement.
9.2 ACFD’s Insurance. ACFD shall, at its sole expense, procure and maintain
throughout the Term (plus such earlier and later periods as ACFD may be in occupancy
of the Premises) all of the following:
(a) Commercial general liability insurance including contractual
liability coverage, written on an “occurrence” policy form, covering bodily injury,
property damage and personal injury arising out of or relating (directly or indirectly) to
ACFD’s operations, conduct, assumed liabilities, or use or occupancy of the Premises,
naming the Indemnitees as additional insureds, with minimum coverage in the amount of
Two Million Dollars ($2,000,000) per occurrence combined single limit for bodily injury
and property damage and Five Million Dollars ($5,000,000) in the aggregate. ACFD’s
liability coverage shall be adequate to provide protection against liability for damage or
loss arising in connection with ACFD’s work on Apparatus owned by third parties;
(b) Property insurance protecting ACFD against loss or damage by fire
and such other risks as are insurable under then available standard forms of “all risk”
insurance policies, covering ACFD’s personal property and trade fixtures in or about the
Premises, and any improvements and/or Alterations in the Premises, in an amount not
less than one hundred percent (100%) of their actual replacement cost or highest
insurable value;
(c) Workers’ compensation insurance in at least the statutory amounts;
and
(d) Comprehensive automobile liability insurance with a minimum
coverage of Two Million Dollars ($2,000,000) per occurrence, combined single limit
providing coverage for owned, hired and non-owned vehicles.
The foregoing policies shall protect ACFD as an additional named insured, and City and
the other Indemnitees as additional insureds, and if subject to deductibles shall provide
for deductible amounts not in excess of those approved in advance in writing by City in
its reasonable discretion. City reserves the right to increase the foregoing amount of
required liability coverage from time to time (but not more often than once each calendar
year) to adequately protect Indemnitees and to require that ACFD cause any of its
contractors, vendors or other parties conducting activities in or about or occupying the
Premises to obtain and maintain insurance as determined by City and as to which the
Indemnitees shall be additional insureds.
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9.3 Excess Coverage Liability Policy. Nothing in this Article IX shall prevent
ACFD from obtaining insurance of the kind and in the amounts provided for under this
Section under excess coverage liability insurance covering other properties as well as the
Premises; provided, however, that any such excess coverage liability insurance (i) shall
specify those amounts of the total insurance allocated to the Premises, which amounts
shall not be less than the amounts required by Section 9.2, (ii) such amounts so specified
shall be sufficient to prevent any one of the insureds from becoming a co-insurer within
the terms of the applicable policy, and (iii) shall, as to the Premises, otherwise comply
with the requirements of this Article as to endorsements and coverage.
9.4. Insurance Form. ACFD maintains its insurance through the County of
Alameda, which is self-insured. Insurance coverage, other than ACFD’s workers’
compensation insurance/coverage, shall (i) provide that no act or omission of ACFD
shall affect or limit the obligations of the insurer with respect to any other insured; (ii)
include all waiver of subrogation rights endorsement necessary to effect the provisions of
Section 9.6; and (iv) provide that the coverage shall be primary, that City, although an
additional insured, shall nevertheless be entitled to recovery for any damage to City or
the other Indemnitees by reason of acts or omission of ACFD, and that any coverage
carried by City shall be noncontributory with respect to coverage carried by ACFD. If
requested, proof of insurance coverage shall be delivered to City by ACFD on or before
the Commencement Date, and from time to time thereafter upon City’s request. City may
at any time, and from time to time, inspect and /or copy any and all insurance coverage
required by this Agreement.
9.5 Insurance of ACFD Contractors and Agents. ACFD shall require all of its
agents, contractors, workmen, mechanics, suppliers or invitees performing construction
or repair work on the Property or in the Improvements to carry adequate property,
liability, automobile and workers compensation insurance.
9.6 Waiver of Subrogation. ACFD and City each agree to waive, and as
applicable shall cause the insurance companies issuing their respective property (first
party) insurance to waive any subrogation rights that each Party and such companies may
have against ACFD or City, respectively, as long as the insurance is not invalidated by
the waiver. If the waivers of subrogation are contained in their respective insurance
policies, City and ACFD waive any right that either may have against the other on
account of any loss or damage to their respective property to the extent that the loss or
damage is insured under their respective insurance policies.
9.7 City’s Insurance. City shall maintain throughout the Term liability
insurance and property damage insurance comparable to or exceeding the coverage and
amounts of insurance carried by reasonably prudent municipal/government owners of
comparable property and workers’ compensation coverage as required by law.
ARTICLE X
ASSIGNMENT AND OCCUPANCY
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10.1 City’s Consent Required. ACFD shall not assign, mortgage, pledge,
encumber or otherwise transfer this Agreement. Except as set forth in this Section,
ACFD shall not permit all or any part of the Premises to be used or occupied for any
purpose by anyone other than ACFD without the prior written consent of City, which
City will not unreasonably withhold. Except as set forth in this section, any assignment
or agreement permitting any third party to use or occupy the Premises without City’s
prior written consent shall, at City’s option, be void and shall constitute an Event of
Default entitling City to terminate this Agreement and to exercise all other remedies
available to City under this Agreement and at law. Notwithstanding the foregoing, with
respect to an aggregate total of not more than twenty-five percent (25%) of the total
square footage of the Premises, ACFD may, without City’s consent, enter into
agreements permitting entities that provide public services (including other fire districts
and departments)to use or occupy the Premises. ACFD will notify City of any such
agreement, and if requested, shall provide copies of such agreements to City.
10.2 No Release of Obligations. Except as permitted pursuant to Section 10.1,
the consent by City to an assignment or agreement for use by others shall not relieve
ACFD or any assignee from the requirement of obtaining City’s express prior written
consent to any other or further assignment or agreement for use by another occupant. No
occupant may assign its rights or allow others to use the Premises, without City’s prior
written consent, which consent may be not be unreasonably withheld. Neither an
assignment nor the collection of rent by City from any person other than ACFD shall be
deemed a waiver of any of the provisions of this Article or release ACFD from its
obligations to comply with this Agreement, and ACFD shall remain fully and primarily
liable for all of ACFD’s obligations under this Agreement.
10.3 Recapture. As material consideration for the execution of this Agreement
by City, ACFD hereby agrees that whenever it delivers notice to City that it desires
approval of a use agreement or assignment which covers the entirety of the Premises,
City shall have the right to review the terms and conditions of such proposed use
agreement or assignment and shall have a right for a period of fifteen (15) business days,
to cancel this Agreement, and enter into a direct agreement with any prospective user or
assignee. Such fifteen (15) day period shall commence upon ACFD's delivery to City of
written notice of the terms of the proposed assignment or use agreement and financial
statements for the proposed assignee or user. If City exercises its right to cancel this
Agreement, ACFD shall surrender possession of all of the Premises not later than the date
on which the proposed use agreement or assignment term would commence.
10.4 Proceeds of Third Party Use Agreement or Assignment. Subject to
Section 10.5, if ACFD enters into any assignment or use agreement permitting a third
party to use or occupy the Premises, City shall be entitled to receive as Additional Rent
hereunder, one hundred percent (100%) of any consideration paid by the assignee or user
for the use or occupancy of the Premises in excess of the amount of Base Rent
attributable to the space that is the subject of the use or occupancy agreement, except that
ACFD may recapture on an amortized basis over the term of the use agreement or
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assignment, any brokerage commission paid by ACFD in connection with the agreement
or assignment (not to exceed the amount of commissions typically paid in the market at
the time of such agreement or assignment) and reasonable marketing costs paid by ACFD
in connection with the use agreement or assignment.
10.5 Rent Proceeds. Notwithstanding the provisions of Section 10.4, ACFD shall
be entitled to retain the excess rent attributable to payments made by users, assignees or
occupants who at any one time occupy or use portions of the Premises equal on an
aggregate basis to no more than twenty-five percent (25%) of the total square footage of
the Premises.
ARTICLE XI
DAMAGE AND DESTRUCTION
11.1 Repair and Restoration; Termination Rights. If all or part of the
Improvements or the Property is damaged by fire or other casualty, or if the
Improvements are so damaged that access to or use and occupancy of the Premises is
materially impaired, within forty-five (45) days of the date of the damage, City shall
notify ACFD of the estimated time, in City’s reasonable judgment, required for repair or
Repair Period
restoration (“”). If the estimated time is 180 days or less, City shall
proceed promptly and diligently to repair or restore the Premises or the portion of the
Improvements necessary for ACFD’s occupancy, and this Agreement shall remain in
effect, except that for the time unusable, ACFD shall receive a Rent abatement for that
part of the Premises rendered unusable in the conduct of ACFD’s business.
If the estimated time for repair or restoration is in excess of 180 days from the
date of the casualty, City, at its option exercised by written notice to ACFD within sixty
(60) days after the date of the casualty, shall either (a) commence to repair the damage, in
which case this Agreement shall continue in full force and effect, or (b) terminate this
Agreement as of the date specified by City in the notice, which date shall be not less than
thirty (30) nor more than sixty (60) days after the date such notice is given, and this
Agreement shall terminate on the date specified in the notice. If the time estimated for
repair is more than one year and City does not give notice terminating this Agreement,
then within thirty (30) days after ACFD receives City’s notice providing a Repair Period,
ACFD may give notice to City terminating this Agreement as of the date specified in
ACFD’s termination notice, which date shall not be before the date of such notice or
more than thirty (30) days after the date of ACFD’s termination notice.
If the time estimated for repair is less than one year, or is more than one year and
ACFD does not exercise its foregoing termination rights, and in either case City fails to
repair the damage by the date that is the later to occur of (i) one year from the date of the
damage, or (ii) ninety (90) days after the end of the Repair Period, then ACFD may give
notice to City, within ten (10) business days after the end of the Repair Period
terminating this Agreement as of the date specified in ACFD’s notice, which date shall
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not be earlier than 45 days after the date of ACFD’s termination notice nor more than 60
days after City’s receipt of ACFD’s termination notice; provided however, if City repairs
the damage for which it is responsible within 45 days after receipt of ACFD’s termination
notice, City may elect to nullify ACFD’s termination notice (and thereupon this
Agreement shall continue in full force and effect) by City’s notice of such repair and
election given to ACFD on or prior to the expiration of such 45-day period.
11.2 Damage Near End of Term. Notwithstanding anything to the contrary set
forth in this Article, if the Property or the Improvements are damaged during the last
twelve (12) months of the Term, City and ACFD shall each have the option to terminate
this Agreement by giving written notice to the other of the exercise of that option within
thirty (30) days after the damage or destruction, and this Agreement shall terminate as of
the date specified in such notice which shall be not before the date of such notice nor
more than 30 days after the date of such notice.
11.3 Rent Apportionment. If City or ACFD elects to terminate this Agreement
under this Article XI, ACFD shall pay Rent, prorated on a per diem basis and paid up to
the date of the casualty. If the Premises are wholly untenantable and this Agreement is
not terminated, Rent shall abate on a per diem basis from the date of the casualty or
default until the Premises are ready for occupancy by ACFD or the default is cured. If
part of the Premises are untenantable, Rent shall be prorated on a per diem basis and
abated in proportion to the portion of the Premises which is unusable until the damaged
part is ready for ACFD's occupancy. Notwithstanding the foregoing, if any damage was
caused by the gross negligence or willful misconduct of ACFD, its employees or agents,
then, in such event, ACFD agrees that Rent shall not abate or be diminished.
11.4 Waiver of Statutory Provisions. The provisions of this Agreement, including
those in this Article XI, constitute an express agreement between City and ACFD that
applies in the event of any damage to the Improvements or the Property. ACFD,
therefore, fully waives the provisions of any statute or regulation, including California
Civil Code sections 1932(2) and 1933(4), relating to any rights or obligations concerning
any such casualty.
11.5 Damage Caused by ACFD or ACFD Parties. Notwithstanding any
contrary provision of this Article XI, ACFD shall be solely responsible for the repair of
any damage to the Property or the Improvements resulting from the negligence, willful
action or failure to act by ACFD or ACFD Parties, and such repairs shall be undertaken at
ACFD’s sole expense.
ARTICLE XII
CONDEMNATION
12.1 Total Taking - Termination. If title to the Premises or so much thereof is
taken through the exercise of any government power (by legal proceedings or otherwise)
by any public or quasi-public authority or by any other party having the right of eminent
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domain, or by a voluntary sale or transfer either under threat of exercise of eminent
domain or while legal proceedings for eminent domain are pending so that reconstruction
of the Premises will not result in the Premises being reasonably suitable for ACFD’s
continued occupancy for the uses and purposes permitted by this Agreement, this
Agreement shall terminate as of the date possession of the Premises or part thereof is so
taken.
12.2 Partial Taking. If any part of the Premises is taken through the exercise of
eminent domain (or is voluntarily conveyed under the threat thereof) and the remaining
part is reasonably suitable for ACFD’s continued occupancy for the uses and purposes
permitted by this Agreement, this Agreement shall as to the part so taken terminate as of
the date that possession of such part of the Premises is taken and the Rent shall be
reduced in the same proportion that the floor area of the portion of the Premises taken
(less any addition thereto by reason of any reconstruction) bears to the original floor area
of the Premises as reasonably determined by City or City’s architect. City shall, at its
own cost and expense, make all necessary repairs or alterations to the Premises so as to
make the portion of the Premises not taken a complete unit.
12.3 No Apportionment of Award. All condemnation awards and similar
payments shall be paid and belong to City, except for any amounts awarded or paid
specifically to ACFD for improvements, removal and reinstallation of ACFD's trade
fixtures and personal property, ACFD's moving costs and ACFD's goodwill. It is
expressly understood and agreed by ACFD that except as otherwise stated in this Section,
City shall be entitled to the entire award for any partial or total taking of the Property.
12.4 Temporary Taking. No temporary taking of the Premises (which shall
mean a taking of all or any part of the Premises for 30 days or less) shall terminate this
Agreement or give ACFD any right to any abatement of Rent. ACFD may agree to a
temporary taking of a longer period. Any award made to ACFD by reason of such
temporary taking shall belong entirely to ACFD, and City shall not be entitled to share
therein.
ARTICLE XIII
SUBORDINATION AND ESTOPPEL; RIGHT OF FIRST OFFER
13.1 Estoppel Certificate. From time to time and within thirty (30) days after
request by City, unless the Alameda County Board of Directors is on recess, and then at
the first meeting thereafter, ACFD shall execute and deliver a certificate to any proposed
lender or purchaser, or to City, certifying, with any appropriate exceptions, (a) that this
Agreement is in full force and effect without modification except as noted, (b) the
amount, if any, of prepaid rent and Initial Contributions paid by ACFD to City (and not
returned to ACFD), (c) the nature and kind of concessions, rental or otherwise, if any,
which ACFD has received or is entitled to receive, (d) that City has performed all of its
obligations due to be performed under this Agreement and that there are no defenses,
counterclaims, deductions or offsets outstanding or other excuses for ACFD's
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
performance under this Agreement as of such date, and (e) any other fact reasonably
requested by City or such proposed lender or purchaser.
13.2 Subordination and Attornment. ACFD agrees that this Agreement is
subject and subordinate to (i) the lien of any mortgage or deed of trust on the
Improvements or the Property, and all renewals, extensions, modifications,
consolidations, and replacements of those items.
13.3 Subordination Agreement. The subordination described in this Article XIII
is self-operative, and no further instrument of subordination shall be required to make it
effective. To confirm this subordination, however, ACFD shall, within thirty (30) days
after City’s request (unless the Alameda County Board of Directors is on recess, then at
the first meeting thereafter), execute any further instruments or assurances in recordable
form that City reasonably considers necessary to evidence or confirm the subordination
of this Agreement to any such encumbrances.
13.4 Right of First Offer. Provided that ACFD is not in default under this
Agreement beyond any applicable notice and cure periods, if during the Term of this
Agreement, City determines to sell the Premises, ACFD shall have a right of first offer as
set forth herein. Prior to City’s entering into an agreement for the marketing of the
Premises or City’s solicitation of offers to purchase the Premises from third parties, City
First Offer
shall offer in writing (the “”) to sell the Premises to ACFD on the same terms
and conditions that City would then be willing to offer to a third party. The First Offer
shall, at a minimum, include the following information: the purchase price, the method
of payment of the purchase price; the amount of any required earnest money deposit; and
the timing for the close of escrow. ACFD shall have forty-five (45) days from the date
Acceptance Period
of the First Offer to accept the First Offer (the “”) by delivering to
City its acceptance on or before 5:00 p.m. on the last day of the Acceptance Period. If
ACFD fails to accept the First Offer before the Acceptance Period ends, the First Offer
shall be deemed rejected. If ACFD responds to the First Offer with anything other than
an unequivocal, unconditional acceptance or rejection, the right of first offer shall
terminate and the response shall be deemed an offer to purchase the Premises on the
Counter Offer
terms and conditions in the response (the “”). City shall be entitled to
accept or reject the Counter Offer in City’s sole discretion, and if City rejects the Counter
Offer, the Counter Offer shall be deemed to be a rejection of the First Offer.
If ACFD accepts the First Offer, ACFD shall have sixty (60) days following
Closing Period
acceptance of the First Offer (“”) to obtain from the Alameda County
Board of Directors approval to execute a contract to purchase the Premises pursuant to
the terms and conditions of the First Offer. If ACFD fails to obtain such approval within
the Closing Period, any earnest money paid by ACFD pursuant to the acceptance shall be
paid to City as City’s liquidated damages, and the agreement to purchase the Premises
together ACFD’s rights pursuant to this Section 13.4 shall be terminated. After the
termination, City shall be free to enter into an agreement for the sale of the Premises with
a third party on whatever terms City may choose to offer without further obligation under
this Section.
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
If ACFD rejects the First Offer and City subsequently negotiates with a third
party and is willing to enter into an agreement with that party on terms less favorable to
City or more favorable to the purchaser than those contained in the First Offer, City shall
offer to sell the Property to ACFD on those new terms by giving ACFD written notice
Second Offer
(“”). ACFD shall have twenty (20) business days from receipt of the
Second Offer to obtain from the Alameda County Board of Directors approval to accept
the new terms; provided however, if the Alameda County Board of Directors is on recess
on the date that such 20-day period expires, this time period may be extended to the date
of the next Board meeting. If ACFD fails to accept the new terms or rejects the new
terms in writing, City shall be free to consummate the transaction with the third party
without any liability to ACFD. If ACFD accepts the new terms, ACFD shall then
consummate the transaction with City on the terms and conditions in the Second Offer on
the later of (a) the time for consummation of the Second Offer, (b) sixty (60) days
following the date of the Second Offer, or (c) other date agreed upon by the Parties.
The rights and obligations of the Parties under this Section 13.4 shall
automatically terminate and have no further effect upon the first of the following events
to occur: (i) the expiration of the Term of this Agreement, or (ii) ACFD rejects a First
Offer or a Second Offer and City subsequently consummates a sale of the Premises to a
third party.
The right of first offer provided pursuant to this Section 13.4 is personal to ACFD
and may not be assigned by operation of law or otherwise without the express written
consent of City. Notwithstanding the foregoing, the right of first offer may be assigned
“County”)
to the County of Alameda, a political subdivision of the State of California (
provided that the County’s intended use for the Premises is the provision of fire
.
protection related services and uses, including the uses permitted under this Agreement
ARTICLE XIV
SURRENDER OF PREMISES; HOLDING OVER
14.1 Surrender of Premises. On expiration of this Agreement, ACFD shall
surrender the Premises in the same condition as when the Term commenced, ordinary
wear and tear excepted. Except for furniture, equipment and trade fixtures (other than
those which are affixed to the Premises so that they cannot be removed without material
damage to the Premises that cannot be repaired) all alterations, additions or
improvements, whether temporary or permanent in character, made in or upon the
Premises, either by City or ACFD, shall be City's property and at the expiration or earlier
termination of the Agreement shall remain on the Premises without compensation to
ACFD; provided that, upon reasonable written request of City, ACFD shall, at its expense
and without delay, remove any alterations, additions or improvements (including, without
limitation, all telecommunications equipment and cabling, and all alterations and
improvements made by ACFD after the Commencement Date) made to the Premises by
ACFD and designated by City to be removed, and shall repair any damage to the Property
or the Improvements caused by such removal. If ACFD fails to complete such removal or
to repair the Premises, City may complete such removal and repair, and ACFD shall
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
reimburse City therefor. If ACFD fails to remove such property as required under this
Agreement, City may dispose of such property in its sole discretion without any liability
to ACFD, and further may charge the cost of any such disposition to ACFD.
14.2 Hold Over Use. If ACFD remains in possession of the Premises after the
expiration or earlier termination of this Agreement with City’s written consent, ACFD
shall be deemed, at City's option, to occupy the Premises on a month-to-month basis.
During such occupancy (and prior to any termination by City), ACFD agrees to pay City,
monthly in advance, an amount equal to the greater of (i) the then fair market rental (as
reasonably determined by City) for the Premises, or (ii) one hundred and six percent
(106%) of all Base Rent which would become due during the last month of the Term,
together with all other amounts payable by ACFD to City under this Agreement. Except
as provided in the preceding sentence, such month-to-month occupancy shall be on the
same terms and conditions of this Agreement except that any renewal options, expansion
options, rights of first refusal or any other rights or options contained in this Agreement
shall be deemed to be terminated and shall be inapplicable thereto. City’s acceptance of
rent after such holding over with City’s written consent shall not result in any other
tenancy or in a renewal of the initial term of this Agreement.
If after written notice to ACFD that City does not consent to ACFD continuing to
occupy the Premises and ACFD remains in possession of the Premises after the
expiration or earlier termination of this Agreement without City’s written consent,
ACFD’s continued possession shall be on the basis of a tenancy at sufferance and ACFD
shall pay Rent during the holdover period in an amount equal to the greater of (i) one
hundred fifty percent (150%) of the then fair market rental (as reasonably determined by
City) for the Premises, or (ii) two hundred percent (200%) of all Base Rent which would
become due the last month of the Term, together with all other amounts payable by
ACFD to City.
ARTICLE XV
CITY'S RESERVED RIGHTS
.
15.1 Rights Reserved to City. Without liability to ACFD, and without effecting
an eviction or disturbance of ACFD's use or possession, City shall have the right to (i)
grant utility easements or other easements in, or subdivide or make other changes in the
legal status of the Property as City shall deem appropriate in its sole discretion, provided
such changes do not substantially interfere with ACFD's use of the Premises for the
Permitted Use, however, prior to doing so City will notify ACFD allowing sufficient time
for ACFD to comment on whether such action will interfere with its use; (ii) enter the
Premises at reasonable times and with reasonable advance notice (and at any time in the
event of an emergency), to inspect (including inspections by prospective lenders for or
buyers of the Property), or repair the Improvements and to perform any acts related to the
safety, protection, reletting, sale or improvement of the Property or the Improvements;
(iii) install and maintain signs on the Property; and (iv) make such rules and regulations
as, in the reasonable judgment of City, may be needed from time to time for, the care and
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cleanliness of the Property and the Improvements and the preservation of good order
therein. If an emergency necessitates immediate access to the Premises, City shall
contact the ACFD Chief, or designee, who will be available 24 hours a day all days of the
year to allow access to the Property and Improvements at all times.
ARTICLE XVI
DEFAULT AND REMEDIES
Event of Default”
16.1 ACFD's Default. It shall be an “ hereunder if ACFD
shall:
(a) fail to pay when due any monthly installment of Rent (or, if applicable
under this Agreement, ACFD’s Share of Operating Expenses), or fail to pay any
other amount owed by ACFD to City under this Agreement as and when due and
such failure continues for thirty (30) days following written notice thereof to
ACFD by City;
(b) if requested, fail to provide any certificate, instrument or assurance as
required pursuant to Article IX if the failure continues for thirty (30) days after
written notice of the failure from City to ACFD;
(c) make a general assignment for the benefit of its creditors or file a
petition for bankruptcy or other reorganization, liquidation, dissolution or similar
relief;
(d) have a proceeding filed against ACFD seeking any relief mentioned in
(c) above which is not discharged within sixty (60) days thereafter;
(e) have a trustee, receiver or liquidator appointed for ACFD or a
substantial part of its property;
(f) abandon or vacate the Premises for more than three (3) consecutive
months;
(g) assign this Agreement or sublease any portion of the Premises in
violation of Article X; or
(h) fail to comply with any other provision of this Agreement in the
manner required hereunder and such failure continues for thirty (30) days after
written notice thereof to ACFD by City (or if the noncompliance cannot by its
nature be cured within the 30-day period, if ACFD fails to commence to cure such
noncompliance within the 30-day period and thereafter diligently prosecute such
cure to completion).
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16.2 Remedies on Default. Upon the occurrence of an Event of Default, and after
written notice to ACFD that City considers ACFD in Default, City shall have the right to
pursue any one or more of the following remedies in addition to any other remedies now
or later available to City at law or in equity. These remedies are not exclusive but instead
are cumulative.
(a) Continue Agreement. City may continue this Agreement in full force
and effect. In such case, so long as City does not terminate ACFD's right to
possession, the Agreement will continue in effect and City shall have the right to
collect Rent when due, and may undertake efforts to relet the Premises, or any
part of them, to third parties for ACFD's account. Reletting can be for a period
shorter or longer than the remaining term of this Agreement. ACFD shall pay to
City the Rent due under this Agreement on the date the Rent is due, less the Rent
City receives from any reletting. No act by City allowed by this Section shall
terminate this Agreement unless City terminates ACFD’s right to possession.
After an Event of Default and for as long as City does not terminate ACFD's right
to possession of the Premises, if ACFD obtains City's consent, ACFD shall have
the right to assign or sublet its interest in this Agreement, but ACFD shall not be
released from liability.
(b) Terminate Agreement. City may terminate the Agreement and ACFD's
right to possession of the Premises at any time following an Event of Default. On
termination, City shall have the right to recover from ACFD all of the following:
(i) The worth, at the time of the award, of any unpaid Rent that
had been earned at the time of termination of this Agreement;
(ii) The worth, at the time of the award, of the amount by which
the unpaid Rent that would have been earned after the date of termination
of this Agreement until the time of the award exceeds the amount of the
unpaid Rent that ACFD proves could have been reasonably avoided;
(iii) The worth, at the time of the award, of the amount by which
the unpaid Rent for the balance of the Term after the time of the award
exceeds the amount of unpaid Rent that ACFD proves could have been
reasonably avoided;
(iv) Any other amount necessary to compensate City for all
detriment proximately caused by ACFD's failure to perform obligations
under this Agreement, including, without limitation, brokerage
commissions, advertising expenses, expenses of remodeling the Premises
for a new tenant, and any special concessions made to obtain a new tenant;
and
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
(v) Any other amounts, in addition to or in lieu of those listed
above that may be permitted by law.
"The worth, at the time of the award” as used in clauses (i) and (ii) of this
Paragraph (b) is to be computed by allowing interest at the maximum rate allowed
by law at that time, or if there is no such maximum, at a rate of ten percent (10%)
per annum. "The worth, at the time of the award," as referred to in clause (iii) of
this Paragraph (b) is to be computed by discounting the amount at the discount
rate of the Federal Reserve Bank of San Francisco at the time of the award plus
one percent (1%).
16.3 City’s Default. City’s failure to perform any of its obligations under this
Agreement shall constitute a City Event of Default hereunder if the failure continues for
thirty (30) days after written notice of the failure from ACFD; provided however, if the
failure to perform cannot by its nature be cured within the 30 day period, City’s failure to
perform shall not constitute a City Event of Default if City undertakes to cure the failure
within such thirty (30) day period and diligently and continuously attempts to complete
the cure as soon as reasonably possible.
16.4 Access. Full ingress and egress to the Premises by Apparatus is a material
term of this Agreement. If at any time access to the Premises is obstructed or blocked,
City shall immediately take reasonable action so that full access is restored. If access is
impaired, but sufficient to allow ingress and egress of Apparatus, then City shall
promptly take reasonable actions to restore full access. If the City’s response is not
adequate, ACFD in its reasonable discretion may correct the problem or arrange for
appropriate alternative access. ACFD may immediately take action, after verbal notice to
City, in any emergency situation. An emergency situation includes any fire, natural or
other disaster or instance where Apparatus that is located on the Premises is needed and
any time there are insufficient Apparatus available to meet minimum daily deployment
requirements. If the obstruction or blockage has resulted from City’s negligence or
willful action, City shall reimburse ACFD for all reasonable costs incurred by ACFD in
connection with such correction or alternative access within thirty (30) days following
ACFD’s provision to City of an invoice with documented costs. If access problems
reoccur or if ACFD reasonably determines that City is not taking appropriate action to
restore access consistent with the Section, ACFD shall have the option to immediately
terminate this Agreement. If any obstruction or blockage has resulted from actions of
third parties or natural disasters, the Parties will work together and fully cooperate to
obtain reimbursement from third parties, including federal agencies.
ARTICLE XVII
COMPLETION OF THE PROJECT
17.1 Project Completion. The obligations of City and ACFD, with respect to
preparation of the Premises for occupancy and completion of the Project are set forth in
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
the Improvement Agreement attached hereto as Exhibit B, as it may be amended prior to
signature. The Improvement Plan and any further amendments to the Improvement Plan,
can be executed by the ACFD Chief and by the City Manager. It is acknowledged and
agreed that all improvements constructed by City pursuant to this Agreement are and
shall be the property of City from and after their installation.
ARTICLE XVIII
MISCELLANEOUS
18.1 No Waiver. No receipt and retention by City of any payment tendered by
ACFD in connection with this Agreement shall constitute an accord and satisfaction, or a
compromise or other settlement, notwithstanding any accompanying statement,
instruction or other assertion to the contrary unless City expressly agrees to an accord and
satisfaction, or a compromise or other settlement, in a separate writing duly executed by
City. City will be entitled to treat any such payments as being received on account of any
item or items of Rent, interest, expense or damage due in connection herewith, in such
amounts and in such order as City may determine at its sole option. Failure of any party
to exercise any right in one or more instance shall not be construed as a waiver of the
right to strict performance or as an amendment to or modification of this Agreement.
Any waiver of any condition or provision set forth in this Agreement shall not be deemed
a waiver of any subsequent breach of such condition or provision or of any other
condition or provision, nor shall any such waiver be deemed a continuing waiver.
18.2 Severability. The Parties intend this Agreement to be legally valid and
enforceable in accordance with all of its terms to the fullest extent permitted by law. If an
arbitrator or a court of competent jurisdiction holds any provision hereof to be invalid or
unenforceable in whole or in part for any reason, the validity and enforceability of the
remaining clauses, or portions of them, shall not be affected unless an essential purpose
of this Agreement would be defeated by loss of the invalid or unenforceable provision.
18.3 Governing Law; Construction. This Agreement shall be construed
according to the laws of the State of California without regard to principles of conflict of
laws. The parties acknowledge that this Agreement is the product of negotiation and
compromise on the part of both parties and agree that the provisions hereof shall be
construed in accordance with their fair meaning and not in accordance with any rule
providing for interpretation against the party who causes the uncertainty to exist or
against the drafter. The captions used for the Sections and Articles of this Agreement
have been inserted for convenience only and shall not be used to alter or interpret the
content of this Agreement.
18.4 Binding Effect; Survival. The covenants, conditions, warranties and
agreements contained in this Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and permitted assigns. The representations and
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warranties of City and ACFD and the indemnification obligations of City and ACFD set
forth herein shall survive the expiration or termination of this Agreement as shall all other
provisions hereof which are intended to survive such expiration or termination.
18.5 Time. Time is of the essence of each provision of this Agreement.
18.6 Entire Agreement; Amendments. This Agreement and Exhibits A through
B-2 attached hereto and incorporated herein by this reference, constitutes the final,
complete, and exclusive statement of the terms of the agreement between City and ACFD
pertaining to ACFD’s use of the Premises, and supersedes all prior and contemporaneous
understandings or agreements of the parties with respect thereto. This Agreement may
not be amended or modified except in a writing signed by both parties.
18.7 Notices. All notices delivered pursuant to this Agreement shall be in
writing and delivered to City or ACFD at the applicable address designated in Section 1.1
or to such other address as may hereafter be designated by either party by written notice
delivered to the other party in accordance with this Section. Such notices shall be
effective on the earlier to occur of actual receipt or: (i) if mailed, five (5) days after
posting at a United States post office, (ii) upon receipt if mailed by certified mail with
return receipt requested, and (iii) upon delivery if delivered by overnight delivery service
and delivery is confirmed by the delivery service.
18.8 Force Majeure. Except as otherwise provided in this Agreement, the time
for performance of an obligation other than the payment of money under this Agreement
shall be extended for the period during which a party is prevented from performing due to
Unavoidable delay”
Unavoidable Delay. “ shall mean any and all delay beyond the
applicable party’s reasonable control, including without limitation, delays caused by the
other party; governmental restrictions, regulations, controls, preemptions or delays;
orders of civil, military or naval authorities; strikes, labor disputes, lock-outs, shortages
of labor or materials or reasonable substitutes therefore; Acts of God; fire, earthquake,
floods, explosions or other casualties; extreme weather conditions or other actions of the
elements; enemy action, civil commotion, riot or insurrection.
18.9 Attorneys’ Fees . If the services of an attorney are required by any party to
secure the performance hereof or otherwise upon the breach or default of the other party,
or if any judicial remedy or arbitration is necessary to enforce or interpret any provision
of this Agreement, or if the services of an attorney are required upon the bankruptcy of a
party to this Agreement to compel or object to assumption or rejection of this Agreement,
seek relief from the automatic stay or object to an action to recover a preference or
fraudulent transfer, the prevailing party shall be entitled to reasonable attorneys' fees,
costs, expert witnesses fees, post judgment collection costs, and other expenses, in
addition to any other relief to which such party may be entitled.
18.10 Authority. Each party warrants and represents that it has full authority to
enter into this Agreement, that this Agreement constitutes a binding obligation of such
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
party, and that the individual(s) signing on behalf of such party are duly authorized to
bind such party hereto.
18.11 Approvals. Whenever the consent or approval of City is required
hereunder, such consent or approval may be granted or withheld by the City Manager or
his or her designee, unless the City Manager determines in his or her discretion that such
matter shall be referred to City’s governing body for consideration.
18.12 Counterparts. This Agreement may be executed in counterparts, each of
which shall constitute an original, and all of which together shall constitute one and the
same instrument. The signature page of any counterpart may be detached therefrom
without impairing the legal effect of the signature(s) thereon provided such signature
page is attached to any other counterpart identical thereto except having additional
signature pages executed by any other party. This Agreement shall take effect when
signed by all parties hereto and all parties have written notice of the signature of all the
remaining parties.
18.13 Brokers. ACFD and City each represent and warrant to the other that
except as stated in this Section, no broker or agent is entitled to a broker’s commission or
finder’s fee in connection with the execution of this Agreement or the consummation of
the transaction contemplated hereby, and each party agrees to defend and indemnify the
other party against any loss, expense or liability incurred by the other party as a result of
a breach of such representation and warranty. The provisions of this Section shall
survive the expiration or earlier termination of the Agreement. City shall pay a
consulting fee to Colliers International in accordance with a separate agreement.
18.14 Submission of Agreement. Submission of this document for examination
or signature by the Parties does not constitute an option or offer to allow use the Premises
on the terms in this document or a reservation of the Premises in favor of ACFD. This
Agreement is not effective until executed and delivered by both City and ACFD.
18.15 Non-Agency. It is not the intention of City or ACFD to create hereby a
relationship of principal and agent, and under no circumstances shall ACFD be
considered the agent of City, nor City an agent of ACFD.
SIGNATURES ON FOLLOWING PAGE
.
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
NOW THEREFORE, City and ACFD have executed this Maintenance Facility
Use Agreement as of the date first written above.
ACFD CITY
ALAMEDA COUNTY FIRE DISTRICT
CITY OF DUBLIN
By: _______________________________ By: _______________________________
Print Name:________________________
Its: City Manager
Title:_____________________________
Attest:_____________________________
City Clerk
Approved as to Form:
Approved as to Form:
Donna R. Ziegler, County Counsel
___________________________________
City Attorney
By:__________________________
Senior Deputy County Counsel
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Exhibit A-1
DIAGRAM OF PROPERTY
The Property is the area contained within the dark lines shown on the following diagram
(identified by numbers 1-5).
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Exhibit A-2
Memorandum Confirming Commencement Date and Total Project Costs
For
MAINTENANCE FACILITY USE AGREEMENT
(Scarlett Court)
This Memorandum Confirming Commencement Date and Total Project Costs, executed
Effective Date”
as of _____________, 20__ (“) is a supplement to that certain
Agreement”
Maintenance Facility Use Agreement (“) entered into effective as of July 1,
City
2012 by and between the CITY OF DUBLIN, a municipal corporation (“”), and
ALAMEDA COUNTY FIRE DISTRICT, a dependent fire district formed under the Fire
Protection District Law of 1961 (Health and Safety Code Sections 13801 et seq.) and
ACFD”
governed by the Alameda County Board of Directors (“). Capitalized terms used
without definition herein shall have the meanings ascribed to such terms in the
Agreement.
City and ACFD hereby agree as follows:
Commencement Date:
1. The Commencement Date as defined in the Agreement
shall be: __________________, 20____.
Base Rent:
2. As Base Rent for use of the Premises, ACFD will pay the City as
follows:
Year Monthly
Base Rent
1-2 $_______________
3-4 $_______________
5-6 $_______________
7-8 $_______________
9-10 $_______________
11-12 $_______________
13-14 $_______________
15-16 $_______________
17-18 $_______________
19-20 $_______________
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
3. Exhibit 1 “Formula for Determining Base Rent” attached hereto and incorporated
into this Memorandum by reference, specifies the final Total Project Costs which
are the basis for determining Base Rent.
4. In the event of conflict between the terms of this Memorandum and the terms of
the Agreement, the terms of this Memorandum shall prevail.
IN WITNESS WHEREOF, City and ACFD have executed this Memorandum
Confirming Commencement Date and Total Project Costs as of the date first written
above.
ACFD CITY
ALAMEDA COUNTY FIRE DISTRICT,
CITY OF DUBLIN,
By: _______________________________ By: _______________________________
Print Name:________________________ Its: City Manager
Title:_____________________________
Attest:_____________________________
City Clerk
Approved as to Form:
Approved as to Form:
Donna R. Ziegler, County Counsel
___________________________________
City Attorney
By:__________________________
Deputy County Counsel
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Exhibit B
IMPROVEMENT AGREEMENT
Improvement Agreement
THIS IMPROVEMENT AGREEMENT (“”)
“Agreement”
supplements the Maintenance Facility Use Agreement (the ) executed
concurrently herewith by and between the CITY OF DUBLIN, a municipal corporation
City
(""), and ALAMEDA COUNTY FIRE DISTRICT, a dependent fire district formed
under the Fire Protection District Law of 1961 (Health and Safety Code Sections 13801
ACFD
et seq.) and governed by the Alameda County Board of Directors (""). All
capitalized terms not defined herein shall have the same meanings as set forth in the
Agreement.
1. Determination of Base Rent Based on Costs. City and ACFD each
acknowledge and agree that except as otherwise specified, the work described in this
Improvement Agreement shall be completed by City, and the Base Rent shall be
calculated based upon the costs and the formula set forth in Exhibit B-2; provided
however, the Base Rent shall be adjusted to reflect actual costs once they have been
determined.
“Scope of
2. Scope of Work. City shall undertake the following work (the
Work”)
in accordance with the Final Plans (defined in Section 3 below):
(i) Site preparation, including without limitation, removal of existing asphalt;
(iii) Construction of an approximate 18,300 square foot facility (the
“Building”
) and completion of Base Building Work, including: (a) concrete floors
(without floor coverings) of tensile strength appropriate for Apparatus; (b) unfinished
perimeter walls (including windows, window frames, and doors); (c) unfinished ceilings;
(d) finish of the restrooms; (e) closets for telephone and electrical systems (but not the
systems themselves); (f) Building mechanical, electrical, and plumbing systems within
the Building core only; (g) interior core walls; (h) standard fire sprinkler protection on
each floor; (i) any code-required items relating to the other elements of the Base Building
Work, such as exit signs, speakers, fire doors, and any other life-safety support system for
each floor; and (j) dry wall and tape of interior columns;
ACFD Improvements
(iv) Installation of improvements (the “”) in the
Building in accordance with the Final Plans;
(v) Site improvements, including paving and landscaping in accordance with
the Final Plans.
3. Plans.
(a) City and ACFD will approve in writing plans for completion of the Scope of
“Plans”)
Work (the and an estimate of the Total Project Cost. Upon agreement by City
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
and ACFD on the Plans, a true and correct copy of the Plans will be incorporated into the
Agreement by execution of a Memorandum of Plans, substantially in the form attached
hereto as Exhibit B-1. The approved Plans shall be attached to the Memorandum of
Plans which, for purposes of the inclusion of the Plans only the Memorandum of Plans,
attached hereto as Exhibit B-1, can be executed by the ACFD Chief and the City
Manager. The Total Project Cost estimate is attached to this Improvement Agreement as
Exhibit B-2 which is incorporated herein by this reference.
(b) City and ACFD shall cooperate in good faith to finalize the Plans, without
delay. ACFD shall fully cooperate by providing City, its architects, engineers, and
contractors with timely information and approvals of plans, drawings, and specifications.
Any acts by City or ACFD to delay or otherwise act negligently or in bad faith in
approving the Plans and/or cooperating with each other in the design and construction of
the ACFD Improvements shall result in a Party Delay (as hereinafter defined) under this
Improvement Agreement.
(c) City and ACFD acknowledge that the Plans may not depict certain structural
elements of the Building and/or various elements of the Building systems that may result
in material modifications to the final plans and specifications for the ACFD
Structural Modifications
Improvements (collectively “”). Furthermore, any final plans
and specifications for the construction of the ACFD Improvements may require
modification to account for the requirements of building codes and other legal
requirements of applicable governmental entities, including, but not limited to, Title 24
Building Codes
and the Americans with Disabilities Act (collectively the “”). Within
ninety (90) days after the date that the initial Memorandum of Plans is executed, City
shall cause to be prepared final plans and specifications in substantial conformity with the
Plans taking into account (i) Structural Modifications, (ii) the requirements of the
Building Codes, (iii) other modifications resulting from physical constraints of the
Premises, and (iv) modifications requested by ACFD and consented to by City, which
Final Plans
consent shall not be unreasonably withheld (the “”). Upon agreement by City
and ACFD on the Final Plans, a true and correct copy will be attached to this
Improvement Agreement by execution of a second Memorandum of Plans, executed by
the ACFD Chief and City Manager substantially in the form attached hereto as Exhibit B-
1. ACFD agrees that, in addition to other factors and considerations City may take into
account, it shall not be unreasonable for City to withhold its consent to any requested
modifications to the Plans or the Final Plans (i) if such requested modifications would
not comply with the Building Codes, (ii) if such requested modifications would
unreasonably delay the completion of the ACFD Improvements beyond the Scheduled
Completion Date, or (iii) if such requested modifications would cause an undue burden
on the architect, the contractor, the subcontractors, or City’s personnel.
(d) Total Project Cost shall include, without limitation, all architectural and
engineering fees and costs incurred in connection with completion of the Scope of Work
as depicted on the Final Plans. Total Project Cost shall also include any and all
architectural and engineering fees and costs incurred as a result of changes in the Final
Plans requested by ACFD.
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
4. Delay
(a). The Commencement Date shall not be delayed, postponed, or adjusted due to
a Party Delay. No Party Delay or Force Majeure Delay shall be deemed to have occurred
unless and until the Party claiming such delay has provided written notice to the other
Party specifying the action or inaction that such notifying party contends constitutes a
Party Delay or Force Majeure Delay, as applicable. If such action or inaction is not cured
within fifteen (15) days after receipt of such notice, then a City Delay, Force Majeure
Delay, or ACFD Delay, as set forth in such notice, shall be deemed to have occurred
commencing as of the date such notice is received and continuing for the number days
the design of or completion of the ACFD Improvements was in fact delayed as a direct
result of such action or inaction.
Party Delay
(b) The term “” as used in this Improvement Agreement shall mean
any delay that either party may encounter in the performance of their obligations under
this Improvement Agreement because of the other Party’s acts or omissions of any
nature, whether committed willfully, negligently, intentionally, or otherwise, that result in
any delay including any: (i) delay attributable to changes in or additions to the Plans, or
to the ACFD Improvements requested by ACFD, as well as any delays caused by a
change order issued at the other Party’s request; (ii) delay attributable to failure to
timely approve any and all Plans for ACFD Improvements; (iii) delay attributable to
failure to act in good faith in cooperating with the other Party, its architects, engineers,
and contractors in approving Plans; (iv) delay attributable to postponement of any ACFD
Improvements at the request of a Party; (v) delay by a Party in furnishing information or
giving any other approvals or authorizations within the time limits set forth in this
Improvement Agreement, or if no time is set forth for such performance in this
Improvement Agreement, then a reasonable time, time being of the essence; (vi) delay
attributable to the failure of a Party to pay, when due, any amounts required to be paid by
pursuant to this Improvement Agreement or the (vii) any actual delay in the design and/or
completion of the Scope of Work resulting from not responding to requests for
authorization or approval within the time period provided for response to such request or,
if no such time is stated, beyond a reasonable time therefore; (viii) any actual delay in the
design and/or completion of ACFD Improvements attributable solely to the acts or
failures to act, whether willful, negligent, or otherwise, of a Party, its agents, or
contractors, to the extent contrary to the terms hereof.
Force Majeure Delay
(c) The term “” as used in this Improvement Agreement
shall mean any (i) actual delay in the design and/or completion of the Scope of Work
attributable to any strike, lockout, or other labor or industrial disturbance (whether or not
on the part of the employees of either party hereto), civil disturbance, further order
claiming jurisdiction, act of public enemy, war, riot, terrorism, sabotage, blockade, or
embargo; (ii) actual delay in the design and/or completion of ACFD Improvements due to
changes in any Laws, including the Americans with Disabilities Act; or (iii) actual delay
in the design and/or completion of the Scope of Work attributable to terrorist act,
lightning, earthquakes, fire, storm, hurricane, tornado, flood, washout, explosion, or any
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
other similar industry-wide or Building-wide cause beyond the reasonable control of the
party from whom performance is required, or any of its contractors, or other
representatives. Any prevention, delay, or stoppage due to any Force Majeure Delay shall
excuse the performance of the Party affected for a period of time equal to any such
prevention, delay, or stoppage, except the obligations of either Party to pay money,
including Rent, and all other charges, pursuant to the terms of the Agreement.
5. Changes. ACFD shall not request or make any changes or substitutions to the
Final Plans without City’s prior written approval, which approval shall not be
unreasonably withheld; provided, however, that City may disapprove, in its sole and
absolute discretion, any such changes or substitutions that: (i) do not conform to
applicable governmental regulations or are disapproved by any governmental agency; (ii)
require power consumption and/or Building services beyond the level normally provided
to other occupants in the Building; (iii) overload the floors; or (iv) in City’s reasonable
opinion, are of a nature or quality that is inconsistent with City’s objectives concerning
the appearance or quality of the Building. Any such requested changes or substitutions
shall be subject to the provisions of Paragraph 4 above, and may constitute a Party Delay
as described in Paragraph 4 above.
6. Total Project Cost.
Total Project Cost
(a) For purposes hereof, “” shall include, without
limitation, the following: (i) all design fees, engineering fees, and consultants’ fees
incurred by City in connection with the design and engineering of all components of the
Scope of Work, including the costs of space plans and all plans and specifications; (ii)
governmental agency plan check, permit, and other fees; (iii) sales and use taxes; (iv)
Title 24 fees; (v) testing and inspection costs; (vi) the cost of materials, labor, and
supplies; (vii) the general contractor’s overhead and profit; (viii) charges for water,
electricity, gas, and HVAC during the construction of the Building and the ACFD
Improvements; (ix) all other costs expended or to be expended in connection with the
construction of the Project, including without limitation, demolition costs, site
preparation costs, site improvement costs, and the cost of construction of the Building
and the ACFD Improvements; (x) City’s administrative and construction management
fees, and(xi) City’s return on costs equal to four percent (4%) of all Project costs, as
more particularly set forth in Exhibit B-2.
(b) If ACFD requests any changes or substitutions to the Plans, and City
approves such changes or substitutions, and such changes and/or substitutions result in an
increase in Total Project Cost, then Base Rent payable under the Agreement shall be
adjusted to take into consideration such increased costs. All changes or substitutions
shall be made at reasonably competitive prices.
(c) City and ACFD acknowledge that the costs set forth in Exhibit B-2 are an
estimate. The Parties agree that when Total Project Cost is determined, a revised Exhibit
B-2 shall be appended to the Memorandum Confirming Commencement Date and Total
Project Costs and shall serve as the basis for determination of Base Rent.
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
7. Standards for Performance of the Work. City shall cause the
Improvements to be constructed in a good and workmanlike manner, free from design,
material, and workmanship defects in accordance with the Final Plans and all Applicable
Laws.
8. Inspection and Punchlist. ACFD’s representative shall have the right to
enter the Premises at all reasonable times for the purpose of inspecting the progress of
construction of the Improvements; provided however, during construction of the Project,
ACFD shall not enter the Premises unless accompanied by an authorized agent of City.
City shall notify ACFD when the Improvements are substantially complete. On receipt of
such notice, ACFD’s representative, City’s representative, and the architect shall
promptly inspect the Improvements and prepare a written list (“Punchlist”) of any items
that are defective, incomplete, or do not conform to the Final Plans, applicable permits or
Applicable Laws.
9. ACFD’s Work. Any item or work not shown in the Final Plans, including,
for example, telephone and data service or furnishings, for which ACFD contracts
ACFD’s Work
separately (hereinafter “”), shall be conducted in such a way as not to
hinder, cause any disharmony with, or delay work of improvement in the Building.
ACFD shall cause its suppliers and contractors to engage only labor that is harmonious
and compatible with other labor working on the Project. In the event of any labor
disturbance caused by persons employed by ACFD or ACFD’s contractor, ACFD shall
immediately take all actions necessary to eliminate such disturbance. At any time any
supplier, contractor, workman, or mechanic performing ACFD’s Work hinders or delays
any other work of improvement on the Property or performs any work that may or does
impair the quality, integrity, or performance of any portion of the Building, ACFD shall
cause such supplier, contractor, workman, or mechanic to leave the Premises and remove
all his tools, equipment, and materials immediately upon written notice delivered to
ACFD, and ACFD shall reimburse City for any repairs or corrections to the Project
caused by or resulting from the work of any supplier, contractor, workman, or mechanic
with whom ACFD contracts as Additional Rent under the Agreement. If requested,
ACFD shall provide City with adequate proof of insurance required to be maintained by
ACFD pursuant to the terms of the Agreement, prior to commencing any ACFD Work.
10. Completion of Scope of Work. ACFD and City shall review and approve the
Project construction schedule prior to commencement of work.
11. Party Representatives.
11.a ACFD has designated Deputy Chief Demetrious Shaffer, or his designee,
to work with City’s representatives throughout the period of construction of the ACFD
Improvements. In the event of a change in personnel, ACFD shall immediately notify
City of its replacement representative. In the event the designated ACFD representative
will not be available, due to a vacation or any other extended absence from the office,
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
ACFD shall notify City of an interim ACFD representative, and the dates such interim
representative shall be ACFD’s representative.
11.b City has designated Herma Lichtenstein, Facility Project Manager, to
work with ACFD’s representatives throughout the period of construction of the Plan and
ACFD Improvements. In the event of a change in personnel, City shall immediately
notify ACFD of its replacement representative. In the event the designated City
representative will not be available, due to a vacation or any other extended absence from
the office, City shall notify ACFD of an interim City representative, and the dates such
interim representative shall be City’s representative.
12. ACFD’s Default. Notwithstanding any provision to the contrary contained in
the Agreement, upon the occurrence of an Event of Default on the part of ACFD under
the Agreement, or upon a default by ACFD under this Improvement Agreement prior to
substantial completion of the Project, then (i) in addition to all other rights and remedies
granted to City pursuant to the Agreement, City shall have the right to cause any and all
engineers, architects, contractors, and any other persons associated with the design or
construction of the Project to cease work thereon; and (ii) all other obligations of City
under the Agreement and this Improvement Agreement shall be abated until such time as
such default is cured in accordance with the terms of the Agreement, or this Improvement
Agreement, as applicable.
13. Casualty; Risk of Loss. If the Premises or any portion of the
Improvements are damaged or destroyed prior to the date that City notifies ACFD
pursuant to Section 8 that the Improvements are substantially complete, City shall
promptly cause the general contractor to restore the Premises and complete the
construction of the Improvements. All proceeds of builder’s risk insurance applicable to
the loss shall be disbursed in accordance with customary practices of institutional
construction lenders as the restoration progresses, and all other costs of completing the
Improvements shall be factored in to Base Rent in accordance with Section 1 of this
Improvement Agreement.
14. Authority To Sign. Pursuant to Section 17.1 of the Agreement, this
Improvement Agreement is executed by the ACFD Chief and by the City Manager
15. Counterparts. This Improvement Agreement may be executed in
counterparts, each of which shall be an original and all of which taken together shall
constitute one and the same instrument.
SIGNATURES ON FOLLOWING PAGE(S)
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
IN WITNESS WHEREOF, the parties have executed this Improvement
Agreement as of the Effective Date of the Maintenance Facility Use Agreement.
ACFD CITY
ALAMEDA COUNTY FIRE DISTRICT,
CITY OF DUBLIN,
By: _______________________________ By: _______________________________
Print Name:________________________
Its: City Manager
Title:
Alameda County Fire District Chief
_
Attest:_____________________________
City Clerk
Approved as to Form:
Approved as to Form:
Donna R. Ziegler, County Counsel
___________________________________
City Attorney
By:__________________________
Senior Deputy County Counsel
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AMENDED AND RESTATED MAINTENANCE FACILITY USE AGREEMENT
Exhibit B-1
MEMORANDUM OF PLANS
For
MAINTENANCE FACILITY USE AGREEMENT
(Scarlett Court)
This Memorandum of Plans executed as of __________, 2012, is a supplement to that
Agreement”
certain Maintenance Facility Use Agreement (“) entered into effective as of
City
July 1, 2012 by and between the CITY OF DUBLIN, a municipal corporation (“”),
and ALAMEDA COUNTY FIRE DISTRICT, a dependent fire district formed under the
Fire Protection District Law of 1961 (Health and Safety Code Sections 13801 et seq.) and
ACFD”
governed by the Alameda County Board of Directors (“). Capitalized terms used
herein without definition shall have the meaning ascribed to such terms in the Agreement.
City and ACFD hereby agree as follows:
Attached hereto is a true and correct copy of the Plansfor the Maintenance Facility that is
the subject of the Agreement. The Plans are hereby incorporated into the Agreement.
Pursuant to Section 3 of the Improvement Agreement (Exhibit B to the Agreement), and
and Section 17.1 of the Agreement, this Memorandum of Plans is executed by the ACFD
Chief and by the City Manager.
IN WITNESS WHEREOF, this Memorandum of Plans is hereby executed as of
the date first written above.
ACFD CITY
ALAMEDA COUNTY FIRE DISTRICT,
CITY OF DUBLIN,
By: _______________________________ By: _______________________________
Print Name:________________________ Its: City Manager
TitleAttest:_____________________________
Alameda County Fire District Chief
City Clerk
Approved as to Form:
Approved as to Form:
Donna R. Ziegler, County Counsel
__________________________________
City Attorney
By:__________________________
Deputy County Counsel
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Exhibit B-2
Estimated Costs; Formula for Determining Base Rate
ACFD Maintenance Facility Rent Analysis
Assumptions Total
Building size 18,300
Land Value (City cost psf) $20.17
Agreement Term 20
Rental Adjustment 6.00%
Adjustment timing (Years) 2
Project Cost Proforma
Land (City Cost Basis) $1,757,210
Building Costs and ACFD Improvements $3,902,000
Indirect Costs $1,086,320
Total Project Cost $6,745,530
Less: ACFD Contribution $3,500,000
Net City Project Cost $3,245,530
Agreement Rate Analysis
Cost Return on Cost
$3,245,530 4.00%
Rent Overview(with adjustment every 2 years) Annual
Years 1-2 $129,821
Years 3-4 $137,610
Years 5-6 $145,867
Years 7-8 $154,619
Years 9-10 $163,896
Years 11-12 $173,730
Years 13-14 $184,154
Years 15-16 $195,203
Years 17-18 $206,915
Years 19-20 $219,330
Total Rent
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