HomeMy WebLinkAbout11. Champion Dodge Lease 9715 Firestone Blvd.
AGENDA MEMO
DATE:
September 28, 2010
TO:
Mayor and Members of the City Council
FROM:
Office of the City Manager
By: Brian Saeki, Director of Community Development
SUBJECT: APPROVAL OF A GROUND LEASE AGREEMENT WITH CHAMPION
DODGE, INC., FOR CITY OWNED PROPERTY AT 9715 FIRESTONE
BOULEVARD
RECOMMENDATION
That the City Council approve a ground lease agreement between the City of Downey
and Champion Dodge, Inc., and authorize the Mayor to execute the ground lease.
BACKGROUND
On August 2, 2010, the City acquired 9715 Firestone Boulevard via public auction for
$1,911,564.43. After taking ownership of the property, it was determined that there was
an existing verbal agreement between the previous owner and Champion Dodge to store
new cars on the front portion of the property directly adjacent to Firestone Boulevard.
When informed that the City was now the new owner of the property, Champion Dodge
had requested to continue to lease that portion of the property to store new cars and
trucks.
DISCUSSION
Since it will take some time to develop the entire property, allowing Champion Dodge to
continue to lease a portion of the site will be beneficial to the City for the following
reasons: 1) the lease will provide Champion Dodge an opportunity to increase new car
display areas to maximize sales; 2) new jobs will be created; 3) maintenance costs will be
offset; and, 4) a vacant commercial location will be utilized. The leased area will primarily
be the southerly portion of the property along Firestone Boulevard measuring
approximately 370 feet by 115 feet totaling approximately 42,500 square feet (see Exhibit
A).
Lease Terms:
1) The term of the lease is for 24 months for a total lease area of 42,550 square feet.
2) The rent payment will be $2,000 per month for a total lease term payment of
$48,000 (24 months).
3) The City Site is to be used for the display, sales, and parking of new cars
4) The lease commencement date would be retroactive back to August 2, 2010.
5) If Champion Dodge requests an extension after 24 months, the City Manager can
approve or deny a month-to-month extension with the same terms as during the
initial term of the ground lease.
CITY OF DOWNEY, CALIFORNIA
FINANCIAL IMPACT
The ground lease with Champion Dodge would provide new revenues to the City’s
general fund of up to $48,000 through the term of the agreement.
Attachment: Exhibit A – Site Map
Exhibit B – Ground Lease Agreement
Exhibit - A
Site Map
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Exhibit - B
Ground Lease Agreement
GROUND LEASE AGREEMENT
This Ground Lease Agreement (“Lease”) is made this 28 th day of September, 2010,by
and between the CITY OF DOWNEY, a public entity, corporate and politic ("Landlord"), with a
street address of 11111 Brookshire Avenue, Downey, California, 90241 and CHAMPION
DODGE, INC.,a Californiacorporation (“Tenant”), with an address of 9655_________
Firestone Blvd, Downey, California, 90241.For good and valuable consideration, and upon the
terms and conditions set forth herein, Landlord and Tenant agree as follows:
1.0 PREMISES
1.1Premises.
Landlord owns, and hereby leases and demises to Tenant, and Tenant
hereby leases and takes from Landlord, that certain real property consisting of
____42,500_______________square feet (_0.98__ acres) (the “Demised Property”). The total
property is identified as 9715 Firestone Blvd., located within the City of Downey, County of Los
Angeles, State of California, and the Demised Property is the certain part of the property as shown
on the Site Map attached hereto and incorporated herein by reference as Exhibit “A”.
All of the Demised Property is hereinafter referred to as the “Premises”.
1.2 Landlord’s Right of Entry.
Landlord and Landlord’s representatives shall have
the right, upon reasonable prior notice to Tenant, to enter the Premises to inspect the general
condition and state of repair thereof; or for any other reasonable and lawful purpose.
1.3 Provided “As Is”.
Landlord provides the Premises “as is” with no representations,
warranties, and/or guarantees as to suitability for a particular purpose.
2.0 TERM
2.1Term.
This Lease shall be for a term of two (2) year (“Term”) commencing on the
2ndday of August, 2010 (the “Commencement Date”), subject to the terms and conditions of this
Lease, and thereafter upon the expiration of the Term on a month-to-month basis, unless
renegotiated or sooner terminated as provided herein.
2.2Holdover.
Any continued occupancy by Tenant of the Premises after the
expiration of the Term of this Ground Lease, as provided herein, shall be only by the express
written consent of the Landlord and shall operate and be construed as a tenancy from month-to-
month upon the same terms and conditions as this Lease, except that the rent (as provided in
Section 3.1, below) may be adjusted by the Landlord to reflect the fair market rent for such
property at the commencement of such holdover.
2.3Voluntary Termination.
The parties hereto further agree that Tenant, in its
sole discretion, may terminate this Lease prior to the end of the Term upon giving Landlord sixty
(60) days written notice of Tenant’s intent to earlier terminate.
3.0. MONETARY OBLIGATIONS
3.1 Rent.
Tenant shall pay Landlord, without notice or demand, a net annual amount
of Twenty Four Thousand Dollars ($24,000.00), payable in equal monthly payments of Two
Thousand Dollars ($2,000.00) per month as rent (the “Rent”) for the Premises during the Term
hereof. The Rent shall be due and payable in advance on or before the first day of the month
following the Commencement Date. If applicable, rent for any period of occupancy during the
Term which is less than one month shall be a pro rata portion of the monthly Rent amount. The
Premises may be expanded or contracted for Tenant’s use during the Term in accordance with the
terms and conditions of this Lease and upon the written consent of Landlord. In such event, the
Rent shall be adjusted and the rental rate of five cents ($0.05) per square foot shall be applied to
the square feet of area used by Tenant. Until directed otherwise by Landlord, rent payment shall
be sent by United States mail, postage prepaid, to Landlord at the following address:
City of Downey
11111 Brookshire Avenue
Downey, California, 90241
Attn: Community Development Director
3.2 Late Charge.
Tenant hereby acknowledges that late payment by Tenant of Rent
will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will
be extremely difficult to ascertain. Accordingly, if any Rent shall not be received by Landlord
within three (3) days after such amount shall be due, then, without any requirement for notice to
Tenant, Tenant shall pay to Landlord a one-time late charge equal to ten percent (10%) of each
such overdue amount. Landlord and Tenant hereby agree that such late charge represents a fair
and reasonable estimate of the costs Landlord will incur by reason of such late payment.
Acceptance of such late charge by Landlord shall in no event constitute a waiver of Tenant’s
Default or Breach with respect to such overdue amount, nor prevent the exercise of any of the
other rights and remedies granted hereunder.
3.3 Interest
. If any sum due hereunder is not received by Landlord on its due date,
Tenant shall pay Landlord interest on any such outstanding amount at the lesser of the rate of
fifteen percent (15%) per annum or the highest rate permitted by applicable law, from the date on
which such amount is due until such amount is received by Landlord.
3.4 Utilities.
Tenant shall be solely responsible to provide or cause to be provided to
the Premises all utilities, as required and necessary for the Tenant’s use of the Premises. Tenant
shall pay, directly to the appropriate supplier, the cost of all such services (e.g., electricity, water,
etc.).
3.5 Taxes
. Tenant shall pay all real assessments levied or assessed against the property,
including any possessory interest tax which may be levied as a result of this Lease, on which the
Premises are located; however, Tenant shall not pay any additional taxes generated by the sale or
transfer of the property. Tenant shall pay all taxes or assessments levied or assessed against the
trade fixtures, furnishings, equipment or any other personal property of Tenant.
4.0 INSURANCE AND INDEMNIFICATION
4.1 Insurance.
4.1.1 Tenant to Insure. Tenant shall, at its sole expense, during the Term,
maintain the following insurance (or its then reasonably available equivalent) for general liability
and property insurance:
4.1.2 Nature of Insurance Program. All insurance policies this Lease requires
shall be issued by carriers that: (a) are listed in the then current "Best’s Key Rating Guide—
Property/Casualty—United States & Canada" publication (or its equivalent, if such publication
ceases to be published) with a minimum financial strength rating of "A" and a minimum financial
size category of "VIII"; and (b) are admitted to do business in the State by the State Department of
Insurance. Tenant may provide any insurance under a "blanket" or "umbrella" insurance policy,
provided that (i) such policy or a certificate of such policy shall specify the amount(s) of the total
insurance allocated to the Premises, which amount(s) shall equal or exceed the amount(s) required
by this Lease and shall not be reduced for claims made for other properties; and (ii) such policy
otherwise complies with this Lease.
4.1.3 Policy Requirements and Endorsements. All insurance policies this Lease
requires shall contain (by endorsement or otherwise) the following provisions:
4.1.3.1 Coverage Limits. The Tenant shall maintain or cause to
be maintained, commencing upon its possession of the Property pursuant to this Lease and
thereafter throughout the Term of this Lease, a program of general liability and property damage
insurance protecting the Landlord and the City, and their respective officers, directors, agents,
assigns and employees.. Such insurance shall provide minimum liability limits of $2,000,000 per
occurrence, and property damage insurance in the amount of $1,000,000 per occurrence.
4.1.3.2 Fire and Extended Coverage Insurance. The Tenant shall
procure and maintain, or cause to be procured and maintained, commencing upon its possession of
the Property pursuant to this Lease, and thereafter throughout the Term of this Lease, insurance
against loss or damage to any structures or equipment on any part of the Property by fire and
lightning, with extended coverage and vandalism and malicious mischief insurance, and
earthquake insurance.
4.1.3.3 Insureds. Liability Insurance policies shall name Landlord
as an “additional insured.” Property Insurance policies shall name Landlord as loss payee, as its
interest may appear. Notwithstanding anything to the contrary in this Section, all Property
Insurance Proceeds shall be paid and applied as this Lease provides.
4.1.3.4 Primary Coverage. All policies shall be written as primary
policies, not contributing to or in excess of any coverage that Landlord may carry.
4.1.3.5 Contractual Liability. Liability Insurance policies shall
contain contractual liability coverage, for Tenant’s indemnity obligations under this Lease.
Tenant’s obtaining or failure to obtain such contractual liability coverage shall not relieve Tenant
from any indemnity obligation under this Lease.
4.1.3.6 Notice to Landlord. The insurance carrier shall give
Landlord no less than thirty (30) calendar days’ advance written notice of any cancellation, non-
renewal, material change in coverage or available limits of liability.
4.1.4 Deliveries to Landlord. On the Commencement Date, and no later than
twenty (20) days before any Liability Insurance or Property Insurance expires or is cancelled,
Tenant shall deliver to Landlord certified copies of insurance policies evidencing Tenant’s
maintenance of all Liability Insurance and Property Insurance this Lease requires, in each case
providing coverage for at least one (1) year from the date delivered.
4.1.5 Waiver of Certain Claims. To the extent that Tenant purchases any policy
of Property Insurance, Tenant shall cause the insurance carrier to agree to a Waiver of
Subrogation, if not already in the policy. The Parties release each other, and their respective
authorized representatives, from any claims for damage to any Person or the Premises that are
caused by or result from risks insured against under such Property Insurance policies.
4.16 No Representation. Neither Party makes any representation that the limits,
scope, or forms of insurance coverage this Lease requires are adequate or sufficient.
4.2 Indemnification.
4.2.1 At Tenant’s sole expense, Tenant shall indemnify, hold harmless, and
defend Landlord from and against any and all claims, lawsuits, damages, liabilities, fines,
expenses, fees and costs of any kind, arising from Tenant’s use of the Premises, or from the
conduct of Tenant’s business or from any activity, work or things done, permitted or suffered by
Tenant in or about the Premises or the property on which the Premises are located and shall further
indemnify and hold harmless Landlord from and against any and all, claims, lawsuits, damages,
liabilities, fines, expenses, fees and costs of any kind, arising from any Breach or Default in the
performance of any obligation on Tenant’s part to be performed under the terms of this Lease, or
arising from any act or omission of Tenant, or any of Tenant’s agents, contractors, or employees.
As used herein the term “Tenant” shall include employees, agents, contractors and persons
entering the Premises under the express or implied invitation of Tenant.
4.2.2 The foregoing notwithstanding, and except an otherwise set forth in Section
5.5 hereof, Landlord shall, at Landlord’s sole expense, indemnify, hold harmless, and defend
Tenant from any and all claims, lawsuits, damages, liabilities, fines, expenses, fees and costs of
any kind, arising (i) from the pre-existing environmental condition of the Premises, unless such
claim has been caused by or arises out of, in whole or in part, Tenant’s Breach or Default under
the terms of this Lease, and (ii) from the acts or omissions, activities or use of the Premises by
Landlord, its agents, contractors, employees, invitees. It is the intention of the parties that Tenant
shall not be liable for clean-up or remedial activity with respect to the pre-existing environmental
condition of the Premises under Environmental Laws, as hereinafter defined, unless such clean-up
or remedial activity is required, in whole or in part, as a result of Tenant’s Breach or Default under
the terms of this Lease.
4.2.3 At Tenant’s sole expense, Tenant shall indemnify, hold harmless, and
defend Landlord from and against any and all legal actions, proceedings or lawsuits arising from
or related to Landlord’s actions to approve this Lease. In the event any such legal actions,
proceedings or lawsuits are brought, Landlord shall give prompt written notice to Tenant of the
service of such actions on Landlord.
5.0 USES, OCCUPANCY, MAINTENANCE REPAIR AND RENOVATION
5.1 Acceptance of the Premises.
Tenant acknowledges and agrees that: (a) Tenant has
thoroughly inspected the Premises and the Premises are suitable for Tenant’s use thereof; (b)
Tenant is not relying on any statement made by Landlord or its agents with respect to the
condition of the Premises, except as otherwise specifically set forth in this Lease; and (c) by
occupying the Premises (or any portion thereof) Tenant shall be deemed to have accepted the
Premises in its existing condition, “AS IS” and WITH ANY AND ALL EXISTING FAULTS, IF
ANY. Except as otherwise stated in writing and signed by both parties, the taking of possession of
the Premises by Tenant shall be conclusive evidence that, at such time, the Premises are
acceptable for occupancy by Tenant. The foregoing notwithstanding, Tenant is in no way
assuming liability for clean-up or remedial activity with respect to the pre-existing environmental
condition of the Premises, if any such activity is required, unless such clean-up or remedial
activity, is required, as a result of Tenant’ s Breach or Default under the terms of this Lease.
5.2 Use and Occupancy.
The Premises shall only be used for and in connection with
the storage and/or preparation of new sales cars and trucks in conjunction with the operation of a
Dodge dealership located at _9655____ Firestone Boulevard, Downey, California.Tenant shall be
solely responsible, at its sole expense, to improve and maintain all necessary rights of ingress to
and egress from the Premises.
Tenant shall improve the Premises, at its sole cost.
5.2.1 Operation Restrictions. Landlord hereby restricts, and Tenant hereby agrees
to such restrictions on the use of the Premise as follows:
5.2.1.1 The time and delivery of vehicles to the Premises shall be restricted
in order to prevent conflicts with adjoining commercial uses and property owners.
5.2.1.2 The Tenant shall not wash vehicles on the Premises unless Tenant
has complied with best management practices required under the Federal Clean Water Act and the
City’s requirements for compliance with the National Pollutant Discharge Elimination System
(NPDES) permit program.
5.2.1.3 Tenant shall only use the Premises for the sale, parking and storage
of new vehicles which are to be displayed on subject site. Tenant shall not assemble, repair, or
otherwise perform any vehicle maintenance on the Premises unless permitted under the Downey
Municipal Code.
5.3 Compliance with Laws.
Tenant warrants that it shall use and occupy the Premises
in accordance and compliance with all applicable laws, statutes, ordinances, rules, regulations,
orders and requirements in effect during the Term, or any part of the Term hereof, which regulate
the use by Tenant of the Premises (except with respect to compliance with Environmental Laws,
as such term is hereinafter defined, which compliance shall be in accordance with Section 5.4
below), and shall keep and save Landlord harmless from any penalties, damages or charges
imposed or incurred for any violation by Tenant of any such law, statute, ordinance, rule,
regulation, order or requirement.
5.4. Environmental Compliance.
“Environmental Laws” shall mean and include any
and all local, state or federal laws, rules, orders or regulations in effect during the Term, or any
part of the Term hereof, pertaining to environmental regulation, or the use, processing, storage,
housing, disposal, generation or transportation of Hazardous Substances, as defined below.
Environmental Laws include, but are not limited to, the following federal statutes, amendments
thereto, and any enactments by state or local jurisdictions which address similar subjects: the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, the Superfund
Amendments and Reauthorization Act of 1986, the Resource Conservation Recovery Act, the
Hazardous and Solid Waste Amendments 1984, the Toxic Substance Control Act, the Federal
Insecticide, Fungicide and Rodenticide Act, the Federal Water Pollution Control Act, the Federal
Clean Air Act, the Federal Clean Water Act, the National Environmental Policy Act, the
Hazardous Materials Transportation Act, spill prevention and control legislation, and any
regulations promulgated with respect to any such statutes.
“Hazardous Substances” shall mean and include all hazardous or toxic substances, wastes
or materials, any pollutants or contaminants (including, but not limited to, asbestos and materials
which include hazardous constituents), or any other similar substances which are defined in,
included under, or regulated by any Environmental Law.
Tenant warrants that it shall use and occupy the Premises in compliance with all applicable
Environmental Laws. Tenant further warrants that it shall remediate and clean, to the extent
required by Environmental Laws, any spills or releases, to the extent caused by or related to
Tenant’s use or occupancy of the Premises, into the environment of Hazardous Substances.
Tenant agrees and covenants not to allow or permit any release, spill or discharge of any
Hazardous Substances on, in or about the Premises. If Tenant knows, or has reasonable cause to
believe, that a Hazardous Substance has come to be located in, on, under or about the Premises,
other than as previously consented to by Landlord, Tenant shall immediately give written notice of
such fact to Landlord, and provide Landlord with a copy of any report, notice, claim or other
documentation which it has concerning the presence of such Hazardous Substance.
To Landlord’s knowledge, as of the effective date of this Lease, (i) the Premises are in
compliance with all Environmental Laws necessary to the performance of Landlord’s obligation
under this Lease, and (ii) no Hazardous Substances are located in or on the Premises in violation
of any Environmental Law.
5.5 Alterations, Additions and Improvements
5.5.1 Consent. Tenant shall not, without Landlord’s prior written consent,
which consent shall not be unreasonably withheld or delayed, make any alterations, additions or
improvements in, on or about the Premises. As a condition of its consent, Landlord may require
that Tenant remove any or all of said alterations, additions or improvements at the expiration of
the Term, and restore the Premises to their prior condition, normal wear and tear excepted. Tenant
shall give Landlord not less than thirty (30) days notice prior to the commencement of any work
on the Premises and Landlord shall have the right to post notices of non-responsibility in or on the
Premises as provided by law. Tenant acknowledges that Landlord’s consent is based upon the
approval of applicable departments within the City of Downey. Consent to prepare the premises
for the herein contemplated operation as an auxiliary facility of a Dodge new vehicle dealership is
expressly granted in accordance with Section 5.2, above. Consent is also granted to improve the
surface of the Premises to facilitate Tenant’s proposed use of the Premises and to leave as such at
the termination of the Lease.
5.5.2 Payment. Tenant agrees and covenants to not allow or permit any lien
or encumbrance against the Premises and shall pay when due all claims for labor and materials
furnished or alleged to have been furnished to or for Tenant at or for use in or about the Premises,
which claims are or may be secured by any mechanics’ or materialmen’s lien or any other lien
against the Premises or any interest therein. If Tenant shall, in good faith, contest the validity of
any lien, claim or demand, then Tenant shall, at its sole expense, defend itself and Landlord against
the same, and shall pay and satisfy any adverse judgment that may be rendered thereon before the
enforcement thereof against the Landlord or the Premises. In addition, Landlord may require
Tenant to pay Landlord’s attorneys, fees and costs in participating in such action.
5.5.3 Ownership. Unless Landlord requires their removal as set forth in this
Ground Lease, all alterations, additions, or improvements which may be made on the Premises
shall become the property of Landlord and remain upon and be surrendered with the Premises at
the expiration of the Term. Notwithstanding the provisions of this subsection, Tenant’s trade
fixtures, machinery and equipment, other than that which is affixed to the Premises so that it
cannot be removed without material damage to the Premises, shall remain the property of Tenant
and may be removed by Tenant within forty-five (45) days of the expiration of the Term. Failure
of Tenant to remove Tenant’s trade fixtures, machinery and equipment within said 45-day period
shall be deemed Tenant’s abandonment of such personal property.
5.6 Signs and Auctions.
Tenant shall not erect or install any exterior signs on or about
the Premises without the prior written consent of Landlord. Tenant shall not conduct or permit
any auctions or sheriff’s sales at the Premises.
5.7 Rules and Regulations.
Landlord has the right at any time to establish rules and
regulations governing the conduct desirable to protect the general welfare and safety of all
persons, property and business on and about the Premises. Tenant agrees to comply with any and
all rules and regulations which may be imposed, amended or supplemented from time to time.
5.8 Surrender.
At the termination of this Lease, Tenant shall surrender the
Premises to Landlord in as good condition and repair at the commencement of the Term hereof,
reasonable wear and tear excepted, clean and free of debris deposited by Tenant, and Landlord
shall repair (as reasonably as necessary), at Tenant’s expense, any damage to the Premises
occasioned by the installation or removal of Tenants trade fixtures, furnishings and equipment.
6.0 DEFAULT, BREACH, REMEDIES, AND WAIVER
6.1 Default.
A “Default” is defined as a failure by the Tenant to observe, comply with
or perform any of the terms, covenants, conditions or rules applicable to Tenant under this Lease.
A “Breach”, which shall entitle Landlord to pursue the remedies set forth in Section 6.2, is defined
as the occurrence of any one or more of the following Defaults, and, where a grace period for cure
after notice is specified herein, the failure by Tenant to cure such Default prior to the expiration of
the applicable grace period:
6.1.1. The failure by Tenant to make any payment of rent or any other monetary
payment required to be made by Tenant hereunder, whether to Landlord or to a third party, as and
when due; or the failure of Tenant to fulfill any obligation under this Lease, which failure
endangers or threatens life or property; provided that any such failure continues for a period of
five (5) days following written notice hereof by or on behalf of Landlord to Tenant.
6.1.2 The failure by Tenant to comply with any other terms, covenants,
conditions or provisions of this Lease that are to be observed, complied with or performed by the
Tenant, other than those described in subsections (a) above, where such Default continues for a
period of thirty (30) days after written notice thereof by or on behalf of Landlord to Tenant;
provided, however, that if the nature of Tenant’s Default is such that more than thirty (30) days be
reasonably required for cure, Tenant shall not be deemed to have committed a Breach of this
Lease if Tenant commences such cure within said thirty (30) day period and thereafter diligently
pursues such cure to completion.
6.2 Remedies.
If Tenant fails to perform any affirmative duty or obligation of
Tenant under this Lease, within the time limits set forth in this Lease, Landlord may, at its option,
but without obligation to do so, perform such duty or obligation on Tenant’s behalf, including, but
not limited to, the obtaining of reasonably required bonds or governmental licenses, permits or
approvals. The reasonable costs and actual expenses of any such performance by Landlord shall be
made and payable by Tenant to Landlord upon invoice therefore. In the event of a Breach of this
Lease by Tenant, with or without further notice or demand, and without limiting Landlord in the
exercise of any other right or remedy which Landlord may have by reason of such Breach,
Landlord may take any or all of the following actions:
6.2.1 Termination. Landlord may terminate this Lease by any lawful means in
which case this Lease and the Term hereof shall terminate and Tenant shall immediately surrender
possession of the Premises to Landlord. In such event Landlord shall be entitled to recover from
Tenant: (i) the unpaid rent, plus interest, which had been earned at the time of termination; (ii) the
amount by which the unpaid rent, plus interest, which would have been earned after termination
exceeds the amount of such rental loss that the Tenant proves could have been reasonably avoided,
and (iii) any other amount reasonably necessary to compensate Landlord for all the detriment
proximately caused by Tenant’s failure to perform its obligations under this Lease or which in the
ordinary course of things would be likely to result there from, including, but not limited to, the
cost of recovering possession of the Premises, expenses of reletting, and reasonable attorneys’
fees.
6.2.2 Continuation. Landlord may continue the Lease and Tenant’s right to
possession in effect after Tenant’s Breach and recover the rent as it becomes due. Acts of
maintenance or preservation, efforts to relet the Premises or the appointment of a receiver to
protect the Landlord’s interest under the Lease shall not constitute a termination of the Tenant’s
right to possession.
6.2.3 Acceleration. Landlord may accelerate the due date for rent such that the
rent for the balance of the Term shall immediately become due and payable as if by the terms of
this Lease it were payable in advance.
6.2.4 Other Remedies. The parties hereto may pursue any other remedy now or
hereafter available to them under the laws or judicial decisions of the state wherein the Premises
are located.
6.2.5 Indemnity. The expiration or termination of this Lease and/or the
termination of Tenant’s right to possession shall not relieve either party from liability under any
indemnity provisions of this Lease as to matters occurring or accruing during the Term hereof or
by reason of Tenant’s occupancy of the Premises pursuant to this Lease.
6.2.6. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
6.3 Waiver.
The acceptance by Landlord of rent or the cure of the Breach which
initiated the operation of Section 6.2 shall not be deemed a waiver by Landlord of the provisions
of Section 6.2 unless specifically so stated in writing by Landlord at the time of such acceptance.
No waiver by Landlord of the Default or Breach of any term, covenant or condition hereof shall be
deemed a waiver of any other term, covenant or condition hereof, or of any subsequent Default or
Breach by Tenant of the same or of any other term, covenant or condition hereof. Landlord’s
consent to or approval of any act shall not be deemed to render unnecessary the obtaining of
Landlord’s consent to, or approval of, any subsequent or similar act by Tenant, or be construed as
the basis of an estoppel to the enforcement of any provision or provisions of this Lease requiring
Landlord’s consent. Regardless of Landlord’s knowledge of a Default or Breach at the time of
accepting rent, the acceptance of rent by Landlord shall not be a waiver of any preceding Default
or Breach, other than the failure of Tenant to pay the particular rent so accepted. Any payment
given Landlord by Tenant may be accepted by Landlord on account of monies or damages due
Landlord, Notwithstanding any qualifying statements or conditions made by Tenant in connection
therewith, which such statements and/or conditions shall be of no force or effect whatsoever
unless specifically agreed to in writing by Landlord at or before the time for tender of such
payment.
6.4 Breach by Landlord
. Landlord shall not be deemed in breach of this Lease unless
Landlord fails within a reasonable time to perform an obligation required to be performed by
Landlord. For purposes of this Section 6.4, a reasonable time shall in no event be less than thirty
(30) days after receipt by Landlord, and by the holders of any ground lease, mortgage or deed of
trust covering the premises whose name and address shall have been furnished Tenant in acting for
such purpose, of written notice specifying therein such obligation of Landlord which has not been
performed; provided however, that if the nature of Landlord’s obligation is such that more than
thirty (30) days after such notice are reasonably required for performance then Landlord shall not
be in breach of this Lease if performance is commenced within such thirty (30) day period and
thereafter diligently pursued to completion.
7.0 MISCELLANEOUS
7.1 Condemnation.
If the whole or a significant portion (in terms of Tenant’s
use) of the Premises shall be taken by any public authority under the power of condemnation or
eminent domain or by purchase in lieu thereof, either Landlord or Tenant shall have the right to
terminate this Lease as of the day that actual possession shall be so taken. For purposes of this
Lease, a “significant portion” shall mean more than twenty-five percent (25%) of the land area of
the Premises. If Landlord and Tenant elect not to terminate this Lease, Tenant shall continue in
possession of the remainder of Premises and all of the terms of this Lease shall continue in full
force and effect, except that the rent shall be reduced in proportion to the percentage of the
Premises taken. All proceeds and other amounts received as a result of any such taking shall
belong to Landlord.
7.2 Damage or Destruction.
If the whole or such portion of the Premises as to
make the same untenantable shall be destroyed or damaged, this Lease shall terminate. If the
Premises are not destroyed or damaged to such extent as to render the same untenantable,
Landlord shall have the option of: (i) repairing and restoring the Premises to as good a condition
and repair as the Premises were in prior to such damage or destruction and Tenant shall pay as rent
during such repair time the proportion of rent that the part tenantable shall bear to the entire
Premises until the same shall be restored to a tenantable condition; or (ii) terminating this Lease.
This Lease shall not terminate nor shall there be an abatement of rent on account of damage or
destruction caused by any act or omission of Tenant, its employees, agents, contractors or any
person entering the Premises under the express or implied invitation of Tenant. For purposes of
this Lease, “untenantable” shall mean damage or destruction to the Premises which cannot
reasonably be repaired in three (3) months.
7.3 Assignment and Subleasing.
Tenant shall not assign this Ground Lease or any
interest therein nor sublet the Premises or any part thereof without the prior and express written
consent of Landlord; provided, however, that no assignment or subletting shall release Tenant
from its obligation to pay rent and to perform all other obligations to be performed by Tenant
hereunder. The acceptance of rent by Landlord from any other person shall not be deemed to be a
waiver by Landlord of any provision hereof. In the event of Default by any assignee of Tenant or
any successor of Tenant in the performance of any of the terms hereof, Landlord may proceed
directly against Tenant without the necessity of exhausting remedies against such assignee or
successor.
7.4 Authority.
Each individual executing this Ground Lease on behalf of a
corporation, trust, or partnership represents and warrants that he or she is duly authorized to
execute and deliver this Lease on behalf of such entity.
7.5 Severability.
The invalidity of any provision of this Ground Lease, as determined
by a court of competent jurisdiction, shall in no way affect the validity of any other provision
hereof and may be severed herefrom so as to render the remainder valid and enforceable.
7.6 Entire Agreement; Amendments.
This Ground Lease constitutes the entire
agreement between Landlord and Tenant, and no other prior or contemporaneous agreement or
understanding shall be effective. Except as otherwise provided in this Lease, Landlord and Tenant
represent and warrant that each has made, and is relying solely upon, its own investigation as to
the nature, quality, character and financial responsibility of the other party of this Lease and as to
the nature, quality and character of the Premises. No subsequent alterations, amendments,
changes or modifications to this Lease shall be binding unless reduced to writing and signed by
each party.
7.7 Binding Effect.
The covenants, conditions and agreements made and entered
into by the parties hereto shall inure to the benefit of and shall be binding upon their respective
heirs, successors, representatives and permitted assigns.
7.8 Cost of Suit.
If suit shall be successfully brought for Breach of any covenant or
agreement herein contained, the prevailing party shall be entitled to recover all costs and expenses
of suit, including, but not limited to, reasonable attorneys’ fees.
7.9 Notices.
All notices required or permitted by this Lease shall be in writing
and may be delivered in person (by hand or messenger or courier service) or may be sent by
certified or registered mail or overnight express mail, with postage prepaid, or via confirmed
facsimile transmission, and shall be deemed sufficiently given and served in a manner specified in
this Section. The following addresses shall be that party’s address for purposes of giving notice:
City of Downey:
City of Downey
11111 Brookshire Avenue
Downey, California, 90241
Attn: Community Development Director
Champion Dodge,Inc.
9655 Firestone Boulevard.
Downey, California 90241
Attn: Paul Anteparra, President
Either party may, by written notice to the other, specify a different or additional address for
notice purposes. A copy of all notices required or permitted to be given by either party hereunder
shall be concurrently transmitted to such party or parties at such addresses as either may from time
to time hereafter designate by written notice to the other party.
7.10 Caption Headings.
Captions to various paragraphs, sections and subsections of
this Ground Lease are inserted for convenience and references purposes only and are not to be
construed as materially altering its contents.
7.11 Number and Gender.
Wherever in this Ground Lease the context requires, the
singular shall be deemed to include the plural, and the plural, the singular, and the masculine,
feminine or neutral genders shall include all other genders. Wherever in this Lease the context
requires, the word "person" shall be deemed to include any corporation, partnership, trust, firm,
entity, governmental agency, or association.
7.12 Counterparts.
This Ground Lease may be executed in multiple counterparts, each
of which shall be deemed an original and all of which shall constitute but one and the same
instrument. Signature on a facsimile transmission shall be valid and binding for all purposes, but
shall nevertheless be followed by the exchange of hard copy originals.
IN WITNESS WHEREOF
, the parties, on the respective dates indicated below their
signatures, have executed this instrument, to be effective as of the date first above written.
LANDLORD: CITY OF DOWNEY TENANT: CHAMPION DODGE, INC.
By:By:
City Manager Paul Anteparra, President
DATE: ____________ DATE: ____________
ATTEST:
Secretary
By: ________________
APPROVED AS TO FORM:
Interim City Attorney
By: ________________
Ground Lease Agreement
Exhibit - A
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