HomeMy WebLinkAbout2003-09-09; Housing & Redevelopment Commission; Resolution 3701
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HOUSING AND REDEVELOPMENT COMMISSION RESOLUTION NO. 3 70
A RESOLUTION OF THE HOUSING AND REDEVELOPMENT COMMISSION OF THE CITY OF CARLSBAD, CALIFORNIA AUTHORIZING EXECUTION OF LEASE
AGREEMENTS BETWEEN THE CHILDREN’S DISCOVERY MUSEUM AND JBB
DESIGNS, INC. AND THE CARLSBAD REDEVELOPMENT AGENCY TO LEASE
PURPOSES OF OPERATING A CHILDREN’S MUSUEM AND CHILDREN’S
CLOTHING STORE.
AGENCY-OWNED PROPERTY LOCATED AT 2787 STATE STREET FOR THE
WHEREAS, the Carlsbad Redevelopment Agency assumed ownership of the State Street
Building and related property located at 2787 State Street, originally known as the Bauer Lumber
Building, on November 20, 1997; and,
WHEREAS, the subject site was acquired by the Redevelopment Agency with the intent of
facilitating redevelopment of the site as well as other properties at the comer of Grand Avenue and State
Street at a future date; and,
WHEREAS, it is anticipated that it will be several years before the Agency will be able to initiate
redevelopment activities related to the subject site; and,
WHEREAS, there is a need within the community to make continued use of the subject
building/property for retail purposes until such time at which a redevelopment project may occur at the site
to ; and
WHEREAS, California Redevelopment Law permits the Agency to rent, maintain, manage,
operate, repair and clear property purchased for the purposes of redevelopment; and
WHEREAS, the Agency has determined that it is appropriate and necessary to enter into the
subject leases and extend use of the subject building for retail purposes until such time as a redevelopment
project may be implemented; and
WHEREAS, based on the current rental market, age of the subject building, lack of parking and
the short term lease period for use of the subject property, a determination has been made that the
proposed lease provides for a market rate rental structure and that there is no rental subsidy being provided
by the Redevelopment Agency.
NOW, THEREFORE, BE IT RESOLVED by the Housing and Redevelopment Commission of
the City of Carlsbad, California, as follows:
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Page 2 of Reso. #
1. That the above recitations are true and correct.
2. The Commission hereby determines that the building located at 2787 State Street, and owned by the Redevelopment Agency, shall continue to benefit the redevelopment area through its
continued use for retail purposes through leases with the Children’s Discovery Museum and
Children’s Clothing Store for a three year period according to the terms set forth in the
attached leases, provided as Exhibits 2 and 3, and hereby approves said lease agreements.
3. The Commission hereby authorizes the Chairman of the Housing and Redevelopment
Commission to execute the approved lease agreements between the Carlsbad Redevelopment
Agency and Children’s Discovery Museum and JBB Designs, Inc. for lease of the Agency-
owned property located at 2787 State Street, in substantially the form presented to the
Commission and subject to approval of the City Attorney, who serves as legal Counsel to the
Carlsbad Redevelopment Agency.
PASSED, APPROVED AND ADOPTED at a Suecial meeting of the Housing and
9th Redevelopment Commission of the City of Carlsbad, California on the day of
SEPTEMBER , 2003 by the following vote to wit:
AYES: Commissioners Lewis, Finnila, Kulchin, Hall, Packard
NOES: None
‘ABSTAIN: None
ABSENT: None
CLA6E A. LEWIS, Chairman
ATTEST:
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EXHIBIT 2
CARLSBAD REDEVELOPMENT AGENCY
LEASE TO
CHILDREN'S DISCOVERY MUSEUM
OF NORTH COUNTY
OF PROPERTY LOCATED AT
2787 STATE STREET
CARLSBAD, CALIFORNIA 92008
2787 State Street Lease Agreement
Final Revisions: 8/20/03
Carlsbad Redevelopment Agency
Page 1
CARLSBAD REDEVELOPMENT AGENCY
LEASE TO
CHILDREN'S DISCOVERY MUSEUM .
OF NORTH COUNTY
OF PROPERTY LOCATED AT '
2787 STATE STREET
CARLSBAD, CALIFORNIA 92008
2787 State Street Lease Agreement
Final Revisions: 8/20/03
Carlsbad Redevelopment Agency
Page 1
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into this 5 C!! day of s&m b2003,
by and between the Carlsbad Redevelopment Agency, hereinafter called “Lessor,” and
Children’s Discovery Museum of North County, a California non-profit corporation, hereinafter
called “Lessee,” without reference to number or gender, for property located at 2787 State Street,
Carlsbad, California, 92008.
WITNESETH:
WHEREAS, the Carlsbad Redevelopment Agency is the owner of the real property improved
with an approximately 9400 square foot commercial building located at 2787 State Street,
Carlsbad, California, 92008; and
WHEREAS, Lessee desires use of a maximum of 6310 square feet of said Lessor premises to
operate a business (as defined below);
NOW, THEREFORE, it is understood and agreed by and between the parties hereto as follows,
to wit:
TO HAVE AND TO HOLD a portion of said leased premises for the term of this lease and upon
the conditions as follows:
1. TERM: The term of the lease shall be for a period of three (3) years commencing on
October 1,2003, and ending on September 30,2006. Provided tenant has completed any
necessary improvements and obtained approval Erom the Housing and Redevelopment
Director to occupy said premises prior to the commencement date stated herein, Lessee
shall be entitled to occupy the premises and conduct business prior to commencement
date. At the Lessor’s discretion, Lessee may extend the term for one (1) additional one
(1) year period, upon the same terms and conditions stated herein. Lessee must request an
extension in writing at least 120 days prior to the initial lease term’s expiration.
As and for the rent, Lessee agrees to pay to Lessor the sum of three thousand
one hundred fifty-five dollars ($3,155) per month for the three year term of
the lease. Lease payments shall begin as of February 1, 2004. On or before
February 1, 2004, the first payment of $3,155 per month will be paid and all
subsequent payments shall be payable in advance on or before the first day of
each and every month during the term of this Agreement.
Rent shall be delivered to the Finance Department of the City of Carlsbad at
1635 Faraday Avenue, Carlsbad, California, 92008. The designated place of
payment and filing may be changed at any time by Lessor upon ten (10) days
2787 State Street Lease Agreement
Final Revisions: 8/20/03
Carlsbad Redevelopment Agency
Page 2
written notice to Lessee. Lessee assumes all risk of loss if payments are made
by mail.
(c) In the event Lessee is delinquent in remitting the rent due in accordance with
the rent provisions of this lease, then the rent not paid when due shall bear
interest at the rate of Ten Per Cent (10%) per annum from the date due until
paid. Provided, however, that the Executive Director of Carlsbad
Redevelopment Agency shall have the right to waive for good cause any
interest payment for any such delinquency period upon written application of
Lessee
(d) There shall be no increase in the monthly lease payment for the three-year
lease period. If granted, any extension beyond the third year will be held at
the initial three-year term lease rate.
(e) Lessee agrees to pay a Security Deposit in the amount of one month’s rent or
three thousand one hundred and fifty-five dollars ($3,155) to be paid upon
execution of this lease agreement. Lessee shall submit the Security Deposit in
the form of a cashier’s check simultaneously, andlor in conjunction with the
signed lease agreement. Lessor shall not cash nor deposit said Security
Deposit until this lease agreement is signed by Lessor, resulting in the full
execution of this agreement. The Security Deposit shall be held in an interest
bearing account (at the same rate the City of Carlsbad earns on its money).
Upon expiration of this lease, Lessee shall be entitled to all interest accrued
over said lease term. Lessor shall not be required to keep the Security Deposit
separate from its general accounts.
(f) If Lessee fails to pay Rent, or otherwise defaults under this lease, Lessor may
use, apply or retain all or any portion of said Security Deposit for the payment
of any amount due Lessor or to reimburse or compensate Lessor for any
liability, expense, loss or damage which Lessor may suffer or incur by reason
thereof. If Lessor uses or applies all or any portion of said Security Deposit,
Lessee shall within ten (10) days after written request therefore, deposit
monies with Lessor sufficient to restore said Security Deposit to the full
amount required by this Lease.
3. USE:
(a) Lessee agrees that the 6,310 square feet of leased premises shall be used only
and exclusively for operation of the Children’s Discovery Museum of North
County and for no other purpose whatsoever without the written consent of
Lessor.
2787 State Street Lease Agreement
Final Revisions: 8/20/03
Carlsbad Redevelopment Agency
Page 3
(b) Lessee shall not and is expressly prohibited from using the premises for any
other purpose or use whatsoever, whether it is purported to be in addition to or
in lieu of the particular exclusive use.
(c) Lessee shall actively and continuously use and operate the premises for the
limited particular exclusive use as expressly provided for in Paragraph 3(a) of
this lease, except for failure to do so caused by acts of God.
4. EARLY TERMINATION: Lessee or Lessor shall have a right to terminate this lease
by first giving one hundred eighty (180) days written notice to the other party and
payment of twenty-five thousand dollars ($25,000.00) for penalty of early termination.
In the event either party exercises the option of early termination, the party seeking
termination shall pay fifty percent (50%) or twelve thousand five hundred dollars
($12,500.00) at the time written notification of lease termination is given and shaIl pay
the remaining fifty percent (50% of the penalty payment or twelve thousand five hundred
dollars $12,500.00) upon expiration of said 180 day notification period. Any security
deposit shall be applied toward and deducted from the second penalty payment of twelve
thousand five hundred dollars (12,5oO.00) if not otherwise applied towards delinquencies
or other lessee obligations.
5. IMPROVEMENTS:
(a) Lessee shall be responsible for interior alterations required to physically
subdivide the subject building into two separate rental spaces, including
dividing walls, an additional restroom facility and appropriate entries/exits to
meet applicable building and fire code requirements, which will provide for
6,310 square feet of warehouse/museum space and 3,121 square feet of retail
space fronting on State Street. The Redevelopment Agency shall be
responsible for the separation of the electrical and mechanical equipment to
provide service to both rental spaces, with the exception that air conditioning
shall not be provided to the space subject to this lease.
(b) Subject to Lessor approval, Lessee may, at its own expense, make additional
interior alterations or changes in the 6,310 square feet of leased premises or
cause to be built, made or installed therean any structures, machines,
appliances, utilities, signs or other improvements necessary or desirable for
the use of said premises and may alter and repair any such structures,
machines or other improvements; provided, however, that no alterations and
changes shall be made and no structures, machines, appliances, utilities, signs
or other improvements shall be made, built or installed, and no major repairs
thereto shall be made except upon obtaining all necessary prior approvals
from Lessor and proper permits from the City of Carlsbad.
2787 State Street Lease Agreement
Final Revisions: 8/20/03
Carlsbad Redevelopment Agency
Page 4
(c) Lessee shall be responsible for manufacturing and installation of signage in
accordance with the signage regulations set forth within the Carlsbad Village
Redevelopment Master Plan and Design Manual and the City of Carlsbad
Municipal Code. Lessee further aps that no banners, pennants, flags, or
other advertising devices, nor any temporary signs shall be permitted to be
flown, installed, placed, or erected on the premises except in accordance with
the City of Carlsbad Village Redevelopment Master Plan and Design Manual
and the City of Carlsbad Municipal Code.
6. OWNERSHIP; REMOVAL; SURRENDEIURESTORATION:
Ownership. Lessor shall have the right to require removal or elect ownership
of all alterations and utility installations made by Lessee, except for trade
fixtures which shall be owned and removed by Lessee. Unless otherwise
instructed per Paragraph 6(b) hereof, all Lessee owned alterations and utility
installations shall, at the expiration or termination of this Lease, become the
property of Lessor and be surrendered by Lessee with the premises.
Removal. By delivery to Lessee of written notice from Lessor not later than
sixty (60) days prior to the end of the term of this Lease, Lessor may require
that any or all Lessee constructed alterations or utility installations be
removed by the expiration or termination of this Lease. Lessor may require
the removal at any time of all or any part of any alterations or utility
installations made without the required consent.
SurrenderDZestoration. Lessee shall surrender the premises by the
expiration date or any earlier termination date, with all of the improvements,
parts and surfaces thereof broom clean and free of debris, and in good
operating order, condition and state of repair, ordinary wear and tear excepted.
“Ordinary wear and tea? shall not include any damage or deterioration that
would have been prevented by good maintenance practice. Lessee shall repair
any damage occasioned by the installation, maintenance or removal of trade
fixtures, alterations and/or utility installations, furnishings, and equipment
installed by or for Lessee and the removal, replacement, or remediation or any
soil, material or groundwater contaminated with hazardous substance (as
defined in Paragraph 22) by Lessee. Trade fixtures shall remain the property
of Lessee and shall be removed by Lessee. The failure by Lessee to timely
vacate the premises pursuant to this Paragraph 6 (c) without the express
written consent of Lessor shall constitute a holdover under the provisions of
Paragraph 30 below.
7. PARKING: Lessee understands there is no private parking available on the subject
property. Lessee further understands that execution of this lease agreement in no way constitutes the granting of exclusive use of public parking adjacent to the property.
2787 State Street Lease Agreement
Final Revisions: 8/20/03
Carlsbad Redevelopment Agency
Page 5
8. RIGHT TO ENTER PROPERTY Upon execution of this lease agreement, Lessee
shall be granted access to the premises to initiate, construct and complete any desired
tenanthuilding improvements as outlined in Paragraph 5 of this lease.
9. REPRESENTATIONS AND INDEMNITIES OF BROKER RELATIONSHIPS:
Lessee and Lessor each represent and warrant to the other that it has had no dealings with
any person, firm, broker or finder in connection with this Lease, and that no person, firm,
broker or finder is entitled to any commission or finder’s fee in connection herewith.
Lessee and Lessor do each hereby agree to indemnify, protect, defend and hold the other
hannless from and against liability for compensation or charges which may be claimed
by any such unnamed broker, finder or other similar party by reason of any dealings or
actions of the Lessee and/or Lessor, including any costs, expenses, or attorney’s fees
reasonably incurred with respect thereto.
10. WAIVER OF RELOCATION BENEFITS: Lessee understands this lease agreement is
entered into for a specified period of time in order to provide interim use of the property,
until such time as the Lessor chooses to develop the property in accordance with the
Carlsbad Village Redevelopment Master Plan. Lessee therefore agrees to waive any and
all relocation benefits defined in the California Relocation Assistance Law (Government
Code, Section 7260, g, 9.) after having the opportunity to consult with legal counsel
about potential en titlemen ts.
11. LIENS:
(a) Lessee agrees that it will at all times hold Lessor free and harmless and
indemnify it against all claims for labor or materials in connection with
improvements, repairs, or alterations on the lease premises, including the costs
of defending against such claims, and reasonable attorney’s fees incurred
therein.
(b) In the event that any lien or levy of any nature whatsoever is filed against the
lease premises or the leasehold interests of the Lessee, the Lessee shall, upon
written request of Lessor, deposit with Lessor a bond conditioned for the
payment in full of all claims upon which said lien or levy has been filed. Such
bond shall be acknowledged by Lessee as principal and by a corporation,
licensed by the Insurance Commissioner of the State of California to transact
the business of a fidelity and surety insurance company, as‘swety, and in
accordance with the City of Carlsbad’s bonding requirements. Lessor shall
have the right to declare this lease in default in the event the bond required by
this paragraph has not been deposited with the Lessor within ten (10) days
after written request has been delivered to Lessee.
12. LEASE ENCUMBRANCE: Lessee understands and agrees that it cannot encumber the
lease, leasehold estate and the improvements thereon by a deed of trust, mortgage or
other security instrument. If any deed of trust, mortgage or other security instrument that
2787 State Street Lease Agreement
Final Revisions: 8/20/03
Carlsbad Redevelopment Agency
Page 6
encumbers the lease, leasehold estate and the improvements thereon is entered into by
Lessee, Lessor shall have the right to declare this lease in default.
13. ASSIGNMENT-SUBLEASE: Lessee shall not assign or transfer the whole or any part
of this lease or any interest therein, by merger, consolidation, dissolution or otherwise,
nor sublease the whole or any part of the leased premises, nor contract for the
management or operation of the whole or any part of the leased premises, nor permit the
occupancy of any part thereof by any other person or business entity, nor permit transfer
of the lease by merger, consolidation or dissolution, without the prior written consent of
Lessor, in each instance. This lease shall inure to the benefit of and be binding upon the
parties hereto and any successors of Lessee as fully and to the same extent as though
specifically mentioned in each instance, and all covenants, stipulations and agreements in
this lease shall extend to and bind any assigns and sublessee of Lessee.
14. DEFAULT:
(a) It is mutually understood and agreed that if any default be made in the
payment of rental herein provided or in the performance of the covenants,
conditions, or agreements herein (any covenant or agreement shall be
construed and considered as a condition), or should Lessee fail to fulfill in any
manner the uses and purposes for which said premises are leased as above
stated, and such default shall not be cured within thirty (30) days after written
notice thereof if default is in the performance of the use obligation provisions
pursuant to Paragraph 3 of this lease, or ten (10) days after written notice
thereof if default is in the payment of rent, or in the performance of any other
covenant, condition and agreements, Lessor shall have the right to
immediately terminate this lease; and that in the event of such termination,
Lessee shall have no further rights hereunder, the Lessee shall thereupon
forthwith remove all personal property from said premises and shall have no
further right to claim thereto, and Lessor shall immediately thereupon, without
recourse to the courts, have the right to reenter and take possession of the
leased premises. Lessor shall further have all other rights and remedies as
provided by law, including without limitation the right to recover damages
from Lessee in the amount necessary to compensate the Lessor for all the
detriment proximately caused by the Lessee’s failure to perform its
obligations under the lease or which in the ordinary course of things would be
likely to result there from.
(b) In the event of the termination of this lease pursuant to the provisions of this
paragraph, Lessor shall have any rights to which it would be entitled in the
event of the expiration or sooner termination of this lease.
15. BANKRUPTCY: In the event Lessee becomes insolvent, makes an assignment for the
benefit of creditors, files a petition in bankruptcy or becomes the subject of a bankruptcy
proceeding, reorganization, arrangement, insolvency, receivership, liquidation, or
2787 State Street Lease Agreement
Final Revisions: 8/20/03
Carlsbad Redevelopment Agency
Page 7
dissolution proceeding, or in the event of any judicial sale of Lessee’s interest under this
lease, Lessor shall have the right to declare this lease in default.
16. MAINTENANCE AND REPAIR:
(a) As part of the consideration for the leasing thereof, Lessee agrees to assume
full responsibility for the interior operation, maintenance, including painting,
and repair of the premises, throughout the term and without expense to the
Lessor. Lessee will perform all interior maintenance, repairs and
replacements, including glass, necessary to maintain and preserve the
premises in a good, safe, healthy and sanitary condition satisfactory to Lessor
and in compliance with all applicable laws. Lessee further agrees to provide
approved containers for trash and garbage and to keep premises free and clear
of rubbish and litter, or any other fire hazards. Lessor shall be responsible for
all exterior maintenance, including roof repairs.
(b) For the purpose of keeping the premises in a good, safe, healthy and sanitary
condition, Lessor shall have the right but not the duty, to enter, view, inspect,
determine the condition of and protect its interests in, the premises. If
inspection discloses that the premises are not in the condition described,
Lessee must perform the necessary maintenance work within thirty (30) days
after written notice from Lessor. Further, if at any time during the term of the
lease for the premises Lessor determines that the premises are not in the
condition described, Lessor may require Lessee to file and pay for a faithful
performance bond, to assure prompt correction without additional notice. The
amount of this bond shall be adequate, in Lessor’s opinion, to correct the
unsatisfactory condition. The rights reserved in this section shall not create
any obligations or increase any obligations for Lessor elsewhere in this Lease.
17. TAXES AND UTILITIES: Lessee shall not be responsible for payment of any property
taxes associated with the premises. Property taxes, if any, shall be paid solely by the
Lessor. However, this lease may resuIt in a taxable possessory interest. Lessee agrees to
and shall pay before delinquency all its pro-rata share of the possessory taxes and
assessments of any kind assessed or levied upon Lessee or the leased premises by reason
of this lease or of any structuxs, machines, or other improvements of any nature
whatsoever erected, installed or maintained by Lessee, or by reason of the business or
other activities of Lessee upon or in connection with the leased premises. Lessee shall
also pay any fees imposed by law for licenses or permits for any business or activities of
Lessee upon the leased premises or under this lease, and shall pay before delinquency any
and all charges for utilities at or on the leased premises. If Lessee fails to pay said
possessory taxes, Lessor may declare default in accordance with Paragraph 14. Lessee
shall be responsible for payment of all utilities, including but not limited to security
alarm, trash, water, gas and electricity.
2787 State Street Lease Agreement
Final Revisions: 8/20/03
Carlsbad Redevelopment Agency
Page 8
18. CONFORMANCE WITH RULES AND REGULATIONS: Lessee agrees that in all
activities on or in connection with the leased premises and in all uses thereof, including
the making of any alterations or changes and the installation of any machines or other
improvements, it will abide by and conform to all ordinances, rules and regulations
prescribed by the City of Carlsbad, including, but not limited to, sign regulations and
requirements for outdoor display set forth within the Carlsbad Village Redevelopment
Master Plan and Design Manual and the City of Carlsbad Municipal Code, and any
applicable laws, including those of the County Health Department, the State of California
and Federal Government, as any of the same now exist or may hereafter be adopted or
amended.
19. NON-DISCRIMINATION: Lessee agrees not to discriminate against any person or
class of persons by reason of sex, color, race, religion, or national origin. If the use
provided for in this lease allows the Lessee to offer accommodations or services to the
public, such accommodations or services shall be offered by the Lessee to the public on
fair and reasonable terms.
20. PARTIAL INVALIDITY: If any term, covenant, condition, or provision of this lease
is held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the provisions hereof shall remain in full force and effect and shall in no
way be affected, impaired, or invalidated thereby.
21. HOLD HARMLESS: Lessee shall defend, indemnify, and hold harmless Lessor, its
officers and employees from liability, damage, and expense of any kind, including
reasonable attorney’s fees, arising from all claims or causes of action of any kind
including but not limited to injury to or death of any person or persons, including Lessee,
its employees, and invitees resulting directly or indirectly from granting and performance
of this lease or arising from the use and operation of the leased premises or any defect in
any part thereof.
22. HAZARDOUS SUBSTANCES: The term “Hazardous Substance” as used in this
Lease shall mean any product, substance, or waste whose presence, use, manufacture,
disposal, transportation, or release, either by itself or in combination with other materials
expected to be on the premises, is either: (i) potentially injurious to the public health,
safety or welfare, the environment or the premises, (ii) regulated or monitored by any
government authority, or (iii) a basis for potential liability of Lessor to any governmental
agency or third party under any applicable statue or common law theory. Lessee shall not
cause or permit any Hazardous Substance to be spilled or released in, on, under, or about
the premises (including through the plumbing or sanitary sewer system) and shall
promptly, at Lessee’s expense, take all investigatory and/or remedial action reasonably
recommended, whether or not formally ordered or required, for the cleanup of any
contamination of, and for the maintenance, security and/or monitoring of the premises or
neighboring properties, that was caused or contributed to by Lessee, or pertaining to or
involving any Hazardous Substance brought onto the premises during the term of this
Lease, by or for Lessee, or any third party.
2787 State Street Lease Agreement
Final Revisions: 8/20/03
Carlsbad Redevelopment Agency
Page 9
23. EASEMENTS:
(a) This lease and all rights given hereunder shall be subject to all easements and
rights-of-way now existing or heretofore granted or reserved by Lessor in, to
or over the leased premises for any purpose whatsoever, and shall be subject
to such rights-of-way for reasonable access, sewers, pipelines, conduits and
such telephone, cable television, telegraph, light, heat or power lines as may
from time to time be determined by Lessor to be necessary.
(b) Lessor agrees that such easements and rights-of-way shall be so located and
installed as to produce a minimum amount of interference to the business of
Lessee.
24. INSURANCE: Lessee shall obtain and maintain for the duration of this lease agreement
and any and all amendments, insurance against claims for injuries to persons or damage
to property which may arise out of or in connection with use of the subject building and
provision of services by Lessee. The insurance will be obtained from an insurance carrier
admitted and authorized to do business in the State of California. The insurance carrier is
required to have a current Best’s Key Rating of not less than “A-V”. The policies for
said insurance shall, as a minimum, provide the following forms of coverage:
(a) Comprehensive General Liability - (covering premises and operations in
the amount of not less than One Million Dollars ($1,000,000) combined single
limit per occurrence for bodily injury, personal injury and property damage. If
the submitted policies contain aggregate limits, general aggregate limits will
apply separately under this lease or the general aggregate will be twice the
required per occurrence limits.
(b) Property Insurance - Lessee shall obtain and maintain insurance coverage
on all of Lessee’s personal property, trade fixtures, alterations and utility
installations. Such insurance shall be full replacement cost coverage with a
deductible of not to exceed $1,000.00 per occurrence. The proceeds from any
such insurance shall be used by Lessee for the replacement of personal
property and trade fixtures as well as alterations and utility installations.
Lessor will be responsible for providing coverage for the structure itself,
exclusive of the items required to be covered by Lessee’s insurance policy.
(c) Business Interruption - Lessee shall obtain and maintain loss of income and
extra expense insurance in amounts as will reimburse Lessee for direct or
indirect loss of earnings attributable to all perils commonly insured against by
prudent lessees in the business of Lessee or attributable to prevention of
access to the premises as a result of such perils.
2787 State Street Lease Agreement
Final Revisions: 8/20/03
Carlsbad Redevelopment Agency
Page 10
Evidence of Insurance - Certificates and endorsements in a form acceptable
to Lessor evidencing the existence of the necessary insurance policies shall be
kept on file with Lessor during the entire term of this lease. All insurance
policies shall be primary coverage, and will name Lessor as an additional
insured, protect Lessor against any legal costs in defending claims and will
not terminate without thirty (30) days written notice to Lessor.
Lessor shall retain the right at any time to review the coverage, form, and
amount of the insurance required hereby. If, in the opinion of the Lessor, the
insurance provisions in this lease do not provide adequate protection for
Lessor and/or for members of the public using the leased premises, Lessor
may require Lessee to obtain an insurance sufficient in coverage, form and
amount to provide adequate protection. Lessor’s requirements shall be
reasonable but shall be designed to assure protection from and against the kind
and extent of risk, which exist at the time a change in insurance is required.
Lessor shall notify Lessee in writing of changes in the insurance requirements
and, if Lessee does not deposit certificates/endorsements evidencing
acceptable insurance policies with Lessor incorporating such changes within
thirty (30) days of receipt of such notice, this lease shall be in default without
further notice to Lessee, and Lessor shall be entitled to all legal remedies.
The procuring of such required policies of insurance shall not be construed to
limit Lessee’s liability hereunder, nor to fulfill the indemnification provisions
and requirements of this lease. Notwithstanding said policies of insurance,
Lessee shall be obligated for the full and total amount of any damage, injury,
or loss caused by negligence or neglect connected with this lease or with the
use or occupancy of the leased premises.
Lessee agrees not to use the premises in any manner, even if use is for
purposes stated herein, that will result in the cancellation of any insurance
Lessor may have on the premises, or on adjacent premises, or that will cause
cancellation of any other insurance coverage for the premises, or adjoining
premises. Lessee further agrees not to keep on the premises or permit to be
kept, used, or sold thereon, anything prohibited by any fire or other insurance
policy covering the premises. Lessee shall, at its sole cost and expense,
comply with any and all requirements, in regard to premises, of any insurance
organization necessary for maintaining fire and other insurance coverage at
reasonable cost.
25. WARRANTIES-GUARANTEES-COVENANTS: Lessor makes no warranty,
guarantee, covenant, including but not limited to covenants of title and quiet enjoyment,
or declaration of any nature whatsoever, concerning the condition of the leased premises,
including the physical condition thereof, or any condition which may affect the leased
2787 State Street Lease Agreement
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Carlsbad Redevelopment Agency
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premises, and it is agreed that Lessor will not be responsible for any loss, damage or costs
which may be incurred by Lessee by reason of any such condition or conditions.
26. DAMAGE TO OR DESTRUCTION OF PREMISES: In the event of damage to or
destruction by fire, the elements, acts of God, or any other cause, of twenty five percent
(25%) or less of the improvements located within the premises Lessee shall, within ninety
(90) days, commence and diligently pursue to completion the repair, replacement, or
reconstruction of improvements necessary to permit full use and occupancy of the
demised premises for the purposes required by this lease. Repair, replacement or
reconstruction of improvements within the demised premises shall be accomplished in a
manner and according to plans approved by Lessor; provided, however, Lessee shall not
be obligated to repair, reconstruct or replace the improvements following their
destruction in whole or substantial part (more than 25% of improvements) except to the
extent the loss is covered by insurance required to be carried by Lessee pursuant to
Paragraph 24 of this Lease (or would be covered whether or not such required insurance
is actually in effect). If Lessee elects not to restore, repair or reconstruct as herein
provided, then the Lease shall terminate. Rent shall not be abated during the repair
period, except to the extent that Lessor is compensated by Lessee’s insurance for rental
loss. Lessor shall be entitled to any insurance proceeds and other compensation for the
loss.
27. QUITCLAIM OF LESSEE’S INTEREST UPON TERMINATION: Upon
termination of this lease for any reason, including but not limited to termination because
of default by Lessee, Lessee shall execute, acknowledge and deliver to Lessor within
thirty (30) days after receipt of written demand thereof a good and sufficient deed
whereby all right, title and interest of Lessee in the demised premises is quitclaimed to
Lessor. Should Lessee fail or refuse to deliver the required deed to Lessor, Lessor may
prepare and record a notice reciting the failure of Lessee to execute, acknowledge and
deliver such deed and said notice shall be conclusive evidence of the termination of this
lease and of all right of Lessee or those claiming under Lessee in and to the demised
premises.
28. PEACEABLE SURRENDER: Upon the expiration of this lease or sooner termination
or cancellation thereof, as herein provided, Lessee will peaceably surrender said premises
to Lessor in as good condition as said premises were at the date of this lease, ordinary
wear and tear excepted. If the Lessee fails to surrender the premises at the expiration of
this lease or the earlier termination or cancellation thereof, Lessee shall defend and
indemnify Lessor from all liability and expense resulting from the delay or failure to
surrender, including, without limitation, any succeeding Lessee’s claims based on
Lessee’s failure to surrender.
29. WAIVER Any waiver by Lessor of any breach by Lessee of any one or more of the
covenants, conditions, or agreements of this lease shall not be, nor be construed to be, a
waiver of any subsequent or other breach of the same or any other covenant, condition or
agreement of this lease, nor shall any failure on the part of Lessor to require or exact full
2787 State Street Lease Agreement
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Page 12
and complete compliance by Lessee with any of the covenants, conditions, or agreements
of this lease be construed as in any manner changing the terms hereof or to prevent
Lessor from enforcing the full provisions hereof. The subsequent acceptance of rent
hereunder by Lessor shall not be deemed to be waiver of any preceding breach by Lessee
of any term, covenant, or condition of this lease, other than the failure of Lessee to pay
the particular rental so accepted, regardless of Lessor’s knowledge of such preceding
breach at the time of acceptance of such rent.
30. NO RIGHT TO HOLD OVER: Lessee has no right to retain possession of the
premises or any part thereof beyond the expiration or termination of this lease. In the
event that Lessee holds over, then the Base Rent shall be increased to one hundred fifty
percent (150%) of the Base Rent applicable during the month immediately preceding the
expiration or termination. Nothing contained herein shall be construed as consent by
Lessor to any holding over by Lessee.
31. ACCEPTANCE OF PREMISES:
(a) Prior to execution of this lease, Lessee shall be entitled to have independent
tests performed to satisfy Lessee that the premises are in condition for
occupancy.
(b) By signing this Lease, Lessee represents and warrants that it has independently inspected the premises and made all tests, investigations and
observations necessary to satisfy itself of the condition of the premises.
Lessee further acknowledges that premises are in an acceptable condition, and
that Lessee does not hold Lessor responsible for any defects in premises.
32. QUIET POSSESSION: Lessee will at all times during the terms of this Lease occupy
the premises quietly and not commit any act, waste or nuisance which disturbs the quiet
enjoyment of the property for the Lessor, public, any neighbor or other tenant of Lessor.
33. SUCCESSORS IN INTEREST: Unless otherwise provided in this lease, the terms,
covenants and conditions herein shall apply to and bind the heirs, successors, executors,
administrators, and assigns of all the parties hereto, all of whom shall be jointly and
severally liable hereunder.
34, ENTIRE UNDERSTANDING: This lease contains the entire and only understanding
and agreement of the parties, and Lessee, by accepting the same, acknowledges that there
is no other written or oral understanding or agreement between the parties with respect to
the demised premises and that this lease supersedes all prior negotiations, discussions,
obligations and rights of the parties hereto. No waiver, modification, amendment or
alteration of this lease shall be valid unless it is expressly in writing and signed by
authorized persons of the parties hereto. Each of the parties to this lease acknowledges
that no other party, nor any agent or attorney of any other party, has made any promise,
representations, waiver or warranty whatsoever, express or implied, which is not
2787 State Street Lease Agreement
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Page 13
expressly contained in writing in this lease, and each party further acknowledges that it
has not executed this lease in reliance upon any collateral promise, representation, waiver
or warranty, or in reliance upon any belief as to any fact not expressly recited in this
lease.
35. TIME IS OF THE ESSENCE: Time is of the essence of each and all of the terms and
provisions of this lease.
36. NOTICES: Notices given or to be given by Lessor or Lessee to the other may be
personally serviced upon Lessor or Lessee or any person hereafter authorized by either in
writing to receive such notice or may be served by certified letter addressed to the
appropriate address hereinafter set forth or to such other address as Lessor and Lessee
may hereafter designate by written notice. If served by certified mail, forty-eight (48)
hours after deposit in the U.S. Mail, service will be considered completed and binding on
the party served.
TO LESSEE TO LESSOR
Catherine Boyle
Children's Discovery Museum
300 Carlsbad Village #lo3 Carlsbad, California 92008
Housing & Redevelopment Director
Carlsbad Redevelopment Agency
2965 Roosevelt Street, Suite B
Carlsbad, California 92008
LESSEE:
BY:
DIRECTOR
CHILDREN'S DISCOVERY MUSEUM
OF NORTH COUNTY
CARLSBAD RE!DEWLOPMENT
AGENCY
g'te &~,,=,~~~,d * Note: Signature of Lessee must be
budk&eHr Notarized.
APPROVED AS TO FORM AND LEGALITY:
@hY ATTORNEY
-iu 3 c DATE: 9 /f
2787 State Street Lease Agreement
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Carlsbad Redevelopment Agency
Page 14
CALIFORNIA &-PURPOSE Cmcm OF ACKNOWLEDGMENT Ill
II
OPTIONAL
The data below is not required by kw, however it may prove valuable to persons
relying on the document and could preventjkaudult reaftachment of this form.
wa&L&o- Name title - e.&, John Doe, Notary hbk 0x1 beforeme, /
T
personally appeared Name($ of Si-s)
P Personally known to me
to be the person(s) whose name(s) idyesubscribed to the within instrument and acknowledged to
me that ,kdsheMey executed the same in per/tM authorized capacity(ies), and that by Ks/
her/th$ signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s)
acted, executed the instrument.
to me on the basis of satisfactory evidence
fl Signature of Notaty
0 bMiTED
Q GENERAL
0 ATTORNEY-IN-FACT
P TRUSTEE(S) a GUARDIAN/CONSERVATOR
i f3
. NUMBER OF PAGES
r
DATE OF Docu~mr I
Q OTHER:
NAME^) OF PERSON(S) OR ~Am(ns) SIGNER IS REPRESEMWG:
SIGNER(S) OTHER THAN NAMED ABOVE:
WHEREAS, Children’s Dimvery Museum of North County, is legally constituted
non-profit corporation under the laws of the state of California,
NOWTHEREFORE, BE lT RESOLVED, that the Board of Directors hereby
approves and gives Catherine Boyle, Executive Director, authorization to sign and
execute terms of lease agreement (attached) with City of Carlsbad Redevelopment
Agency for the property located at 2787 State Street in Carlsbad, California.
Adopted on September 4,2003
/
Board of Directom
TPiak~n Greett,uBoatd of Directors
EXHIBIT 3
CARLSBAD REDEVELOPMENT AGENCY
LEASE TO
JBB DESIGNS INC.
DBA: BEACH BOUND
OF PROPERTY LOCATED AT
2787 STATE STREET
CARLSBAD, CALIFORNIA 92008
2787 State Street Lease Agreement
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Page 1
:- . ...
CARLSBAD REIlEvELOPMEN" AGENCY
LEASE TO
JBB DESIGNS INC.
DBA: BEACH BOUND
OF PROPERTY LOCATED AT
2787 STATE STREET
CARLSBAD, CALIFORNIA 92008
2787 State Street Lease Agreement
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Carlsbad Redevelopment Agency
Page 1
<2
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into this /w day of T. , 2003, by and between the Carlsbad Redevelopment Agency, hereinafter called “Lessor,” and JBB
Designs, Inc. DBA: Beach Bound, a children’s clothing store, a California corporation,
hereinafter called “Lessee,” without reference to number or gender, for property located at 2787
State Street, Carlsbad, California, 92008.
WHEREAS, the Carlsbad Redevelopment Agency is the owner of the real property improved
with an approximately 9400 square foot commercial building located at 2787 State Street,
Carlsbad, California, 92008; and
WHEREAS, Lessee desires use of a maximum of 3121 square feet of said Lessor premises to
operate a business (as defined below);
NOW, THEREFORE, it is understood and agreed by and between the parties hereto as follows,
to wit:
TO HAVE AND TO HOLD a portion of said leased premises for the term of this lease and upon
the conditions as follows:
1. TERM: The term of the lease shall be for a period of three (3) years commencing on
October 1, 2003, and ending on September 30,2006. Provided tenant has completed any
necessary improvements and obtained approval from the Housing and Redevelopment
Director to occupy said premises prior to the commencement date stated herein, Lessee
shall be entitled to occupy the premises and conduct business prior to commencement
date. At the Lessor’s discretion, Lessee may extend the term for one (1) additional one
(1) year period, upon the same terms and conditions stated herein. Lessee must request an
extension in writing at least 120 days prior to the initial lease term’s expiration.
As and for the rent, Lessee agrees to pay to Lessor the sum of three thousand
one hundred and twenty-one dollars ($3,121) per month for the three year
term of the lease. Lease payments shall begin as of February 1, 2004. On or
before February 1, 2004, the first payment of $3,121 per month will be paid
and all subsequent payments shall be payable in advance on or before the first
day of each and every month during the term of this Agreement.
Rent shall be delivered to the Finance Department of the City of Carlsbad at
1635 Faraday Avenue, Carlsbad, California, 92008. The designated place of
payment and filing may be changed at any time by Lessor upon ten (10) days
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3. USE:
(4
written notice to Lessee. Lessee assumes all risk of loss if payments are made
by mail.
In the event Lessee is delinquent in remitting the rent due in accordance with
the rent provisions of this lease, then the rent not paid when due shall bear
interest at the rate of Ten Per Cent (10%) per annum from the date due until
paid. Provided, however, that the Executive Director of Carlsbad
Redevelopment Agency shall have the rjght to waive for good cause any
interest payment for any such delinquency period upon written application of
Lessee
There shall be no increase in the monthly lease payment for the three-year
lease period. If granted, any extension beyond the third year will be held at
the initial three-year term lease rate.
Lessee agrees to pay a Security Deposit in the amount of one month’s rent or
three thousand one hundred twenty-one dollars ($3,121) to be paid upon
execution of this lease agreement. Lessee shall submit the Security Deposit in
the form of a cashier’s check simultaneously, andlor in conjunction with the
signed lease agreement. Lessor shall not cash nor deposit said Security
Deposit until this lease agreement is signed by Lessor, resulting in the full
execution of this agreement. The Security Deposit shall be held in an interest
bearing account (at the same rate the City of Carlsbad earns on its money).
Upon expiration of this lease, Lessee shall be entitled to all interest accrued
over said lease term. Lessor shall not be required to keep the Security Deposit
separate from its general accounts.
If Lessee fails to pay Rent, or otherwise defaults under this lease, Lessor may
use, apply or retain all or any portion of said Security Deposit for the payment
of any amaunt due Lessor or to reimburse or compensate Lessor for any
liability, expense, loss or damage which Lessor may suffer or incur by reason
thereof. If Lessor uses or applies all or any portion of said Security Deposit,
Lessee shall within ten (10) days after written request therefore, deposit
monies with Lessor sufficient to restore said Security Deposit to the full
amount required by this Lease.
Lessee agrees that the 3121 square feet of leased premises shall’be used only
and exclusively for operation of the Beach Bound Children’s Clothing Store
and for no other purpose whatsoever without the written consent of Lessor.
The use shall include the retaillstore area, stock room and shipping and
receiving area.
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73
(b) Lessee shall not and is expressly prohibited from using the premises for any
other purpose or use whatsoever, whether it is purported to be in addition to or
in lieu of the particular exclusive use.
(c) Lessee shall actively and continuously use and operate the premises for the
limited particular exclusive use as expressly provided for in Paragraph 3(a) of
this lease, except for failure to do so caused by acts of God.
4. EARLY TERMINATION: Lessee or Lessor shall have a right to terminate this lease
by first giving one hundred eighty (180) days written notice to the other party and
payment of twenty-five thousand dollars ($25,000.00) for penalty of early termination.
In the event either party exercises the option of early termination, the party seeking
termination shall pay fifty percent (50%) or twelve thousand five hundred dollars
($12,500.00) at the time written notification of lease termination is given and shall pay
the remaining fifty percent (50% of the penalty payment or twelve thousand five hundred
dollars $12,500.00) upon expiration of said 180 day notification period. Any security
deposit shall be applied toward and deducted from the second penalty payment of twelve
thousand five hundred dollars (12,500.00) if not otherwise applied towards delinquencies
or other lessee obligations.
5. IMPROVEMENTS:
(a) Subject to Lessor approval, Lessee may, at its own expense, make interior
alterations or changes in the 3,121 square feet of leased premises or cause to
be built, made or installed thereon any structures, machines, appliances,
utilities, signs or other improvements necessary or desirable for the use of said
premises and may alter and repair any such structures, machines or other
improvements; provided, however, that no alterations and changes shall be
made and no structures, machines, appliances, utilities, signs or other
improvements shall be made, built or installed, and no major repairs thereto
shall be made except upon obtaining all necessary prior approvals from Lessor
and proper permits from the City of Carlsbad.
(b) Lessee shall be responsible for manufacturing and installation of signage in
accordance with the signage regulations set forth within the Carlsbad Village
Redevelopment Master Plan and Design Manual and the City of Carlsbad
Municipal Code. Lessee further agrees that no banners, pennants, flags, or
other advertising devices, nor any temporary signs shall be permitted to be
flown, installed, placed, or erected on the premises except in accordance with
the City of Carlsbad Village Redevelopment Master Plan and Design Manual
and the City of Carlsbad Municipal Code.
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Page 4
3
6.
7.
8.
9.
OWNERSHIP; REMOVAL; SURRENDER/RESTORATION
Ownersbip.. Lessor shall have the right to require removal or elect ownership
of all alterations and utility installations made by Lessee, except for trade
fixtures which shall be owned and removed by Lessee. Unless otherwise
instructed per Paragraph 6(b) hereof, all Lessee owned alterations and utility
installations shall, at the expiration or termination of this Lease, become the
property of Lessor and be surrendered by Lessee with the premises.
Removal. By delivery to Lessee of written notice from Lessor not later than
sixty (60) days prior to the end of the term of this Lease, Lessor may require
that any or all Lessee constructed alterations or utility installations be
removed by the expiration or termination of this Lease. Lessor may require
the removal at any time of all or any part of any alterations or utility
installations made without the required consent.
Surrender/Restoration. Lessee shall surrender the premises by the
expiration date or any earlier termination date, with all of the improvements,
parts and surfaces thereof broom clean and free of debris, and in good
operating order, condition and state of repair, ordinary wear and tear excepted.
“Ordinary wear and tear” shall not include any damage or deterioration that
would have been prevented by good maintenance practice. Lessee shall repair
any damage occasioned by the installation, maintenance or removal of trade
fixtures, alterations andor utility installations, furnishings, and equipment
installed by or for Lessee and the removal, replacement, or remediation or any
soil, material or groundwater contaminated with hazardous substance (as
defined in Paragraph 22) by Lessee. Trade fixtures shall remain the property
of Lessee and shall be removed by Lessee. The failure by Lessee to timely
vacate the premises pursuant to this Paragraph 6 (c) without the express
written consent of Lessor shall constitute a holdover under the provisions of
Paragraph 30 below.
PARKING: Lessee understands there is no private parking available on the subject
property. Lessee further understands that execution of this lease agreement in no way constitutes the granting of exclusive use of public parking adjacent to the property.
RIGHT TO ENTER PROPERTY: Upon execution of this lease agreement, Lessee
shall be granted access to the premises to initiate, construct and complete any desired
tenanthuilding improvements as outlined in Paragraph 5 of this lease.
REPRESENTATIONS AND INDEMNITIES OF BROKER RELATIONSHIPS:
Lessee and Lessor each represent and warrant to the other that it has had no dealings with
any person, firm, broker or finder in connection with this Lease, and that no person, firm,
broker or finder is entitled to any commission or finder’s fee in connection herewith.
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0
Lessee and Lessor do each hereby agree to indemnify, protect, defend and hold the other
harmless from and against liability for compensation or charges which may be claimed
by any such unnamed broker, finder or other similar party by reason of any dealings or
actions of the Lessee andor Lessor, including'any costs, expenses, or attorney's fees
reasonably incurred with respect thereto.
10. WAIVER OF RELOCATION BENEFITS: Lessee understands this lease agreement is
entered into for a specified period of time in order to provide interim use of the property,
until such time as the Lessor chooses to develop the property in accordance with the
Carlsbad Village Redevelopment Master Plan. Lessee therefore agrees to waive any and
all relocation benefits defined in the California Relocation Assistance Law (Government
Code, Section 7260, et, a.) after having the opportunity to consult with legal counsel
about potential entitlements,
11. LIENS:
(a) Lessee agrees that it will at all times hold Lessor free and hannless and
indemnify it against all claims for labor or materials in connection with
improvements, repairs, or alterations on the lease premises, including the costs
of defending against such claims, and reasonable attorney's fees incurred
therein.
(b) In the event that any lien or levy of any nature whatsoever is filed against the
lease premises or the leasehold interests of the Lessee, the Lessee shall, upon
written request of Lessor, deposit with Lessor a bond conditioned for the
payment in full of all claims upon which said lien or levy has been filed. Such
bond shall be acknowledged by Lessee as principal and by a corporation,
licensed by the Insurance Commissioner of the State of California to transact
the business of a fidelity and surety insurance company, as surety, and in
accordance with the City of Carlsbad's bonding requirements. Lessor shall
have the right to declare this lease in default in the event the bond required by
this paragraph has not been deposited with the Lessor within ten (10) days
after written request has been delivered to Lessee.
12. LEASE ENCUMBRANCE: Lessee understands and agrees that it cannot encumber the
lease, leasehold estate and the improvements thereon by a deed of trust, mortgage or
other security instrument. If any deed of trust, mortgage or other security instrument that
encumbers the lease, leasehold estate and the improvements thereon is entered into by
Lessee, Lessor shall have the right to declare this lease in default.
13. ASSIGNMENT-SUBLEASE: Lessee shall not assign or transfer the whole or any part
of this lease or any interest therein, by merger, consolidation, dissolution or otherwise,
nor sublease the whole or any part of the leased premises, nor contract for the
management or operation of the whole or any part of the leased premises, nor permit the
occupancy of any part thereof by any other person or business entity, nor permit transfer
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f3
.. . . .
of the lease by merger, consolidation or dissolution, without the prior written consent of
Lessor, in each instance. This lease shall inure to the benefit of and be binding upon the
parties hereto and any successors of Lessee as fully and to the same extent as though
specifically mentioned in each instance, and all covenants, stipulations and agreements in
this lease shall extend to and bind any assigns and sublessee of Lessee.
14. DEFAULT:
(a) It is mutually understood and agreed that if any default be made in the
payment of rental herein provided or in the performance of the covenants,
conditions, or agreements herein (any covenant or agreement shall be
construed and considered as a condition), or should Lessee fail to fulfill in any
manner the uses and purposes for which said premises are leased as above
stated, and such default shall not be cured within thirty (30) days after written
notice thereof if default is in the performance of the use obligation provisions
pursuant to Paragraph 3 of this lease, or ten (10) days after written notice
thereof if default is in the payment of rent, or in the performance of any other
covenant, condition and agreements, Lessor shall have the right to
immediately terminate this lease; and that in the event of such termination,
Lessee shall have no further rights hereunder, the Lessee shall thereupon
forthwith remove all personal property from said premises and shall have no
further right to claim thereto, and Lessor shall immediately thereupon, without
recourse to the courts, have the right to reenter and take possession of the
leased premises. Lessor shall further have all other rights and remedies as
provided by law, including without limitation the right to recover damages
from Lessee in the amount necessary to compensate the Lessor for all the
detriment proximately caused by the Lessee’s failure to perform its
obligations under the lease or which in the ordinary course of things would be
likely to result there from.
(b) In the event of the termination of this lease pwsuant to the provisions of this
paragraph, Lessor shall have any rights to which it would be entitled in the
event of the expiration or sooner termination of this lease.
15. BANKRUPTCY: In the event Lessee becomes insolvent, makes an assignment for the
benefit of creditors, files a petition in bankruptcy or becomes the subject of a bankruptcy
proceeding, reorganization, arrangement, insolvency, receivership, liquidation, or
dissolution proceeding, or in the event of any judicial sale of Lessee’s interest under this
lease, Lessor shall have the right to declare this lease in default.
16. MAINTENANCE AND REPAIR:
(a) As part of the consideration for the leasing thereof, Lessee agrees to assume
full responsibility for the interior operation, maintenance, including painting,
and repair of the premises, throughout the term and without expense to the
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f3
Lessor. Lessee will perform all interior maintenance, repairs and
replacements, including glass, necessary to maintain and preserve the
premises in a good, safe, healthy and sanitary condition satisfactory to Lessor
and in compliance with all applicable laws. Lessee further agrees to provide
approved containers for trash and garbage and to keep premises free and clear
of rubbish and litter, or any other fire hazards. Lessor shall be responsible for
all exterior maintenance, including roof repairs.
(b) For the purpose of keeping the premises in a good, safe, healthy and sanitary
condition, Lessor shall have the right but not the duty, to enter, view, inspect,
determine the condition of and protect its interests in, the premises. If
inspection discloses that the premises are not in the condition described,
Lessee must perform the necessary maintenance work within thirty (30) days
after written notice from Lessor. Further, if at any time during the term of the
lease for the premises Lessor determines that the premises are not in the
condition described, Lessor may require Lessee to file and pay for a faithful
performance bond, to assure prompt correction without additional notice. The
amount of this bond shall be adequate, in kssor’s opinion, to correct the
unsatisfactory condition. The rights reserved in this section shall not create
any obligations or increase any obligations for Lessor elsewhere in this Lease.
17. TAXES AND UTILITIES: Lessee shall not be responsible for payment of any property
taxes associated with the premises. Property taxes, if any, shall be paid solely by the
Lessor. However, this lease may result in a taxable possessory interest. Lessee agrees to
and shall pay before delinquency all its pro-rata share of the possessory taxes and
assessments of any kind assessed or levied upon Lessee or the leased premises by reason
of this lease or of any structures, machines, or other improvements of any nature
whatsoever erected, installed or maintained by Lessee, or by reason of the business or
other activities of Lessee upon or in connection with the leased premises. Lessee shall
also pay any fees imposed by law for licenses or permits for any business or activities of
Lessee upon the leased premises or under this lease, and shall pay before delinquency any
and all charges for utilities at or on the leased premises. If Lessee fails to pay said
possessory taxes, Lessor may declare default in accordance with Paragraph 14. Lessee
shall be responsible for payment of all utilities, including but not limited to security
alarm, trash, water, gas and electricity.
18. CONFORMANCE WITH RULES AND REGULATIONS: Lessee agrees that in all
activities on or in connection with the leased premises and in all uses thereof, including
the making of any alterations or changes and the installation of any machines or other
improvements, it will abide by and conform to all ordinances, rules and regulations
prescribed by the City of Carlsbad, including, but not limited to, sign regulations and
requirements for outdoor display set forth within the Carlsbad Village Redevelopment
Master Plan and Design Manual and the City of Carlsbad Municipal Code, and any
applicable laws, including those of the County Health Department, the State of California
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0
....
and Federal Government, as any of the same now exist or may hereafter be adopted or
amended.
19. NON-DISCRIMINATION Lessee agrees not to discriminate against any person or
class of persons by reason of sex, color, race, religion, or national origin. If the use
provided for in this lease allows the Lessee to offer accommodations or services to the
public, such accommodations or services shall be offered by the Lessee to the public on
fair and reasonable terms.
20. PARTIAL INVALIDITY: If any term, covenant, condition, or provision of this lease
is held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the provisions hereof shall remain in full force and effect and shall in no
way be affected, impaired, or invalidated thereby.
21. HOLD HARMLESS: Lessee shall defend, indemnify, and hold harmless Lessor, its
officers and employees from liability, damage, and expense of my kind, including
reasonable attorney’s fees, arising from all claims or causes of action of any kind
including but not limited to injury to or death of any person or persons, including Lessee,
its employees, and invitees resulting directly or indirectly from granting and performance
of this lease or arising from the use and operation of the leased premises or any defect in
any part thereof.
22. HAZARDOUS SUBSTANCES: The term “Hazardous Substance” as used in this
Lease shall mean any product, substance, or waste whose presence, use, manufacture,
disposal, transportation, or release, either by itself or in combination with other materials
expected to be on the premises, is either: (i) potentially injurious to the public health,
safety or welfare, the environment or the premises, (ii) regulated or monitored by any
government authority, or (iii) a basis for potential liability of Lessor to any governmental
agency or third party under any applicable statue or common law theory. Lessee shall not
cause or permit any Hazardous Substance to be spilled or released in, on, under, or about
the premises (including through the plumbing or sanitary sewer system) and shall
promptly, at Lessee’s expense, take all investigatory andor remedial action reasonably
recommended, whether or not formally ordered or required, for the cleanup of any
contamination of, and for the maintenance, security andor monitoring of the premises or
neighboring properties, that was caused or contributed to by Lessee, or pertaining to or
involving any Hazardous Substance brought onto the premises during the term of this
Lease, by or for Lessee, or any third party.
23. EASEMENTS:
(a) This lease and all rights given hereunder shall be subject to all easements and
rights-of-way now existing or heretofore granted or reserved by Lessor in, to
or over the leased premises for any purpose whatsoever, and shall be subject
to such rights-of-way for reasonable access, sewers, pipelines, conduits and
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.I.
such telephone, cable television, telegraph, light, heat or power lines as may
from time to time be determined by Lessor to be necessary.
(b) Lessor agrees that such easements and rights-of-way shall be so located and
installed as to produce a minimum amount of interference to the business of
Lessee.
24. INSURANCE: Lessee shall obtain and maintain for the duration of this lease agreement
and any and all amendments, insurance against claim for injuries to persons or damage
to property which may arise out of or in connection with use of the subject building and
provision of services by Lessee. The insurance will be obtained from an insurance canier
admitted and authorized to do business in the State of California. The insurance carrier is
required to have a current Best’s Key Rating of not less than “A-V”. The policies for
said insurance shall, as a minimum, provide the following forms of coverage:
Comprehensive General Liability - (covering premises and operations in
the amount of not less than One Million Dollars ($1,000,000) combined single
limit per occurrence for bodily injury, personal injury and property damage. If
the submitted policies contain aggregate limits, general aggregate limits will
apply separately under this lease or the general aggregate will be twice the
required per occurrence limits.
Property Insurance - Lessee shall obtain and maintain insurance coverage
on all of Lessee’s personal property, trade fixtures, alterations and utility
installations. Such insurance shall be full replacement cost coverage with a
deductible of not to exceed $5,000.00 per occurrence. The proceeds from any
such insurance shall be used by Lessee for the replacement of personal
property and trade fixtures as well as alterations and utility installations.
Lessor will be responsible for providing coverage for the structure itself,
exclusive of the items required to be covered by Lessee’s insurance policy.
Business Interruption - Lessee shall obtain and maintain loss of income kid
extra expense insurance in amounts as will reimburse Lessee for direct or
indirect loss of earnings attributable to all perils commonly insured against by
prudent lessees in the business of Lessee or attributable to prevention of
access to the premises as a result of such perils.
Evidence of Insurance - Certificates and endorsements in a form acceptable
to Lessor evidencing the existence of the necessary insurance policies shall be
kept on file with Lessor during the entire term of this lease. All insurance
policies shall be primary coverage, and will name Lessor as an additional
insured, protect Lessor against any legal costs in defending claims and will
not terminate without thirty (30) days written notice to Lessor.
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"' .* .
Lessor shall retain the right at any time to review the coverage, form, and
amount of the insurance required hereby. If, in the opinion of the Lessor, the
insurance provisions in this lease do not provide adequate protection for
Lessor and/or for members of the public using the leased premises, Lessor
may require Lessee to obtain an insurance sufficient in coverage, form and
amount to provide adequate protection. Lessor's requirements shall be
reasonable but shall be designed to assure protection from and against the kind
and extent of risk, which exist at the time a change in insurance is required.
Lessor shall notify Lessee in writing of changes in the insurance requirements
and, if Lessee does not deposit certificates/endorsements evidencing
acceptable insurance policies with Lessor incorporating such changes within
thirty (30) days of receipt of such notice, this lease shall be in default without
further notice to Lessee, and Lessor shall be entitled to all legal remedies.
The procuring of such required policies of insurance shall not be construed to
limit Lessee's liability hereunder, nor to fulfill the indemnification provisions
and requirements of this lease. Notwithstanding said policies of insurance,
Lessee shall be obligated for the full and total amount of any damage, injury,
or loss caused by negligence or neglect connected with this lease or with the
use or occupancy of the leased premises.
Lessee agrees not to use the premises in any manner, even if use is for
purposes stated herein, that will result in the cancellation of any insurance
Lessor may have on the premises, or on adjacent premises, or that will cause
cancellation of any other insurance coverage for the premises, or adjoining
premises. Lessee further agrees not to keep on the premises or permit to be
kept, used, or sold thereon, anything prohibited by any fire or other insurance
policy covering the premises. Lessee shall, at its sole cost and expense,
comply with any and all requirements, in regard to premises, of any insurance
organization necessary for maintaining fire and other insurance coverage at
reasonable cost.
25. WARRANTIES-GUARANTEES-COVENANTS: Lessor makes no warranty,
guarantee, covenant, including but not limited to covenants of title and quiet enjoyment,
or declaration of any nature whatsoever, concerning the condition of the leased premises,
including the physical condition thereof, or any condition which may affect the leased
premises, and it is agreed that Lessor will not be responsible for any loss, damage or costs
which may be incurred by Lessee by reason of any such condition or conditions.
26. DAMAGE TO OR DESTRUCTION OF PREMISES: In the event of damage to or
destruction by fire, the ekements, acts of God, or any other cause, of twenty five percent
(25%) or less of the improvements located within the premises Lessee shall, within ninety
(90) days, commence and diligently pursue to completion the repair, replacement, or
reconstruction of improvements necessary to permit full use and occupancy of the
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demised premises for the purposes required by this lease. Repair, replacement or
reconstruction of improvements within the demised premises shall be accomplished in a
manner and according to plans approved by Lessor; provided, however, Lessee shall not
be obligated to repair, reconstruct or replace the improvements following their
destruction in whole or substantial part (more than 25% of improvements) except to the
extent the loss is covered by insurance required to be carried by Lessee pursuant to
Paragraph 24 of this Lease (or would be covered whether or not such required insurance
is actually in effect). If Lessee elects not to restore, repair or reconstruct as herein
provided, then the Lease shall terminate. Rent shall not be abated during the repair
period, except to the extent that Lessor is compensated by Lessee’s insurance for rental
loss. Lessor shall be entitled to any insurance proceeds and other compensation for the
loss.
27. QUITCLAIM OF LESSEE’S INTEREST UPON TERMINATION: Upon
termination of this lease for any reason, including but not limited to termination because
of default by Lessee, Lessee shall execute, acknowledge and deliver to Lessor within
thirty (30) days after receipt of written demand thereof a good and sufficient deed
whereby all right, title and interest of Lessee in the demised premises is quitclaimed to
Lessor. Should Lessee fail or refuse to deliver the required deed to Lessor, Lessor may
prepare and record a notice reciting the failure of Lessee to execute, acknowledge and
deliver such deed and said notice shall be conclusive evidence of the termination of this
lease and of all right of Lessee or those claiming under Lessee in and to the demised
premises.
28. PEACEABLE SURRENDER Upon the expiration of this lease or sooner termination
or cancellation thereof, as herein provided, Lessee will peaceably surrender said premises
to Lessor in as good condition as said premises were at the date of this lease, ordinary
wear and tear excepted. If the Lessee fails to surrender the premises at the expiration of
this lease or the earlier termination or cancellation thereof, Lessee shall defend and
indemnify Lessor from all liability and expense resulting from the delay or failure to
surrender, including, without limitation, any succeeding Lessee’s claims based on
Lessee’s failure to surrender.
29. WAIVER: Any waiver by Lessor of any breach by Lessee of any one or more of the
covenants, conditions, or agreements of this lease shall not be, nor be construed to be, a
waiver of any subsequent or other breach of the same or any other covenant, condition or
agreement of this lease, nor shall any failure on the part of Lessor to require or exact full
and complete compliance by Lessee with any of the covenants, conditions, or agreements
of this lease be construed as in any manner changing the terms hereof or to prevent
Lessor from enforcing the full provisions hereof. The subsequent acceptance of rent
hereunder by Lessor shall not be deemed to be waiver of any preceding breach by Lessee
of any term, covenant, or condition of this lease, other than the failure of Lessee to pay
the particular rental so accepted, regardless of Lessor’s knowledge of such preceding
breach at the time of acceptance of such rent.
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30. NO RIGHT TO HOLD OVER: Lessee has no right to retain possession of the
premises or any part thereof beyond the expiration or termination of this lease. In the
event that Lessee holds over, then the Base Rent shall be increased to one hundred fifty
percent (150%) of the Base Rent applicable during the month immediately preceding the
expiration or termination. Nothing contained herein shall be construed as consent by
Lessor to any holding over by Lessee.
31. ACCEPTANCE OF PREMISES:
(a) Prior to execution of this lease, Lessee shall be entitled to have independent
tests performed to satisfy Lessee that the premises are in condition for
occupancy.
(b) By signing this Lease, Lessee represents and warrants that it has
independently inspected the premises and made all tests, investigations and
observations necessary to satisfy itself of the condition of the premises.
Lessee further acknowledges that premises are in an acceptable condition, and
that Lessee does not hold Lessor responsible for any defects in premises.
32. QUIET POSSESSION: Lessee will at all times during the terms of this Lease occupy
the premises quietly and not commit any act, waste or nuisance which disturbs the quiet
enjoyment of the property for the Lessor, public, any neighbor or other tenant of Lessor.
33. SUCCESSORS IN INTEREST: Unless otherwise provided in this lease, the terms,
covenants and conditions herein shall apply to and bind the heirs, successors, executors,
administrators, and assigns of all the parties hereto, all of whom shall be jointly and
severally liable hereunder.
34. ENTIRE UNDERSTANDING: This lease contains the entire and only understanding
and agreement of the parties, and Lessee, by accepting the same, acknowledges that there
is no other written or oral understanding or agreement between the parties with respect to
the demised premises and that this lease supersedes all prior negotiations, discussions,
obligations and rights of the parties hereto. No waiver, modification, amendment or
alteration of this lease shall be valid unless it is expressly in writing and signed by
authorized persons of the parties hereto. Each of the parties to this lease acknowledges
that no other party, nor any agent or attorney of any other party, has made any promise,
representations, waiver or warranty whatsoever, express or implied, which is not
expressly contained in writing in this lease, and each party further acknowledges that it
has not executed this lease in reliance upon any collateral promise, representation, waiver
or warranty, or in reliance upon any belief as to any fact not expressly recited in this
lease.
35. TIME IS OF THE ESSENCE: Time is of the essence of each and all of the terms and
provisions of this lease.
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Carlsbad Redevelopment Agency
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. .. - .-
36. NOTICES: Notices given or to be given by Lessor or Lessee to the other may be
personally serviced upon Lessor or Lessee or any person hereafter authorized by either in
writing to receive such notice or may be served by certified letter addressed to the
appropriate address hereinafter set forth or to such other address as Lessor and Lessee
may hereafter designate by written notice. If served by certified mail, forty-eight (48)
hours after deposit in the U.S. Mail, service will be considered completed and binding on
the party served.
TO LESSEE JBB Design, Inc.
Dba: Beach Bound
Attn: Barry Boren
31271 Niguel Road Suite K2
Laguna Niguel, Ca. 92677 c OREN, VICE-PRESIDENT
TO LESSOR
Housing and Redevelopment Director
Carlsbad Redevelopment Agency
2965 Roosevelt Street, Suite B Carlsbad, Ca. 92008
BY:
c ARLSB AD DEVELOPMENT
AGENCY
Note: Signature of Lessee must be
Notarized.
APPROVED AS TO FORM AND LEGALITY: . BY:
&f@A'LD R. BALL-
A'ITORNEY
DATE: /b - 3793
2787 State Street Lease Agreement Final Revisions: 5/30/03
Carlsbad Redevelopment Agency
Page 14
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
state of California California 1
County of Orange
Michael L. Hofacre , Ilm ndT& d OITim is 9, ‘Jw hB. Mcuy hb(R On G3Ob1 , ZOs? beforeme, Dib f
personally appeared Barr9 Bmfi 4 NMll(8) Of Si($
0 personally known to me
181 proved to me on the basis of satisfactory evidence
to be the pmoF whose name(#f id&
subscribed to t e within instrument and
acknowledged to me that he/s$xfh)ady executed
the same in his/p/le[r auth rized
capacity(ieytf, and that by hi&/thdir on the instmment the person(@, or
the signaturr enti upon behalf of which the persond
acted, executed the instrument.
OPTIONAL
Though the infomatlon bdow Is not requid by law, it may prove valuable to persons rdyhg on the document and could prevent lraudulent removal and reattachment of this form io anofher davmenf.
Description of Attached Document I 1
Title or Type of Document: 1
Document Date: Number of Pages: ./y.
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
IWICJW I I 0 Partner - 9 Limited 0 General i7 Attorney-in-Fact
0 Trustee
0 Guardian or Conservator
0 Other:
Signer Is Representing:
Q1999NslimalNo
JBB DESIGNS, INC.
DBA BEACH BOUND
31271 NlGUEL RD.'SUITE K2
LAGUNA NIGUEL, CA 92677
October 1,2003
CARLSBAD REDEVELOPMENT AGENCY
Dear Sir or Madam:
This letter IS/ authorized act o behalf of JBB DESIGNS, INC.
Bany Boren, Vi President, JBB DESIGNS, INC., is