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HomeMy WebLinkAboutAT & SF Railway; 1989-07-27; 179169L-4732 1101S SUPPLEMENTAL AGREEMENT made as of September 9, 1989, between THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Delaware corporation ("Lessor") and CITY OF CARLSBAD, a body corporate and politic ("Lessee"). RECITALS: Lessor and Lessee are now parties to a Lease dated July 27, 1989, Contract No. (pending), being hereinafter called "Original Contract", for the use of a portion of Lessor's property located at or near Carlsbad, California as a site for public parking. The parties hereto desire to modify the Original Contract as hereinafter provided. AGREEMENT: It Is mutually agreed that, effective September 1, 1989, the Original Contract Is hereby changed as follows: Section B, Part I of the Basic Lease Terms 1s revised to change the Lease "Commencement Date" to September 1, 1989. Except as herein amended and supplemented, the Original Contract shall remain unchanged and continue In full force and effect as written. IN WITNESS WHEREOF, the parties hereto have executed this Supplemental Agreement In duplicate counterparts as of the day and year first above written. THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY a Delaware corporation By Title Assistant Ma.-isger of Contracxa -LESSOR- GeneraJ Attorney CITY OF CARLSBAD a body^c CKAUDE A. LEWIS, Mayor Its Mayor -LESSEE- BEST COPY ADDENDUM TO LEASE DATED JULY 27, 1989 BETWEEN THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, AS LESSOR AND CITY OF CARLSBAD, AS LESSEE Section F - Part I (Basic Lease Terms) of the Lease 1s hereby partially modified as follows: Lessee represents to Lessor that Lessee 1s self-Insured. Lessee shall provide Lessor proof of such self-Insurance, acceptable to Lessor, prior to entry onto the Premises. INITIALISE! \ INIT- THIRTY DAY LEASE Contract Nn 179169 RETURN TO Secretary, The A.T. & S.F. RY. COL T; 1222L THIS LEASE, made this 27th day of July, 1989, between THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Delaware corporation, (hereinafter referred to as "Lessor") and CITY OF CARLSBAD, a body corporate and politic (hereinafter referred to as "Lessee"). PART I: BASIC LEASE TERMS A. Premises: The land and any existing Improvements and facilities existing thereon located at or near Carlsbad, County of San Diego, State of California, as shown on C.E. Drawing No. 1-10291, dated June 6, 1989, attached as Exhibit A and made a part hereof. B. Term: The Term shall commence on SEPTEMBER 1, 1988 (the "Lease Commencement Date") and shall be on a month-to-month basis until terminated at any time by either party upon 30 days' written notice to the other party. C. Use: Site for public parking. Lessee shall not construct any Improvements on the Premises other than paving and perimeter fencing, without first obtaining Lessor's prior written consent as set forth In Section 11 hereof. D. Base Rent: One Thousand and No/100 Dollars ($1,000.00) per month, payable In advance, for the convenience of the parties hereto, In one annual Installment of $12,000. Rent Base Date: September 1, 1989 Consumer Price Index: All Urban Consumers, All Items Los Angeles/Anahelm/Rlverslde area 1982-84-100 as published by the United States Department of Labor, Bureau of Labor Statistics, or any successor or substitute Index published as a replacement for that Index by any United States governmental agency. E. Security Deposit: -Walved- F. Insurance: Comprehensive General Liability Insurance and Automobile liability Insurance, each with limits of $2,000,000 or more combined single limit per occurrence. Workers' Compensation Insurance 1n at least the statutory amount. Employers' Liability Insurance with limit of $1,000,000 or more. (See Addendum)ST;0PY Addresses for Notices: To Lessor: THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY 3230 East Imperial Hwy. Suite 100 Brea, California 92621 To Lessee: CITY OF CARLSBAD 2965 Roosevelt Street, Suite B Carlsbad, CA 92008-2389 Address for Payments to Lessor: Checks payable to THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY shall be mailed to P. 0. Box 73043, Chicago, IL 60673. Early Possession: Lessor hereby grants Lessee permission to occupy the Premises for the period August 15, 1989 to the Commencement Date. Such early occupancy shall be subject to all the terms and conditions of the Lease, Including rent. Rent for such period shall be prorated and shall be due and payable to Lessor on or before the Commencement Date. The foregoing Basic Lease Terms, the General Lease Terms set forth In the attached Part II, and the attached Addendum(s), Exhlblt(s) and Rlder(s) (hereinafter referred to as "R1der(s>") are Incorporated Into and made a part of this Lease. If there Is any conflict between the Basic Lease Terms and the attached General Lease Terms and Rlder(s), the latter shall control. LESSOR: THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Delaware corporation Title:Assistant Manager of Contracts LESSEE: CITY OF CARLSBAD a body ViWfcent Biondo, Jrf City Attorney its: - 2 - Duplicate THIRTY DAY LEASE L-4732 1222L THIS LEASE, made this 27th day of July, 1989, between THE ATCHISON, TOPEKA AND SANTA FE RAILHAY COMPANY, a Delaware corporation, (hereinafter referred to as "Lessor") and CITY OF CARLSBAD, a body corporate and politic (hereinafter referred to as "Lessee"). PART I: BASIC LEASE TERMS A. Premises: The land and any existing Improvements and facilities existing thereon located at or near Carlsbad, County of San Diego, State of California, as shown on C.E. Drawing No. 1-10291, dated June 6, 1989, attached as Exhibit A and made a part hereof. B. Term: The Term shall commence on SEPTEMBER 1, 1988 (the "Lease Commencement Date") and shall be on a month-to-month basis until terminated at any time by either party upon 30 days' written notice to the other party. C. Use: Site for public parking. Lessee shall not construct any Improvements on the Premises other than paving and perimeter fencing, without first obtaining Lessor's prior written consent as set forth In Section 11 hereof. D. Base Rent: One Thousand and No/100 Dollars ($1,000.00) per month, payable In advance, for the convenience of the parties hereto, In one annual Installment of $12,000. Rent Base Date: September 1, 1989 Consumer Price Index: All Urban Consumers, All Items Los Angeles/Anaheim/Riverside area 1982-84=100 as published by the United States Department of Labor, Bureau of Labor Statistics, or any successor or substitute Index published as a replacement for that Index by any United States governmental agency. E. Security Deposit: -Waived- F. Insurance: Comprehensive General Liability Insurance and Automobile liability insurance, each with limits of $2,000,000 or more combined single limit per occurrence. Workers' Compensation Insurance in at least the statutory amount. Employers' Liability Insurance with limit of $1,000,000 or more. (See Addendum) G. Addresses for Notices: To Lessor: THE ATCHISON, TOPEKA AND SANTA FE RAILHAY COMPANY 3230 East Imperial Hwy. Suite 100 Brea, California 92621 To Lessee: CITY OF CARLSBAD 2965 Roosevelt Street, Suite B Carlsbad, CA 92008-2389 H. Address for Payments to Lessor: Checks payable to THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY shall be mailed to P. 0. Box 73043, Chicago, IL 60673. I. Early Possession: Lessor hereby grants Lessee permission to occupy the Premises for the period August 15, 1989 to the Commencement Date. Such early occupancy shall be subject to all the terms and conditions of the Lease, Including rent. Rent for such period shall be prorated and shall be due and payable to Lessor on or before the Commencement Date. J. The foregoing Basic Lease Terms, the General Lease Terms set forth In the attached Part II, and the attached Addendum(s), Exhlblt(s) and R1der(s) (hereinafter referred to as "Rider(s)") are Incorporated Into and made a part of this Lease. If there 1s any conflict between the Basic Lease Terms and the attached General Lease Terms and R1der(s), the latter shall control. LESSOR: THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, a Delaware corporation By; Tltle: Assistant Manager of Contracts Vincent Biondo, Jr City Attorney LESSEE: CITY OF CARLSBAD a bod Its: - 2 - PART II. GENERAL LEASE TERMS 1. PREMISES AND TERM Lessor hereby leases to Lessee the Premises for the Term shown in the Basic Lease Terms, subject to the terms and conditions set forth in this Lease. 2. USE Lessee shall not use the Premises for any use other than that stated in the Basic Lease Terms, and shall not make any alterations to the Premises except as required for such use. LESSEE SPECIFICALLY ACKNOWLEDGES THAT THIS IS A 30 DAY LEASE AND THAT LESSEE HAS NOT RELIED ON ANY REPRESENTATIONS BY ANY AGENT OR EMPLOYEE OF LESSOR TO THE CONTRARY IN MAKING ANY IMPROVEMENTS TO THE PREMISES. Lessee shall not permit to be placed on the Premises or improvements any sign not solely related to the business of Lessee conducted on the Premises. Lessee shall not permit any damage, nuisance or waste on the Premises. Lessee shall not permit to be placed upon the Premises any gasoline or any hazardous or explosive material, waste or substance. Lessee, at its expense, shall arrange for the filing of any map required under any subdivision map act and of any environmental impact report required by any governmental body having jurisdiction in the matter. If any governmental body seeks to impose any conditions on approval of Lessee's use of the Premises, Lessor may terminate this Lease forthwith if any such condition will affect any other property of Lessor or will affect the Premises after this Lease is no longer in effect. 3. CONDITION OF PREMISES Lessee warrants it has examined the Premises and accepts the Premises "AS IS, WHERE IS" condition with all faults and with full knowledge of the physical condition, of all zoning and other land use laws and regulations affecting the Premises, and of the conditions, restrictions, encumbrances and all matters of record relating to the Premises. There may be subterranean facilities on the Premises, notwithstanding the absence of markers, monuments or maps indicating their existence. 4. RENT Lessee shall pay in advance to Lessor as rental for the Premises the amount shown as Rent in the Basic Lease Terms at the times payable as set forth therein, without deduction, setoff, prior notice or demand. Upon termination of this Lease, unless Lessee is then in default, any unearned portion of the Rent paid in advance will be refunded to Lessee upon Lessee's written demand if made within thirty (30) days after termination. 5. RENT REVISION Should the Lease continue in effect, Lessor shall have the right, on each anniversary of the Rent Base Date, to increase the Base Rent as further provided herein. Rent for any fractional month shall be prorated. Nothing contained herein shall affect the right of either party hereto to terminate this Lease at any time as may be provided elsewhere herein. The rental at each anniversary of the Rent Base Date shall automatically and without prior notice to Lessee be adjusted, upwards only, in accordance with changes in the Consumer Price Index to an amount which is equal to the product of (i) the Index (as defined in Section D of the Basic Lease Terms) for the third month preceding the Adjustment Date (as hereinafter defined), multiplied by (ii) the monthly rental payable during the immediately preceding twelve month period, divided by (iii) the Basic Index which shall mean the index published for the third month preceding the Rent Base Date of the previous calendar year. The adjusted rental shall be rounded to the nearest $1.00. The rental, as increased, shall be effective as of each anniversary of the Rent Base Date (the "Adjustment Date"), notwithstanding Lessor's acceptance of a lesser amount and notwithstanding any billing by Lessor for a lesser amount. If, for any reason, the rental is not revised at such time as herein specified, the rental shall continue to be subject to revision by Lessor without prior notice to Lessee and, when so revised, may be retroactive to the date the revised rental should have become effective. - 3 - Said new base rent, as so determined, shall be due and payable in accordance with Section D of the Basic Lease Terms. In no event, however, shall such new base rent be less than the then current base rent. Notwithstanding the above, Lessor may, at any time, upon thirty (30) days' written notice to Lessee, revise the rental then in effect based upon the fair rental value of the Premises at the time of such revision. Nothing in this Section shall be construed as waiving in any way Lessor's statutory right to terminate. 6. SECURITY DEPOSIT (a) Concurrently with the execution of this Lease, Lessee shall deposit with Lessor the Security Deposit indicated in the Basic Lease Terms as security for Lessee's performance of this Lease. Lessor shall not be required to keep the Security Deposit . separate from its general funds. Lessee shall not be entitled to interest on such deposit. (b) If Lessee breaches any provision of this Lease, including, but not limited to, the payment of rent, repair of damages to the Premises and the cleaning of the Premises upon termination of this Lease, Lessor may apply the Security Deposit to the payment of rent or any other sum in default, or to reimburse Lessor for any amount which Lessor may spend or become obligated to spend by reason of Lessee's default or to compensate Lessor for any other loss or damage which Lessor may suffer by reason of Lessee's default. If any portion of the Security Deposit is so applied, Lessee shall, within five (5) days after written demand therefor, deposit with Lessor an amount sufficient to restore the Security Deposit to its original amount. (c) If Lessee has fully performed each of its obligations hereunder, the Security Deposit or any balance thereof shall be returned to Lessee no later than thirty (30) days after the expiration or termination of the Lease. (d) Lessor may, upon thirty (30) days' written notice, require Lessee to increase the Security Deposit to an amount specified by Lessor. 7. TAXES (a) Lessee shall pay, before they become delinquent, all taxes, charges, and assessments which are levied upon, or assessed against any improvement or personal property placed upon the Premises by Lessee. (b) In addition to the taxes and assessments specified above, Lessee shall pay to Lessor any privilege, sales, gross income or other tax (not including federal or state income tax) imposed upon the rent received by Lessor by any agency having the authority to do so. 8. ADDITIONAL RENT: INTEREST: LATE CHARGES Additional Rent. All costs and expenses which Lessee assumes or agrees to pay under this Lease shall be deemed additional rent. If Lessee defaults in making any payment required of Lessee hereunder (other than the payment of Rent) or in performing any obligation hereunder which can be performed by the expenditure of money, Lessor may, without obligation to do so, make such payment or expenditure. Such payment or expenditure by Lessor shall be payable as additional rent upon demand by Lessor. Late Charges. Lessee acknowledges that Lessee's late payment of Rent and other sums due hereunder will cause Lessor to incur costs (including without limitation processing and accounting costs) not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Accordingly, Lessee agrees to pay Lessor, as additional rent and without further notice from Lessor, a late charge equal to the greater of $50.00 or 5% of any overdue amount, if such amount is not paid within 10 days after it is due. Interest. Lessee shall pay Lessor, as additional rent, interest at the rate of ten percent (10%) per annum or at the highest rate permitted by law, whichever is lower, on all amounts due hereunder from the date due until paid; provided, however, that, except as provided elsewhere in this Lease, interest shall not be payable on any such amount if such amount is paid within 10 days after the date is is due or, in the case of amounts to be demanded by Lessor, within 10 days after the date of such demand. 9. UTILITIES Lessee shall arrange and pay for all utilities, including without limitation, water, power, heat, garbage, communications and sewer services, to be used in connection with this Lease. - 4 - If Lessor contracts with a utility company to provide access for service to Lessee at the Premises for Lessee's sole use, Lessee shall pay to Lessor a minimum sum of $250 upon receipt of a bill therefor to partially defray administrative costs. 10. MAINTENANCE AND REPAIR Lessee shall, at its expense and to the satisfaction of Lessor, keep and maintain the Premises and all improvements thereon in good repair and in a neat and safe condition, and shall promptly make all repairs and replacements that may become necessary to the Premises or improvements thereon, whether structural or nonstructural, ordinary or extraordinary. 11. ALTERATIONS Lessee shall make no alteration or improvement to the Premises without Lessor's prior written consent. All repairs, alterations and improvements to or on Premises shall be property of Lessor, without payment by Lessor of any compensation therefor. 12. LIENS Lessee shall not commence any repairs (except emergency repairs), changes or alterations on the Premises until fifteen (15) days after Lessor has received notice from Lessee stating the date such repairs, changes or alterations are to commence. Lessor shall have the right to enter the Premises to post notices of nonresponsibility. Lessee shall not permit any mechanics' or other liens to be filed against the Premises nor against Lessee's leasehold interest therein by reason of labor or materials furnished to the Premises at Lessee's instance or request. If any such lien is filed against the Premises, Lessee shall cause the same to be discharged of record, either by payment of the claim or by posting and recording the bond contemplated by California Civil Code §3143, within twenty (20) days after demand by Lessor. Lessee shall indemnify, hold harmless and defend Lessor from and against any such lien. 13. INDEMNIFICATION To the extent it lawfully may, Lessee shall release, defend (with counsel satisfactory to Lessor) and indemnify Lessor from and against all liability, cost and expense for loss of or damage to property and for injuries to or death of any person (including, but not limited to, the property and employees of each party hereto) when arising or resulting from: (a) the use of the Premises by Lessee, its agents, employees, or invitees; (b) breach of this Lease by Lessee, or (c) the condition of the Premises or any part thereof, regardless of whether such liability, cost or expense is caused or contributed to by the negligence, active or passive, of Lessor. It is expressly understood and agreed that the foregoing provisions shall survive the termination of this agreement. The term "Lessor," as used in this Section 13, Sections 14 and 15, shall include the successors, assigns and affiliated companies of Lessor. 14. COMPLIANCE WITH LAW: ENVIRONMENTAL IMPAIRMENT (a) In the event the Premises are now or in the future used in generating, handling, or transporting of "hazardous waste" or "hazardous substances", Lessee, at its expense, agrees fully to comply with all applicable federal, state, and local laws, rules, regulations, orders, decisions and ordinances regardless of when they become or became effective, (hereinafter referred to as "Standards"), concerning "hazardous waste" and "hazardous substances". Lessee further agrees periodically to furnish Lessor with proof, satisfactory to Lessor, that Lessee is in such compliance. In any event, Lessee shall allow Lessor to enter upon the Premises at reasonable times for the purpose of inspection. Should Lessee not comply fully with the above-stated obligations of this Section, notwithstanding anything contained in any other provision hereof, Lessor may, at its option, terminate this Lease by serving five (5) days' written notice of termination upon Lessee; but any waiver by Lessor of any breach of Lessee's obligations shall not constitute a waiver of the right to terminate this Lease for any subsequent breach which may occur, or to enforce any other provision of this Lease. Upon termination, Lessee shall be governed by the sections of the Lease regarding Lessee's surrender of possession of the Premises. - 5 - «*"S. (b) Notwithstanding anything contained in the liability sections hereof, in case of a breach of the obligations contained in this Section, or any of them, regardless of the negligence or alleged negligence of Lessor, Lessee agrees to assume liability for and to save and hold harmless Lessor from and against all injuries to any person and damage to property, including without limitation, employees and property of Lessor and Lessee and all related expenses, including without limitation attorneys' fees, investigators' fees and litigation expenses, resulting in whole or in part from Lessee's failure to comply with any Standard issued by any governmental authority concerning "hazardous substances" and/or "hazardous waste". Lessee, at its cost, shall assume the defense of all claims, suits or actions brought for damages, and fines or penalties hereunder, regardless of whether they are asserted against Lessor or Lessee. Lessee also agrees to reimburse Lessor for all costs of any kind incurred as a result of the Lessee's failure to comply with this Section, including, but not limited to, fines, penalties, clean-up and disposal costs, and legal costs incurred as a result of Lessee's generating, handling, transporting, treating, storing, or disposing of "hazardous waste" or "hazardous substances" on the Premises. (c) Should any discharge, leakage, spillage, emission, or pollution of any type occur upon or from the Premises due to Lessee's use and occupancy thereof, Lessee, at its expense, shall clean all property affected thereby, to the satisfaction of Lessor (insofar as the property owned or controlled by Lessor is concerned) and any governmental body having jurisdiction thereover. (d) It is understood and agreed that a Lessee who does not now, or in the future, generate, handle, transport, treat, store or dispose of "hazardous waste" or "hazardous substances" within the meaning of this Section, is not subject to the provisions of Subsection (b) supra. (e) Lessee shall not use or permit the use of the leased premises in any manner that will tend to create waste or nuisance. In using the Premises, and in constructing, maintaining, operating and using the Improvements thereon, Lessee shall comply with any and all requirements imposed by federal or state statutes, or by ordinances, orders or regulations of any governmental body having jurisdiction thereover, including, but not limited to, building and zoning ordinances, restricting or regulating or prohibiting the occupancy, use or enjoyment of the Premises or regulating the character, dimensions or locations of any improvements on the Premises. Should any governmental body having jurisdiction in the matter require Lessor to dedicate, restrict or otherwise encumber any portion of the Premises, or any of its adjoining property, as a condition to approval of Lessee's use of the Premises, Lessor may, if said condition is unacceptable to Lessor, terminate this Lease. Lessee covenants to properly notify Lessor accordingly should any of the above occur. 15. INSURANCE While this Lease is in effect, Lessee shall, at its expense, maintain and furnish evidence of insurance written through an insurance company having a Best's rating of B + 13 or better and licensed to do business in the state in which the Premises are located, meeting the requirements stated below in form satisfactory to Lessor, for each of the following types of insurance in amounts not less than the amounts shown on the Basic Lease Terms: A. Comprehensive general liability insurance or commercial general liability insurance on an occurrence basis which provides for the following: (1) Such insurance shall be primary, without right of contribution from other insurance which may be in effect. (2) Such insurance shall not be invalidated by the acts or omissions of other insureds. (3) Such insurance shall not be modifiable or cancellable without 30 days' prior written notice to Lessor (except in the case of cancellation for nonpayment of premium in which case cancellation shall not take effect until at least 10 days' notice has been given to Lessor). This provision is hereinafter referred to as "Notice of Modification or Cancellation". (4) Lessor shall be named as additional insured. (5) Contractual liability. - 6 - ,#**'*> (6) Premises/completed operations, and personal injury endorsements. (7) Severability of interest clause. (8) In the case of commercial general liability insurance, the policy must also provide for aggregate coverage at each location and for reinstatement of the aggregate in the event the limits of the policy are exhausted. B. Comprehensive automobile liability insurance which provides for the following: (1) Such insurance shall be primary, without right of contribution from other insurance which may be in effect. (2) Such insurance shall not be invalidated by the acts or omissions of other insureds. (3) Notice of Modification or Cancellation. (4) Lessor shall be named as additional insured. (5) Severability of interest clause. C. Workers' compensation insurance which shall cover all persons employed by Lessee in the conduct of its operations on the Premises and shall provide for the following: (1) Waiver of subrogation against Lessor. (2) Notice of Modification or Cancellation. (3) All states endorsements. (4) Coverage for Longshore and Harbor Workers Act, if applicable. D. Employer's liability endorsed to provide for Notice of Modification or Cancellation and waiver of subrogation against Lessor. E. Any umbrella or excess liability insurance will provide that if the underlying aggregate is exhausted, the excess coverage will drop down as primary insurance and will provide for Notice of Modification or Cancellation. Either a properly completed certificate of insurance executed by an authorized representative of the insurer or insurers or a certified copy of the policy or policies shall be furnished to Lessor prior to the Lease Commencement Date and no later than thirty (30) days prior to expiration of any insurance policy. In the event Lessee fails to comply with this requirement, Lessor may, but shall not be obligated to, obtain such insurance and keep the same in effect and, upon demand, Lessee shall pay to Lessor, as additional rent, the premium cost thereof. 16. TERMINATION: SURRENDER OF PREMISES Upon termination of this Lease, Lessee shall leave the Premises in a neat and clean condition, satisfactory to Lessor and free of all Lessee's personal property. Under Section 11 hereof, all repairs, alterations and improvements made by Lessee shall be the property of Lessor. However, Lessor may, by written notice, require Lessee to remove any such alterations and improvements from the Premises and to restore the Premises to their original condition (normal wear and tear excepted) prior to termination of this Lease. If Lessee fails to do so, Lessor may perform such removal and restoration in which case Lessee shall pay Lessor within thirty (30) days after demand therefor (1) an amount equal to the Rent (as in effect immediately before termination) for the period during which such removal is accomplished to compensate Lessor for the loss of rent to Lessor resulting from the unavailability of the Premises for leasing to another tenant during such time and (2) the cost of removal of such improvements. Lessor will use reasonable diligence in the removal of such improvements. Termination of this Lease shall not release either party from any liability or obligation hereunder resulting from an event which occurred before termination. 17. CONDEMNATION If all or part of the Premises is acquired by eminent domain or purchase in lieu thereof, Lessee shall have no claim to any compensation awarded for the taking of the Premises or any portion thereof, including Lessee's leasehold interest therein or to any compensation paid as severance damages, or for loss of or damage to Lessee's improvements. - 7 - Lessee shall be in default hereunder if Lessee fails to pay the rental or to make any other payment required to be made by Lessee hereunder within three (3) days after written notice by Lessor or fails to perform any other term or condition of this Lease within fifteen (15) days after written notice by Lessor or abandons or vacates the Premises. If Lessee is in default hereunder, Lessor, may, in addition to any other remedies it may have at law or equity, terminate this lease forthwith. 19. ASSIGNMENT. SUBLETTING Lessee shall not assign or encumber or transfer its interest in this Lease or in the Premises, in whole or in part, or sublease all or any part of the Premises without Lessor's prior written consent, which consent may be given or withheld for any reason whatsoever. 20. DISPOSSESSION If Lessee is lawfully deprived of the possession of all or any part of the Premises by a party other than Lessor, Lessor may, upon receipt of notice from Lessee setting forth the circumstances, either install Lessee in possession of the Premises or terminate this Lease and refund to Lessee the pro rata amount of any prepaid rental for the unexpired term of this Lease after receipt of such notice. Lessor shall not be liable to Lessee for any loss, damage or claims resulting from such deprivation of possession. 21. NOTICES All notices shall be in writing and shall be deemed to have been given when delivered personally or deposited in the United States mail, registered or certified, postage prepaid, and addressed to the party to whom the notice is directed at the address set forth in the Basic Lease Terms. Payments to Lessor shall be made at the address for payments set forth in the Basic Lease Terms. Either party may change the address for notices or Lessor may change the address for payments by giving the other party notice to that effect. 22. ATTORNEYS' FEES If either party brings any action against the other to enforce or collect any sum due under this Lease or if Lessor brings an action for unlawful detainer of the Premises, the losing party shall pay the reasonable attorneys' fees of the prevailing party in addition to the judgment and court costs. 23. LESSOR'S RIGHT OF ENTRY Lessee shall permit Lessor and the agents and employees of Lessor to enter into and upon the Premises at all reasonable times for the purpose of inspection, posting notices of nonresponsibility, or exhibiting the Premises to prospective tenants or buyers. 24. NONWAIVER Lessor's failure to enforce or exercise its rights with respect to any provision hereof shall not be construed as a waiver of such rights or of such provision. Acceptance of rent or any other sum shall not be a waiver of any preceding breach by Lessee of any provision hereof, regardless of Lessor's knowledge of such preceding breach at the time of acceptance of such rent. 25. TIME OF ESSENCE Time is of the essence of each provision of this Lease. 26. ENTIRE AGREEMENT: AMENDMENT This Lease sets forth the entire agreement between the parties with respect to the lease of the Premises and supercedes all prior agreements, communications, and representations, oral or written, express or implied, since the parties intend that this be an integrated agreement. This agreement shall not be modified except by written - 8 - 27. EXISTING FACILITIES Lessor hereby excepts and reserves the right, to be exercised by Lessor and by any others who have obtained or may obtain permission or authority from Lessor so to do, to (1) operate, maintain, review and relocate any and all existing pipe, track, power and communication (including without limitation fiber optic) lines and appurtenances and other facilities of like character upon, over or under the surface of the Premises; and (2) construct, operate, maintain, review and relocate such additional facilities of the same character as will not unreasonably interfere with Lessee's use of the Premises as specified in Section 2 of the General Lease Terms. Any such construction, operation, relocation or maintenance shall not be done at Lessee's expense unless such work is requested by Lessee or done for the benefit of Lessee. 28. NOISE FROM TRAIN OPERATION: BARRICADES Lessee hereby recognizes and acknowledges that railroad tracks are located on or adjacent to the Premises. The term "Lessor" as used in Sections 13, 14 and 15 of the General Lease Terms and in the next paragraph shall include any railroad company operating on such tracks. Lessee recognizes that the operation of trains over the tracks does and will produce noise levels which may be considered objectionable by the employees, agents, tenants, or invitees of Lessee. Therefore, Lessee agrees that no legal action or complaint of any kind whatsoever shall be instituted against Lessor on Lessee's behalf as a result of such noise levels and to indemnify and save harmless Lessor against any loss, damage, liability or expense either might incur as a result of such action being taken by Lessee's employees, agents, tenants or invitees. Lessee, at its expense, shall install and maintain barricades, fences, and fence gates as shown on Exhibit A. - 9 - C.E. FILE NO. EXHIBIT "A" ATTACHED TO CONTRACT BETWEEN THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY AND TOPEKA, KANSAS SCALE: 1 IN. TO FT. SUBDIV. DATE: CHIEF ENGINEER DESCRIPTION APPROVED C.E. DRAWING NO. 1 - DIV. DWG. NO.DIV. FILE NO.G.M. FILE NO. //<?<?30J3 -