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HomeMy WebLinkAboutCarlsbad Building Authority; 1967-11-01;Proof oi November 3, VHff— J.B.Co. — Phone 627 9514 CARLSBAD CIVIC CENTER GROUND LEASE THIS LEASE, dated as of November 1, 1967 (herein called the "Ground Lease"), by and between the CITY OF CARLSBAD, a municipal corporation of the State of California (herein called the "City"), and the CARLSBAD BUILDING AUTHORITY (herein called the "Authority"), a public entity and agency, duly organized and existing pursuant to an Agreement entitled "Joint Exercise of Powers Agreement Between the City of Carlsbad and the County of San Diego Creating the Carlsbad Building Authority", dated as of October 1, 1967 (herein called the "Agreement"); WITNESSETH: That in consideration of the mutual promises and agreements herein contained, the parties hereto agree as follows: SECTION 1 Demised Premises. The City hereby leases to the Authority the Site described in Exhibit A attached hereto and made a part hereof, subject to the terms hereof and subject to conditions, reservations, exceptions, and rights of way which are of record. SECTION 2. Ownership. The City covenants that it is the owner of the Site described in Exhibit A hereof. SECTION 3. Term. This Ground Lease shall commence on the date hereof and end at the same time as the Agreement. SECTION 4. Rent. The Authority shall pay to the City an advance rent of $1.00 as full consideration for this Ground Lease over its term. SECTION 5. Purpose. The Authority shall use the Site only for the purposes described in the Agreement and for such purposes as may be incidental thereto. SECTION 6. Assignments and Subleases. The Authority shall not assign or sublet the Site except as provided in the Carlsbad Civic Center Lease. SECTION 7. Right of Entry. The City reserves the right for any of its duly authorized representatives to enter upon the Site at any reasonable time in exercise of the rights and easements reserved in Section 1; provided, however, that any damage to the Site shall be replaced and repaired so that the same shall as nearly as prac- ticable be restored to their former condition except as otherwise provided in the Agreement. SECTION. 8. Expiration. The Authority agrees, upon the expiration of this Ground Lease, to quit and surrender the Site in good order and condition, reasonable wear and tear excepted; provided, that any permanent improvements or structures existing upon the Site at time of the termination of this Ground Lease FILE/PAGE NO. RECORDED .AND TRUST COMPANY NO FEE QJ.B.CO. — Phone 627 9514 together with any fixtures, equipment, furnishings and furniture thereon shall remain thereon and title thereto shall vest in the City. SECTION 9. Quiet Enjoyment. The Authority at all times during the term of this Ground Lease shall peaceably and quietly have, hold and enjoy all of the Site. SECTION 10. Taxes. The City covenants and agrees to pay any and all taxes and assessments levied or assessed upon the Site or upon the structures and improvements thereon. SECTION 11. Eminent Domain. By a lease entitled Carlsbad Civic Center Lease executed by the parties hereto contemporaneously with the execution of this Ground Lease, the Authority is leasing to the City the Project as described in said Civic Center Lease. If the whole or any part of the Project shall be taken under the power of eminent domain, the effect of such taking upon this Ground Lease shall be in accord with the provisions of said Civic Center Lease relating to eminent domain. SECTION 12. Notices. All notices, statements, demands, requests, consents, approvals, authorizations, offers, agreements, appointments or designations hereunder by either party to the other shall be in writing and shall be sufficiently given and served upon the other party, if sent by United States registered mail, return receipt requested, postage prepaid and addressed as follows: City — City Clerk, City Hall, Carlsbad, California. Authority — Secretary — At such address as Authority shall designate for such purpose. SECTION 13. Severability. Should any part, term, portion or provision of this Agreement be by the courts decided to be illegal or in conflict with any law of the State of California, or otherwise be rendered unenforceable or ineffectual, the validity of the remaining parts, terms, portions or provisions shall be deemed severable and shall not be affected thereby, provided such remaining portions or provisions can be construed in substance to continue to constitute the agreement that the parties intended to enter into in the first instance. IN WITNESS WHEREOF, the parties hereto have caused this Civic Center Ground Lease to be executed and attested by their proper officers thereunto duly authorized, and their official seals to be hereto affixed as of the day and year first above written. CITY OF CARLSBAD JA.2K Mayor ATTEST; (SEAL), *? ' .••'' Proof, of November 3,, i9ffK— J.B.CO.-•Phone 627 9514 CARLSBAD President Secretary I HEREBY APPROVE the form and legality of the foregoing Agreement this 7th day of November, 1967. STUART C. WILSON 3 „• . Pr&of. of November 3,,, 199ft—JM.Co.—Phone 627 9514 STATE OF CALIFORNIA COUNTY OF SAN DIEGO ss. On this 7th day of November, in the year 1967, before me, the undersigned, a Notary Public, State of California, duly commissioned and sworn, personally appeared WILLIAM C. ATKINSON, JR., known to me to be the Mayor, and MARGARET E. ADAMS, known to me to be the City Clerk, respectively, of the CITY OF CARLSBAD, a public corporation, that executed the within instrument, and known to me to be the persons who executed the within instrument on behalf of said public corporation therein named, and acknowledged to me that such public corporation executed the within instrument pursuant to a resolution of the City Council of said City of Carlsbad. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year in this certificate first above written. [Notarial Seal] WILLIAM C. BALDWIN ;:! ;-U3UC CALifGKNIA PRINCIPAL C: MCE IN SAN DIEGO COUNTY WILLIAM C. BALDWIN Notary Public, State of California My Commission Expires: My commission expire* March 2$, 1969 STATE OF CALIFORNIA COUNTY OF SAN DIEGO ss. On this 7th day of November, in the year 1967, before me, the undersigns^, a Notary Public, State of California, duly commissioned aruLsworn, personally appeared ^t.:.7^-..iK^^^.7^'known to me to be the Chairman and-«^/^^.$«i507?k'nown to me to be the Secretary, respectively, of CARLSBAD BUILDING AUTHORITY, a public corporation that executed the within instrument on behalf of said public corporation therein named, and acknowledged to me that such public corporation executed the within instrument pursuant to a resolution of its governing board. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year in this certificate first above written. [Notarial Seal] C. BALDWIN Notary Public, State of California My Commission Expires: Mm commission expires March 26, WILLIAM C. BALDWIN [ UIAKY PUBLIC - CALit:Gi'<rtlA PRINCIPAL Ofr'iCE IN SAN DIEGO COUNTY 43 ,*•> CIVIC CENTER SXTE • DESCRIPTION That portion of Tract 117 of Carlsbad Lands, according to Map thereof No. 1661, filed in the Office of the ^_ County Recorder of San Diego County, March 1, 1915, - ' described as follov;s: Beginning at the Southeast corner of said Tract 117, thence along the Southeasterly line of said Tract 117, South 55° 58' 16" West 173.67 feet to the TRUE POINT OF BEGINNING; Thence North 34° 01' 44" West 322.77 feet to a point on the Northerly line of said Tract 117; Thence along said Northerly line of said Tract 117, North 89° 24' 42" West, a distance of 372.46 feet; \ Thence along a tangent curve to the left, with a radius of 50.00 feet through an angle of 90° 29' 19", an arc distance of 78.97 feet; Thence from a tangent which bears South 39° 42' 48" East, along a curve to the left, with a radius of 720.00 feet through an angle of 22° 19' 43", an arc distance of 280.59 feet to a point of reverse curvature; Thence along said reverse curve to the right with a radius of 630.00 feet, through an angle of 20° 05' 24", an arc distance of 220.90 feet to a point of reverse curvature; Thence along said reverse curve to the left with a rad- ius of 52.00 feet, through an angle of 82° 14' 50", an arc distance of 74.65 feet to the Southeasterly- line of Tract 117; ; Thence along the Southeasterly line of said Tract 117, North 55° 58' 16" East, a distance of 179.00 feet, more or less, to the TRUE POINT OF BEGINNING. EXCLUDING there from the SoutheasterIv 2.00 feet thereof. EXHIBIT "A" Proof of November 3, 196W* J.B.Co. — Ptione 627 9514 CARLSBAD CIVIC CENTER LEASE THIS CARLSBAD Civic CENTER LEASE, dated for convenience as of November 1, 1967, by and between the CITY OF CARLSBAD (herein called "City"), a body corporate and politic of the State of California, and CARLSBAD BUILDING AUTHORITY (herein called the "Authority"), a public entity and agency, duly organized and existing pursuant to an Agreement entitled "Joint Exercise of Powers Agreement Between the City of Carlsbad and the County of San Diego Creating the Carlsbad Building Authority"; WITNESSETH: That for and in consideration of the mutual promises and agreements herein contained, the parties hereto agree as follows: SECTION 1. Definitions. Unless the context otherwise requires, the terms defined in this Section 1 shall, for all purposes of this Carlsbad Civic Center Lease, have the meaning herein specified. (a) Agreement. "Agreement" means that certain Agreement entitled "Joint Exercise of Powers Agreement Between the City of Carlsbad and the County of San Diego Creating the Carlsbad Building Authority" under and pursuant to which the Authority has been organized. (b) Site. "Site" means the land more fully described herein on which the Facilities are to be located which was leased to Authority pursuant to the Agreement by means of the Ground Lease and is described in Exhibit A attached hereto. (c) Facilities. "Facilities" means the governmental buildings in the Civic Center of the City of Carlsbad for City Offices, City Council Chambers and Police Facilities with facilities and appurtenances necessary or convenient for any of the foregoing, including, but not limited to, accessory structures, parking, walks and landscaping to be constructed pursuant to the Agreement and this Lease, and includes the entire Project except the Site. (d) Project or Leased Premises. "Project" means the Site and Facilities to be constructed thereon. Said Project is sometimes re- ferred to as "Leased Premises". (e) Ground Lease. "Ground Lease" means the "Carlsbad Civic Center Ground Lease" between City and Authority of even date herewith. (f) Civic Center Lease or Lease. "Civic Center Lease" or "Lease" means this Lease. (g) Term. "Term" means the term of this Civic Center Lease as provided in Section 3 hereof, (h) Resolution. "Resolution" means the Resolution adopted by the Authority providing for the issuance of it? Bonds (attached hereto as Exhibit C). (i) Bonds. "Bonds" means the revenue bonds to be issued by the Authority under and pursuant to the Ruso lution. I RECORDED REQUtST Of- TITLE INSURANCE AND TRUST COMPANY M 3 I* 29PM'68 SERIES 9 BOOK 1968 OFFICIAL RECORDS SAN 01EGOCOUIITY, CALIF. A.S.t5aAY,8ECORQE8 NvJ ' ' ' W'Proof,of November 3, 1967 — J.B.Co. — Pnone 6i? 9514 (j) Trustee. "Trustee" means the fiscal agent appointed under the Resolution and referred to therein as "Trustee" and any successor appointed as therein provided. (k) Construction Contract. "Construction Contract" means the construction contract or contracts providing for the construc- tion of the Facilities, a copy of which is or will be on file in the office of the City Clerk of the City. SECTION 2. Lease of Project. The Authority hereby leases back to the City, subject to the terms and conditions of this Lease, its interest as lessee under the Ground Lease in the Site, subject to conditions, reservations, exceptions, and rights of way which are of record, including, without limitation, those contained in the Ground Lease. The Authority hereby leases as part of this leaseback to the City the Facilities to be constructed thereon; provided, however, it is the intention of the parties that there shall be no merger of any interest of either party under the Ground Lease or this Lease and notwithstanding any merger required by law contrary to the expressed intention of the parties, the lease of the Facilities shall be effective pursuant to the terms hereof. SECTION 3. Term. The term of this Civic Center Lease shall commence when the Project is completed and available for occupancy and written notice thereof has been served on City, but in no event later than four (4) years from the date of execution hereof, plus any extension of completion date provided under any construction contract for the Project but in no event shall extensions exceed four (4) years. If project is not completed within the time set forth, this Lease shall terminate. This Civic Center Lease shall end on September 30, 2007 or such earlier time when the Bonds issued by the Authority pursuant to the Resolution have been retired or provision for payment provided for pursuant thereto and any surplus funds remaining in the hands of the Trustee shall be paid to the City and County pursuant to the Agreement. SECTION 4. Rental. The City shall pay the Base Rental and the Additional Rental to the Authority in the amounts, at the times and in the manner set forth herein, said amounts constituting in the aggregate the total of the annual rentals payable under this Civic Center Lease, as follows: (a) Base Rental. For the period commencing on July 1, 1968, or on the date on which City shall be served with written notice that the Project has been completed and is ready for occupancy, whichever is later, City agrees to pay to the Trustee for the account of the Authority in advance for each fiscal year rent at the rate of $34,000 per annum, subject to adjustment as hereinafter set forth and rent shall cease when the Bonds have been paid or provision for payment has been made. The Project is expected to be completed by June 30, 1968. In the event that the liability of City for rent at said annual rate does not commence on July 1, 1968, the rent to be paid for the remaining portion of the fiscal year in which such liability commences shall be prorated and shall be paid within thirty (30) days following commencement of such liability, but in no event later than the next suc- ceeding June 30. During the remainder of the term of the lease to City, said rental shall be due on July 1 and may be paid on or before July 31 without penalty or interest in each fiscal year for use of the premises during said fiscal year. (b) Additional Rental. In addition to and after the commencement of the Base Rental herein- above set forth, the City shall pay to the Trustee for the account of the Authority an amount or amounts (hereinafter called "Additional Rental") equivalent to the sum of the following: /"***"• Proof of November 3, 196f^- J.B.Co. — Ph'one 627 9514 (i) All taxes and assessments of any nature whatsoever, including, but not limited to, excise taxes, ad valorem taxes, ad valorem and specific lien special assessments and gross receipts taxes, if any, levied upon the Project or upon the Authority's interest therein or upon the Authority's opera- tion thereof or the Authority's rental income derived therefrom. (ii) All expenses (not otherwise paid or provided for out of the proceeds of the sale of Bonds of the Authority) incidental to the issuance of the Bonds and all administrative costs of the Authority, including, without limiting the generality of the foregoing, salaries, wages, expenses, compensation and indemnification of the Trustee under the Resolution, fees and charges of ac- countants, attorneys and engineers, and all other necessary administrative charges of the Authority or charges required to be paid by it in order to comply with the terms of the Bonds or of the Resolution. (iii) Insurance premiums, if any, on all insurance required or permitted under the provisions of Section 8 hereof. (iv) All costs and expenses which the Authority may incur in consequence of or because of any default by the City under this Civic Center Lease, including reasonable attorneys' fees and costs of suit or action at law to enforce the terms and conditions of this Civic Center Lease. (v) All sums necessary to maintain at the amount of $1,500 the Working Capital Fund established pursuant to the Resolution. The Additional Rental payable hereunder shall be paid by the City within thirty (30) days after notice in writing from the Authority to the City stating the amount of Additional Rental then due and payable and the purpose thereof; provided that the City's liability for Additional Rental shall be limited to the balance due under Section 5.02(e) of the Resolution. Nothing herein contained shall prevent the City from making from time to time contributions or advances to the Authority for any purpose now or hereafter authorized by law. (c) Consideration. The payments of Base Rental and Additional Rental hereunder shall con- stitute the total rental to be paid by the City for the use and occupancy of the Leased Premises from year to year. The parties hereto have agreed and determined that such total rental represents the fair rental value of the Leased Premises. In making such determination, consideration has been given to the costs of acquistion and financing the construction of the Facilities, the uses and purposes which will be served by the Facilities and the benefits therefrom which will accrue to the parties to the Agree- ment and the general public by reason of the Facilities. Said total rental shall be paid for and in con- sideration of the right of use and occupancy from year to year granted by this Civic Center Lease of the Leased Premises which the City receives and in consideration of the continued quiet use and enjoyment thereof during the term of this Civic Center Lease. (d) Budget. The City shall take such action as may be necessary to include and maintain all such total rental payments due hereunder in each fiscal year in its budget for such fiscal year and further shall make the necessary appropriations for all such rental payments. The City shall furnish to the Authority and to the Trustee under the Resolution copies of the budget at least fifteen (15) days before final adoption thereof. The covenants on the part of the City herein contained shall be deemed to be and shall be construed to be ministerial duties imposed by law and it shall be the ministerial duty of each and every public official of the City to take such action and do such things as are required by law in the performance of such official duty of such officials to enable the City to carry out and perform the covenants and agreements in this Civic Center Lease agreed to be carried out and performed by the City. (e) Payment. Each annual Base Rental payment and each Additional Rental payment shall be paid in lawful money of the United States of America, by warrant or check drawn against funds of the Proof of November 3, 19tfK-J.B.Co.-~ Phone 6i? 9514 City, at the office of the Trustee in San Diego, California, or at such other place or places as may be set forth in the Resolution. Each annual Base Rental payment and each Additional Rental payment which is not paid when due shall bear interest at the rate of six per cent (6%) per annum from the date on which the Base Rental payment or Additional Rental payment, as the case may be, becomes delinquent until the same is paid. Notwithstanding any dispute between Authority and City hereunder, City shall make all rental payments when due and shall not withhold any rental payments pending the final resolution of such dispute. In the event of a determination that City was not liable for said rental payments or any portion thereof, said payments or excess of payments as the case may be shall be credited against subsequent rental payments due hereunder. (f) Adjustment of Base Rental. The annual Base Rental above set forth is based upon the schedule for adjustment of Base Rental, marked Exhibit B and made a part hereof. Such schedule is used for computing the yearly rent necessary for Authority to receive to enable it to pay the principal of and interest on its bonds so that they will be serviced and retired as set forth hi the Resolution and furnish the Authority with the necessary working capital and reserves. When the interest rate or rates on the Authority's Bonds are known, Authority and City shall recompute the annual Base Rental in the same manner, based upon said figures, and shall adjust the annual Base Rental upwards or downwards to the new figure so determined. (g) Credit on Base Rental. There shall be credited against Base Rental any amount required to be so credited under Section 3.04 E(2) (i) of the Resolution. SECTION 5. Construction of Project. The Authority shall, after it has issued its Bonds therefor and received the proceeds of the sale thereof, construct, by means of City acting on behalf of Authority through its personnel and following City procedures pursuant to the Agreement, on the Site the Facilities in accordance with the plans and specifications on file in the office of the City Clerk of the City, including all addenda thereto. Construction Contracts for the construction of the Facilities shall be awarded by City, as agent with the approval of Authority to a contractor or contractors licensed under the laws of the State of California and such Construction Contracts shall be awarded at competitive bids following the procedures required by the applicable laws of the State of California relating to the awarding of contracts of a similar nature by the City. For the purpose of paying the cost of the construction of the Facilities thereon and all costs and expenses incidental thereto, the Authority shall issue its Bonds pursuant to the Resolution. The City may at its option be reimbursed for the advances made for architects' fees and related incidental expenses in connection with the design of the Facilities from the proceeds of the Bonds. The Authority shall assume the obligations under the employment contracts of the City with William L. Fieldman & Associates, Rutan & Tucker and O'Melveny & Myers and shall become a client of said firms in accordance with the terms of said contracts. Changes in the work during construction may be ordered by the City without the approval of the Authority; provided, however, that unless sufficient additional funds are provided therefor (i) the cost of the Facilities shall not exceed that which is established at the time when the revenue bonds are issued by the Authority, and (ii) the cost of change orders shall not exceed the reserve therefor established at such time. City shall take no action which extends the period of construction beyond the period for which the Authority has funded interest on its Bonds unless sufficient additional funds are provided therefor. Any moneys remaining in the Construction Fund to be established under the Resolution after the construction and completion of the Facilities shall be applied by the Authority, as provided in the Resolution. f"-- W" > •Proof of November 3, 1967 — J.B.Co. — Phone 627 9514 SECTION 6. Maintenance and Operation. The City shall, at its own expense, maintain, manage and operate the Leased Premises and all improvements thereon in good order, condition and repair. The City shall provide or cause to be provided all security service, custodial service, janitor service, power, gas, telephone, light, healing and water, and all other public utility services. It is understood and agreed that in consideration of the payment by the City of the rental herein provided for, the Authority is only obligated to furnish the Leased Premises, and the Authority shall have no obligation to incur any expense of any kind or character in connection with the management, operation or maintenance of the Leased Premises during the term of this Civic Center Lease. The City, however, shall keep the Leased Premises and any and all improvements thereto free and clear of all liens, charges and encumbrances. SECTION 7. Additions and Improvements. The City shall have the right during the term of this Civic Center Lease to make any additions or improvements to the Leased Premises, to attach fixtures, structures or signs, and to affix any personal property to the improvements on the Leased Premises, provided the use of the Leased Premises for the purposes contemplated in this Civic Center Lease are not impaired. Title to all personal property placed in any of the improvements on the Leased Premises shall remain in the City. The title to any personal property, improvements or fixtures placed on the Leased Premises by any sublessee or licensee of the City shall be controlled by the concession contracts entered into by the City. SECTION 8. Insurance. Authority shall, during the term of this Civic Center Lease, keep or cause to be kept a policy or policies of insurance against loss or damage to the Leased Premises, and appurtenances and per- manent equipment, resulting from fire, lightning, vandalism, malicious mischief, riot and civil com- motion and such perils ordinarily defined as "extended coverage" and other perils as Authority and City may agree should be insured against on forms and in amounts satisfactory to each. City and Authority, as the case may be, shall be named as an additional insured under such policies of insurance as the building contractor may be required by Authority to carry during the construction of the Facilities. Nothing herein shall be construed to require the Authority to carry insurance with respect to equipment or fixtures of the Leased Premises not provided by the Authority pursuant to the plans and specifications for construction of the Facilities. During the term of this Civic Center Lease, Authority shall keep or cause to be kept public liability and property damage policies protecting both Authority and City on forms and in amounts satisfactory to each. The Authority may also carry or cause to be carried such other insurance as is required by the Resolution. All premiums and charges paid by Authority for all of the aforesaid insurance shall be paid to the Authority in accordance with the provisions of Section 4. Any such premium for a period partly within such period shall be prorated. At the option of the City any insurance required by Authority hereunder may be provided by the City. Notwithstanding the generality of the foregoing, the Authority shall not be required to maintain or cause to be mainta;ned any insurance which is not available from reputable insurers on the open market or more insurance than is specifically referred to above. Proof of November 3, 196T-— J.B.Co. — Phone 627 9514 SECTION 9. Damage by Fire, Earthquake, Etc. It is expressly understood and agreed that the rental hereunder shall become due only in con- sideration of the right to occupy and use the Leased Premises from year to year, and, except as herein provided, it is the responsibility of Authority to provide such right at all times. In the event of destruction or damage to the Leased Premises by fire or earthquake or other casualty or event so that they become wholly or partly unusable, Authority, at its option, may do either of the following: (1) Rebuild and repair the Leased Premises so that they shall be restored to use, if this can be done within the period for which business (rent) interruption insurance has been provided, in which case this Civic Center Lease shall remain in full force and effect. Any excess of insurance proceeds resulting from such destruction or damage (other than business [rent] interruption insurance) over the amount expended for such repairing or rebuilding, shall be paid to City, or (2) Declare this Civic Center Lease to City terminated and use any money collected from insurance against the destruction of or damage to the Leased Premises to the extent necessary to retire any outstanding securities or any debts or liabilities which Authority may have; provided, however, that if the Leased Premises can be repaired or rebuilt within the period for which Authority has insurance against business (rent) interruption, and if Authority shall have sufficient funds from the proceeds of insurance or otherwise for the necessary repairing or rebuilding, Authority shall not proceed under this option without the City's consent. During such time as the Leased Premises are unusable, rent shall cease. No further rental pay- ments shall accrue until such Leased Premises are again ready for occupancy and rental payments already made, if any, shall be equitably abated and adjusted accordingly. In the event of partial damage to, or destruction of, the Leased Premises, so as to render a portion thereof unusable by City, such rental payments (including those already made, if any) shall be abated during the period of the partial unusability of the Leased Premises in the proportion which the portion of the Leased Premises not usable by the City bears to the whole of the Leased Premises. SECTION 10. Assignment and Sublease. Neither this Civic Center Lease nor any interest of the City herein shall, at any time after the date hereof, without the prior written consent of the Authority, be mortgaged, pledged, assigned or transferred by the City by voluntary act or by operation of law, or otherwise, except as specifically provided herein. The City shall at all times remain liable for the performance of the covenants and conditions on its part to be performed, notwithstanding any assigning, transferring or subletting which may be made. The City shall have the right to sublease or permit the use of all or any part of the Leased Premises, but nothing herein contained shall be construed to relieve the City from its obligation to pay rental as provided in this Civic Center Lease or relieve the City from any other obligations con- tained herein. The Authority may issue its Bonds under the Resolution. Such Resolution may operate as an assignment of the Civic Center Lease to the Trustee for financing purposes. The Authority may execute any and all instruments necessary and proper in connection therewith. Whenever in this Civic Center Lease any consent or approval is required, the same shall not be unreasonably withheld. Any items herein required or permitted to be done by the Authority may, if so provided under the Resolution, be performed by the Trustee thereunder. SECTION 11. Eminent Domain. If the whole of the Leased Premises, or so much thereof as to render the remainder unusable fo; the purposes hereof, shall be taken under the power of eminent domain, then this Lease shall terminate as of the day possession shall be so taken. If less than the whole of said Leased Premises shall be taken Proof of November 3, 1967 — J.B.Co Phone 627 9514 under the power of eminent domain, and the remainder is usable for the purposes hereof, then this Lease shall continue in full force and effect and shall not be terminated by virtue of such taking and the parties waive the benefit of any law to the contrary, in which event there shall be a partial abatement of the rent hereunder in an amount equivalent to the amount by which the annual payments of principal of, and interest on, the outstanding bonds of the Authority will be reduced in any applicable year by the application of the award in eminent domain to the call of outstanding bonds. Any award made in eminent domain proceedings for the taking or damaging of the Leased Premises in whole or in part shall be paid to the Trustee under the indenture for the direct benefit of the holders of bonds of the Authority and shall be used by the Trustee to call, as nearly as may be, a principal amount of bonds in each of the remaining maturities so that as nearly as possible in the discretion of the Trustee there will be equal annual reductions in the principal and interest payments on the outstanding bonds remaining after said call. In the event the amount so paid to the Trustee shall be more than sufficient to retire the bonds issued under the indenture and then outstanding any such excess shall be paid by the Trustee to the City. SECTION 12. Right of Entry. The Authority and its designated representatives shall have the right to enter upon the Leased Premises during reasonable business hours (and in emergencies at all times), (i) to inspect the same, (ii) for any purpose connected with the City's rights or obligations under this Civic Center Lease, (iii) for all other lawful purposes. SECTION 13. Liens. Except for payment made or required to be made under the Resolution, the City shall pay or shall cause to be paid, when due, all sums of money that may become due for, or purporting to be lor, any labor, services, materials, supplies or equipment alleged to have been furnished or to be furnished to or for, in, upon or about the Leased Premises and which may be secured by any mechanics', materialmen's or other lien against the Leased Premises, and/or the Authority's interest therein, and shall cause each such lien to be fully discharged and released; provided, however, that if the City and/ or Authority desires to contest any such lien, this may be done, and if such lien shall be reduced to final judgment and such judgment or such process as may be issued for the enforcement thereof is not promptly stayed, or if so stayed and said stay thereafter expires, then and in any such event the City shall forthwith pay and discharge said judgment. SECTION 14. Taxes. The parties understand and agree that the Leased Premises constitute public property free and exempt from all taxation; however, the Authority agrees to take whatever steps may be necessary, upon written request by the City, to contest any proposed tax or assessment, or to take steps necessary to recover any tax or assessment paid. The City agrees to reimburse the Authority for any and all costs and expenses thus incurred by the Authority. SECTION 15. Quiet Enjoyment. The parties hereto mutually covenant and agree that the City, by keeping and performing the covenants and agreements herein contained, shall at all times during the term, peaceably and quietly, have, hold and enjoy the Project and the Leased Premises. SECTION 16. Law Governing. This Civic Center Lease is made in the State of California under the Constitution and laws of such State and is to be so construed. £J, 1967 — J.B.IProof of November 3, 1967 — J.B.Co Phone 627 9514 SECTION 17. Notices. All notices, statements, demands, requests, consents, approvals, authorizations, offers, agree- ments, appointments or designations hereunder by either party to the other shall be in writing and shall be sufficiently given and served upon the other party, if sent by United States registered mail, return receipt requested, postage prepaid and addressed as follows: City —City Clerk, City Hall, Carlsbad, California. Authority — Secretary — At such address as Authority shall designate for such purpose. SECTION 18. Waiver. The waiver by the Authority of any breach by the City of any term, covenant or condition hereof shall not operate as a waiver of any subsequent breach of the same or any other term, covenant or condtion hereof. SECTION 19. Default by City. If (a) City shall fail to pay any rental payable hereunder within fifteen (15) days from the delinquent date for such rental payment is payable, or (b) City shall fail to keep any such other terms, covenants or conditions contained herein for a period of twenty-five (25) days after written notice thereof from Authority to City, or (c) City shall abandon or vacate the premises, or (d) City's interest in this Civic Center Lease or any part thereof shall be assigned or transferred without the written consent of Authority, either voluntarily or by operation of law, or (e) City shall file any petition or institute any proceedings wherein or whereby City asks or seeks or prays to be adjudicated a bankrupt, or to be discharged from any or all of its debts or obligations, or offers to City's creditors to effect a composition or extension of time to pay City's debts, or asks, seeks or prays for a reorganiza- tion or to effect a plan of reorganization, or for a readjustment of City's debts, or for any other similar relief, or (f) any such petition or any such proceedings of the same or similar kind or character shall be filed, instituted or taken against City, then and in any of such events City shall be deemed to be in default hereunder. If City should, after notice of such default, fail to remedy any default with all reasonable dispatch in not exceeding thirty (30) days, then Authority shall have the right, at its option, without any further demand or notice (i) to terminate this Civic Center Lease and to re-enter the Leased Premises and eject all parties in possession thereof therefrom, using all necessary force so to do, or (ii) to re-enter the Leased Premises and eject all parties therefrom, using all necessary force so to do, and, without terminating this Civic Center Lease, re-let the Leased Premises, or any part thereof, as the agent and for the account of City upon such terms and conditions as Authority may deem advisable, in which event the rents received on such re-letting shall be applied first to the expenses of re-letting and collec- tion, including necessary renovation and alteration of the Leased Premises, a reasonable attorney's i'ee, and any real estate commissions actually paid, and thereafter toward payment of all sums due or to become due to Authority hereunder, and if a sufficient sum shall not be thus realized to pay such sums and other charges, City shall pay Authority annually any cumulative net deficiency existing on the date when Base Rental is due hereunder. The foregoing remedies of Authority are in addition to and not exclusive of any other remedy of Authority. Any such re-entry shall be allowed by City without let or hindrance and Authority shall not be liable in damages for any such re-entry or be guilty of trespass. SECTION 20. Net Lease. This Civic Center Lease shall be deemed and construed to be a "net-net lease" and the City hereby agrees that the rentals provided for herein shall be an absolute net return to the Authority, iree and clear of any expenses, charges or set-offs whatsoever. 8 Proof of November 3, 196T!^- J.B.Co. — Phone 627 9514 SECTION 21. Execution. This Civic Center Lease may be simultaneously executed in any number of counterparts, each of which when so executed shall be deemed to be an original, but all together shall constitute but one and the same Civic Center Lease, and it is also understood and agreed that separate counterparts of this Civic Center Lease may be separately executed by the Authority and the City, all with the same full force and effect as though the same counterpart had been executed simultaneously by both the Authority and the City. SECTION 22. Validity. If any one or more of the terms, provisions, promises, covenants or conditions of this Civic Center Lease shall to any extent be adjudged invalid, unenforceable, void or voidable for any reason whatsoever by a court of competent jurisdiction, each and all of the remaining terms, provisions, promises, covenants and conditions of this Civic Center Lease shall not be affected thereby and shall be valid and enforceable to the fullest extent permitted by law. If for any reason this Civic Center Lease shall be held by a court of competent jurisdiction void, voidable, or unenforceable by the Authority or by the City, or if for any reason it is held by such a court that the covenants and conditions of the City hereunder, including the covenant to pay rents hereunder, is unenforceable for the full term hereunder, then and in such event for and in consideration of the right of the City to possess, occupy and use the Leased Premises, which right in such event is hereby granted, this Civic Center Lease shall thereupon become, and shall be deemed to be, a Lease from year to year under which the annual rentals herein specified will be paid by the City. If the Auditor and/or Treasurer of the Authority are substituted for the Trustee pursuant to the Resolution, all references herein to Trustee shall be deemed to mean Auditor and/or Treasurer as the case may be. Proof of November 3, 19^-J.B.Co. — Phone 627 9514 IN WITNESS WHEREOF, the parties hereto have caused this Civic Center Lease to be executed and attested by their proper officers thereunto duly authorized, and their official seals to be hereto affixed, as of the day and year first above written. CITY OF CARLSBAD By Mayor K! ^ ATTEST: (SEALX : City Clerc ! CARLSBAD BUILDING AUTHORI By President Secretary ' I HEREBY APPROVE the form and legality of the foregoing Agreement this 7th day of November, 1967. STUART C. WILSON City Attorney /> 10 Proof of October 23, 196S7WJ.B..Co. • Phone 627-9514 STATE OF CALIFORNIA COUNTY OF SAN DIEGO ss. On this 7th day of November, in the year 1967, before me, the undersigned, a Notary Public, State of California, duly commissioned and sworn, personally appeared WILLIAM C. ATKINSON, JR., known to me to be the Mayor, and MARGARET E. ADAMS, known to me to be the City Clerk, respectively, of the CITY OF CARLSBAD, a public corporation, that executed the within instrument, and known to me to be the persons who executed the within instrument on behalf of said public corporation therein named, and acknowledged to me that such public corporation executed the within instrument pursuant to a resolution of the City Council of said City of Carlsbad. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year in this certificate first above written. [Notarial Seal] WILLIAM C. BALDWIN j MiTAK: KiSLiC CALIKORNIA j HH^C!WU. 0:r!GE IW J SAN DIEGO COUNTY | WILLIAM C. BALDWliN Notary Public, State of California My Commission Expires: My commission expires March 76, 1969 STATE OF CALIFORNIA COUNTY OF SAN DIEGO SS On this 7th day of November, in the year 1967, before me, the undersigned? a_Notary Public, State of California, duly commissionedandsworn, personally appeared &.:Jx.'..{&-£44gfi^known to me to be the Chairman andu&!fe^^l3««$iaiown to me to be the Secretary, respectively, of CARLSBAD BUILDING AUTHORITY, a public corporation that executed the within instrument on behalf of said public corporation therein named, and acknowledged to me that such public corporation executed the within instrument pursuant to a resolution of its governing board. IN WITNESS WHEREOF, I have hereunto subscribed my name and affixed my official seal on the day and year in this certificate first above written. [Notarial Seal] WILLIAM C. BALDWIN NOT^i-IY r'USliC DUlr-'GRNIA PRINCIPAL -orrict IN SAN DIEGO COUNTY WILLIAM C. BALDWIN Notary Public, State of California My Commission Expires: My commission expires March 26. 1969 43 CIVIC CENTER SITE DESCRIPTION That portion of Tract 117 of Carlsbad Lands, according to Map thereof No. 1661, filed in the Office of the County Recorder of San Diego County, March 1, 1915, described as follows: Beginning at the Southeast corner of said Tract 117, thence along the Southeasterly line of said Tract 117, South 55° 58' 16" West 173.67 feet to the TRUE POINT OF BEGINNING; Thence North 34° 01' 44" West 322.77 feet to a point on the Northerly line of said Tract 117; Thence along said Northerly line of said Tract 117, North 89° 24' 42" West, a distance of 372.46 feet; Thence along a tangent curve to the left, with a radius of 50.00 feet through an angle of 90° 29' 19", an arc distance of 78.97 feet; Thence from a tangent which bears South 39° 42' 48" %East, along a curve to the left, with a radius of 720.00 feet through an angle of 22° 19' 43", an arc distance of 280.59 feet to a point of reverse curvature; Thence along said reverse curve to the right v/ith a radius of 630.00 feet, through an angle of 20° 05' 24", an arc distance of 220.90 feet to a point of reverse curvature; Thence along said reverse curve to the left with a rad- ius of 52.00 feet, through an angle of 82° 14' 50", an arc distance of 74.65 feet to the Southeasterly- line of Tract 117; ; Thence along the Southeasterly line of said Tract 117, North 55° 58' 16" East, a distance of 179.00 feet, more or less, to the TRUE POINT OF BEGINNING. EXCLUDING therefrom the Southeasterly 2.00 feet thereof. EXHIBIT "A" Proof of November 3, 196'S** J.B.Co.— Phone 627 9514 EXHIBIT B V>~ >V CARLSBAD CIVIC CENTER Schedule For Adjustment of Base Rental Estimated total Project cost $431,160 Estimated interest during construction at 5l/4%* (6 months) 12,075 Estimated reserve fund 16,765 Estimated Required Bond Issue $460,000 * Subject to adjustment under Section 4(f) for the purpose of adjusting the Base Rental. Said adjustment may take into consideration the need to adjust the schedule of Base Rental payments to fit the financial program of the City and shall be subject to approval of the City, provided that the schedule of Base Rental payments (which may run from year to year) must be at least sufficient to pay the principal and interest on the Bonds in any succeeding year in accordance with the Resolution. 11