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HomeMy WebLinkAboutMontessori Arts & Sciences Inc; 2004-07-29;SECOND AMENDMENT TO LEASE BETWEEN THE CITY OF CARLSBAD AND MONTESSORI ARTS AND SCIENCES FOR PROPERTY LOCATED AT 3368 EUREKA PLACE CARLSBAD, CALIFORNIA 92008 EXHIBIT 2 9 SECOND AMENDMENT TO LEASE: EXTENSION OF TERM 1 . Consideration; Agreement To Amend. For valuable consideration, the receipt and sufficiency of which are acknowledged, Landlord and Tenant amend the Lease in the following respects: 2. Meaninq of Terms; Effective Date. Except as otherwise stated in this Second Amendment to Lease: Extension of Term (“Second Amendment”), (a) all initially capitalized terms in this amendment will have the respective defined meanings stated in the Lease, and (b) the terms and provisions of this amendment will be considered to be effective as of the date of this amendment. 3. Revised Lease Expiration Date; Extended Term. The First Amendment Lease Term is currently scheduled to expire on March 31,2005 (Lease Expiration Date). As of the date of this Second Amendment, the Lease Term is extended to June 30, 2005 (Revised Lease Expiration Date) and, unless terminated earlier under the terms of the Lease, will expire on the Revised Lease Expiration Date. The period of time beginning on the day following the Lease Expiration Date and continuing through the Revised Lease Expiration Date is the “Extended Term.” 4. Base Rent. Throughout the Extended Term, Tenant will pay an amount equal to $1350.00 per month as Base Rent due under the Lease. 5. Tenant’s Acceptance of Premises “As Is.” Landlord and Tenant acknowledge that Tenant has been occupying the Premises under the Lease since July 1, 2004. Tenant continues to accept the Premises in their current “as is” condition. 6. Brokers. Landlord and Tenant each represents to the other that it has had no dealings with any real estate broker, agent, or finder in connection with the negotiation of this Second Amendment, and that they know of no other real estate broker, agent, or finder who is entitled to a commission or finder’s fee in connection with this Second Amendment. Each party shall indemnify, protect, defend, and hold harmless the other party against all claims, demands, losses, liabilities, lawsuits, judgments, and costs and expenses (including reasonable attorney fees) for any leasing commission, finder’s fee, or equivalent compensation alleged to be owing on account of the indemnifying party’s dealings with any real estate broker, agent, or finder other than the Brokers. The terms of this section 8 will survive the expiration or earlier termination of the Extended Term. Second Amendment 2 3368 Eureka Place Montessori Arts & Sciences City of Carlsbad 2-28-05 7. Waiver of Relocation Benefits. Lessee understands this Second Amendment is entered into for a specified period of time in order to provide interim use of the property. Lessee therefore agrees to waive any and all relocation benefits defined in the California Relocation Assistance Law (Government Code, Section 7260, et, seq.) after having the opportunity to consult with legal counsel about potential entitlements. 8. Effectiveness of Lease. Except as explicitly modified by this Second Amendment, all of the terms and provisions of the Lease are and remain in full force and effect. LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS SECOND AMENDMENT TO LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS SECOND AMENDMENT TO LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS SECOND AMENDMENT TO LEASE IS EXECUTED, THE TERMS OF THIS SECOND AMENDMENT TO LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES. The parties hereto have executed this Second Amendment to Lease at the place and on the dates specified above their respective signatures. Executed at: Carlsbad, California MAR 1 8 2005 Raymond R. Patchett, City Manager Title: Address: 1200 Carlsbad Village Drive City Manager, City of Carlsbad By: Carlsbad. CA 92008 Name Printed: Telephone: J760 ) 434-2821 Title: Facsimile: J760) 720-9461 Address: Second Amendment 3 3368 Eureka Place Montessori Arts & Sciences City of Carlsbad 2-28-05 6 Appmd as to form: RONALD R. BALL r/a~. CITY ATTORNEY Second Amendment 3368 Eureka Place Montessori Arts & Sciences City of Carlsbad 2-28-05 4 STATE OF CALIFORNIA) COUNTY OF SAN DIEGO) ony’hetcl 3 ,300s before me, dd’m. d OhyL/ , personally appeared Iamn Get fist Tu tar, * I , personally known to me (or proved to me on the bais of satisr‘actory evidence) to be the person(&) whose name@- is/- subscribed to the within instrument and acknowledged to me that ke/she/tbey executed the same in Mhedtbek authorized capacity(&), and that by Mher/tkeir signaturewon the instrument the person@, or the entity upon behalf of which the person@) acted, executed the instrument. WITNESS my hand and official seal. Signature Second Amendment 3368 Eureka Place Montessori Arts & Sciences City of Carlsbad 2-28-05 5 FIRST AMENDMENT TO LEASE BETWEEN THE CITY OF CARLSBAD AND MONTESSORI ARTS AND SCIENCES FOR PROPERTY LOCATED AT 3368 EUREKA PLACE CARLSBAD, CALIFORNIA 92008 3 FIRST AMENDMENT TO LEASE: EXTENSION OF TERM 1. Consideration; Agreement To Amend. For valuable consideration, the receipt and sufficiency of which are acknowledged, Landlord and Tenant amend the Lease in the following respects: 2. Meaning of Terms; Effective Date. Except as otherwise stated in this First Amendment to Lease: Extension of Term (“First Amendment”), (a) all initially capitalized terms in this amendment will have the respective defined meanings stated in the Lease, and (b) the terms and provisions of this amendment will be considered to be effective as of the date of this amendment. 3. Revised Lease Expiration Date; Extended Term. The Lease Term is currently scheduled to expire on December 31,2004 (Lease Expiration Date). As of the date of this First Amendment, the Lease Term is extended to March 31, 2005 (Revised Lease Expiration Date) and, unless terminated earlier under the terms of the Lease, will expire on the Revised Lease Expiration Date. The period of time beginning on the day following the Lease Expiration Date and continuing through the Revised Lease Expiration Date is the “Extended Term.” 4. Base Rent. Throughout the Extended Term, Tenant will pay an amount equal to $1350.00 per month as Base Rent due under the Lease. 5. Tenant’s Acceptance of Premises “As Is.” Landlord and Tenant acknowledge that Tenant has been occupying the Premises under the Lease since July 1, 2004. Tenant continues to accept the Premises in their current “as is” condition. 6. Brokers. Landlord and Tenant each represents to the other that it has had no dealings with any real estate broker, agent, or finder in connection with the negotiation of this First Amendment, and that they know of no other real estate broker, agent, or finder who is entitled to a commission or finder‘s fee in connection with this First Amendment. Each party shall indemnify, protect, defend, and hold harmless the other party against all claims, demands, losses, liabilities, lawsuits, judgments, and costs and expenses (including reasonable attorney fees) for any leasing commission, finder’s fee, or equivalent compensation alleged to be owing on account of the indemnifying party‘s dealings with any real estate broker, agent, or finder other than the Brokers. The terms of this section 8 will survive the expiration or earlier termination of the Extended Term. 7. Waiver of Relocation Benefits. Lessee understands this First Amendment is entered into for a specified period of time in order to provide interim use of the First Amendment 3368 Eureka Place Montessori Arts & Sciences City of Carlsbad 11-10-04 2 property. Lessee therefore agrees to waive any and all relocation benefits defined in the California Relocation Assistance Law (Government Code, Section 7260, et, seq.) after having the opportunity to consult with legal counsel about potential entitlements. 8. Effectiveness of Lease. Except as explicitly modified by this First Amendment, all of the terms and provisions of the Lease are and remain in full force and effect. LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS FIRST AMENDMENT TO LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS FIRST AMENDMENT TO LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS FIRST AMENDMENT TO LEASE IS EXECUTED, THE TERMS OF THIS FIRST AMENDMENT TO LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES. The parties hereto have executed this First Amendment to Lease at the place and on the dates specified above their respective signatures. Executed at: cfir bbsd on: Novedxv- 17. BY LESSEE: BY LESSOR: Title: Q Wnpr Title: City Manager, City of Carlsbad &OM& CnFssddress: 1200 Carlsbad Village Drive By: Carlsbad, CA 92008 Name Printed: Telephone: (760 ) 434-282 1 Title: Facsimile: (760) 720-9461 3368 Eureka Place Montessori Arts & Sciences City of Carlsbad 11-10-04 Facsimile: ( ) Federal ID No. Approved as to form: By: ia-gQL RONALD R. BALL CITY ATTORNEY STATE OF CALIFORNIA) COUNTY OF SAN DIEGO) On Av &&w &lo04 before me, kc^ 4 A. I.kdL6 ', docaw &L , personally appeared o ,nnn \d r , personally known to me (or proved to me on the'dasis of satisfactory evidence) to be the persono whose name@) islare subscribed to the within instrument and acknowledged to me that he/she/tke)r executed the same in &/her/tbeir authorized capacity(&), and that by bis/her/tM signature(@ on the instrument the person(& or the entity upon behalf of which the person(@ acted, executed the instrument. WITNESS my hand and official seal. First Amendment 3368 Eureka Place Montessori Arts & Sciences City of Carlsbad 1 1 - 10-04 Signature 4 Montessori Arts and Sciences School Montessori Arts B Sciences, lnc. 3016 Highland Drive Carlsbad, CA 92008-1915 Ph/Fax (760) 434-6440 November 1, 2004 Cynthia Haas Economic Development City of Carlsbad 1635 Faraday Avenue Carlsbad, CA 92008 Dear Cynthia, As you are aware, we are working diligently to complete the permanent site for our school at 3016 Highland Drive. Although the construction is progressing at a good rate, it appears that we may not be complete and ready for the certificate of occupancy by the goal December 30,2004. At this time, it would be helpful if you could please extend the arrangement we have presently for the month- to- month rate at $1,350. Our school has downsized considerably through the long process of acquisition of property, permitting, plan checks, inspections and contractors’ schedules. As it is now, balancing the budget is a challenge. Surely, we hope to complete the City’s requirements for occupancy by December 30, however we do sense the uncertainty of the challenging project of building a school that meets the commercial requirements that we have undertaken We are willing to cooperate fully with any needs the Carlsbad Library has for the facility. We are aware that much planning needs to take place as 3368 Eureka Place is prepared for its future. Certainly, we should have completed all the City’s requirements and be moved to the 301 6 Highland Drive location by March 1, 2004. We are still trying to complete the project by December 15, 2004 Thank you for your consideration. cc: Deborah Fountain Cliff Lange CITY OF CARLSBAD LEASE TO MONTESSORI ARTS AND SCIENCES INC. OF PROPERTY LOCATED AT 3368 EUREKA PLACE CARLSBAD, CALIFORNIA 92008 3368 Eureka Place Montessori Arts & Sciences Lease Agreement City of Carlsbad - 7/7/04 LEASE AGREEMENT THIS LEASE AGREEMENT, made and entered into this 29th day of July , 2004, by and between the City of Carlsbad, hereinafter called “Lessor,” and Montessori Arts & Sciences Inc., a California corporation, hereinafter called “Lessee,” without reference to number or gender, for property located at 3368 Eureka Place, Carlsbad, California, 92008. WITNESETH: WHEREAS, the City of Carlsbad is the owner of the real property located at 3368 Eureka Place, Carlsbad, California, 92008; and WHEREAS, Lessee desires use of approximately 3300 square feet of Lessor premises to operate a Montessor School. 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 six (6) months July 1, 2004, and ending on December 3 1, 2004. 2. RENT: (a) Lessee agrees to pay to Lessor the sum of four hundred fifty dollars ($450) each month, for the months of July and August 2004. Lessee agrees to pay the sum of one thousand three hundred and fifty dollars ($1,350) per month for the months of September, October, November, and December 2004. Lease payments shall be effective as of July 1, 2004. The first payment of $450 per month will be paid upon execution of the agreement 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 (IO) days 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 Manager of Economic Development and (b) (c) 3368 Eureka Place Montessori Arts & Sciences Lease Agreement City of Carlsbad - 7/7/04 Real Estate shall have the right to waive for good cause any interest payment for any such delinquency period upon written application of Lessee Lessor holds a Security Deposit, previously paid by Lessee in the amount of $1,200. The Security Deposit shall be held in an interest bearing account (at the same rate the City of Carlsbad cams 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 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 (IO) 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 3300 square feet of leased premises shall be used by Lessee only and exclusively for operation of the Montessori Arts & Sciences school and for no other purpose whatsoever without the written consent of Lessor. 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. 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 shall have a right to terminate this lease by first giving thirty (30) days written notice to Lessor 5. IMPROVEMENTS: (a) Subject to Lessor approval, Lessee may, at its own expense, make interior alterations or changes in the 3,300 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 3368 Eureka Place Montessori Arts & Sciences Lease Agreement City of Carlsbad - 7/7/04 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. 6. OWNERSHIP; REMOVAL; SURRENDER/RESTORATION: (a) 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. (b) Removal. By delivery to Lessee of written notice from Lessor, 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. (c) 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 and/or utility installations, furnishings, and equipment installed by or for Lessee and the removal, replacement, or remediation of any soil, material or groundwater contaminated with hazardous substance (as defined in Paragraph 20) 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 28 below. 7. 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 harmless from and against liability for compensation or charges which may be claimed by any such unnamed broker, tinder or other similar party by reason of any dealings or 3368 Eureka Place Montessori Arts & Sciences Lease Agreement City of Carlsbad ~ 7/7/04 actions of the Lessee and/or Lessor, including any costs, expenses, or attorney’s fees reasonably incurred with respect thereto. 8. 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. Lessee therefore agrees to waive any and all relocation benefits defined in the California Relocation Assistance Law (Government Code, Section 7260, et, WJ.) after having the opportunity to consult with legal counsel about potential entitlements. 9. 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 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. 10. 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. 1 1. 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. 12. 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, 3368 Eureka Place Montessori Arts & Sciences Lease Agreement City of Carlsbad - 7/7/04 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. 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. (b) 13. 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. 14. MAlNTENANCE AND REPAIR: (a) As part of the consideration for the leasing thereof, Lessee agrees to assume full responsibility for the interior operation and maintenance 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 agrees to keep premises free and clear of rubbish and litter, or any other fire hazards. Lessor shall be responsible for all exterior maintenance and landscaping. 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, (b) 3368 Eureka Place Montessori Arts & Sciences Lease Agreement City of Carlsbad - 7/7/04 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. 15. 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 12. Lessor shall be responsible for payment of all utilities, including security alarm, trash, water, gas and electricity. 16. 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, codes, laws, rules and regulations prescribed by the City of Carlsbad, 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. 17. 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. 18. 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. 19. 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 3368 Eureka Place Montessori Arts & Sciences Lease Agreement City of Carlsbad ~ 717104 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. 20. 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. 21. 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. Lessor shall be named as an additional insured entitled to primary coverage. 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 fkom any such insurance shall be used by Lessee for the replacement of personal property and tr (b) 2 (c) $&&%res as well as alterations and utility installations. 3368 Eureka Place Montessori Arts & Sciences Lease Agreement City of Carlsbad ~ 7/7/04 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 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. 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 3368 Eureka Place Montessori Arts & Sciences Lease Agreement City of Carlsbad ~ 7\7/04 organization necessary for maintaining fire and other insurance coverage at reasonable cost. 22. 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. 23. 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 premiszs 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. 24. 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. 25. 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 3368 Eureka Place Montessori Arts & Sciences Lease Agreement City of Carlsbad .- 7/7/04 surrender, including, without limitation, any succeeding Lessee’s claims based on Lessee’s failure to surrender. 26. 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 term5 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. 27. 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 two hundred fifty percent (250%) 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. 28. 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. 29. 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. 30. 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. 3368 Eureka Place Montessori Arts & Sciences Lease Agreement City of Carlsbad - 7/7/04 31. TIME IS OF THE ESSENCE: Time is of the essence of each and all of the terns and provisions of this lease. 32. NOTICES: Notices given or to he 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 Montessori Arts & Sciences Attn: Jan Taylor 3016 Highland Dr. Carlsbad, CA 92008 TO LESSOR Manager of Economic Development & Real Estate 1635 Faraday Avenue Carlsbad, CA. 92008 33. ABSTRACT OF LEASE: This is the final Paragraph and Abstract of Lease dated July 14 2004, between the CITY OF CARLSBAD, Lessor and Montessori Arts and Sciences Inc., concerning the Leased Premises, referenced more specifically in Exhibit “A” ABSTRACT OF LEASE. 3368 Eureka Place Montessori Arts & Sciences Lease Agreement City of Carlsbad ~ 7/7/04 LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES. The parties hereto have executed this Lease at the place and on the dates specified above their respective signatures Executed at: Carlsbad. CA on: July 29, 2004 City of Carlsbad, A Municipal Corporation Address: 1200 Carlsbad Village Drive By: Carlsbad, CA 92008 Name Printed: Telephone: (760 ) 434-2821 Title: Facsimile: 1760) 720-9461 Address: os/ 804, r I 3a Te1ephone:jfbq 434 - &? Facsimile:*) - 43 // c46hn c- Federal ID No. 33 - Q668iS Approved as to form CI& ATTORNEY 3368 Eureka Place Montessori Arts & Sciences Lease Agreement City of Carlsbad - 7/7/04 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Carlsbad City Clerks Office 1200 Carlsbad Village Drive Carlsbad, CA 92008 ABSTRACT OF LEASE This Abstract of Lease, hereinafter "Abstract", dated U &.&Qfd 2004, between the CITY OF CARLSBAD, Lessor and MONTESSORI ARTS AND S$IEN&S, INC:, Lessee, concerning the Leased Premises at 3368 Eureka Place, Carlsbad , CA 92008. For good and adequate consideration. Lessor leases the Leased Premises to Lessee, and Lessee for the term and on the provisions contained in the Lease dated 2004, the Abstract ofwhich IS recorded by the San Diego County Recorder's prohibiting assignment. subleasing, and encumbering sad in said Lease. which said lease is incorporated in this Abstract by this reference. The term of this lease is six (6) months. beginning July 1. 2004, and ending December 3 1, 2004. This Abstract is not a complete summary of the Lease. Provisions in this Abstract shall not be used in interpreting the Lease provisions. In the event of conflict between this Abstract and other parts of the Lease, the other parts shall control. Execution hereof constitutes execution of the Lease itself. IN WITNESS WHEREOF, each of the undersigned has executed this Abstract as of the dates set forth in the respective notary acknowledgements attached hereto. Executed at: Carl5 baoj Executed at: Carlsbad, CA on: 9 14; W on: July 29. 2004 I- By LESSEE: nca sty '"c:"t",":of Carlsbad, A Municipal Corporation Federal ID No *33 - 0 (Q 6 87- 6.5 - BY Nameprinted Birymnnd R. Pat&&t T,tle City Manager Address 1200 Carlsbad Villase Drive Carlsbad. CA 92008 Telephone (760 ) 434-282 I Facsimile c760) 720-946 I 3368 Eureka Place Montessori Arts & Sciences Lease Agreement City of Carlsbad - 7/7/04 STATE OF CALIFORNIA) COUNTY OF SAN DIEGO) On personally known to me (or person(* whose name(+ islafe-subscribed to the within instrument and acknowledged to me that be/she/tRey executed the same in Wer/theiF authorized capacity(ies). and that by bis/her/theirsignature(s) on the instrument the person(% or the entity upon behalf of which the personwacted. executed the instrument. WITNESS my hand and official seal. Signature 1 Q. 5$LAife 3368 Eureka Place Montessori Arts & Sciences Lease Agreement City of Carlsbad - 7/7/04 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT personally appeared f? 8 d @fqersonally known to me I\Rp, to be the personm executed the instrument. WITNESS my hand and official seal. Signature of Nofaly Publk Though the informaiion below is not required by law. it may prove valuable to persons re/ying on the document and couldprevent fraudulent removal and reaitachment of this form to anoiher document Description of Attached Document Number of Pages: \ t Cno+& I Document Date: Signer($ Other Than Named Above: 1 Capacity(ies) Claimed by Signer@) 0 Individual 0 Corporate Officer 0 Partner - 0 Limited 0 General 0 Guardian or Conservator Signer Is Representing: Signer's Name: 0 Individual 0 Corporate Officer Title(@: 0 Partner - 0 Limited 0 General 0 Attornev-in-Fact G Trustee. 0 Guardian or Conservator 0 Other: Signer Is Representing: I I