HomeMy WebLinkAbout1983-11-01; City Council; 7379-2; Lease Space for Branch Library Plaza de la CostaCIT , OF CARLSBAD — AGENDh BILL
A8*-L`3 � ITLE: APPROVE CONCEPT OF LEASING SPACE FOR A DEPT. HD
MTG. 11/1/83 BRANCH LIBRARY IN PLAZA DE LA COSTA
DEPT. L I B SHOPPING CENTER CITY ATTY,
CITY MGR.
RECOMMENDED ACTION:
Ask Council to approve concept and direct staff to prepare lease documents.
ITEM EXPLANATION:
The new owners of Plaza de la Costa Shopping Center have approached the Library
with a proposal to locate the La Costa Branch Library within the shopping center.
An area of approximately 2,700 - 3,000 square feet of space is being offered at
$.50 per square foot per month for a five (5) year period. Additionally, the
landlord will build out the space per tenant's requirements and will contribute
$5.00 per square foot toward improvement costs.
Based on 3,000 square feet at $.50 per square foot over five (5) years, the cost
to the City would be $90,000.
Staff has made a study of leased space versus purchasing a portable building.
Based on a five (5) year period, the most economical and expeditious means of
providing the branch library to the residents of La Costa is to lease space in
the existing shopping center.
FISCAL IMPACT:
Funds are available in CLSA Branch Library account 18-81-01-3900.
EXHIBITS:
I. Cost comparison -- Exhibit "A".
2. Lease offer and Site Plan -- Exhibit "B"
EXHIBIT A
M COSTA BRANCH _ 3,000 SQUARE -FEET
Portable Building Cost = $124,000
Amount Loan Interest Square foot cost over:
Financed Period (l0% Resale Value
— ) Total Cost % 5 ears b ear
�_ Zs 7 ears
$100,000 2 years $10,748. $134,748. 0% $.75 $.62 $.53
$.58 $.48 $.0
Leased Space (No triple net)
$ 90,000 $,50
(pay $.50 per sq. ft.)
10/83
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P,
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Exhibit "B"
C.W.Ciark,inc,
COMMERCIAL REAL ESTATE SERVICES
October 20, 1983
Mr. Clifford Lange
Director of Library
City of Carlsbad
1250 EIm Avenue
Carlsbad, California 92008
Re: Proposalto Lease
Plaza de la Costa
Carlsbad Branch Library
Dear Mr. Lange:
Based on our phone conversation of today, the following represents a proposal on
behalf of Plaza de la Costa Associates to the
City of Carlbad for Ieased space in
Plaza de la Costa Shopping Center for a branch library:
Space:
7750L (as depicted on the enclosed site plan).
Size:
Approximately 2,700-3,000 square feet; exact size
and layout to be determined.
Use:
Library branch
Rent:
$.50 per square foot per month
Cost of Livin>;
Adiustment:
None
Term:
Five (5) years
Option:
One 2- or 3-year option at fair market rental.
Tenant Improvement
Allowance:
Landlord will build out space per Tenant's
requirements and will contribute $5.00 per square
foot toward improvement
costs. Any costs
exceeding this amount shall be borne by Tenant.
Rental Commencement:
Upon completion of build -out by Landlord and
timely acceptance of premises by Tenant.
�,, 3211 Holiday Court, Suite 200, La Jolla CA 92037 9 (619) 452-1511, 292.9933 13
Mr. Clifford Lange
October 20, 1983
Page two
Remarks:
Time is of the essence. The landlord is flexible
with regard to lease form and will use the City's
format if the City so desires.
General:
The Landlord is making extraordinary
concessions
to place the Carlsbad Branch Library in his
facility. He feels it will be good for
the shopping
center, the community, and the taxpayer.
The total dollars paid over the length of the term
dictate
a substantial savings for the City of
Carlsbad.
Should you have any questions, please do not hesitate to call. The owners of Plaza
de la Costa Real look forward
citizens of Carlsbad as soon
to opening this excellent library facility for the
as possible.
Best regards,
C.W. CLARK, INC.
COMMERCIAL BROKERAGE DIVISION
E. CharIes Havlik
Retail Properties Group
ECH:kl
Enclosure
cc: Sharon Schramm
Frank Mannen
Rich Hay
CcWOM0na q
LEASE AGREEMENT
CARLSBAD CITY LIBRARY - LA COSTA BRANCH
CLAUSE
NUMBER
1
2
3
4
4a
5
6
h
7a
8
9
10
11a
11b
12a
12b
13
14
15
.. l
TABLE OF CONTENTS
CLAUSE
PAGE
ADMINISTRATION
1
DESCRIPTION
1
EXHIBIT "B" SPECIFICATION AND LEASE PLANS
1
TERM
2
OPTION
2
EARLY TERMINATION
2
HOLDING OVER
3
RENT
3
USE
3
UTILITIES
4
JANITORIAL SERVICES AND TRASH REMOVAL
4
REPAIRS AND MAINTENANCE
4
PARKING AND COMMON AREAS
6
DAMAGE, DESTRUCTION AND FIRE INSURANCE
7
DAMAGE AND RECONSTRUCTION OF LEASEHOLD
7
NONPERFORMANCE OF SERVICES BY LESSOR
9
BUILDING AND SAFETY REQUIREMENTS
9
INSTALLATION AND ALTERATION
10
CLAUSE
NUMBER
CLAUSE
PAGE
16
SIGNS
11
17
QUIET POSSESSION
11
18
NOTICE
11
19
SUBLEASE AND ASSIGNMENT
12
20
EMINENT DOMAIN
12
21
SEVERABILITY
12
22
TIW OF ESSENCE
13
23
ARBITRATION
13
24
DEFAULT
13
25
REMEDY IN CASE OF DEFAULT
14
26
SIZE AND ARRANGEMENT OF SHOPPING CENTER
16
27
ATTORNEY'S FEES
16
28
EXCULPATORY CLAUSES
16
29
RIGHT OF FIRST REFUSAL
17
30
ENTIRE AGREEMENT
18
EXHIBIT
A-1
SITE PLAN
EXHIBIT
A-2
FLOOR PLAN
EXHIBIT
B
OUTLINE SPECIFICATIONS AND LEASE PLANS
EXHIBIT
C
CUSTODIAL CLEANING SPECIFICATIONS
Note: Exhibits A-2, B and C are not attached
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LEASE AGREEMENT
CARLSBAD CITY LIBRARY - LA COSTA BRANCH
THIS LEASE AGREEMENT, made and entered into this day of ,
1983, by and between PLAZA DE LA COSTA SHOPPING CENTER, a California
Corporation, hereinafter referred to as "Lessor", and the CITY OF CARLSBAD, a
political subdivision of the State of California, hereinafter referred to as
"City", whereby the parties hereto agree as follows:
WITNESSETH:
1. ADMINISTRATION. This Lease Agreement (hereinafter referred to as
"Lease") shall be administered on behalf of City by the City Manager or his
designee, hereinafter referred to as "City's Lease Administrator", and on behalf
of Lessor by C.W. Clark, Inc.
2. DESCRIPTION. Lessor hereby leases to City that real property
consisting of approximately 3,000 square feet of space known as 7750 M El Camino
Real, Carlsbad, California, as delineated on Exhibit "A-1" (Site Plan), attached
hereto and by this reference made a part hereof. Said real property
(hereinafter referred to as "Demised Premises") is leased on the terms and
conditions hereinafter set forth.
3. EXHIBIT "B" SPECIFICATIONS AND LEASE PLANS. Lessor shall provide City
with additions to and/or alterations of the Demised Premises in accordance with
formal offer to include tenant improvement allowance of $5.00 per square foot.
Said additions and/or alterations shall be made in compliance with all
applicable national, State of California, City of Carlsbad, statutes,
ordinances, regulations and codes.
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4. TERM. This Lease Agreement is effective on the date first above
written. The term of this Lease shall commence upon the date of acceptance of
the Demised Premises by City. Said date shall be as specified in the letter of
acceptance issued by City to Lessor. The term of this Lease shall terminate 60
months from the date of acceptance.
The date of acceptance of the Demised Premises by City's Lease
Administrator, whose acceptance shall not be unreasonably withheld, shall follow
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notice to City from Lessor that the Demised Premises are approved for occupancy
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by the City Building Inspection Office. In no event shall date of acceptance be
later than the date of occupancy by City.
is Provided, however, if Lessor cannot deliver said facility in a completed
condition ready for occupancy within 90 days from the date of execution hereof
by City, City may terminate this Lease at City's option without any liability to
} Lessor. Delays caused by events over which Lessor shall have no control,
Including but not limited to acts of God, strikes or natural disaster, (but not
Including financial inability, or acts or omissions of Lessor's agents or
contractors), shall not be included in said :O day period.
4. (a) OPTION. City shall have the option to extend the term of this
Lease Agreement for a period of one, two or three years. City may exercise this
option by notifying Lessor at any time during the term of this Lease. Rent for
the extended term shall be as mutually agreed, but shall not exceed $1.00 per
square foot of leased space increased by the percentage of increase in the
consumers price index over the term of this Lease.
5. EARLY TERMINATION. This Lease may be terminated by City for reason of
budgetary constraints causing cancellation of funding for this library facility
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and for no other reason at any time after twenty-four (24) months from date of
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acceptance by City by first giving to Lessor no less than 180 days prior written
notice.
6. HOLDING OVER. Any holding over by City after the expiration of the
term of this Lease shall be construed to be a tenancy from month to month at the
monthly rental and on the terms and conditions specified herein so far as the
same may be applicable. Such holding over shall include any times required by
City to remove its equipment and fixtures.
7. (a) RENT. The base rent reserved for the first five (5) years of the
term of this Lease shall be the sum of One Thousand Five Hundred Dollars
($1t500.00) per month. Rent shall be payable in advance on the first day of the
month following the month in which rental was earned during the term. If the
first day of the term shall not be the first day of the month, the rental for
the portion of the term occurring in the first and last calendar months of the
term shall be appropriately prorated. Accrual of rent shall commence upon the
date of acceptance of the Demised Premises by City.
Installments of rent shall be paid by depositing City warrants in facilities
of United States Postal Service addressed to the Office of Lessor as stated in
the Clause 18 NOTICE.
8. USE. The Demised Premises shall be used for Carlsbad City Library, La i
Costa Branch and no other use.
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9. UTILITIES. City shall provide and pay for all utilities necessary for
the use and enjoyment by City of the Demised Premises, except water which shall
be paid for by Lessor.
f 10. JANITORIAL SERVICES AND TRASH REMOVAL. Lessor shall furnish at its
sole expense bonded janitorial services and trash removal services, as outlined
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in Exhibit Tll, attached hereto and by this reference made a part hereof, and
which may be required by City's occupancy and use of the Demised Premises.
11. (a) REPAIRS AND MAINTENANCE.
(1) City shall make, at its sole expense, all repairs to the
Demised Premises required by reason of the fault or negligence of City, its
officers, employees or persons using the Demised Premsises to conduct business
with City. City shall further provide, at its sole expense, all interior
maintenance and repair of the Demised Premises.
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(2) Lessor shall keep exterior foundations, walls (except for
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the interior faces), downspouts, gutters, roof., plumbing within walls, and
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subterranean sewage system in good condition except for damage caused by the
i negligence or willful acts of City or its employees, agents, invitees, licensees
or contractors.
(3) City shall, to the extent authorized by law, keep the
following in good condition and repair except for acts of god, or casualty as
defined in Clause 28; the interior of the Demised Premises, including all
electrical, plumbing and sewage facilities that are within the Demised Premises
and not enclosed within walls, fixtures, interior walls, floors, ceilings, signs
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and all interior building appliances and similar equipment, all heating,
ventilating and air conditioning equipment, and the exterior and interior
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portions of all doors, windows and plate glass surrounding the Demised Premises
and building front. Lessor shall guarantee all heating, ventilating and air
conditioning equipment for one year from date of execution of this lease.
Lessor shall, at Lessor's expense, obtain and keep in full
force and effect during the term of this lease a full maintenance contract for
heating, ventilating and air-conditioning equipment with a rr' able company
satisfactory to Lessor.
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' Lessor may demand that City make such interior repairs
t immediately, and if City refuses or neglects to commence such repairs or to
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complete them within a reasonable time, Lessor may make the repairs. In that
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4 event, Lessor shall not be responsible to City for any loss or damage to City's
stock or business by reason of the repair work, and City shall, on demand,
Immediately pay to Lessor the cost of the repairs, with interest at the maximum
r legal rate.
(4) The plumbing facilities shall only be used for the purposes
for which they are constructed and not for foreign substances. The expense of
any abnormal breakage, stoppage or damage resulting from a violation of this
provision shall be City's.
(5) City shall, at its own cost and expense, promptly and
properly observe, comply with, and execute all present and future orders,
regulations, directives, rules, laws, ordinances and requirements of all
governmental authorities, including but not limited to State, Municipal, County
and Federal governments and their bureaus and officials, and the Board of Fire
Underwriters, and any other board or organization exercising similar functions,
arising from the use or occupancy of or applicable to the remised Prem;ses or
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the rights, franchises, or privileges appurtenant to, or connected with the
enjoyment of the Demised Premises. City shall have the right to contest or
review, by legal procedure or in such other manner as City may deem suitable, at
its own expense, any such order, regulation, direction, rule, law, ordinance, or
requirement, and if able, may have the same cancelled, removed, revoked or
modified, provided that Lessor is not subjected to a criminal prosecution, and
that Lessor's title to said Demised Premises is not subjected to forfeiture, and
City hereby agrees, to the extent authorized by law, to indemnify and hold
Lessor harmless from and against any civil liability as a result of any such
contest or review. Any such proceedings shall be conductd promptly and shall
Include, if City so decides, appropriate appeals. Whenever requirements become
absolute after a contest, City shall deligently comply with the same or so much
thereon° as shall have been judicially sustained.
(b) PARKING AND COMMON AREAS
(1) Lessor has constructed on those portions of the shopping
center not shown as building areas or future building areas on Exhibit "A-111,
parking and accommodation areas, including pedestrian sidewalks, stairs,
landscaping, surfacing, lighting, corridors and loading areas, as shown on
Exhibit "A-11'.
Lessor grants to City, for the benefit of City and its
employees, customers and invitees, the non-exclusive use of the parking and
common areas. Lessor, however, does not guarantee the freedom from unauthorized
use, by persons who are neither City's nor employee, customers or invitees of
Cilty's or the shopping center.
(2) Lessor shall hard -surface the parking areas, mark, properly
drain, adequately light, curb and landscape them.
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ram.
(3) City shall abide by all reasonable rules and regulations
adopted by Lessor with respect to the parking areas and common areas and their
use.
(4) City shall be entitled to park in common with other lessees
of Lessor in the parking facilities provided for lessees of the shopping center,
subject to Lessor's right to alter, modify or reduce or to change the location
of such parking facilities. City agrees to cooperate with Lessor and other
lessees in the use of the parking facilities. There will be no assigned
parking.
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12. (a) DAMAGE, DESTRUCTION AND FIRE INSURANCE.
During the lease term, Lessor shall procure and maintain fire
Insurance with extended coverage and special form endorsements covering the
building of which the Demised Premises form a part and in an amount equal to at
least ninety percent (90%) of the replacement value of the building. Any
casualty occurring during the term of this lease which is covered by such
insurance is hereinafter referred to as an "insured casualty". Additionally,
Lessor shall procure and maintain rent insurance in an amount not less than
Eighteen Thousand Dollars ($18,000). Included in the policy or policies of
insurance shall be a standard waiver or rights of subrogation against City by
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the insurance company issuing said policy or policies. City warrants that City
is fully self -insured for damage resulting from liability of City or any of
City's agents or employees.
(b) DAMAGE AND RECONSTRUCTION OF LEASEHOLD.
(1) In the event the Demised Premises or the building of which
the Demised Premises are a part are damaged by fire or other perils covered by
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extended coverage insurance, Lessor agrees to forthwith repair the same, and
this lease shall remain in full force and effect, except that City shall be
entitled to a proportionate reduction of the rent while such repairs are being
made, such proportionate reduction to be based upon the extent to which the
making of such repairs shall materially interfere with the business carried on
by the City in the Demised Premises. Lessor may occupy as much of the leasehold
as may be necessary to accomplish the repair or reconstruction of the Demised
Premises. Lessor shall not be liable to City for any loss or damage resulting
from the damage to the leasehold.
(2) In The event the Demised Premises or the building of which
the Demised Premises are a part are damaged as a result of any cause other than
the perils covered by fire and extended coverage insurance, then Lessor shall
have the option: i) to repair or restore such damage, this lease continuing in
full force and effect, but the rent to be proportionately reduced as provided
hereinabove in this Clause, or ii) give notice to City at any time within sixty
(60) days after such damage of termination of this lease as of the date
specified in such notice, which date shall be no less than thirty (30) days and
no more than (60) dyas after the giving of such notice. In the event of giving
such notice, this lease shall expire and all interest of City in the Demised
Premises shall end on the termination date specified in such notice and the
rent, reduced by a proportionate amount, based upon the extent, if any, to which
such damage materially interfered with the business carried on by City in the
Demised Premises, shall be paid up to the date of said termination.
(3) If the cost of the restoration exceeds the amount of
proceeds received from insurance, Lessor can elect to terminate this lease by
giving notice to City within fifteen (15) days after determining that the
restoration cost will exceed the insurance proceeds.
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1011,
(4) Notwithstanding anything to the contrary contained in this
clause, Lessor shall not have any obligation whatsoever to repair,
reconstruction or restore the Demised Premises or any portion of the shopping
center when the damage occurs during the last two (2) years of the term of the
lease or any extension thereof.
(5) Lessor shall not be required to repair any injury or damage
by fire or other cause, or to make any repairs or replacements of any panels,
decoration, office fixtures, railing, floor covering, partitions, or any other
property installed in the premises by or at the expense of the City.
(6) Upon any termination of this lease under the terms of this
clause, Lessor and City shall be released without further obligation to the
other coincident with the surrender of possession of the Demised Premises to
Lessor, except for items which have theretofore occurrred and are then unpaid
or. unperformed.
13. NONPERFORMANCE OF SERVICES BY LESSOR. If Lessor fails to provide
satisfactory janitorial, trash removal, repair and/or maintenance services to
the Demised Premises as hereinabove set forth, City may notify Lessor in
writing; and if Lessor does not instigate measures to provide satisfactory
service and to remedy the unsatisfactory conditions within fifteen (15) working
days after such notice has been mailed or delivered by City, City may provide
the janitorial, trash removal, repair and/or maintenance services necessary to
remedy the unsatisfactory condition and assure satisfactory service, or have
others do so, and abate an amount equal to cost thereof from the rent thereafter
payable.
t 14. BUILDING AND SAFETY REQUIREMENTS. During the full term of this Lease,
1 Lessor agrees to maintain the Demised Premises in compliance with all applicable
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building codes, statutes, and orders as they are applicable on the date of this
Lease, and as they may be subsequently amended.
Lessor further agrees to maintain the Demised Premises as a "safe place of
employment", as the term is used in the California Occupational Safety and
Health Act, where the provisions of such Acts are applicable on the date of this
Lease. Test procedures for fire extinguishing systems as set forth in Appendix
G to the Uniform Code (1976) shall be the responsibility of Lessor.
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In the event Lessor neglects, fails, or refuses to maintain said Demised
Premises as aforesaid, City may, notwithstanding any other termination
provisions contained herein, at City's sole option, cure any such default by
performance of any act, including payment of money, and subtract the cost
thereof plus reasonable administrative costs from the rent.
Conditions caused solely by City and not subject to the control of Lessor
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are excluded from this provision.
15. INSTALLATION AND ALTERATION. City may install any and all fixtures or
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improvements necessary or desirable for City's use of the Demised Premises for
the above described purposes but shall make no permanent alterations In or
additions to, said Demised Premises without written consent of Lessor, which
consent shall not be unreasonably withheld. Such fixtures or improvements
installed by City shall remain the property of City and at the option of City
may be removed at or before terminating this Lease or extension thereof and any
damages to the Demised Premises occasioned by such removal shall be repaired by
City upon request by Lessor within 30 days of the termination of this Lease or
any extension thereof or said improvements may be abandoned to Lessor. Upon the
expiration of this Lease or the sooner termination thereof as herein provided,
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' except in the event of destruction of the property as provided for in Clause
12(a) DAMAGE OR DESTRUCTION hereof, City shall deliver possession of the Demised
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Premises to Lessor in the same condition it enjoyed at the beginning of this
I Lease, or as altered, ordinary wear and tear and damage by the elements
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{ excepted.
16. SIGNS. Lessor shall provide signaae in accordance with Sign Criteria,
as defined in Plaza de La Costa Shopping Center Sign Criteria, necessary to
identify City's occupancy of the Demised Premises during the term hereunder.
City shall forward to Lessor the proposed design for said sign prior to Lessor's
placing said sign on the Demised Premises.
17. QUIET POSSESSION. Lessor for itself, its heirs, devisees, successors
or assigns, covenants and agrees that City, upon payment of the rental reserved
and the compliance with all the terms and conditions of this Lease may lawfully,
peacefully and quietly have, hold, use, occupy and enjoy the Demised Premises
and each party thereof during the term of this Lease or any extensions thereof
without hindrance or interruption from Lessor, its heirs, devisees, successors
and assigns. Lessor has the right upon prior approval of the City to enter upon
the Demised Premises, to inspect said Demised Premises or to perform any of the
obligations imposed by this Lease, but in entering shall conduct itself to as to
minimally interfere with City's use and enjoyment of the Demised Premises.
a
18. NOTICE. Any notice or notices given by Lessor or City to the other may
i tie personally served upon Lessor or City or any person hereafter authorized by
+ either in writing to recieve such notice, or may be served by depositing the
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t same in the United States mail, postage prepaid addressed to the appropriate
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e.alk
address hereinafter set forth or to such other address as Lessor or City may
hereafter designate by written notice.
TO: CITY TO: LESSOR
City Manager C.W. Clark, Inc.
City of Carlsbad 3211 Holiday Court
1200 Elm Avenue La Jolla, California 92037
Carlsbad, CA 92008
19. SUBLEASE AND ASSIGNMENT. City agrees not to sublet the whole or any
part of the Demised Premises nor to assign this Lease.
20. EMINENT DOMAIN. If any part of the Demised Premises shall be taken or
condemned for a public or quasi -public use and a part thereof remains which in
the opinion of the City's Lease Administrator, is adequate to permit the City to
continue the uses stated in Clause 8 USE above, this Lease shall, as to the part
so taken, terminate as of the date legal possession shall be taken by the
condemnor, and the rent payable hereunder shall be adjusted so that City shall
be required to pay for the remainder of the term only such portion of such rent
as the value to City of the part remaining after the condemnation bears to the
value of the entire Demised Premises at the date of condemnation. If such
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' condemnation takes all the Demised Premises or such part thereof that there
does not, in the opinion of City's Lease Administrator, remain a portion
adequate for City's use hereunder, this Lease shall thereupon terminate. If a
part or all of the Demised Premises is taken or condemned, the compensation
awarded upon such condemnation or taking shall go to Lessor or City as their
respective interests may appear.
21. SEVERABILITY. The invalidity of any provision of this Lease as
determined by a court of competent jurisdiction shall in no way affect the
validity of any other provisions hereof.
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22. TIME OF ESSENCE. Time is expressly declared to be of the essence of
this Lease and of each, every and all of the covenants and conditions herein.
23. ARBITRATION. If the pa -ties hereto should not agree as to the terms
i and provisions of this Lease, such disagreement shall be determined by
arbitration pursuant to the provisions of the California Code of Civil
Procedure.
24. DEFAULT. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by City:
(a) Use of the Demised Premises for any purpose other than as
authorized in this Lease;
(b) The failure by City to make any payment of rent or any other
payment required to be made by City hereunder, as and when due;
(c) Assignment, subletting or transfer of the Demised Premises or any
part thereof by City, either voluntarily or by operation of law, whether by
Judgment, execution, death, or other means, without the prior written consent of
Lessor;
i (d) The failure by City to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by City,
other than described in Paragraph (b) above, where such failure shall continue
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for more than a reasonable time after written notice thereof from Lessor to '
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City, such reasonable time not to exceed thirty (30) days; provided, however,
that if the nature of City's default is such that a longer period of time is
reasonably required for its cure, then City shall not be deemed to be in default
if City commences such cure within the reasonable time period designated by
Lessor, and thereafter diligently prosecutes such cure to completion. Such time
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period or periods as may be set forth in California Code of Civil Procedure,
Part 3, Title 39 Chapter 4, Including but not limited to Section 1161 thereof
relating to performance by City of conditions or covenants under this Lease,
shall be deemed reasonable hereunder.
25• REMEDY IN CASE OF DEFAl1LT. Lessor shall have the following remedies
upon default by City.
(a) As provided under Section 1951.2 of the Civil Code, if City
breaches this Lease and abandons the Demised Premises before the end of the term
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k and/or if its right to possession is terminated by Lessor because of a breach of
this Lease, this Lease terminates, upon such termination, Lessor may recover
from the City.
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(1) The worth at th,s time of award of the unpaid rent which had
been earned at the time of termination;
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(2) The worth at the time of award of the amount by which the
unpaid rent which would have been earned after termination until the time of
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award exceeds the amount of such rental loss that City proves could have been
reasonably avoided;
(3) The worth at the time of award of the amount by which the
? unpaid rent for the balance of the term after the time of award exceeds
the
amount of such rental loss that City proves could be reasonably avoided; and
(4) Any other amount necessary to compensate Lessor for al
l the
detriment proximately caused by City's failure to perform .its obligations under
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this Lease or which in the ordinary course of things would be .likely to result
therefrom.
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(b) The "worth at the time of award" of the amounts referred to in
Paragraphs (1) and (2) of Subsection (a) of this clause is computed by allowing
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interest at the legal rate. The "worth at the time of award" of the amount
referred to in Paragraph (3) of Subsection (a) of this clause is computed by
discounting such amounts at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus one percent.
(c) Efforts by Lessor to mitigate the damages caused by City's breach
of this Lease do not wiave Lessor's right to recover damages under this Section
2.
(d) Nothing in this clause affects the right of Lessor under this
Lease to indemnification for liability arising prior to the termination of this
Lease for personal injuries or property damage.
(e) As provided under Section 1951.4 of the Civil Code, even though
City has breached this Lease and abandoned the property, this Lease shall
continue in effect for so long as Lessor does not terminate City's right to
possession, and Lessor may enforce all its rights and remedies under this Lease,
including the right to recover the rent as it becomes due under this Lease. For
the purposes of this Subsection (e) of clause, acts of maintenance or
preservation, efforts to relet the property, or the appointment of a receiver
upon initiative of Lessor to protect Lessor's interest under this Lease shall
not constitute a termination of City's right to possession.
(f) Default by Lessor. Lessor shall not be in default unless Lessor
fails to perform obligations required of Lessor under this Lease within a
reasonable time, but in no event later than thirty (30) days after written
notice by City to Lessor specifying wherein Lessor has failed to perform such
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Lease obligation; provided, however, that if the nature of Lessor's
Lease
obligation is such that more than thirty (30) days are required for performance,
t then Lessor shall not be in default if Lessor commences performance within such
k
thirty (30) day period and thereafter diligently prosecutes the same to
completion.
r
h (9) All rights and remedies of Lessor herein enumerated shall be
cumulative and none shall exc
lude any other right or remedy allowed by law, or
equity. Likewise, the excercise by Lessor of any remedy provided for herein or
allowed by law or equity shall not be to the excl«sion of any other remedy.
26. SIZE AND ARRANGEMENT OF S6i0PPING CENTER. Lessor reserves the right to
a
designate adjacent property as a part of the shopping center, to change the size
and location of the various buildings within the building areas and future
q
building areas, the automobile parking areas, parking layout, and other common
areas as shown on Exhibit "A-1" so long as the total area devoted to automobile
parking and common areas is not decreased.
27. ATTORNEY'S FEES. The prevailing party in any lawsuit brought by Lessor
or City relative to this lease shall recover reasonable attorney's fees.
28. EXCULPATORY CLAUSES. City shall, to the extent authorized by law,
indemnify and hold harmless Lessor against and from any and all claims arising
from City's use of the Demised Premises for the conduct of its business or from
any activity, work, or other thing done, permitted or suffered by City in or
about the shopping center, and shall further indemnify and hold harmless, to the
extent authorized by law, Lessor against and from any and all claims arising
from any breach or default in the performance of any obligation on City's part
to be performed under the terms of this Lease, or arising from any act or
negligence of City, or any officer, agent, employee, guest, or invitee of City,
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Jam,
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and, to the extent authorized by law, from all and against all costs, attorney'-
fee, expenses and liabilities incurred from any such activity in or about the
j Demised Premises and an such claim
� Y , action, or proceeding brought thereon, and,
if any case, action or proceeding be brought against Lessor by reason of any
such claim, City, upon notice from Lessor, shall defend the same at City's
expense.
City shall give prompt notice to Lessor in case of fire or accident in the
Demised Premises, therein or in the fixtures or equipment.
Any prevention, delay or stoppage due to strikes, lockouts, labor disputes,
acts of God, inability to obtain labor or materials or reasonable substitutes
therefore, governmental restrictions, governmental regulations, governmental
controls, enemy or governmental action, civic commotion, fire or other casualty,
and other cause except financial beyond the reasonable control of the party
obligated to perform shall excuse performance by such party for a period equal
to any such prevention, delay or stoppage, except any obligaiton that can be
cured by the payment of money.
29. RIGHT OF FIRST REFUSAL. Lessee is hereby granted the right of first
refusal to lease the space adjacent to the Demised Premises at a rent negotiated
between the parties. This right shall run for a period of six months from the
date of execution of this lease unless during that six month period the Lessor
receives no other offers to lease the adjacent space in which event, the right
shall extend until such other offer is received but in no event longer than one
year.
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30. ENTIRE AGREEMENT. This Lease contains the entire agreement between the
parties hereto and no terms or provision hereof may be changed, waived,
discharged or terminated unless the same be in writing executed by both parties
hereto and no term or provision hereof may be changed, waived, discharged or
terminated unless the same be in writing executed by both parties hereto.
I
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1
1
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i
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IN WITNESS WHEREOF, the parties hereto have set their hands nn the date
first written above.
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APPROVED AS TO FORM
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Vincent F. Biondo, Or.
City Attorney
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CITY OF CARLSBAD
Mayor, City of Carlsbad
LESSOR:
PLAZA DE LA COSTA ASSOICATES
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