HomeMy WebLinkAbout1988-04-05; City Council; 9371; APPROVAL OF AGREEMENT WITH CARLSBAD UNIFIED SCHOOL DISTRICT FOR SENIOR CENTER/SCHOOL ADMINISTRATIVE OFFICE PROJECTa I , ._F 1 , .A C F CARLSBAD - AGEN
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SCHOOL ADMINISTRATIVE OFFICE PROJECT
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Adopt Resol uti on No. approving an agreement between the City of Carl sbad, the Carl sba g and Redevelopment Commission and the Carlsb Unified School District and adopt Resolution No. ,$??-//x approving a loan the Commission.
ITEM EXPLANATION:
On April 7, 1987, the City Council adopted Resolution No. 9012 approving i concept a joint City of Carlsbad and Carlsbad Unified School District proj to construct a Senior Citizens Center and School District Administrative Office. Staff was directed to continue negotiations with School District officials toward finalizing an agreement for property acquisition and proj development. project architect proposals and recommend to the City Council an architect firm to design the joint project.
The attached agreement between the City of Carlsbad, the Carlsbad Housing Redevelopment Commission and the Carlsbad Unified School District is the culmination of approximately two (2) years of discussions concerning the joint development of this project. the development of this joint project as set forth in the attached formal agreement i ncl udes:
- The District will transfer approximately 3.31 acres of property
Additionally, staff was directed to assemble and solicit
In general terms, the basic concept fc
located at 801 Pine Avenue to the Carlsbad Housing and Redevelopmer Commission. The value of the land has been established by a joint City/School District real estate appraisal at approximately $1 -6 mi 11 ion.
The Commission will construct a 27,000 square foot building that wi house a 15,000 square foot Senior Citizens Center and 12,000 squarc feet of administration office space for the District. million project will be financed from the proceeds of the redevelor ment tax allocation bond issue.
The Commission will lease the office space to the District for 10 years at $29,800 per year. receive a condominium ownership interest in the office space.
The Commission will advance $200,000 to the District for relocatior expenses and temporary office space rent while the project is bein! constructed.
The District has the option of using a portion of the Public Safet: and Service Center for 10 years for an annual rent of $10,000 to hi District service storage facilities.
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The $3.5
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At the end of the lease, the District c
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. - The City will direct all aspects of the development of the entire
project through the programming, design, and construction phases. Upon completion of the construction of the project, which is schedi for to be the summer of 1989, the School District will occupy the facilities within the project specifically designed to meet the administrative office needs of the District.
The Carlsbad Unified School District Board took action to formally approvc the agreement at its March 23, 1988 meeting. City staff recommends appro\ of the attached agreement with the School District to begin the developmer of this project.
FISCAL IMPACT:
The City Council on April 7, 1987 approved and appropriated a $300,000 lo: from the City’s General Capital Construction Fund to the Redevelopment Fur for the estimated cost of project design and development. The cost of thc design of the project in accordance with the terms and conditions of the attached architectural consultant agreement will be $233,000. Therefore, additional project funds are required until May 1988, at which time it is estimated the project will be ready for solicitation of construction bids
The project is recommended to be funded from a combination of sources.
Design funding has been advanced to the Commission from the City’s Genera‘ Capital Construction Fund in the form of a loan. $3.5 million will be available for the project from the proceeds of the sale of tax allocation bonds by the Commission.
Preliminary design of the project has been completed by the architect. TI project being proposed by the design committee and architect is slightly larger than originally anticipated in the agreement. The proposed buildir will contain 28,300 square feet (15,343 square feet for the Senior Center 12,957 square feet for the School District). The preliminary estimate of construction costs for the project is $3,459,000. design expenses of $300,000, the total cost of the project is now estimatc at $3,759,000.
It is recommended that the City Council proceed with the project as propo: by the design committee and architect. The total estimated project cost ( $3,759,000 would be funded with $3.5 million from the tax allocation bond sale and the $300,000 advance from the General Capital Construction Fund which has already been approved and appropriated by the Council. further recommended that the $300,000 advance be contributed to the projec from the General Capital Construction Fund and not be added to the general debt of the Redevelopment Fund.
If the Council concurs, this recommendation will be implemented at the tin bids are awarded for the project.
With the addition of
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* This agenda bill also authorizes a loan of $200,000 from the contingency account to the Redevelopment Fund. The Redevelopment Fund will advance $200,000 to the School District for relocation expenses. relocation advance will eventually be recovered from the annual lease payments that the District will make to the Commission for ten years after the project is completed. The contingency account balance will be $1,136, after this transfer.
The $200,000
EXHIBITS :
1. Resolution No. k??//d approving an agreement for the joint develc ment of this project between the City of Carlsbad, the Carlsbad Housing and Redevelopment Commission and the Carlsbad Unified Schoc Di strict .
Resolution No. fl-kf approving a loan of $200,000 to the Carlsb: Housing and Redevelopment Commission. 2.
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RESOLUTION NO. 88-114
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, THE CARLSBAD HOUSING AND REDEVELOPMENT COMMISSION AND THE CARLSBAD UNIFIED SCHOOL DISTRICT.
APROVING AN AGREEMENT BETWEEN THE CITY OF CARLSBAD
WHEREAS, the City has adopted Ordinance No. 9639 on July 20, 1982,
whi ch ordinance approves the Vi 11 age Area Redevel opment P1 an ( "Redevel o
ment Plan") and establishes the Village Project Area ("Project Area")
pursuant to the California Community Redevelopment Law (Health and Safe
Code Section 33000 et seq.) for the redevelopment, replanning, and
redesigning of certain blighted areas within the City of Carlsbad which
require redevelopment in the interest of health, safety, and general
welfare of the City of Carlsbad; and
WHEREAS, the District, the Commission and the City wish to enter
into an Agreement for Cooperation to provide mutual aid and assistance
the redevelopment of certain areas of the City through the acquisition,
relocation, and construction of public school facilities and other pub1
facilities; and
WHEREAS, the District, the Commission and the City recognize the I i need to provide adequate public school facilities and other public
services and amenities to serve the Project Area and the District.
District, the Commission and the City have determined that such
facilities are a benefit to the Project Area and that there are no othe
reasonable means of financing the construction of such public school
facilities and other public facilities. Accordingly, it is the purpose
of the Agreement to create a cooperative relationship among the Commis-
sion, the District and the City to provide for the implementation of
projects which are of mutual benefit to the Commission and the District
The
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and the community at large by utilizing the combined resources of the
Commission, the District and the City to carry out the goals of the
Redevelopment Plan and of the District.
WHEREAS, the City Council of the City of Carlsbad and the Carlsbad
Unified School District have reached formal agreement as to the joint
development of this project.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Carlsbad, California, as follows:
1. That the above recitations are true and correct.
2. That the agreement between the City of Carlsbad, the Carlsbad
Housing and Redevelopment Commission and the Carlsbad Unified School
District attached hereto as Exhibit A, is hereby approved and the Mayor
and City Clerk are hereby authorized and directed to execute said agree
ment on behalf of the City of Carlsbad.
PASSED, APPROVED AND ADOPTED at a regular meeting of the Carlsbad
City Council held on the 5th day of April , 1988, by the follow
vote, to wit:
AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larson
NOES: None
ABSENT: None
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CLAdD A. LEWIS, Mayor
ATTEST :
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AGREEMENT FOR COOPERATION BETWEEN THE
CARLSBAD UNIFIED SCHOOL DISTRICT,
THE CARLSBAD HOUSING AND REDEVELOPMENT COMMISSION,
AND THE CITY OF CARLSBAD
1. PARTIES AND DATE
1.1 This Agreement is entered into this day of , 1988 by and among the CARLSBAD
UNIFIED SCHOOL DISTRICT, a public agency ("District") , the
CARLSBAD HOUSING AND REDEVELOPMENT COMMISSION ("Commission"), and THE CITY OF CARLSBAD ("City").
2. RECITALS
2.1 The City has adopted Ordinance No. 9639 on July 20,
1982, which ordinance approves the Village Area Redevelopment
Plan ("Redevelopment Plan") and establishes the Village Projec
Area ("Project Area") pursuant to the California Community
Redevelopment Law (Health and Safety Code Section 33000 et seq.) for the redevelopment, replanning and redesigning of certain blighted areas within the City of Carlsbad which require redevelopment in the interest of health, safety, and general welfare of the City of Carlsbad.
2.2 The District, the Commission and the City wish to
enter into this Agreement for Cooperation to provide mutual ai
and assistance in the redevelopment of certain areas of the
City through the acquisition, exchange, relocation, and
construction of public school facilities and other public
facilities. More specifically, and subject to the conditions
described hereinafter, the Commission and the District wish to cooperate in connection with the following redevelopment activities:
(a) Conveyance of a portion of property owned by the
District (which property to be conveyed is legally described
in Exhibit A attached hereto and incorporated herein by
reference) (the "District Site") to the Commission in exchange
for the construction of a Senior Citizen Center which will
include District administrative offices and the Undivided
Interest (as defined in Section 5.4 below) (the "Administrativ Offices"). Such District Administrative Offices are to be
leased by the Commission to the District for a term of ten (1C
years or as hereafter provided and thereafter conveyed to the
District pursuant to the terms hereof. The Senior Citizen
Center, including the District Administrative Office, is
hereinafter described as the "Center", and the Senior Citizen
Center, excluding the District Administrative Offices, is
hereinafter described as the "Commission's Interest". The
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Commission may convey the District Site and/or Center (exclusive of the Administrative Offices) to the City subject to the terms and conditions of this Agreement, and
(b) The temporary relocation of the certain various
District uses presently operating on the :District Site.
2.3 The District, the Commission and the City recognize
the need to provide adequate pub:Lic school facilities and othei
public services and amenities to serve the Project Area and the District. The District, the Commission and the City have determined that such facilities are a benefit to the Project Area and that there are no other reasonable means of financing the construction of such public school facilities and other
public facilities. Accordingly, it is the purpose of this
Agreement to create a cooperative relationship among the
Commission, the District and the City to provide for the
implementation of projects which are of mutual benefit to the
Commission and the District and the community at large by
utilizing the combined resources of the Commission, the
District and the City to carry out the goals of the
Redevelopment Plan and of the District.
NOW, THEREFORE, in consideration of the foregoing and the
mutual promises and covenants contained herein, the parties hereto agree as follows:
3. DISTRICT SITE
The Commission has completed and the District hereby
approves the site plan for the development of the Center
("Center Plan") attached hereto as Exhibit B and incorporated
herein by reference. District hereby consents to any land use , entitlement applications submitted by the Commission or its
designee prior to conveyance of the District Site to the Commission which are substantially consistent with the Center Plan. The District shall convey title to the District Site,
free and clear of all liens and encumbrances except those
approved by the Commission, as more specifically set forth in
Section 4 below; provided, however, in the even.t District failE
to receive State Agency approval or is otherwise legally prohibited from conveying the District Site to Commission, this Agreement shall be terminated and neither party shall have any rights or obligations hereunder.
3.2 Upon conveyance of title to the District Site to the
Commission, the Commission, in exchange, shall undertake
redevelopment of the District Site in accordance with the
Center Plan.
3.3 Any redevelopment activities undertaken by the
Commission on the District Site Ejhall meet the following
requirements :
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(a) A Floor Plan for the Administrative Offices,
containing no less than 12,000 square feet, shall be submitted
to the District for its approval, which approval shall not be
unreasonably withheld. Within twenty (20) business days after
receipt of a Floor Plan for the Administrative Offices, the
District shall approve of such F.loor Plan or shall provide the
Commission with a written statement setting forth the
reasonable basis upon which the District withholds its consent,
provided that upon revision by the Commission of a Floor Plan
for the Administrative Offices to address the matters set fort1
in any such written disapproval by the District, such revised
Floor Plan shall be deemed approved by the District.
(b) The schedule of work shall be developed jointly
by the Commission and the District, and approved, in writing,
by the District to assure minimum disruption to Pine School
(located adjacent to the District Site) and the administrative
responsibilities of the District. Any requested approval of
such schedule of work shall be delivered by the District to thf
Commission within 20 business days after receipt thereof.
3.4 District shall vacate the District Site by August 1,
1988, unless otherwise notified by the Commission of a later
date established by thirty (30) days' written notice.
4. CONVEYANCE OF THE DISTRICT SB
4.1 The District hereby agrees to convey the District Sitc
to the Commission upon the terms and conditions hereinafter sei
forth, in exchange for the lease and conveyance to the Districi by the Commission of the Adminis*trative Offices and other consideration as set forth herein.
4.2 The transfer of the Diserict Site to the Commission
shall occur after the Commission has approved a Floor Plan for
the Administrative Offices and after the Commission has awardec
a contract for construction of the Center. The terms "Close 01
Escrow, 'I "Closing" and/or "Closing Date" are used herein to
mean the time the District's grant deed is filed of record in
the Office of the County Recorder of San Diego County.
4.3 On or before 12:OO o'clock noon on the day preceding the Closing Date, the District shall deposit with First
American Title Insurance Company ("Escrow Agent") any
instruments required by Escrow Agent to comply with the terms
hereof.
4.4 At least five (5) days prior to the Closing Date, the
District shall deliver to Escrow Agent a grant deed conveying
the District Site to the Commission which document shall be
duly executed and acknowledged by the District and/or such
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persons as the title insurer may require in order to issue
the title policy described herein, together with any title
documents required pursuant to Section 4.6 below. On or beforc
the Closing Date, the District shall deposit with Escrow Agent
such other instruments as may be required of the District to
permit Escrow Agent to comply with the terms hereof.
4.5 On the Closing Date, Escrow Agent shall record the
grant deed described in Section 4.4, above, provided Escrow
Agent obtains assurance that First American Title Insurance
Company is prepared to issue its CLTA policy of title insuranca
covering the District Site and sliowing title vested in the
Commission in the amount of One Million Five Hundred Eighty
Thousand Dollars ($1,580,000) subject only to the following:
(a) Non-delinquent general real property taxes;
(b) Approved exceptions shown in the preliminary
title report to be approved by the Commission
pursuant to Section 4.6 below; and
(c) Exceptions consented to (in writing) or created
by the Commission.
4.6 The Commission shall promptly order a preliminary
title report for the District Site, together with copies of al:
documents referenced therein as exceptions. The Commission
shall have until April 1, 1988, 'to approve or disapprove the condition of title of the District Site. In the event that an!
matters are shown on the preliminary title report which are no1 acceptable to the Commission, the Commission shall have the
right to disapprove same on or before April 1, 1988, by so
notifying the District in writing. In the event the Commissior
fails to notify the District in writing of a disapproved
exception prior to April 1, 1988, the exceptions shown therein
shall be deemed approved by the Commission. The District
shall, within thirty (30) days thereafter, notify the
Commission in writing, whether the District agrees, at its sold
expense, to cause the removal of a disapproved exception. If
District fails to respond, the District shall be deemed to have refused to remove the disapproved exception. If the District
refuses or is deemed to have refused to remove the disapproved
exception, the Commission may either waive its prior objection:
and proceed with the escrow or cancel this transaction by
written notice to the District and Escrow Agent within ten (10;
days following the receipt of the District's notice (or
ten (10) days following the date the District is deemed to have
refused, if the District fails to provide notice). In
the event the Commission elects to terminate this Agreement
pursuant to the provisions of this Section, the Commission and
District agree to immediately execute any document required to
cause Escrow Agent to cancel the escrow, less escrow
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cancellation charges, if any, after which time neither party shall have any further obligation to the other under this Agreement.
4.7 Real property taxes, if any, assessed against the
District Site for the fiscal year in which Close of Escrow occurs shall be prorated as of the Close of Escrow on the basis of a thirty (30) day month. The Commission will pay the Escrob Agent's fee, Escrow Agent's drafting charges, recording charges
and documentary transfer tax in an amount determined by Escrow
Agent and the title policy premium on the policy herein
described.
4.8 Escrow Agent will cause the County Recorder of San Diego County to mail the grant deed covering the District Site to the Commission at the address set forth for the Commission
herein. Escrow Agent will further deliver to the Commission bq United States mail, the title policy called for herein.
4.9 The District will deliver fee title in the District
Site to the Commission at Close of Escrow.
5. CONVEYANCE OF THE ADMINISTRATIVE OFFICES
5.1 The Commission agrees to demolisli the existing buildings located on the District: Site except for the relocatable classrooms to be relocated by the District pursuant to Section 6.2, below, and to coi~struct the Center in
a timely manner in accordance with the Center Plan. The
Commission further agrees to construct the Administrative
Offices in accordance with Floor Plan approved by the District,
which Administrative Offices shal.1 occupy not less than
12,000 square feet of office space within the Center. The
building in which the Administrative Offices will be situated
shall be developed by the Commission as an office condominium.
The Commission shall take all necessary steps to prepare and/or file a condominium plan, covenants, conditions and restrictions, and any other documents necessary to develop the
condominium project. Commission shall defend, indemnify and
hold District harmless with respect to any losses, damages,
liabilities, claims, actions, judgments, court costs and legal
or other expenses incurred as direct or indirect consequence of
the construction of the Center by the Commission for the perioc
commencing upon District vacation of the District Site and terminating upon commencement of the Administration Offices
Lease.
5.2 Within thirty (30) days after completion of the
Administrative Offices in accordance with the plans and
specifications, the Commission shall (i) deposit a Grant Deed
conveying a condominium interest in the Administration Office
to the District into an escrow w:tth First American Title
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Insurance Company and, (ii) the Commission, as lessor, and the
District, as lessee, shall execute the Lease for the
Administrative Offices in the form of Exhibit C attached heretc and incorporated herein by this reference (the "Administrative
Offices Lease"). In addition to the foregoing, after
completion of the Center and as :Long as the District holds a
real property interest in the Administrative Offices, the
Commission will grant the District, without additional charge,
the right to use an auditorium, which the Commission intends tc
construct in the Center, for the District's board meetings
twice each month, and at other times on an as available
as-needed basis. The Administrative Offices Lease shall be foi
a term of ten years, and shall provide for rent equal to the
sum of base rent in an amount equal to Twenty-Nine Thousand
Eight Hundred Dollars ($29,800.00) per year, payable in
arrears, plus in an amount equal to the monthly assessments as
would be calculated under paragraph 5.4 below (together the
"Rent"). The Administrative Offices Lease shall provide for
termination by the District prior to the termination of the tei
(10) year term upon payment of the total annual rent remaining for the balance of the ten (10) year period. A memorandum of the Administrative Offices Lease, in the form of Exhibit D attached hereto, shall be executed and acknowledged by the Commission and recorded in the Official Records of San Diego
County upon the effective date of the Administrative Offices
Lease.
5.3 Concurrently with execution of the Administrative
Offices Lease and deposit of the Grant Deed, the Commission
shall cause the building in which the Administrative Offices
will be situated to become an office condominium (the "Conversion" ) .
5.4 Following (a) the end of the ten (10) year term of thc
Administrative Offices Lease, provided the Administrative
Offices Lease has not been terminated prior to the end of such
ten (10) year term and the District is not then in default in
the payment of the Rent or any other sums payable by the
District pursuant to the terms t:hereof, and (b) the completion
of the Conversion, the Commission shall convey to the District for no additional consideration, a fee interest in the condominium Administrative Offices together with an undivided interest in the Center common area equal to a fraction the
numerator of which is the total square footage of the
Administrative Offices as shown in the Condominium Documents
approved by the Commission and the District and the denominato
of which is the total square footage of the Center building as
shown in said Condominium Documents ("Und.ivided Interest").
The Condominium Documents shall require the formation of a committee comprised of a designee of the Commission and a designee of the District and the on-site manager to review the operation and maintenance of the Center. It is understood and
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agreed that upon the conveyance of the Administrative Offices
to the District, the District will be required to pay monthly assessments to the Commission covering common area and buildinq exterior maintenance obligations, the District's percentage share of which shall be determined by utilizing the Undivided Interest calculation immediately above. The Administrative Offices and the Undivided Interest are hereinafter referred to collectively as the "Administrative Offices. "
5.5 The Commission's obligation to convey the Administrative Offices to the District shall be satisfied by
delivering to First American Title Insurance Company
instructions to record the Grant Deed held by First American
pursuant to Section 5.2 hereof. Title to the Administrative Offices shall be subject only to nondelinquent real property
taxes and covenants, conditions, restrictions, easements,
rights and rights of way of record approved by the Commission and the District. The District $;hall bear all expenses in
connection with such conveyance Including, without limitation,
documentary transfer taxes, escrow charges (if any), recording
charges and title policy premiums. Real property taxes and
assessments, if any, shall be prorated as of the date of
delivery of such grant deed to the District.
6. TEMPORARY RELOCATION OF DISTRICT USES
6.1 The District Site is currently occupied by four (4)
uses, as follows:
(a) Administrative offices
(b) Relocatable classrooms
(c) The storage of District vehicles
(d) Warehousing of District supplies including food
supplies and garde:ning equipment
6.2 The District shall be rlesponsible for locating replacement offices for the administrative offices referenced
above (the "Replacement Offices") during the period of
construction of the Center.
6.3 Vehicle storage for the District's approximately sixt.
(60) vehicles and/or the warehousing of the District supplies referenced above shall, at the District's option, be provided for by the City at the Safety Center owned by the City and located at 2560 Orion Way, Carlsbad, California (the "Safety
Center") on a month to month tenancy with. the rental rate to bl agreed upon by the City and the District; provided the District's rental obligation shall be $833.33 per month if
District elects to both store its approximately sixty (60)
vehicles and/or warehouse the District supplies.
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If the District elects to have such storage provided
for by the City, the District and the City shall, concurrently
with the execution of this Agreement, execute the Lease for the
Safety Center space in the form of Exhibit E attached hereto
and incorporated herein by this reference (the "Safety Center
Lease"). The Safety Center Lease shall provide for the
District to store its approximately sixty (60) vehicles and/or
warehouse its District supplies and supplies related to the
District's ancillary office uses in a 3600 square foot modular
facility for a month-to-month basis commencing on , at the agreed upon rent, payable monthly in
advance. The District shall be responsible for all taxes,
maintenance and insurance in connection with the leased
premises, all as more specificalLy set forth in the Safety
Center Lease. In the event the District does not vacate the
Safety Center at the end of the Safety Center Lease term,
Safety Center Lease shall be extended on a month-to-month basi:
at rent equal to the "Fair Market Rental Value", as defined
below. Notwithstanding the foregoing, the Safety Center Lease
shall terminate at the end of such ten year term unless the
District delivers to the City, w:ithin one hundred eighty (180)
days prior to the end of the ten (10) year Safety Center Lease
term, written notice that it des:ires to continue the Safety
Center Lease on a month-to-month basis at Fair Market Rental
Value together with a one-time only sum payable as
consideration for extension of t:he Safety Center Lease on a
month-to-month basis in an amount equal to two percent (2%) of
the sum of rent paid by the District to the City under the
Safety Center Lease during the tlen (10) year term.
the
(a) For purposes of Section 6.3 hereof, "Fair Market
Rental Value" shall be determineid, as follows:
(i) At least 180 days prior to the date ten (10)
years after commencement of the Safety Center Lease ("Tent:
Anniversary Date"), the District and the City shall attemp
to reach agreement as to the Fair Market Rental Value.
(ii) In the event that the District and the City
are unable to agree upon a Fair Market Rental Value within
such period, then no later than the 150th day prior to
Tenth Anniversary Date, the District and the City shall
jointly attempt to agree on the appointment of a real
estate appraiser who is a member of the American Institute
of Real Estate Appraisers or any successor thereto (or in
the event the American Institute or Society of Real Estate
Appraisers or any successor shall not then be in existence a disinterested real estate appraiser having appropriate
qualifications to appraise commercial real estate as set
forth immediately below), with at least ten (10) years
professional experience in Southern California in
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appraising land and improvements similar to the leased
premises. All appraisers selected pursuant to the
provisions hereof shall be impartial and unrelated,
directly or indirectly, so far as employment of services
is concerned, to any of the parties hereto, or their
successors. The cost of the services performed by such
appraiser shall be borne equally by the parties. The
single appraiser jointly appointed by the parties shall
determine the "Fair Market Rental Value" in the manner
herein specified and shall render his or her appraisal
within one hundred twenty (120) days after said appraiser has been selected.
(iii) Failing the j0in.t action within the time specified in (b) above, the Clistrict and the City shall each within an additional fifteen (15) days, separately at
its own cost designate any appraiser meeting the
qualifications stated in para.graph (ii) above. If two
appraisers are appointed and they concur on the Fair Market
Rental Value, the Fair Market Rental Value determined by
them shall be the Fair Market Rental Value. If the
appraisers do not concur, and the difference between the
respective higher and lower determinations of Fair Market
Rental Value is an amount less than ten percent (10%) of
the amount of the higher determination of the Fair Market
Rental Value, the mean average of the two determinations
shall be the Fair Market Rental Value.. The two appraisers
shall render their respective appraisals within one hundred
twenty (120) days after they have been selected.
(iv) If the differenc:e between the two deter-
minations exceeds the amount specified above, the two
appraisers shall jointly select a third appraiser meeting
the qualifications set forth in paragraph (ii) above, and
if they are unable to agree on a third appraiser either of
the parties to the Lease, by giving fifteen (15) days
notice to the other party, may apply to the presiding judge
of the Superior Court of San Diego County to select a third
appraiser who meets the qualifications set forth in
paragraph (ii) above. The third appraiser, however selected, shall be a person who has not acted in any capacity for either party. Within fifteen (15) days from
the date of the selection of the third appraiser, all three
appraisers shall meet and the first two appraisers shall
present to the third appraiser all of their findings, data
and conclusions as to the Fair Market Rental Value. The
third appraiser shall review all such findings, data and
conclusions, and shall determine which of the two appraisers' respective determinations is the more reasonable determination. The third appraiser shall not be permitted to make any other independent determination of
Fair Market Rental Value. The appraiser's determination
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found by the third appraiser to be the most reasonable determination shall be the Fair Market Rental Value. The
third appraiser's conclusion shall be reached within one
hundred twenty (120) days from the selection of the third
appraiser. The expenses related to the selection and
services of the third appraiser shall be shared equally by
the District and the City.
(v) In the event that the final determination of Fair Market Rental Value occurs after the Tenth Anniversary Date, the Fair Market Rental Value, as determined shall nonetheless commence concurrently with the first day of tht Lease term following the expiration of the initial ten (10 year term.
6.4 The Commission shall pay the District the sum of Two Hundred Thousand Dollars ($200,000.00) to cover the District's costs of relocating all facilities set forth in this Section 6
as well as rental for the Replacement Offices during the perioc of construction of the District Administrative Offices in the Center (collectively the "Relocation Amount"). The Commission
and the District hereby acknowledge and agree that the
Relocation Amount is fair and reasonable compensation for such
costs of relocation and rental a:nd the Commission shall not
have any obligation to pay the District an amount in excess of
the Relocation Amount for such costs of relocation and rental,
except if and to the extent that a delay in construction of thc
Center exceeds one (1) year from the date the District vacates
in which case the Commission shall reimburse the District, up01 receipt of evidence of costs incurred, for any rent payable by the District until the District relocates to the Center.
The payment of the Relocation Amount shall be in the
form of a check payable to the District, which check shall be
delivered by the Commissioner to the District on or
before
6.5 The Commission hereby acknowledges and agrees that it
shall be solely and completely responsible for (a) the removal of that certain fuel tank located on the District Site,
including any grading or other work necessary to restore the
surface of the District Site following such removal, and (b)
ensuring that such removal of said fuel tank and the condition of the District Site following such removal comply with all
applicable federal, state and local laws, regulations,
ordinances and rules. The District shall. reimburse Commission
for all costs associated with the disposal or treatment of
Hazardous Materials, as hereafter defined.
The District hereby further agrees to indemnify and
hold the Commission harmless from and against, any losses, damages, liabilities, claims, actions, judgments, court costs
3/21/88
3 73 8r/2 410/0 1 -10-
8 e
and legal or other expenses (including attorneys' fees) which
the Commission may incur as a direct or indirect consequence ol
the use, generation, manufacture, disposal, threatened
disposal, transportation or presence of "Hazardous Materials"
(as hereinafter defined) in, on, under or about the District
Site. For purposes of this Section, "Hazardous Materials" shall mean any oil, flammable explosives, asbestos, urea formaldehyde insulation, radioactive materials, hazardous wastes, toxic or contaminated substances or similar materials,
including, without limitation, any substances which are "hazardous substances" , "hazardous wastes'' , "hazardous materials" or "toxic substances" under the Comprehensive Environmental Response, Compensation and Liability Act of 1980 as amended, 42 U.S.C. $9601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C. §1801, et seq., the Resource
Conservation and Recovery Act, 42 U.S.C. 56901, et seq.,
Sections 25117 and 25316 of the California Health & Safety
Code, or any other applicable environmental law, ordinance or regulation.
7. RIGHTS OF FIRST REFUSAL TO PURCHASE
7.1 If, at any time following the conveyance of the Administrative Offices by the Commission to the District, the District determines to offer to sell or receives an offer to purchase the Administrative Offices on terms and conditions
acceptable to the District, the District shall communicate
such fact to the Commission and provide the Commission with a
written description of the price and terms of such intended
offer to sell or received offer to purchase within fifteen (15 calendar days of determination or receipt of such an offer (th
"Notice of Offer"). The Commission shall have forty-five (45)
calendar days following receipt of the Notice of Offer in whic
to deliver written notice to the District of the Commission's exercise of the Right of First Refusal to purchase the Administrative Offices upon the same terms and conditions as contained in such Notice of Offer. If Commission exercises
this right, the District shall sell the Administrative Offices
to the Commission on the same terms and conditions contained i
the Notice of Offer. If the Commission fails to exercise thiE Right of First Refusal within said period, the District may
thereafter sell the Administrative Offices upon the same
terms. The provisions of this Section shall be operative eack
time the District determines to sell the Administrative Office to a third party.
7.2 If, at any time following the lease or conveyance of
the Administrative Offices by the Commission to the District, the Commission determines to offer to sell, or receives an offer to purchase, the Commission's Interest on terms and
conditions acceptable to the Commission, the Commission shall
communicate such fact to the District and provide the Districi
3/21/88 3738r/2410/01 -11-
8 e
with a written description of the price and terms of such
intended offer to sell or received offer to purchase within
fifteen (15) calendar days of determination or receipt of such
an offer (the "Notice of Offer"). The District shall have
forty-five (45) calendar days following receipt of the Notice
of Offer in which to deliver written notice to the Commission
of the District's exercise of the Right of First Refusal to
purchase the Commission's Interest upon the same terms and
conditions as contained in such Notice of Offer. If the District exercises this right, the Commission shall sell the Commission's Interest to the District on the same terms and
conditions contained in the Notice of Offer. If the District
fails to exercise this Right of First Refusal within said
period, the Commission may thereafter sell the Commission's
Interest upon the same terms. The provisions of this Section
shall be operative each time the Commission determines to sell
the Commission's Interest to a third party.
8. GENERAL PROVISIONS
8.1 This Agreement, inasmuch as it binds the District
to sell, exchange and/or grant real property under certain
conditions/events, must be executed in accordance with
applicable provisions of the Education Code as must each real
property transaction, subject to approval by the appropriate
State Agency.
8.2 If any party to this Agreement commences litigation
against any other party for the purpose of determining and
enforcing its rights hereunder, or for money damages for a
breach hereof or for other equitable relief related hereto, th prevailing party shall be entitled to receive from the losing party, attorney's fees in the amount determined by the Court, together with costs reasonably incurred in prosecuting and defending such action.
8.3 No broker's commission or finder's fee shall be
payable as a result of this transaction. The District and the
Commission each agree to and hereby does indemnify and hold tk. other harmless from and against any claim, demand and/or liability asserted or established against said other party by or in favor of any third party for a brokerage commission or finder's fee based on their agreement with such party.
8.4 Unless otherwise specifically provided, all notices,
demands or other communications given hereunder shall be in
writing and shall be deemed to have been delivered upon actual
personal delivery or as of three (3) business days after
mailing by registered or certified mail, return receipt
requested, postage prepaid, addressed as follows:
3/21/88 3738r/2410/01 -12-
8 e
If to The District:
Attn:
If to the Commission:
Attn:
Copies To: City Attorney
Attn:
If to the City:
Attn:
or to such address or to such other person as any party shall
designate to the other for such purpose in the manner
hereinabove set forth.
8.5 This agreement contains the entire agreement between
the parties relating to the transactions contemplated hereby
and all prior agreements, understandings, representations and
statements, oral or written, are merged herein.
IN WITNESS WHEREOF, the parties hereto have executed the
Agreement as of the day and year first above written.
CARLSBAD UNIFIED SCHOOL DISTRIC
Dated By :
President, Board of Trustees
CARLSBAD HOUSING AND REDEVELOPMENT COMMISSION
Dated By:
CHA I RMAN
ATTEST :
CITY OF CARLSBAD
Dated By :
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3 73 8r/2 410/0 1 -13-
EXHIBIW TO AGREEMENT I)
LEGAL DESCRIPTION
of Proposed Parcel 'A
City of Carlsbad Senior Center E Administration Building
Parcel A of ROS # filed in the office of the Cour
Recorder of the County of San Diego on , 1987, mc
specifically described as follows:
Beginning at the Northerly corner of Lot 17, Block 59 of Map of Car
bad Highlands in the Town of Carlsbad, County of San Diego, State of Cz
fornia, according to Map thereof No. 1661 filed in the office of the recort
of said County on March 1, 1915; thence proceeding South 34O33' East alc
the Westerly line of said Block 59, a distance of 129.7 feet; thence Sot
55O27'35" West a distance of 169.2 feet; thence South 34O33' East 'a distance
100.9 feet; thence South 55O27'35" West a distance of 201.8 feet; thence Sor
34O33' East a distance of 116.8 feet; thence South 55O27'35" West a distance
7.8 feet; thence South 34O33' East a distance,.of 169.2 feet; thence So(
55O27'35" West a distance of 141.1 feet to the Westerly line of Lot 18 Blc
45, of said map 1661; Thence North 34O33' West along said Westerly lint
distance of 516.6 feet to the Westerly corner of Lot 17, of Block 46 of s
Map 1661; thence North 55O27'35" East along the southerly Right-of-way I
of Pine Drive as shown on said Map 1661 a distance of 519.93 feet to
Point of Beginning.
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, STANDARD INDUSTRIAL LEASE - MULTI-TENAN1
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION aiR
1.
is made by and between
and
Partler. This Lease, dated, for reference purposes only, Carlsbad HOU.5- and kdeVelODEIlt MSSiOn
(herein calli
(herein calle
Premises, Parking and Common Areas.
2.1 Premlrer. Lessor hereby leases to Lessee and Lessee leases from Lessor for the term, at the rental, and upon all of the conditi
lSba d Unified Sch 001 District
2.
herein, real property situated in the County of -20
commonly known as
and described as
herein referred to as the "Premises", as may be outlined on an Exhibit attached hereto, including rights to the Common Areas ar specified but not including any rights to the roof of thepremisesor to any Building in the hdeohwl Center. The Premises are a portion ( herein referred to as the "Building." The Premises, the Building, the Common Areas, the la d upon which the same are located, along 1 buildings and improvements thereon, are herein collectively referred to as the enter."
vehicle parking spaces, unreserved and unassigned, on thos the Common Areas designated by Lessor for parking. Lessee shall not use more parking spaces than said number. Said parking sp: used only for parking by vehicles no largerthan full size passenger automobiles or pick-up trucks, herein called "Permitted SizeVehiclc other than Permitted Size Vehicles are herein referred to as "Oversized Vehicles."
2.2.1 Lessee shall not permit orallow any vehicles that belong to or are controlled by Lesseeor Lessee's employees, suppliei customers, or invitees to be loaded. unloaded. or parked in areas other than those designated by Lessor for such activities.
2.2.2 If Lessee permits or allowsanyof the prohibited activitiesdescribed in paragraph 2.2 of this Lease, then Lessor shall ha without notice. in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and chargc Lessee, which cost shall be immediately payable upon demand by Lessor.
2.3 Common Areas -,Definltlon. The term "Common Areas" is defined as all areas and facilities outside the Premises and within boundary lineof the4WtmWd Center that,are provided and designated by the Lessor from time to time for the general non-exclusive US Lessee and of other lessees of theh&e+wJ Center and their respective employees, suppliers, shippers, customers and invitees. incluc areas, loading and unloading areas, trash areas, roadways, sidewalks, walkways, parkways, driveways and landscaped areas.
2.4 Common Areas - Lessee's Rights. Lessor hereby grants to Lessee, for the benefit of Lessee and its employees, supplier customers and invitees. during the term of this Lease. the non-exclusive right to use, in common with others entitled to such use, tt Areas as they exist from time to time, subject to any rights, powers, and privileges reserved by Lessor under the terms hereof or under any rules and regulations or restrictions governing the use of thw Center. Under no circumstances shall the right herein grantf Common Areas be deemed to include the right to store any property. temporarilyor permanently, in the Common Areas. Any such stor permitted only by the prior written consent of Lessor or Lessor's designated agent, which consent may be revoked at any time. In theev unauthorized storage shall occur then Lessor shall have the right, without notice, in addition tosuch other rights and remedies that it r remove the property and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor.
2.5 Common Areas - Rules and Regulations. Lessor or such other person(s) as Lessor may appoint shall have the exclusive management of the Common Areas and shall have the right, from time to time, to establish. modify, amend and enforce reasonab regulations with respect thereto. Lessee agrees to abide by and conform to all such rules and regulations, and to cause its employee! shippers, customers. and invitees to so abide and conform. Lessor shall not be responsible to Lessee for the non-compliance with sa regulations by other lessees of thek&W+eI Center.
, State of California
thP -w Mfk ..
2.2 Vehicle Parking. Lessee shall be entitled to
2.6 Common Areas - Changes. Lessor shall have the right, in Lessor's sole discretion, from time to time:
(a) To make changes to the Common Areas, including, without limitation, changes in the location, size, shape and number0 entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas and walk, close temporarily any of the Common Areas for maintenance purposes so long as reasonable access to the Premises remains avail designate other land outside the boundaries of the+&+&+& Center to be a part of the Common Areas: (d) To add additional bi improvements to the Common Areas: (e) To use the Common Areas while engaged in making additional improvements, repairs or alter, I+&&.& Center, or any portion thereof; (1) To do and perform such other acts and make such other changes in, to or with respect to 11 Areas and b&usWd Center as Lessor may. in the exercise of sound business judgment, deem to be appropriate.
es required by applicable law and in no event shall the number of par that Lessee is entitled to under paragraph 2.2 be reduced.
3. Term.
commencing on and ending on unless sooner terminated pursuant to any provision hereof.
3.2 Delay In Possession. Notwithstanding said commencement date. if for any reason Lessor cannot deliver possession of the I Lessee on said date, Lessor shall not be subject to any liability therefor, nor shall such failure affect the validity of this Lease or the ob Lessee hereunder or extend the term hereof, but in such case, Lessee shall not be obligated to pay rent or perform any other obligatio under the terms of this Lease, except as may be otherwise provided in this Lease. until possession of the Premises is tendered to Lessec however, that if Lessor shall not have delivered possession of the Premises within sixty (60) days from said commencement date. Les Lessee's option, by notice in writing to Lessor within ten (10) days thereafter.cance1 this Lease. in which event the parties shall be discP all obligations hereunder: provided further, however, that if such written noticeof Lessee is not received by Lessor within said ten (10) Lessee's right to cancel this Lease hereunder shall terminate and be of no further force or effect.
3 3 Early Possession. If Lessee occupies the Premises prior to said commencement date, such occupancy shall be subject to all p this Lease, such occupancy shall not advance the termination date, and Lessee shall pay rent for such period at the initial monthly ral below.
4. Rent.
Base Rent. Lessee shall pay to Lessor, as Base Rent for the Premises, without any offset or deduction, except as may bi
expressly provided in this Lease. on the zt---.-d&-meb-mcrstk of the krm hereaf.-ShlY.Dayments in adurn of $ m
2.6.1 Lessor shall at all times provide the parking fac
3.1 Term, The term of this Lease shall be for ten (10) vears
4.1
mnversary UL ut: cuimmiwan'lE?1ic wit: til~~iuiil arrk?ZS
-- dch is for less than one bshall be a pro rata portion of the Base Rent. Rent shall bf lawful money of the United States to Lessor at the address stated hereinTosuch other persons or at such other placesas Lessor may (
4.2 Operating Expenses. Lessee shall pay to Lessor during the term hereof, in addition to the Base Rent, Lessee's Share. as defined, of all Operating Expenses, as hereinafter defined. during each calendar year of the term of this Lease, in accordance wtth tf provisions: (a) "Lessee's Share" is defined. for purposes of this Lease, as (b) "Operating Expenses" is defined, for purposes of this Lease, as all costs incurred by Lessor, if any. for: (i) The operation. repair and maintanence. in neat, clean, good order and condition, of the following: (aa) The Common Areas, including parking areas, loading and unloading areas, trash areas, roadways, sidewalks
parkways, driveways, landscaped areas. striping, bumpers, irrigation systems, Common Area lighting facilities and fences and gate: (bb) Trash disposal services: (cc) Tenant directories. (dd) Fire detection systems including sprinkler system maintenance and repair;
writing. *QP
percent.
Initials: -
e American Industrial Real Estate Association 1981 MULTl TENANT-MODIFIED NET -
(ee) Security servi e a (If) Any other servicI, . be provided by Lessor that is elsewhere in this Lease stated to be an "Operating Expe
(ii) Any deductible pofiion Of an insured loss concerning any of the items or matters described in this paragraph 4 (iii) The cost of the premiums for the liability and property insurance policies to be maintained by Lessor under parag (iv) The amount of the real property tax to be paid by Lessor under paragraph 10.1 hereof;
(v) The cost of water, gas and electricity to service the Common Areas. (c) The inclusion of the improvements. facilities and services set forth in paragraph 4.2(b)(i) of the definition of Opera1 shall not be deemed to impose an obligation upon Lessor to either have said improvements or facilities or to provide those servic
Int0r;ll Center already has the same, Lessor already Provides the services, or Lessor has agreed elsewhere in this Lease to provic some of them. (d) Lessee'sShareof Operating Expensesshall be Payable by Lesseewithin ten (10) daysafter areasqnablydetailedstate expenses is presented to Lessee by Lessor. At Lessor's option. however, an amount may be estimated by Lessor from time to time of L of annual Operating Expenses and the same shall be payable monthly orquarterly, as Lessor shall designate, during each twelve-m8 the Lease term, on the same day as the Base Rent is due hereunder. In the event that Lessee pays Lessor's estimate of Lessee's Shari Expenses as aforesaid. Lessor shall deliver to Lessee within sixty (60) days after the expiration of each calendar year a reasor statement showing Lessee's Share of the actual Operating Expenses incurred during the preceding year. If Lessee's paymer paragraph 4.2(d) during said preceding year exceed Lessee's Share as indicated on said statement, Lessee shall be entitled to credit such overpayment against Lessee's Share of Operating Expenses next falling due. If Lessee's payments under this paragrap preceding year were less than Lessee's Share as indicated on said statement, Lessee shall pay to Lessor the amount of the deficiency days after delivery by Lessor to Lessee of said statement.
5. as security for Lessee's faithfu of Lessee's obligations hereunder. If Lessee fails to pay rent or other charges due hereunder, or otherwise defaults with respect to ar. this Lease, Lessor may use, apply or retain all or any portion of said deposit for the payment of any rent or other charge in default or fo, of any other sum to which Lessor may become obligated by reason of Lessee's default. or to compensate Lessor for any loss or d Lessor may suffer thereby. If Lessor so uses or applies all or any portion of said deposit, Lessee shall within ten (10) days after wr therefor deposit cash with Lessor in an amount sufficient to restore said deposit to the full amount then required of Lessee. If the mont from time to time, increase during the term of this Lease, Lessee shall. at the time of such increase. deposit with Lessor addition: security deposit so that the total amount of the security deposit held by Lessor shall at all times bear the same proportion to the then Rent as the initial security deposit bears to the initial Base Rent set forth in paragraph 4 Lessor shall not be required to keep said sec separate from its general accounts. If Lessee performs all of Lessee's obligations hereunder, said deposit, or so much thereof as has nc been applied by Lessor, shall be returned, without payment of interest or other increment for its use, to Lessee (or, at Lessor's opti, assignee, if any, of Lessee's interest hereunder) at the expiration of the term hereof, and after Lessee has vacated the Premises. No trus is created herein between Lessor and Lessee with respect to said Security Deposit.
6. Use.
Security Depoolt. Lessee shall deposit with Lessor upon execution hereof $
TPSSPP'S ve nf- .. 6.1 Use. The Premises shall be used and occupied only for
or any other use which is reasonably comparable and for no other purpose.
6.2 Compliance with Law.
(a) Lessor warrants to Lessee that the Premises, in the state existing on the date that the Lease term commences, but with the use for which Lessee will occupy the Premises. does not violate any covenants or restrictions of record, or any applicable b regulation or ordinance in effect on such Lease term commencement date. In the event it is determined that this warranty has been VII shall be the obligation of the Lessor, after written notice from Lessee, to promptly, at Lessor's sole cost and expense, rectify any suci the event Lessee does not give to Lessor written notice of the violation of this warranty within six months from the date that th commences, the correction of same shall be the obligation of the Lesseeat Lessee'ssolecost. The warranty contained in this paragrac be of no force or effect if, prior to the date of this Lease. Lessee was an owner or occupant of the Premises and, in such event. Lessee any such violation at Lessee's sole cost.
(b) Except as provided in paragraph 6.2(a) Lessee shall, at Lessee's expense, promptly comply with all applicable statutes, rules, regulations. orders, covenants and restrictions of record, and requirements of any fire insurance underwriters or rating bureaus, or which may hereafter come into effect, whether or not they reflect a change in policy from that now existing, during the term or any pa hereof, relating in any manner to the Premises and the occupation and use by Lessee of the Premises and of the Common Areas. Les use nor permit the use of the Premises or the Common Areas in any manner that will tend to create waste or a nuisance or shall tend to I occupants of the+?&&& Center.
6.3 Condition of Premirer.
(a) Lessor shall deliver the Premises to Lessee clean and free of debris on the Lease commencement date (unless Lessee possession) and Lessor warrants to Lessee that the plumbing, lighting, air conditioning, heating, and loading doors in the Premises sh; operating condition on the Lease commencement date. In the event that it is determined that this warranty has been violated. then I obligation of Lessor, after receipt of written notice from Lesseesetting forth with specificity the nature of the violation, to promptly, at I cost, rectify such violation. Lessee's failure to give such written notice to Lessor within thirty (30) days after the Lease commenceme cause the conclusive presumption that Lessor has complied with all of Lessor's obligations hereunder. The warranty contained in th 6.3(a) shall be of no force or effect if prior to the date of this Lease, Lessee was an owner or occupant of the Premises.
(b) Except as otherwise provided in this Lease, Lessee hereby accepts the Premises in their condition existing as c commencement date or the date that Lessee takes possession of the Premises, whichever is earlier, subject to all applicable zonin! county and state laws, ordinances and regulations governing and regulating the use of the Premises, and any covenants or restrictio and accepts this Lease subject thereto and to all matters disclosed thereby and by any exhibits attached hereto. Lessee acknowledge: Lessor nor Lessor's agent hasmadeany representation or warrantyas to the present or future suitabilityof the Premises fortheconduc business.
7. Maintenance. Repaln, Alterationr and Common Area Sonlcer.
7.1 Lessor's Obllgationr. Subject to the provisions of paragraphs 4.2 (Operating Expenses), 6 (Use), 7.2 (Lessee's Obligal (Damage or Destruction) and except fordamage caused by any negligent or intentional act or omission of Lessee, Lessee's employee shippers, customers, or invitees, in which event Lesseeshall repair thedamage. Lessor, at Lessor's expense, subject to reimbursement paragraph 4.2, shall keep in good condition and repair the foundations, exterior walls, structural condition of interior bearing walls, an Premises, as well as the parking lots, walkways, driveways, landscaping, fences, signs and utility installations of the Common Areas, thereof, as well as providing theservices for which there isan Operating Expense pursuant to paragraph 4.2. Lessor shall not, however, I to paint the exterior or interior surface of exterior walls, nor shall Lessor be required to maintain, repair or replace windows, doors or p the Premises. Lessor shall have no obligation to make repairs under this paragraph 7.1 until a reasonable time after receipt of written Lessee of the need for such repairs. Lessee expressly waives the benefits of any statute now or hereafter in effect which would othe Lessee the right to make repairs at Lessor's expense or to terminate this Lease because of Lessor's failure to keep the Premises in condition and repair. Lessor shall not be liable for damages or loss of any kind or nature by reason of Lessor's failure to furnish any Cc Services when such failure is caused by accident, breakage, repairs. strikes, lockout, or other labor disturbances or disputes of any cha any other cause beyond the reasonable control of Lessor.
7.2 Lerree'r OblIgatlonr.
(a) Subject to the provisions of paragraphs 6 (Use), 7.1 (Lessor's Obligations), and 9 (Damage or Destruction), Lessee. expense, shall keep in good order, condition and repair the Premisesand every part thereof (whether or not the damaged portion of the the means of repairing the same are reasonably or readily accessable to Lessee) including, without limiting the generality of the fc plumbing, heating, ventilating and air conditioning systems (Lessee shall procure and maintain, at Lessee's expense, a ventila conditioning system maintenancecontract), electrical and lighting facilities and equipment within the Premises, fixtures, interior walls surfaces of exterior walls, ceilings. windows, doors, plate glass, and skylights located within the Premises. Lessor reserves the right to maintain theventilating and air conditioning system maintenance contract and if Lessor so elects, Lesseeshall reimburse Lessor, upon the cost thereof.
(b) If Lessee fails to perform Lessee'sobligationsunder this paragraph 7.2 or under any other paragraph of this Lease, Lessc upon thepremisesafterten (10) days'priorwrittennoticetoLessee(except in thecaseof emergency, in which nonoticeshall berequire such obligationson Lessee's behalf and put the Premises in good order, condttion and repair, and the cost thereof together with interes the maximum rate then allowable by law shall be due and payable as additional rent to Lessor together with Lessee's next Base Rent i
(c) On the last day of theterm hereof, oronany sooner termination, Lesseeshall surrenderthe Premises to Lessor in the Sam as received, ordinary wear and tear excepted, clean and free of debris. Any damage or deterioration of the Premises shall not be deem wear and tear if the same could have been prevented by good maintenance practices. Lessee shall repair any damage to the Premises by the installation or removal of Lessee's trade fixtures. alterations. furnishings and equipment. Notwithstanding anything to tI otherwise stated in this Lease, Lessee shall leave the air lines, power panels, electrical distribution systems, lighting fiXtUreS, space conditioning, plumbing and fencing on the Premises in good operating condition.
. .. .
7.3 Alterationr and Addltlonr.
(a) Lesseeshall not. without Lessor's priorwritten consent make any alterations. improvements, additions, or Utility Install: or about the Premises, or the Industrial Center, except lor nonstructural alterations to the Premises not exceeding $2.500 in cumul during the term of this Lease. In any event, whether or not in excess of $2.500 in cumulative cost, Lessee shall make no change or alter
Initialr: - MULTl TENANT-MODIFIED NET
@American Industrial Real Estate Association 1981 -2- -
0 e
exterior of the Premises nor theexterior of the Building nor the Industrial Center without Lessor's prior written consent. As used in thi! - 7.3 the term "Utility Installation" shall mean carpeting. window coverings, air lines. power panels, electrical distribution systems, light
space heaters, air conditioning. plumbing. and fencing. Lessor may require that Lessee remove any or all of said alterations. imc additions or Utility Installations at the expiration of the term, and restore the Premisesand the Industrial Center to their priorcondition. require Lessee to provide Lessor, at Lessee's sole cost and expense, a lien and completion bond in an amount equal to one and onehi - estimated cost of such improvements, to insure Lessor against any liability for mechanic's and materialmen's liensand to insurecomp work. Should Lessee make any alterations, improvements. additions or Utility Installations without the prior approval of Lessor. Lessor time during the term of this Lease, require that Lessee remove any or all of the same.
(b) Any alterations, improvements, additions or Utility Installations in or about the Premises or the la&&& ' Center that I desire to make and which requires the consent of the Lessor shall be presented to Lessor in written form, with proposed detailed plai shall give its consent, theconsent shall be deemed conditioned upon Lesseeacquiring a permit to doso from appropriate government the furnishing of a copy thereof to Lessor prior to the commencement of the work and thecompliance by Lessee of all conditionsof saic prompt and expeditious manner.
(c) Lessee shall pay. when due. all claims for labor or materials furnished or alleged to have been furnished to or for Lessee
interest therein. Lessee shall give Lessor not less than ten (10) days' notice prior to the commencement of any work in the Premises. shall have the right to post notices of non-responsibility in or on the Premises or the Building as provided by law. If Lessee shall, in contest the validity of any such lien, claim or demand. then Lessee shall, at its sole expense defend itself and Lessor against the same a and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof against the Lessor or the Prei
IdUSLLd ' Center, upon the condition that if Lessor shall require, Lessee shall furnish to Lessor a surety bond satisfactory to Lessor ir equal to such contested lien claim or demand indemnifying Lessor against liability for the sameand holding the Premises and the IndLI! free from the effect of such lien or claim. In addition, Lessor may require Lessee to pay Lessor's attorneys fees and costs in participa action if Lessor shall decide it is to Lessor's best interest to do so.
(d) All alterations, improvements, additions and Utility Installations (whether or not such Utility Installationsconstitute trac Lessee), which may be made on the Premises. shall be the property of Lessor and shall remain upon and be surrendered with the Prei expiration of the Lease term. unless Lessor requires their removal pursuant to paragraph 7.3(a). Notwithstanding the provisions of thi! 7.3(d), Lessee's machinery and equipment. other than that which is affixed to the Premisesso that it cannot be removed without materia the Premises, and other than Utility Installations, shall remain the property of Lessee and may be removed by Lessee subject to the p paragraph 7.2.
7.4 Utility Additions. Lessor reserves the right to install new or additional utility facilities throughout the Building and the Commc the benefit of Lessor or Lessee, or any other lessee of the Industrial Center, including, but not by way of limitation. such utilities a! electrical systems, security systems. communication systems, and fire protection and detection systems, so long as such installat unreasonably interfere with Lessee's use of the Premises.
8. Insurance; Indemnity.
8.1 Liablllty insurance - Lessee. Lessee shall, at Lessee's expense, obtain and keep in force during the term of this Lease Combined Single Limit Bodily Injury and Property Damage insurance insuring Lessee and Lessor against any liability arising out occupancy or maintenance of the Premises and the&&u&u& Center. Such insurance shall be in an amount not less than $50C occurrence. The policy shall insure performance by Lessee of the indemnity provisions of this paragraph 8. The limits of said insurant however, limit the liability of Lessee hereunder.
8.2 Liablllty Insurance- Lessor. Lessor shall obtain and keep in force during the term of this Leasea policy of Combined Single Injury and Property Damage Insurance. insuring Lessor, but not Lessee, against any liability arising out of the ownership, use, oc maintenance of th- Center in an amount not less than $500,000.00 per occurrence.
8.3 Property insurance. Lessor shall obtain and keep in force during the term of this Leasea policy or policies of insurance COVC damage to the heh.t+d Center improvements, but not Lessee's personal property. fixtures. equipment or tenant improvements. in an to exceed the full replacement value thereof, as the same may exist from time to time, providing protection against all perils include classification of fire. extended coverage, vandalism, malicious mischief, flood (in the event same is required by a lender having a Premises) special extended perils ("all risk", as such term is used in the insurance industry), plate glass insurance and such other ii Lessor deems advisable. In addition, Lessor shall obtain and keep in force, during the term of this Lease, a policy of rental value insuran a period of one year, with loss payable to Lessor, which insurance shall also cover all Operating Expenses for said period. In the ev Premises shall suffer an insured loss as defined in paragraph 9.1 (9) hereof. the deductible amounts under the casualty insurance policie the Premises shall be paid by Lessee.
in the Premises, which claims are or may be secured by any mechanic's or materialmen's lien against the Premises, or thdndushd Ce
8.4 Payment of Premium Increase.
(a) After the term of this Lease has commenced, Lessee shall not be responsible for paying Lessee's Share of any incr property insurance premium for theCRekreCHeK; enter specified by Lessor's insurance carrier as being caused by the use. acts or orniss other lessee of the Industrial Center, or by the nature of such other lessee's occupancy which create an extraordinary or unusual lis
(b) Lessee. however, shall pay the entirety of any increase in the property insurance premium for the Industrial Center over immediately prior to the commencement of the term of this Lease if the increase is specified by Lessor's insurance carrier as being cat
nature of Lessee's occupancy or any act or omission of Lessee.
8.5 Insurance Policies. Insurance required hereunder shall be in companies holding a "General Policyholders Rating" of at lea: such other rating as may be required by a lender having a lien on the Premises, as set forth in the most current issue of "Best's lnsurar Lessee shall not do or permit to be done anything which shall invalidate the insurance policies carried by Lessor. Lessee shall delive copies of liability insurance policies required under paragraph 8.1 or certificates evidencing the existence and amounts of such insur, seven (7) days after the commencement date of this Lease. No such policy shall be cancellable or subject to reduction of coveral modification except after thirty (30) days prior written notice to Lessor. Lessee shall, at least thirty (30) days prior totheexpiration of su furnish Lessor with renewals or "binders" thereof.
8.6 Waiver of Subrogation. Lessee and Lessor each hereby release and relieve the other, and waive their entire right of recovery other for loss or damage arising out of or incident to the perils insured against whch perils occur in. on or about the Premises. whethe negligence of Lessor or Lessee or their agents, employees, contractors and/or invitees. Lessee and Lessor shall, upon obtaining the insurance required give notice to the insurance carrier or carriers that the foregoing mutual waiver of subrogation is contained in thi
8.7 Indemnity. Lessee shall indemnify and hold harmless Lessor from and against any and all claims arisi'ng from Lessee's
Inr(rlctrrll Center, or from the conduct of Lessee's business or from any activity, work or thingsdone. permitted or suffered by Lessee in ( Premises or elsewhere and shall further indemnify and hold harmless Lessor from and against any and all claimsarising from any breac in the performance of any obligation on Lessee's part to be performed under the terms of this Lease, or arising from any act or omission 0 any of Lessee's agents, contractors, or employees, and from and against all costs, attorney's fees, expenses and liabilities incurred in the any such claim or any action or proceeding brought thereon: and in case any action or proceeding be brought against Lessor by reason claim, Lessee upon notice from Lessor shall defend the same at Lessee's expense by counsel reasonably satisfactory to Lessor and 1 cooperate with Lessee in such defense. Lessee, as a material part of the consideration to Lessor, hereby assumes all risk of damage to Lessee or injury to persons, in, upon or about the ldt&ftd Center arising from any cause and Lessee hereby waives all claims in resc
against Lessor.
8.8 Exemption of Lessor from Liability. Lessee hereby agrees that Lessor shall not be liable for injury to Lessee's business or income therefrom or for damage to the goods, wares, merchandise or other property of Lessee. Lessee's employees. invitees. Custom other person in or about the Premises or the !adustu&Center. nor shall Lessor be liable for injury to the person of Lessee. Lessee's E agents or contractors, whether such damage or injury is caused by or results from fire, steam, electricity. gas, water or rain. or from the leakage, obstruction or other defects of pipes. sprinklers. wires, appliances. plumbing, air conditioning or lighting fixtures. or from any 0 Center. or whether said damage or injury results from conditions arising upon the Premises or upon other portions of the w sources or places and r ess of whether the cause of such damage or injury or the means of repairing the same is inaccessible to Les! shall not odiiauia 161 hr ages arising from any act or neglect of any other lessee. occupant or user ot thsAa&&w& Center, nor trow of Lessor to enforce the provisions of any other lease of the hde++w& Center.
ction. SEE PARAGW'H 47 B-i
(b) "PremisesT damaged or destroyed to theextent that thecost of repair is fi or more of the then replac
(c) "Premises8 misesarea part is damaged or destroyed tc that the cost to repair is le
{e) "Industrial Center Buildings" shall mean all of the buildings on the Industrial Center site.
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e this Lease as of the date of the occurr
uildtngs Total Destruction.
(a) Subject to theprovisionsof pa Insured Loss, and which falls into the class! Industrial Center Buildings Total Destructio fixtures. equipment or tenant improvements effect. or (it) give written notice to Lessee within thirty (30) days terminate this Lease, in which case this Lease shall be cancelled an
9.4 Damage Near End of Term.
(a) Subject to paragraph 9.4(b). if at any time not an Insured Loss, which falls within theclassification as of the date of occurrence of such damage by givin occurrence of such damage.
said option may be exercised has not yet expir the occurrence of an Insured Loss falling withi
of this Lease there is damage, wh or (ii) Premises Building Total C pair such damage or destructior nse. and this Lease shall contint
of this Lease there is substantial d. ayat Lessor's option cancel and te s election to do so within 30 day
(b) Notwithstanding paragraph 9.4 enew this Lease. and the ed at all, no later than twc e last six months of the te
after the expiration
or restores the Premises pursuant to the provisions of this paragraph or restoration continues shall be abated in proportion to the degree t if any. Lesseeshall have no claim against Lessor for any damage suf
II be obligated to repair or restore the Premises under the provisions of this paragraph 9 in ninety (90) daysafter such obligation shall accrue, Lessee may at Lessee's option cancel an otice of Lessee's election lo do so at any time prior to the commencement of such repair or restorat ate as of the date of such notice.
10.1 Payment of Taxen. Lessor shall pay the real pioperty tax, as defined in paragraph 10.3. applicable to the&+&&& reimbursement by Lessee of Lessee's Share of such taxes in accordance with the provisions of paragraph 4.2. except as othi paragraph 10.2.
10.2 Additional Improvementn. Lessee shall not be responsible for paying Lessee's Share of any increase in real property ' tax assessor's records and work sheets as being caused by additional improvements placed upon the-WkeW& Center by c Lessor for the exclusive enjoyment of such other lessees. Lessee shall, however, pay to Lessor at the time that Operating Exp under paragraph 4.2(c) the entirety of any increase in real property tax if assessed solely by reason of additional improvemen Premises by Lessee or at Lessee's request.
10 3 Definition of "Real Property Tax." As used herein, the term "real property tax" shall include any form of real estate ' general, special. ordinary or extraordinary, and any license fee. commercial rental tax, improvement bond or bonds, levy inheritance, personal income or estate taxes) imposed on the- ' Center or any portion thereof by any authority having tP
power to tax. including any city, county, state or federal government, or any school, agricultural. sanitary, fire, street, improvement district thereof, as against any legal or equitable interest of Lessor in theJ&+&+d ' Center or in any portion I Lessor's right to rent or other income therefrom, and as against Lessor's business of leasing thekdustu4 Center. The term "real also include any tax. fee,,levy, assessment or charge (i) in substitution of, partially or totally, any tax, fee, levy, assessment or cl included within thedefinition of "real property tax." or (ii) the natureof which was hereinbefore included within the definition of' or (iii) which is imposed fora serviceor right not charged prior to June 1. 1978. or, if previously charged, has been increased sin (iv) which is imposed as a result of a transfer, either partial or total, of Lessor's interest in the te+%&tW ' Center or which isaddeq hereinbefore included within the definition of real property tax by reason of such transfer, or (v) which is imposed by reason of tt modifications or changes hereto, or any transfers hereof.
10.4 Joint Assessment. If thelnrlllr(+rll Center is not separately assessed, Lessee's Share of the real property tax liabilityst proportion of the real property taxes for all of the land and improvements included within the tax parcel assessed, such proportio by Lessor from the respective valuations assigned in the assessor's work sheets or such other information as may be reasonably reasonable determination thereof, in good faith, shall be conclusive.
10.5 Personal Property Taxes.
(a) Lessee shall pay prior to delinquency all taxesassessed against and levied upon trade fixtures. furnishings, equiF personal property of Lesseecontained in the Premises or elsewhere, When possible. Lessee shall cause said trade fixtur6s. furni and all other personal property to be assessed and billed separately from the real property of Lessor.
(b) If any of Lessee's said personal property shall be assessed with Lessor's real property, Lessee shall pay IC attributable to Lessee within ten (IO) days after receipt of a written statement setting forth the taxes applicable to Lessee's pr
11. Utilities. Lessea qh?!' "P;' ?- _.I,. yiY, itedi. iight, power. telephone and other utilities and services supplied to the f with any taxes thereon. If any such services are not separately metered to the Premises. Lessee shall pay at Lessor's option, eithe a reasonable proportion to be determined by Lessor of all charges jointly metered with other premises in the Building.
12. Assignment and Sublettlng.
.A"
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9 American Industrial Real Estate Association 1981 -4-
m e
Lessee, in the p against said assig of Lessee, withou Lessee of liability
pplkable to Sublettlng. Regardless of Lessor's consent, the following terms a t of the Premises and shall be included in subleases:
eceive. collect and ei
of therentsfrom asublessee. bedeeme such sublessee under such sublease. L Lessor stating that a default exists in th under the sublease. Lesseeagrees that sublessee shall pay such rents to Lesso from or claim from Lessee to thecontrary. sublessee to Lessor.
s been approved in writing by Lessor. In enti
d once approved by Lessor, such subleasf
rovisions contained in a sublease to which Lessor t
hird parties. then a sublease, and Lessor's consent
deemed, for the benefit of Lessor, to have assumed and agreed t Lessee other than such obligations as are contrary to or inconsist consented in writing.
e and the terms thereof.
alter the primary liability of Les.
subletting by Lesseeorto an! nts of the sublease or any am ut obtaining their consent anc
y guarantors or any one elsi ies against any other per! ed directly again t exhausting Le
tions of Lessei
se shall also requ
shall further assign or sublet all or any part of the Premises without Lessor's prior writte
13. Default; Remedles.
13.1 Default. The occurrence of any one or more of the following events shall constitute a material default of this Lease by Le
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or any other payment required to be made by Lessee hereunder, as a where such failure shall continue for a period of three (3) days after written notice thereof from Lessor to Lessee. In the event that 1 Lessee with a Notice to Pay Rent or Ouit pursuant to applicable Unlawful Detainerstatutes such Notice to Pay Rent or Ouit shall also c notice required by this subparagraph.
(c) Except as otherwise provided in this Lease, the failure by Lessee to observe or perform any of the covenants, conditions of this Lease to be observed or performed by Lessee, other than described in paragraph (b) above, where such failure shall continue f thirty (30) days after written notice thereof from Lessor to Lessee; provided, however, that if the nature of Lessee's noncompliance is si than thirty (30) days are reasonably required for its cure, then Lessee shall not be deemed to be in default if Lessee commenced SUC said thirty (30) day period and thereafter diligently prosecutes such cure to completion. To the extent permitted by law, such thirty (3r shall constitute the sole and exclusive notice required to be given to Lessee under applicable Unlawful Detainer statutes.
(d) (i) The making by Lessee of any general arrangement or general assignment for the benefit of creditors: (ii) Lessec "debtor" as defined in 11 U.S.C. 8101 or any successor statute thereto (unless. in the case of a petition filed against Lessee. the same within sixty (60) days); (iii) the appointment of a trustee or receiver to take possession of substantially all of Lessee's assets located at 1 or of Lessee's interest in this Lease, where possession is not restored to Lessee within thirty (30) days; or (iv) the attachment. execu judicial seizure of substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where such s discharged within thirty (30) days. In the event that any provision of this paragraph 13.1 (d) is contrary to any applicable law, such prow of no force or effect.
(e) The discovery by Lessor that any financial statement given to Lessor by Lessee, any assignee of Lessee, any subtenant 0 successor in interest of Lessee or any guarantor of Lessee's obligation hereunder, was materially false.
13.2 Remedles. In the event of any such material default by Lessee. Lessor may at any time thereafter. with or without notice or without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of such default:
(a) Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease and the term i61n"iiiiSte and LeSs'ee shall immedialeiy Surre'nde'r; possession of the Premises to Lessor. In such event Lessor snail De entitled to I
Lessee all damages incurred by Lessor by reason of Lessee's default including, but not limited to, thecost of recovering possession oft expenses of reletttng. including necessary renovation and alteration of the Premises, reasonable attorney's fees, and, any real estate actually paid: the worth at the time of award by the court having jurisdiction thereof of the amount by which the unpaid rent for the bi term after the time of such award exceeds the amount of such rental loss for the same period that Lessee proves could be reasonably i portion of the leasing commission paid by Lessor pursuant to paragraph 15 applicable to the unexpired term of this Lease.
(b) Maintain Lessee's right to possession in which case this Lease shall continue in effect whether or not Lessee Shall ha% abandoned the Premises. In such event Lessor shall be entitled to enforce all of Lessor's rights and remedies under this Lease. includin recover the rent as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor under the laws or judicial decisions of the state wherein 1 are located. Unpaid installments of rent and other unpaid monetary obligations of Lessee under the terms of this Lease shall bear inte date due at the maximum rate then allowable by law.
13.3 Default by Lessor. Lessor shall not be in default unless Lessor fails to perform obligations required of Lessor within a reason? in no event later than thirty (30) days after written notice by Lessee to Lessor and to the holder of any first mortgage or deed Of trust Premises whose name and address shall have theretofore been furnished to Lessee in writing, specifying wherein Lessor has failed to I: obligation; provided. however, that if the nature of Lessor's obligation is such that more than thirty (30) days are required for perf0 Lessor shall not be in default if Lessor commences performance within such thirty (30) day period and thereafter diligently prosecute completion.
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(Ib a 13.4 Late Charges. Lessee hereby ac . wledges that late Payment by Lessee to Lessor of BaseRent. Lessee's Share of Operatin
h or other sums due hereunder will cause Lessor to incur costs not contemplated by this Lease. the exact amount of which will beextrem to ascertain. Such costs include. but are not limited to. processing and accounting charges, and late charges which may be imposed 0
~ the terms of any mortgage or trust deed covering the Property. Accordingly. if any installment of Base Rent. Operating Expenses, or an, due from Lessee shall not be received by Lessor or Lessor's designee within ten (IO) days after such amount shall be due. then. \ requirement for notice to Lessee, Lesseeshall pay lo LesSOra latechargeequal to 6%ofsuch overdue amount. The parties hereby agrc late charge represents a fair and reasonable estimate of the costs Lessor will incur by reason of late payment by Lessee. Acceptance - charge by Lessor shall in no event constitutea waiver of Lessee's default with respect to such overdueamount. nor prevent Lessor fron any of the other rights and remedies granted hereunder. In theevent that a latecharge is payable hereunder, whether or not collected, consecutive installments of any of the aforesaid monetary obligations of Lessee, then Base Rent shall automatically become due a quarterly in advance, rather than monthly, notwithstanding paragraph 4.1 or any other provision of this Lease to the contrary.
broker(s). the sum of or brokerage services rendered by said brok
ed into between the partie3 ons, Lessor shall pay said to the Premises and/or any fee in accordance with the
16. Estoppel Certificate.
(a) Each party (as'Yesponding party") shall at any time upon not less than ten (10) days' priorwritten notice from theother party ("I party") execute, acknowledge and deliver to the requesting party a statement in writing (i) certifying that this Lease is unmodified and i and effect (or, if modified. stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effe date to which the rent and other charges are paid in advance, if any. and (ii) acknowledging that there are not. to the responding party's k any uncured defaults on the part of the requesting party, or specifying such defaults if any are claimed. Any such statement may be cc relied upon by any prospective purchaser or encumbrancer of the Premises or of the business of the requesting party.
(b) At the requesting party's option, the failure to deliver such statement within such timeshall be a material default of this Lease b who is to respond, without any further notice to such party, or it shall be conclusive upon such party that (i) this Lease is in full force ~ without modification except as may be represented by the requesting party, (ii) there are no uncured defaults in the requesti performance, and (iii) if Lessor is the requesting party, not more than one month's rent has been paid in advance.
(c) If Lessor desires to finance, refinance, or sell the Property, or any part thereof, Lessee hereby agrees to deliver to any lender or designated by Lessor such financial statements of Lessee as may be reasonably required by such lender or purchaser. Such stater include the past three (3) years' financial statements of Lessee. All such financial statements shall be received by Lessor and sucl purchaser in confidence and shall be used only for the purposes herein set forth.
17. Lessor's Llabllity. The term "Lessor' as used herein shall mean only the owner or owners, at the time in question. of the fee title 01 interest in a ground lease of the+da@wet Center, and except as expressly provided in paragraph 15. in the event of any transfer of SI Interest. Lessor herein named (and in case of any subsequent transfers then the grantor) shall be relieved from and after the date of such all liability as respects Lessor's obligations thereafter to be performed, provided that any funds in the hands of Lessor or the then grantor of such transfer. in which Lessee has an interest, shall be delivered to the grantee. The obligations contained in this Lease to be per Lessor shall, subject as aforesaid, be binding on Lessor's successors and assigns, only during their respective periods of ownership.
18. Severabllity. The invalidity of any provision of this Leasaas determined by a court of competent jurisdiction. shall in no way affect t of any other provision hereof.
19. interest on Past-due Obllgallona. Except as expressly herein provided, any amount due to Lessor not paid when dueshall bear inte maximum rate then allowable by law from the date due. Payment of such interest shall not excuse or cure any default by Lessee under t provided, however, that interest shall not be payable on late charges incurred by Lessee nor on any amounts upon which late charges a Lessee.
20. Time of Essence. Time is of the essence with respect to the obligations to be performed under this Lease.
21. Additional Rent. All monetary obligations of Lessee to Lessor under the terms of this Lease, including but not limited to Lessee': Operating Expenses and insurance and tax expenses payable shall be deemed to be rent.
22. lncorporatlon of Prior Agreements; Amendments. This Lease contains all agreements of the parties with respect to any matter r herein. No prior or contemporaneous agreement or understanding pertaining to any such matter shall be effective. This lease may be n writing only, signed by the parties in interest at the time of the modification. Except as otherwise stated in this Lease, Lessee hereby ackr that neither the real estate broker listed in paragraph 15 hereof nor any cooperating broker on this transaction nor the Lessor or any en agents of any of said persons has madeany oral or written warrantiesor representations to Lessee relative to the condition or use by Le: Premises or the Property and Lessee acknowledges that Lessee assumes all responsibility regarding the Occupational Safety Health Ac use and adaptability of the Premises and the compliance thereof with all applicable laws and regulations in effect during the term of except as otherwise specifically stated in this Lease.
23. Notlces. Any notice required or permitted to be given hereunder shall be in writing and may be given by personal deliveryor by cerj and if given personally or by mail, shall be deemed sufficientlygiven if addressed to Lessee or to Lessor at the address noted below the si, ase may be. Either party may by notice to the other specify a different address for notice purposes except Ih& Fiwnises. the Pretilises,siiaii ~.cilrs~.i,uls,~essee's address for notice purposes. A copy of all notices ri r hereunder shall be concurrently transmitted to such party or parties at such addresses as Lessor may frc time hereafter designate by notice to Lessee.
24. Waivers. No waiver by Lessor or any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent I Lessee of the same or any other provisioin. Lessor's consent to. or approval of, any act shall not be deemed to render unnecessary the ob
Lessor's consent to or approval of any subsequent act by Lessee. The acceptance of rent hereunder by Lessor shall not be a waiver of any f breach by Lessee of any provision hererof, other than the failure of Lessee to pay the particular rent so accepted, regardless of Lessor's ki of such preceding breach at the time of acceptance of such rent.
25. Recording. Either Lessor or Lessee shall. upon request of the other, execute, acknowledge and deliver to the other a "sh memorandum of this Lease for recording purposes.
26. Holdlng Over. If Lessee, with Lessor's consent, remains in possession of the Premises or any part thereof after the expiration 0 hereof, such occupancy shall be a tenancy from month to month upon all theprovisionsof this Lease pertaining to the obligations Of Less %
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27. Cumulative Remedles. NO remedy or election hereunder shall be deemed exclusive but shall. wherever possible, be cumulative I remedies at law or in equity.
28. Covenants and Conditfonr. Each provision of this Lease performable by Lessee shall be deemed both a covenant and a condi
29. Binding Effect: Choice of Law. Subject to any provisions hereof restricting assignment or sublettin by Lessee and subject to the l paragraph 17, this Lease shall bind the parties. their personal representatives, successors and assigns. ?his Lease shall be governed t
thestatewhere the+ft&eW& ' Center is located and any litigation concerning this Lease between the parties heretoshall be initiated in which the kdus&A ' Center is located.
30. Subordination.
(a) This Lease, and any Option granted hereby. at Lessor'soption, shall besubordinatetoany ground lease, mortgage, deed 01 other hypothecation or security now or hereafter placed upon the Industrial Center and to any and all advances made on the security ti all renewals, modifications. consolidations. replacements and extensions thereof. Notwithstanding such subordination. Lessee's I possession of the Premises shall not be disturbed if Lessee is not in default and so long as Lesseeshall pay the rent and observe and p the provisions of this Lease. unless this Lease is otherwise terminated pursuant to its terms. If any mortgagee, trustee or ground lessor have this Lease and any Options granted hereby prior to the lien of its mortgage, deed of trust or ground lease,and shall give written nc to Lessee, this Lease and such Options shall be deemed prior to such mortgage, deed of trust or ground lease, whether this Lease or s are dated prior or subsequent to the date Of said mortgage. deed of trust or ground lease or the date of recording thereof.
(b) Lessee agrees to execute any documents required to effectuate an attornment. a subordination or to make this Lease 01 granted herein prior to the lien of any mortgage. deed of trust or ground lease. as the case may be. Lessee's failure to execute suct within ten (10) days after written demand shall Constitute a material default by Lessee hereunder without further notice to Lesseeom option, Lessor shall execute such documents on behalf of Lessee as Lessee's attorney-in-fact. Lessee does hereby make, co irrevocably appoint Lessor as Lessee's attorney-in-fact and in Lessee's name, place and stead, to execute such documents in accorda paragraph 30(b).
31. Attorney's Fees. If either party or the broker(s) named herein bring an action to enforce the terms hereof or declare rights he prevailing party in any such action, on trial or appeal. shall be entitled to his reasonableattorney'sfees to be paid by the losing party a: court. The provisions of this paragraph shall inure to the benefit of the broker named herein who seeks to enforce a right hereunde
32. Lessor's Access. Lessor and Lessor's agents shall have the right to enter the Premises at reasonable times for the purpose of in same, showing the same to prospective purchasers. lenders, or lessees, and making such alterations. repairs, improvements or adc Premises or to the building of which they are part as Lessor may deem necessary or desirable. Lessor may at any time place on Premises or the Building any ordinary"For Sale" signs and Lessor may at any time during the last 120 days of the term hereof place on Premises any ordinary "For Lease"signs. All activities of Lessor pursuant to this paragraph shall be without abatement of rent, nor shall any liability to Lessee for the same.
33. Auctions. Lessee shall not conduct, nor permit to be conducted, either voluntarily or involuntarily. any auction upon the Prei Common Areas without first having obtained Lessor's prior written consent. Notwithstanding anything to the contrary in this Lease, not be obligated to exercise any standard of reasonableness in determining whether to grant such consent.
34. Signs. Lessee shall not place any sign upon the Premises or thelnAtlrtrlnl Center without Lessor's prior written consen circumstances shall Lessee place a sign on any roof of theJadwU4 Center.
35. Merger. The voluntary or other surrenderof this Lease by Lessee, or a mutual cancellation thereof, or atermination by Lessor, shE merger, and shall, at the option of Lessor. terminate all or any existing subtenancies or may. at the option of Lessor, operate as an as Lessor of any or all of such subtenancies.
36. Consents. Except for paragraph 33 hereof. wherever in this Lease theconsent of one party is required toan act of the other party s shall not be unreasonably withheld or delayed.
37. Guarantor. In the event that there is a guarantor of this Lease, said guarantor shall have the same obligations as Lessee under
38. Quiet Possession. Upon Lessee paying the rent for the Premises and observing and performing all of the covenants. conditions an on Lessee's part to be observed and performed hereunder, Lessee shall have quiet possession of the Premises for the entire term here' all of the provisions of this Lease. The individuals executing this Lease on behalf of Lessor represent and warrant to Lessee that tt authorxed and legally capable of executing this Lease on behalf of Lessor and that such execution is binding upon all parties holding a interest in the Property.
property of Less
ay be exercised or subletting the Pren entity other than Lessei .2 of this Lease. The Opt rated from this Lease in a either by reservation or otherwise.
39.4 Effect of Default on Options.
the grant of Option to the contrary, (i) raph 13.l(b) or 13.l(c) and continuir
under the provisions of an Option shall terminate and be of no further force or
40. Security Measures. Lessee hereby acknowledges that Lessor shall have no obligation whatsoever to provide guard service or ott measures for the benefit of the Premises or the Industrial Center. Lessee assumes all responsibility for the protection Of Lessee. its i invitees and the property of Lessee and of Lessee's agents and invitees from acts of third parties. Nothing herein contained shall preven Lessor's sole option. from providing security protection for the Industrial Center or any part thereof, in which event the cost there included within the definition of Operating Expenses. as set forth in paragraph 4.2(b).
41. Easements. Lessor reserves to itself the right, from time totime. togrant such easements. rights and dedications that Lessor deems or desirable. and to cause the recordation of Parcel Maps and restrictions. so long as such easements, rights, dedications. Maps and rest not unreasonably interfere with the use of the Premises by Lessee. Lessee shall sign any of the aforementioned documents upon reque: and failure to do so shall constitute a material default of this Lease by Lessee without the need for further notice to Lessee.
42. Performance Under Protest. If at any time a dispute shall arise as to any amount or sum of money to be paid by one party to the othe provisions hereof, the party against whom the obligation to pay the money is asserted shall have the right to make payment "under pi such payment shall not be regarded as a voluntary payment, and there shall survive the right on the part of said party to institutesuit for i such sum. If it shall be adjudged that there was no legal obligation on the part of said party to pay such sum or any part thereof, said pa entitled to recover such sum or so much thereof as it was not legally required to pay under the provisions of this Lease.
initials: - MULTI TENANT-MODIFIED NET ".American Industrial Real Estate Assooation 1981 -7- -
* e
- 43. Authority. If Lessee is a corporation. trust, or general or limited partnership, each individual executing this Lease on behalf of SUI represents and warrants that he or she is duly authorized to execute and deliver this Leaseon behalf of said entity. If Lessee isacorporatior partnership. Lessee shall, within thirty (30) days after execution of this Lease, deliver to Lessor evidence of such authority satisfactory tc
44. Conflict. Any conflict between the printed provisionsof this Leaseand the typewritten or handwritten provisions, if any, shall becont the typewritten or handwritten provisions.
45. Offer. Preparation of this Lease by Lessor or Lessor's agent and submission of same to Lessee shall not be deemed an offer to lei Lease shall become binding upon Lessor and Lessee only when fully executed by Lessor and Lessee.
46. Addendum. Attached hereto is an addendum or addenda containing paragraphs constitute a part of this Lease.
47. DAMAGE AND LESTRUCTION.
N/A through
For Purp0sC.s of this paragraph, "Insured Loss" shall mean damage or destruction
was covered by an event required to be covered by the: insursnce described in paragra
The fact that an Insured Loss has a deductible amount shall not make the loss an uni
loss.
(1) Insured Loss: If at any time during the term of this Lease there is damag destrtction cf the Premises which is an Insured Loss, then Lessor shall, at Lessor's
repair such damage to the Premises, but not Lessee's fixtures, equipment or tenant i
as soon as reasonably possible and this Lease shall continue in full force and effec
If at. any time durfng the term of this Lease ttere is dan
or destruction of the Premises. which is not an Insured Loss, Lessee shall make the I
at Lessee's expense and this Lease shall continue in full force and effect.
(2) Uninsured Loss:
(3) Waiver: Lessor snd Leseee waive the provisions of any statute. which re12
termination of leases KheF leased property is destroyed and agree that such event SI
governed by the terms cf this Lease. Under no circumstances shall Lessee be entitlc
abatement of rent as a result of damage or destruction of the Premises.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION C( HEREIN AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE HEREBY AGREE THAT, AT THE TfME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.
THIS LEASE HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY FOR APPROVAL. NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION OR BY THE REAL ESTATE BROKER OR ITS AGENTS OR EMPLOYEES AS
TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION RELATING THERETO: THE PARTIES SHALL RELY SOLELY UPON THE ADVfCE OF THEIR OWN LEGAL COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
LESSOR LESSEE
Carlsbad .Housing and Redevelopment Commissictn Carlsbad Unified School District
BY . BY
BY BY
-_.-
Executed on Executed on (Corwfrtc Seal)
ADDRESS FOR NOTICES AND RENT ADDRESS
For these forms write the American Industrial Real Estate Association. 350 South Figueroa st., Suite 275. LOS Angeles, CA 90071
Fc
T D TO AGREEMENT e EXHIO
RECORDING REQUESTED BY 1
AND WHEN RECORDED MAIL TO: 1
) STRADLING, YOCCA, CARLSON & RAUTH )
660 Newport Center Drive )
Suite 1600 )
Attn: Joel H. Guth 1 1
Newport Beach, California 92660 )
[Space above line for recorderls use 0'
MEMORANDUM OF LEASE
This Memorandum of Lease is made as of the day of
19
("Lessor") and the CARLSBAD UNIFIED SCHOOL DISTRICT, a public agency
("Lessee").
by and between the CARLSBAD HOUSING AND REDEVELOPMENT COMMISSION -
By this Memorandum of Lease, for good and adequate consideration
pursuant to all the terms and conditions set forth in that certain lease
agreement by and between Lessor and Lessee and dated as of I 19-
(the "Lease Agreement"), all the terms and conditions of which are made a
part hereof as though fully set forth herein, (1) Lessor does hereby least
Lessee and Lessee does hereby let from Lessor that certain real property,
together with the improvements located thereon, situated in the County of
Diego, State of California, more particularly described in Exhibit "A"
attached hereto and incorporated herein by this reference (the "Premises"]
for a term of ten (10) years commencing on I 19- and ending on
, 19 , unless sooner terminated in accordance with the Lease -
Agreement: and (2) Lessor does hereby agree that following the end of saic
ten (10) year term, provided the Lease Agreement has not been terminated
prior to the end of such ten (10) year term and Lessee is not then in deft
in the payment of rent or any other sums payable by Lessee pursuant to tht
terms of the Lease Agreement, Lessor shall convey to Lessee a fee interesl
the Premises pursuant to the terms of the Lease Agreement and that certair
Agreement for Cooperation Between Carlsbad Unified School District, the
Carlsbad Housing and Redevelopment Commission and the City of Carlsbad dat
, 1988, all of the terms and conditions of which are made a part
hereof or though fully set forth herein.
m e *
ALL WITNESS WHEREOF, the parties have executed this Memorandum of
Lease as of the date first above written.
It Less or (I THE CARLSBAD HOUSING AND REDEVELOPMENT
COMMISSION
By :
Its:
It Le s see It THE CARLSBAD UNIFIED SCHOOL DISTRICT
By :
Its:
3754r/5705/001 -2-
Iliul I A I U IVIClVlUK e- LEASE m
EXHIBIT A
DESCRIPTION OF PREMISES
School Administrative Offices
As shown on the attached floor plans.
I,. ?..
I
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0 a d.d4dd.~d*zg~
. . ,,+. i c IC - . " -. .).. . 3 < .- I..
I
D INDUSTRIAL LEASW GROSS
AMERl AN INDUSTRIAL REAL ESTATE ASSOCIATION
-19 , is n
(herein callc
(herein calle
2. Premises. Lessor hereby leases to Lessee and Lessee leases from Lessor for the term, at the rental, and upon all of the conditi,
herein, that certain real property situated in the County of a DlqO
commonly known as the Safety enter
and described as a 3600 squar e foot Mil= as shown on attached pl=an
QR 3'aNDF
- 1. Partler. This Lease, dated, for reference purposes only,
between 5%- Cih7 &sZd.&3ii
and Wlsbad Unified school District
State of C;I1 i fnrni a
v and parkinq and storaqe a. a.
Said real property including the land and all improvements therein, is herein called "the Premises".
3. Term.
commencing on and ending on
unless sooner terminated pursuant to any provision hereof.
3.2 Delay In Porserslon. Notwithstanding said commencement date, if for any reason Lessor cannot deliver possession of the Lessee on said date, Lessor shall not be subject to any liability therefor, nor shall such failure affect the validity of this Lease or the 01 Lessee hereunder or extend the term hereof. but in such case, Lessee shall not be obligated to pay rent until possession of the Premise: to Lessee: provided. however, that if Lessor shall not have delivered possession of the Premises within sixty (60) days from said corn date, Lessee may. at Lessee's option. by notice in writing to Lessor within ten (10) days thereafter, cancel this Lease, in which event the be discharged from all obligations hereunder; provided further. however, that if such written notice of Lessee is not received by Lesso ten (10) day period, Lessee's right to cancel this Lease hereunder shall terminate and be of no further force or effect.
3.3 Early Possession. If Lessee occupies the Premises prior to said commencement date, such occupancy shall be subject to a hereof. such occupancy shall not advance the termination date, and L sseeshall pay rent for such period atthe initial monthly rates set
, in advance, on%
e erm ere0 . Lessee shall pay Lessor upon the execution hereof $ nh as rent for -
3.1 Term. The term of this Lease shall be for fprl (101 VeaI-S
annuaf & ~o~~gLep+s rent for the Premises, maw paymentsof $ lotooo moo
tho term nf thic: T-_
Rent for any period during the term hereof which is for less than one month shall be a pro rata portion of the monthly installment. A payable in lawful money of the United States to Lessor at the address stated herein or to such other persons oral such other places as designate in writing.
5. Securlty Deposit. Lessee shall deposit with Lessor upon execution hereof $ as security for Less performance of Lessee's obligations hereunder. If Lessee fails to pay rent or other charges due hereunder, or otherwise defaults with re: provision of this Lease, Lessor may use, apply or retain all or any portion of said deposit for the payment of any rent or other charge in d the payment of any other sum to which Lessor may become obligated by reason of Lessee's default, or to compensate Lessor for any 10s: which Lessor may suffer thereby. If Lessor so uses or applies all or any portion of said deposit, Lessee shall within ten (10) days 2 demand therefor deposit cash with Lessor in an amount sufficient to restore said deposit to the full amount hereinabove stated and Les to do so shall be a material breach of this Lease. If the monthly rent shall, from time to time, increase during the term of this Lease, 1 thereupon deposit with Lessor additional security deposit so that the amount of security deposit held by Lessor shall at all times be proportion to current rent as the original security deposit bears to the original monthly rent set forth in paragraph 4 hereof. Lessor required to keep said deposit separate from its general accounts. If Lessee performs all of Lessee's obligations hereunder, said deposit thereof as has not theretofore been applied by Lessor, shall be returned, without payment of interest or other increment for its use, to L' Lessor's option, to the last assignee, if any, of Lessee's interest hereunder) at the expiration of the term hereof, and after Lessee has Premises. No trust relationship is created herein between Lessor and Lessee with respect to said Security Deposit.
6. Use.
6.1 Use. The Premises shall be used and occupied only for
or any other use which is reasonably comparable and for no other purpose.
F &&" (60) -haeq- Storacp 0.. supplies 2nd supplies related to use's z
6.2 Compliance with Law. (a) Lessor warrants to Lessee that the Premises, in its stateexisting on thedate that theLease term commences, butwithout rf use for which Lessee will use the Premises. does not violate any covenants or restrictionsof record, or any applicable building code, re ordinance in effect on such Lease term commencement date. In the event it is determined that this warranty has been violated, then it obligation of the Lessor, after written notice from Lessee, to promptly, at Lessor's sole cost and expense, rectify any such violation. I Lessee does not give to Lessor written notice of the violation of this warranty within six months from the date that the Lease term comr correction of same shall be the obligation of the Lessee at Lessee's sole cost. The warranty contained in this paragraph 6.2 (a) shall be of effect if, prior to the date of this Lease, Lessee was the owner or occupant of the Premises, and, in such event, Lessee shall correct any su at Lessee's sole cost.
(b) Except as provided in paragraph 6.2(a), Lessee shall, at Lessee's expense, comply promptly with all applicable statutes. ( rules. regulations, orders. covenants and restrictions of record, and requirements in effect during the term orany part of the term hereof the use by Lesseeof the Premises. Lessee shall not use nor permit the use of the Premises in any manner that will tend to create waste or or, if there shall be more than one tenant in the building containing the Premises, shall tend to disturb such other tenants.
6.3 Condltlon 01 Premises.
(a) Lessor shall deliver the Premises to Lessee clean and free of debris on Lease commencement date (unless Lessee i! possession) and Lessor further warrants to Lessee that the plumbing. lighting, air conditioning, heating, and loading doors in the Premi in good operating condition on the Lease commencement date. In the event that it is determined that this warranty has been violated, thc the obligation of Lessor, after receipt of written notice from Lessee setting forth with specificity the nature of the violation, to promptly, sole cost. rectify such violation. Lessee's failure to give such written notice to Lessor within thirty (30) days after the Lease commenc shall cause the conclusive presumption that Lessor has complied with all of Lessor's obligations hereunder. The warranty conta paragraph 6.3(a) shall be of no force or effect if prior to the date of this Lease, Lessee was the owner or occupant of the Premises.
commencement date or the date that Lessee takes possession of the Premises, whichever is earlier, subject to all applicable zoning. county and state laws, ordinances and regulations governing and regulating the use of the Premises, and any covenants or restriction! and accepts this Lease subject thereto and to all matters disclosed thereby and by any exhibits attached hereto. Lessee acknowledges t Lessor nor Lessor's agent has made any representation or warranty as to the present or future suitability of the Premises for the conduct business.
7. Maintenance, Repalrs and Alteratlons.
(b) Except as otherwise prov&A.L; ;~A.-L~uL,- L,AG& h&,&y.x.x,,w ;%~~,.-,,LL: ::a.
'ndows. doors or plate gl hall have no o
7.1 Lessee's Obligations.
(a) Subject to the provisions of Paragraphs 6, 7.1 and 9, Lessee, at Lessee's expense, shall keep in good order, condition ani Premises and every part thereof (whether or not the damaged portion of the Premises or the means of repairing the same are reasonabl accessable to Lessee) including, without limiting the generality of the foregoing, all plumbing, heating, air conditioning, (Lessee shall p
Jnltials: -
@ American Industrial Real Estate Association 1980 GROSS A - ..
8 0
maintain. at Lessee's expense, an air conditioning System maintenance contract) ventilating, electrical and lighting facilitias and equip - tlie Premises. fixtures. interior walls and interior surface of exterior Walls, ceilings. windows, doors, plate glass. and skylights. locate Premises. and all landscaping, driveways. parking lots. fences and signs located in the Premises and all sidewalks and parkways adj Premises.
(b) If Lessee fails to perform Lessee's obligations under this Paragraph 7.2 or under any other paragraph of this Lease, Le - Lessor's option enter upon the Premises after 10 days' prior written notice to Lessee (except in the case of emergency, in which case no be required). perform such obligations on Lessee's behalf and put the Premises in good order, condition and repair, and the cost then with interest thereon at the maximum rate then allowable by law shall be due and payable as additional rent to Lessor together with LI rental installment.
(c) On the last day of the term hereof, or on any sooner termination. Lessee shall surrender the Premises to Lessor in the san as received, ordinary wear and tear excepted. clean and free of debris. Lessee shall repair any damage to the Premises occasic installation or removal of its trade fixtures. furnishings and equipment. Notwithstanding anything to the contrary otherwise stated ir Lessee shall leave the air lines. power panels. electrical distribution systems, lighting fixtures, space heaters, air conditioning. pli
fencing on the premises in good operating condition.
7 3 Alterations and Addltlons.
(a) Lessee shall not. without Lessor's prior written consent make any alterations. improvements, additions, or Utility Installati about the Premises. except for nonstructural alterations not exceeding $2.500 in cumulative costs during the term of this Lease. If whether or not in excess of $2.500 in cumiJlative Cost. Lessee shall make no change or alteration to the exterior of the Premises north the building(s) on the Premises without Lessor's prior written consent. As used in this Paragraph 7.3 the term "Utility Installation" carpeting, window coverings. air lines. Power panels. electrical distribution systems, lighting fixtures, space heaters, air conditioninp and fencing. Lessor may require that Lessee remove any or all of said alterations, improvements, additions or Utility Installations at the e the term, and restore the Premises to their prior condition. Lessor may require Lessee to provide Lessor, at Lessee's sole cost and exp and completion bond in an amount equal to one and one-half times the estimated cost of such improvements. to insure Lessor against for mechanic's and materialmen's liens and to insure completion of the work. Should Lessee make any alterations, improvements, i Utility Installations without the prior approval of Lessor, Lessor may require that Lessee remove any or all of the same.
(b) Any alterations. improvements. additions or Utility Installations in. or about the Premises that Lessee shall desire to makc requires the consent of the Lessor shall be presented to Lessor in written form. with proposed detailed plans. If Lessor shall give its c consent shall be deemed conditioned upon Lessee acquiring a permit to do so from appropriate governmental agencies, the furnishir thereof to Lessor prior to the commencement of the work and the compliance by Lessee of all conditions of said permit in a prompt and t manner.
(c) Lessee shall pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Lessee at the Premises. which claims are or may be secured by any mechanics'or materialmen's lien against the Premises or any interest therein. 1 give Lessor not less than ten (10) days' notice prior to the commencement of any work in the Premises, and Lessor shall have the r notices of non-responsibility in or on the Premises as provided by law. If Lessee shall, in good faith, contest the validity of any such lit demand, then Lessee shall, at its sole expense defend itself and Lessor against the same and shall pay and satisfy any such adverse juc may be rendered thereon before the enforcement thereof against the Lessor or the Premises, upon thecondition that if Lessor shall reqi shall furnish to Lessora surety bond satisfactory to Lessor in an amount equal to such contested lien claim or demand indemnifying Le! liability for the same and holding the Premises free from the effect of such lien or claim. In addition, Lessor may require Lessee to p attorneys fees and costs in participating in such action if Lessor shalt decide it is to its best interest to do so.
(d) Unless Lessor requires their removal. as set forth in Paragraph 7.3(a), all alterations, improvements, additionsand Utility I' (whether or not such Utility Installations constitute trade fixtures of Lessee), which may be made on the Premises, shall become the Lessor and remain upon and be surrendered with the Premises at the expiration of the term. Notwithstanding the provisions of this 7.3(d). Lessee's machineryand equipment, other than that which is affixed to the Premisesso that it cannot be removed without materia the Presmises. shall remain the property of Lessee and may be removed by Lessee subject to the provisions of Paragraph 7.2(c).
8. Insurance: Indemnity.
8.1 Liabillty Insurance - Lessee. Lessee shall, at Lessee's expense. obtain and keep in force during the term of this Lease Combined Single Limit Bodily Injury and Property Damage Insurance insuring Lessee and Lessor against any liability arising out occupancy or maintenance of the Premises and all other areas appurtenant thereto. Such insurance shall be in an amount not less tha per occurrence. The policy shall insure performance by Lessee of the indemnity provisions of this Paragraph 8. The limits of said insu not, however, limit the liability of Lessee hereunder.
<f damage to the Premises, but not Lessee's fixtures, equipment or tenant improvements in an amount not to exceed meFovei the full replace!
thereof, as the same may exist from time to time. providing protection against all perils included within theclassification of fire, extendec
.. . .. . . I&
8.4 Payment of Premium Increase.
(a) Lessee shall pay to Lessor, during the term hereof. in addition to the rent, the amount of any+aamia.premiurns for the required under ParagraphGM.aad8.3 8
(b) Lessee shall pay any such premium - to Lessor within 30 days after receipt by Lessee of a copy of the premium Sti other satisfactory evidence of the amount due. If the insurance policies maintained ereunder cover other improvements in addil
detail, the manner in which such amount was computed. If the term of this Lease shall not expire concurrent1 with the expiration of covered by such insurance, Lessee's liability for premiumincreaaos shall be prorated on an annual basis.
Premises, Lessor shall also deliver to Lessee a statement of the amount of suchi;4cceaf P attributable to the Premises and showing in r
rpr€%UUln
8.5 Insurance Pollcler. Insurance required hereunder shall be in companies holding a "General Policyholders Rating" of at least such other rating as may be required by a lender having a lien on the Premises, as set forth in the most current issue of "Best's Insurani Lessee shall deliver to Lessor copies of policies of liability insurance required under Paragraph 8.1 or certificates evidencing the exi! amounts of such insurance. No such policy shall be cancellable or subject to reduction of coverage or other modification except after days' prior written notice to Lessor. Lessee shall, at least thirty (30) days prior to the expiration of such policies, furnish Lessor with ri "binders" thereof, or Lessor may order such insurance and charge the cost thereof to Lessee, which amount shall be Rayable by Le demand. Lessee shall not do or permit to be done anything which shall invalidate the insurance policies referred to in Paragraph 8.3.
8.6 Waiver of Subrogstlon. Lessee and Lessor each hereby release and relieve the other, and waive their entire right of recovery I other for loss or damage arisingout of or incident to the perils insured against under paragraph 8.3, which perils occur in, on or about the whether due to the negligence of Lessor or Lessee or their agents.,employees. contractors itees. Lessee and Lessor shall, upor c- fr-nnrinn -'.*""l..w!,~jlj~r of y!hl
contained in this Lease.
8.7 Indemnity. Lessee shall indemnify and hold harmless Lessor from and against any and all claims arising from Lessee's Premises, or from the conduct of Lessee's business or from any activity, work or things done, permitted or suffered by Lessee in or Premises or elsewhere and shall further indemnify and hold harmless Lessor from and against any and all claimsarising from any breach in the performance of any obligation on Lessee's part to be performed under the terms of this Lease, or arising from any negligence of the any of Lessee's agents, contractors, or employees, and from and against all costs, attorney's fees, expenses and liabilities incurred in the any such claim or any action or proceeding brought thereon; and in case any action or proceeding be brought against Lessor by reason 0 claim. Lessee upon notice from Lessorshall defend thesameat Lessee'sexpense by counsel satisfactory to Lessor. Lessee. as a material consideration to Lessor, hereby assumes all risk of damage to property or injury to persons, in. upon or about the Premises arising from and Lessee hereby waives all claims in respect thereof against Lessor.
8 8 Exemptlon of Lessor from Liablllty. Lessee hereby agrees that Lessor shall not be liable for injury to Lessee's business Or i income therefrom or for damage to the goods, wares, merchandise or other property of Lessee, Lessee's employees. invitees. CuStOml other person in or about the Premises, nor shall Lessor be liable for injury to the person of Lessee, Lessee's employees, agents or cc whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, or from the breakage, leakage, obs' other defects of pipes. sprinklers, wires. appliances, plumbing. air conditioning or lighting fixtures, or from any other cause. whethf damage or injury results from conditions arising upon the Premises or upon other portions of the building of which the Premises area pS other sources or places and regardless of whether thecauseof such damageor injury or the meansof repairing the same is inaccessible
Lessor shall not be liable for any damages arising from any act or neglect of any other tenant, if any. of the building in which the PrC located.
Initlals: -
GROSS -2- -
_. L. , ~ ,. the ooJic,ie$. of insurance required hereunder, give Rotice to, +h.~,.lnSrlr_'rnyhSar~i~r-~r c?;r. . -.
9. 'Damage or Destrucllon. 8 e 9.1 Deflnltlons.
(a) "Premises Partial Damage" shall herein mean damage or destruction to the Premises to the extent that the cost of repa
50% of the fair market value of the Premises immedlately prior to such damage or destruction. Premises Building Partial Dama e mean damage or destruction to the building of whlch the Premises are a part to the extent that the cost of repair, Is less than 50% oett value of such building as a whole immediately prior to such damage or destruction.
(b) ".Premises Total 0estruction"shall herein mean damage or destruction to the Premises to the extent that the cost of re
more of the fair market value of the Premises immediately prior to such damage or destruction. "Premises Building Total Destruction mean damage or destruction to the building of which the Premises are a part to the extent that the cost of repair is 50% or more of 11 value of such building as a whole immediately prior to such damage or destruction.
(c) "Insured Loss" shall herein mean damage or destruction which was caused by an event required to be covered by t described in paragraph 8.
9.2 Partial Damage - Insured Loss. Subject to the provisions of paragraphs9.4,9.5 and 9.6, if at any time during the term of th is damage which is an Insured Loss and which falls into the classification of Premises Partial Damage or Premises Building Partial I Lessor shall, at Lessor's sole cost. repair such damage, but not Lessee's fixtures, equipment or tenant improvements, as soon E
possible and this Lease shall continue in full force and effect.
9.3 Partial Damage - Uninsured Loss. Subject to the provisions of Paragraphs 9.4,9.5 and 9.6, if at any time during the terr there is damage which is not an Insured Loss and which falls within the classification of Premises Partial Damage or Premises 81 Damage, unless caused by a negligent or willful act of Lessee (in which event Lessee shall make the repairs at Lessee's expense), 1 Lessor's option either (i) repair such damage as soon as reasonably possible at Lessor's expense, in which event this Lease shall cc force and effect. or (ii) give written notice to Lessee within thirty (30) days after the dateof the occurrenceof such damage of Lessor cancel and terminate this Lease, as of the date of the occurrence of such damage. In theevent Lessorelects to givesuch notice of Less tocancel and terminatethis Lease. Lesseeshall have therightwithin ten (10) daysafterthereceiptofsuch noticetogivewritten notic Lessee's inteption to repair such damage at Lessee's expense, without reimbursement from Lessor, in which event this Lease shall cc force and effect. and Lessee shall proceed to make such repairs as soon as reasonably possible. If Lessee does not give such noticl 10-day period this Lease shall be cancelled and terminated as of the date of the occurrence of such damage.
9.4 Total Destruction. If at any time during the term of this Lease there is damage, whether or not an Insured Loss, (includin! required by any authorized public authority). which falls into the classification of Premises Total Destruction or Premises B Destruction, this Lease shall automatically terminate as of the date of such total destruction.
9.5 Damage Near End of Term.
-
i
(a) If at any time during the last six months of the term of this Lease there is damage, whether or not an Insured Loss, which fi classification of Premises Partial Damage, Lessor may at Lessor's option cancel and terminate this Lease as of the date of occurr damage by giving written notice to Lessee of Lessor's election to do so within 30 days after the date of occurrence of such damagc
(b) Notwithstanding paragraph 9.5(a), in the event that Lessee has an option to extend or renew this Lease, and the time with option may be exercised has not yet expired, Lessee shall exercise such option, if it is to be exercised at all, no later than 20 c occurrence of an Insured Loss falling within the classification of Premises Partial Damage during the last six months of the term of Lessee duly exercises such option during said 20 day period. Lessor shall, at Lessor's expense, repair such damage as soon as reason and this Lease shall continue in full force and effect. If Lessee fails to exercise such option during said 20 day period, then Lessor m; option terminate and cancel this Lease as of the expiration of said 20 day period by giving written notice to Lessee of Lessor's elec within 10 days after the expiration of said 20 day period, notwithstanding any term or provision in the grant of option to the contra
(a) In the event of damage described in paragraphs 9.2 or 9.3, and Lessor or Lessee repairs or restores the Premises pu provisions of this Paragraph 9. the rent payable hereunder for the period during which such damage, repair or restoration continues SI in proportion to the degree to which Lessee's use of the Premises is impaired. Except for abatement of rent, if any, Lessee shall t against Lessor for any damage suffered by reason of any such damage, destruction, repair or restcration.
(b) If Lessor shall be obligated to repair or restore the Premises under the provisions of this Paragraph 9 and shall not con repair or restoration within 90 days after such obligations shall accrue. Lessee may at Lessee's option cancel and terminate this Lei Lessor written notice of Lessee's election to do so at any time prior to the commencement of such repair or restoration. In such eve shall terminate as of the date of such notice.
9.7 Termination -Advance Payments. Upon termination of this Lease pursuant to this Paragraph 9. an equitable adjustments concerning advance rent and any advance payments made by Lessee to Lessor. Lessor shall, in addition, return to Lessee so mucl security deposit as has not theretofore been applied by Lessor.
9.8 Waiver. Lessor and Lessee waive the provisions of any statutes which relate to termination of leases when leased property and agree that such event shall be governed by the terms of this Lease.
10. Real Property Taxes.
9.6 Abatement of Rent; Lessee's Remedies.
expiration of the tax fiscal year, Lessee's liability for increased taxes for the last partial-lease year shall be prorated on an annual b
10.3 Oeflnition of "Real Property Tax". As used herein. the term "real property tax" shall include any form of real estate tax or general, special, ordinary or extraordinary. and any license fee. commercial rental tax, improvement bond or bonds. levy or ta: inheritance, personal income or estate taxes) imposed on the Premises by any authority having the direct or indirect power to tax, i city, state or federal government. or any schoo!, agricultural, sanitary, fire, street, drainage or other improvement district thereof, a legal or equitable interest of Lessor in the Premises or in the real property of which the Premises are a part, as against Lessor's right tc income therefrom, and as against Lessor's business of leasing the Premises. The term "real property tax" shall also include any i assessment or charge (i) in substitution of, partially or totally, any tax, fee, levy, assessment or charge hereinabove included within the "real property tax." or (ii) the nature of which was hereinbefore included within the definition of "real property tax." or (iii) which is if service or right not charged prior to June 1, 1978, or, if previously charged, has been increased since June 1. 1978, or (iv) which is i result of a transfer, either partial or total, of Lessor's interest in the Premises or which is added to a tax or charge hereinbefore includc definition of real property tax by reason of such transfer, or (v) which is imposed by reason of this transaction. any modifications or cha or any transfers hereof.
10.4 Joint Assessment. If the Premises are not separately assessed, Lessee's liability shall be an equitable proportion of the r taxes for all of the land and improvements included within the tax parcel assessed, such proportion to be determined by Lessor from tt valuations assigned in the assessor's work sheets or such other information as may be reasonably available. Lessor's reasonable dl thereof, in good faith, shall be conclusive.
10.5 Personal Property Taxes.
(a) Lessee shall pay prior to delinquency all taxes assessed against and levied upon trade fixtures, furnishings, equipment personal property of Lesseecontained in the Premises or elsewhere. When possible, Lesseeshall causesaid tradefixtures, furnishing: and all other personal property lo be assessed and billed separately from the real property of Lessor.
(b) If any of Lessee's said personal property shall be assessed with Lessor's real property, Lesseeshall pay Lessor the taxes a Lessee within 10 days after receipt of a written statement setting forth the taxes applicable to Lessee's property.
11. Utilities. Lessee shalt pay for all water, gas, heat, light, power. telephone and other utilities and services supplied to the Prerni! with any taxes thereon. If any such services are not separately metered to Lessee, Lessee shall pay a reasonable proportion to be dt Lessor of all charges jointly metered with other premises.
12. Assignment and Sublettlng.
primary liability of Less Lessor from any other p not be deemed consent the performance of any assignee. Lessor may c out obtaining its or their consent thereto and such action sha
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' 13. Defaults; Remedies.
13.1 Defaults. The occurrence of any one or more of the foilowing events shall constitute a material default and breach of
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or any other Payment required to be made by Lessee hereunder, as i where such failure shall continue for a period of three days after written notice thereof from Lessor to Lessee. In the event that Lessor with a Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainerstatutessuch Noticeto Pay RentorQuitshall alsoconsti required by this subparagraph.
(c) The failure by Lesseetoobserveor performanyof thecovenants,conditionsorprovlsionsof thisLeasetobeobsewea by Lessee. other than described in paragraph (b) above. where such failure Shall Continue for a period of 30 days after written notice Lessor to Lessee; provided. however. that if the nature of Lessee's default is such that more than 30 days are reasonably required fol Lessee shall not be deemed to be in default if Lessee commenced such.cure within said 30-day period and thereafter diligently prc cure to completion.
(d) (i) The making by Lessee of any general arrangement or assignment for the benefit of creditors: (ii) Lessee becomes defined in 11 U.S.C. 4101 or any successor statute thereto (unless. in the case of a petition filed against Lessee, the same is dismi:
days): (iii) the appointment of a trusteeor receiver to take possession of substantially all of Lessee's assets located at the Premises interest in this Lease. where possession is not restored to Lessee within 30 days: or (iv) the attachment, execution or other judic substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where such seizure is not discharged Y Provided. however, in the event that any provision of this paragraph 13.l(d) is contrary to any applicable law. such provision shall or effect.
(e) The discovery by Lessor that any financial statement given to Lessor by Lessee, any assigneeof Lessee, any subtenant( successor in interest of Lessee or any guarantor of Lessee's obligation hereunder, and any of them, was materially false.
13.2 Remedies. In the event of any such material default or breach by Lessee, Lessor may at any time thereafter, with or witt demand and without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of such default or brc
(a) Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall terminate an( immediately surrender possession of the Premises to Lessor. In such event Lessor shall be entitled to recover from Lessee all damagc Lessor by reason of Lessee's default including, but not limited to, the cost of recovering possession of the Premises: expenses of reletti necessary renovation and alteration of the Premises. reasonable attorney's fees, and any real estate commission actually paid; the wo ol award by the court having jurisdiction thereof of the amount by which the unpaid rent for the balance of the term after the time c exceeds the amount of such rental loss for thesame period that Lessee proves could be reasonably avoided: that portion of the leasin! paid by Lessor pursuant to Paragraph 15 applicable to the unexpired term of this Lease.
(b) Maintain Lessee's right to possession in which case this Lease shall continue in effect whether or not Lessee shall haveal Premises. In such event Lessor shall be entitled to enforce all of Lessor's rights and remedies under this Lease, including the right to re as it becomes due hereunder.
(c) Pursue any other remedy now or hereafter available to Lessor under the laws or judicial decisions of the state wherein the located. Unpaid installments of rent and other unpaid monetary obligations of Lessee under the terms of this Lease shall bear interest' due at the maximum rate then allowable by law.
13.3 Default by Lessor. Lessor shall not be in default unless Lessor fails to perform obligations required of Lessor within a real but in no event later than thirty (30) days after written notice by Lessee to Lessor and to the holder of any first mortgageor deed of trust Premises whose name and address shall have theretofore been furnished to Lessee in writing, specifying wherein Lessor has failed to I obligation; provided. however, that if the nature of Lessor's obligation is such that more than thirty (30) days are required for perfo Lessor shall not be in default if Lessor commences performance within such 30-day period and thereafter diligently prosecutes completion.
13.4 Late Charges. Lessee hereby acknowledges that late payment by Lessee to Lessor of rent and other sums due hereund Lessor to incur costs not contemplated by this Lease, the exact amount of which will beextremelydifficult to ascertain. Such costsinc not limited lo. processing and accounting charges, and late charges which may be imposed on Lessor by the terms of any mortgage covering the Premises. Accordingly. if any installment of rent or any other sum due from Lessee shall not be received by Lessor or Less4 within ten (10) days after such amount shall be due, then, without any requirement for notice to Lessee, Lessee shall pay to Lessor. equal to 6% of such overdue amount. The parties hereby agree that such late charge represents a tair and reasonable estimate of the I will incur by reason of late payment by Lessee. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lesi with respect to such overdueamount, nor prevent Lessor from exercising any of theother rights and remedies granted hereunder. In thc late charge is payable hereunder, whether or not collected, for three (3) consecutive installments of rent, then rent shall automatically and payable quarterly in advance, rather than monthly, notwithstanding paragraph 4 or any other provision of this Lease to the con
13.5 Impounds. In the event that a late charge is payable hereunder, whether or not collected, for three (3) installments of rent monetary obligation of Lessee under the terms of this Lease, Lesseeshall pay to Lessor, if Lessorshall so request, in addition to any 0th required under this Lease, a monthly advance installment, payable at the same time as the monthly rent, as estimated by Lessor, for real and insurance expenses on the Premises which are payable by Lessee under the terms of this Lease. Such fund shall be establish payment when due, before delinquency, of any or all such real property taxes and insurance premiums. If the amounts paid t Lessee under the provisions of this paragraph are insufficient to discharge theobligations of Lessee to pay such real property tqxes ar premiums as the same become due, Lessee shall pay to Lessor, upon Lessor's demand, such additional sums necessary to pay such ob moneys paid to Lessor under this paragraph may be intermingled with other moneys of Lessor and shall not bear interest. In the event c the obligationsof Lessee to perform under this Lease, then any balance remaining from funds paid to Lessor under the provisions of thi may, at the'option of Lessor, be applied to the payment of any monetary default of Lessee in lieu of being applied to the payment ot real 1 and insurance premiums.
14. Condemnation. If the Premisesor any portion thereof are taken under the powerof eminent domain, orsold under the threat of tht said power (all of which are herein called "condemnation"). this Lease shall terminate as to the part so taken as of the date the c authority takes titleorpossession, whicheverfirstoccurs. If morethan 104bof thefloorareaofthe building on thePremises,ormoretha land area of the Premises which is not occupied by any building, is taken by condemnation, Lessee may, at Lessee's option, to be I writing only within ten (10) days after Lessor shall have given Lessee written notice of such taking (orin the absence of such notice, wi days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority possession. If Lessee does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as tc of the Premises remaining. except that the rent shall be reduced in the proportion that the floor area of the building taken bears to the tot of the building situated on the Premises. No reduction of rent shall occur if the only area taken is that which does not have a builc thereon. Any award for the taking of all or any part of the Premises under the power of eminent domain or any payment made under 1 exercise of such power shall be the property of Lessor, whether such award shall be made as compensation for diminution in value of th cr for the taking of the fee, or as severance damages: provided, however, that Lessee shall be entitled to any award for loss of or damage trade fixtures and removable personal properly. In the event that this Lease is not terminated by reason of such condemnation, Lessor extent of severance damages received by Lessor in connection with such condemnation. repair any damage to the Premises caus condemnation except to the extent that Lessee has been reimbursed therefor by the condemning authority. Lessee shall pay any amoui of such severance damages required to complete such repair.
Lessee:
d
(s) to Lessor in this tr
e, which is granted to Le der this Lease, or if Less Lessee would have acqui
le entered into between nsactions. Lessor sh,
Lessor and said broker(s), the su
(b) Lessor further agrees th
broker@) a fee in acc
16. Estoppel Certiflcate.
(a) Lessee shall at any time upon not less than ten (1 0) days' prior written notice from Lessor execute, acknowledge and deliver Statement in writing (i) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modif certifying that this Lease. as so modified. is in full force and effect) and the date to which the rent and other charges are paid in advance, (ii) acknowledging that there are not, to Lessee's knowledge, any uncured defaults on the part of Lessor hereunder, or specifying such any are claimed. Any such statement may be conclusively relied upon by any prospective purchaser or encumbrancer of the Premise
(b) At Lessor's option, Lessee's failure to dellver such statement within such time shall be a material breach of this Lease 1 conclusive upon Lessee (i) that this Lease is in full force and effect, without modification except as may be represented by Lessor. (ii) thz no uncured defaults in Lessor's performance, and (iii) that not more than one month's rent has been paid in advance or such failu considered by Lessor as a default by Lessee under this Lease.
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(c) If Lessor desires to finance, refinance. or sell the Premises, or any part thereof, Lessee hereby agrees to deliver to purchaser designated by Lessor such financial statements of Lessee as may be reasonably required by such lender or purchaser. SU shall include the past three years' financial statements of Lessee. All such financial statements shall be received by Lessor and a purchaser in confidence and shall be used only for the purposes herein set forth.
17. Lessor's Llabllity. The term "Lessor" as used herein shall mean only the owner or owners at the time in question of the fee tit' interest in a ground lease of the Premises, and except as expressly provided in Paragraph 15, in the event of any transfer of such t
Lessor herein named (and in case of any subsequent transfers then the grantor) shall be relieved from and after the date of such liability as respects Lessor's obligations thereafter to be performed, provided that any funds in the hands of Lessor orthe then grantc such transfer, in which Lessee has an interest, shall be delivered to the grantee. The obligations contained in thib Lease to be perfor shall, subject as aforesaid, be binding on Lessor's successors and assigns, only during their respective periods of ownership.
18. Severability. The invalidity of any Provision of this Lease as determined by a court of competent jurisdiction, shall in no way aff of any other provision hereof.
19. Interest on Past-due Obllgatlons. Except 85 expressly herein provided, any amount due to Lessor not paid when due shall beai maximum rate then allowable by law from the date due. Payment of such interest shall not excuse or cure any default by Lessee un provided, however, that interest shall not be payable on late charges incurred by Lessee nor on any amounts upon which late char- Lessee.
20. Tlme of Essence. Time is of the essence.
21. Addltlonal Rent. Any monetary obligations of Lessee to Lessor under the terms of this Lease shall be deemed to be rent.
22. Incorporation of Prlor Agreements; Amendments. This Lease contains all agreements of the parties with respect to any me herein. No prior agreement or understanding pertaining to any such matter shall be effective. This Lease may be modified in writing the parties in interest at the time of the modification. Except as otherwise stated in this Lease, Lessee hereby acknowledqes that
estate broker listed in Paragraph 15 hereof nor any cooperating broker on this transaction nor the Lessor or any employeesoragen persons has made any oral or written warranties or representations to Lessee relative to the condition or use by Lessee of said Prem acknowledges that Lessee assumes all responsibility regarding the Occupational Safety Health Act. the legal use and adaptability and the compliance thereof with all applicable laws and regulations in effect during the term of this Lease except as otherwise spec1 this Lease.
23. Notlces. Any notice required or permitted to be given hereunder shall be in writing and may begiven by personal delivery orb and if given personally or by mail. shall be deemed sufficiently given if addressed to Lessee or to Lessor at the address noted below' the respective parties. as thecase may be. Either party may by notice to the other specify a different address for notice purposes e: Lessee's taking possession of the Premises, the Premises shall constitute Lessee's address for notice purposes. A copy of all noti permitted to be given to Lessor hereunder shall be Concurrently transmitted to such party or parties at such addresses as Lessor A time hereafter designate by notice to Lessee.
24. Waivers. No waiver by Lessor or any provision hereof shall be deemed a waiver of any other provision hereof or of any subset Lessee of the same or any other provision. lessor's consent to. or approval of any act, shall not be deemed to render unnecessary Lessor's consent to or approval of any subsequent act by Lessee. The acceptance of rent hereunder by Lessor shall not be a waiver c breach by Lessee of any provision hereof, other than the failure of Lessee to pay the particular rent so accepted, regardless of Les! of such preceding breach at the time of acceptance of such rent.
25. Recording. Either Lessor or Lessee shall, upon request of the other. execute, acknowledge and deliver to the other memorandum of this Lease for recording purposes.
.I
27. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulat remedies at law or in equity.
28. Covenants and Condltlons. Each provision of this Lease performable by Lessee shall be deemed both a covenant and a c
29. Binding Effect; Choice of Law. Subject to any provisions hereof restricting assignment or subletting by Lessee and subject t of Paragraph 17. this Lease shall bind the parties. their personal representatives, successors and assigns. This Leaseshall be gove of the State wherein the Premises are located.
30. Subordlnatlon.
(a) This Lease, at Lessor's option, shall be subordinate to any ground lease, mortgage, deed of trust. or any other h security now or hereafter placed upon the real property of which the Premises are a part and to any and all advances made on the and to all renewals, modifications, consolidations, replacements and extensions thereof. Notwithstanding such subordination. quiet possession of the Premises shall not be disturbed if Lessee is not in default and so long as Lesseeshall pay the rent and obsc all of the provisions of this Lease. unless this Lease is otherwise terminated pursuant to its terms. If any mortgagee, trustee or grc elect to have this Lease prior to the lien of its mortgage, deed of trust or ground lease, and shall givewritten notice thereof to Lesset be deemed prior to such mortgage, deed of trust, or ground lease, whether this Lease is dated prior or subsequent to the date of saic of trust or ground tease or the date of recording thereof.
(b) Lessee agrees to execute any documents required to effectuate an attornment, a subordination or to make this Leas' of any mortgage, deed of trust or ground lease. as the case may be. Lessee's failure to execute such documents within 10 days afte shall constitute a material default by Lessee hereunder, or, at Lessor's option, Lessor shall execute such documents on behalf of LE attorney-in-fact. Lessee does hereby make, constitute and irrevocably appoint Lessor as Lessee's attorney-in-fact and in Lessee's stead, to execute such documents in accordance with this paragraph 30(b).
31. Attorney's Fees. If either party or the broker named herein brings an action to enforce the terms hereof or declare right prevailing party in any such action, on trial or appeal, shall beentitled to his reasonableattorney'sfeesto be paid by the losing par court, The provisions of this paragraph shall inure to the benefit of the broker named herein who seeks to enforce a right hereL
32. Lessor's Access. Lessor and Lessor's agents shall have the right to enter the Premises at reasonable times for the purpose same, showing the same to prospective purchasers, lenders, or lessees, and making such alterations, repairs, improvements 0 Premises or to the building of which they are a part as Lessor may deem necessary or desirable. Lessor may at any time placi Premises any ordinary "For Sale" signs and Lessor may at any time during the last 120 days of the term hereof place on or about ordinary "For Lease" signs, all without rebate of rent or liability to Lessee.
33. Auctions. Lessee shall not conduct, nor permit to be conducted, either voluntarily or Involuntarily. any auction upon the I first having obtained Lessor's prior written consent. Notwithstanding anything to the contrary in this Lease, Lessor shall no
exercise any standard of reasonableness in determining whether to grant such consent.
34. Signs. Lessee shall not place any sign upon the Premises without Lessor's prior written consent except that Lessee sh: without the prior permission of Lessor to place ordinary and usual for rent or sublet signs thereon.
35. Merger. The voluntary or other surrender of this Lease by Lessee, or a mutual cancellation thereof, ora termination by Less0 merger, and shall, at the option of Lessor, terminate all or any existing subtenancies or may, at the option of Lessor, operate as Lessor of any or all of such subtenancies.
36. Co?tr.en?c. Except for paragroph 33 k~;c~:~~,.:,~,s~~i iri PhisLease Eheconserit of one party is requirediuari actui tneorher Pa shall not be unreasonably withheld.
37. Guarantor. In the event that there is a guarantor of this Lease, said guarantor shall have the same obligations as Lessee I
38. OuletPossesrlon. Upon Lessee paying the rent for the Premises and observing and performing all of the covenant: provisions on Lessee's part to be observed and performed hereunder, Lessee shall have quiet possession of the Premises forthe subject to all of the provisions of this Lease. The individuals executing this Lease on behalf of Lessor represent and warrant to LE fuily authorized and legally capable of executing this Lease on behalf of Lessor and that such execution is binding upon all I ownership interest in the Premises.
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nt that Lessee has any multiple options to extend or renew this Lease a later optio new this Lease has been so exercised.
default descri event that Lessor has given to Lessee three or more noti paragraph 13.4 for each of such defaults, or paragraph 13. that Lessee intends to exercise the subject Option.
h 13.1(b), where a late charge become s are cured, during the 12 month period
ended or enlarged by reason of Les
or effect, notwithstanc
40. Multiple Tenant Building. In the event that the Premises are part of a larger building or group of buildings then Lessee agree by, keep and observe all reasonable rules and regulations which Lessor may make from time to time for the management, cleanliness of the building and grounds. the parking of vebicles and the preservation of good order therein as well as for the conk occupants and tenants of the building. The violations of any such rules and regulations shall be deemed a material breach of this I
41. Security Measures. Lessee hereby acknowledges that the rental payable to Lessor hereunder does not include the cost o! other security measures. and that Lessor shall have no obligation whatsoever to provide same. Lessee assumes all responsibility f of Lessee, its agent9 and invitees from acts of third parties.
42. Easements. Lessor reserves to itself the right. from time to time, to grant such easements, rights and dedications that Lessorc or desirable, and to cause the recordation of Parcel Maps and restrictions, so long as sucheasements. rights, dedications, Mapsar not unreasonably interfere with the use of the Premises by Lessee. Lessee shall sign any of the aforementioned documents upon r and failure to do so shall constitute a material breach of this Lease.
43. Performance Under Protest. If at any time a disputeshall arise as to any amount or sum of money to be paid by one party to th provisions hereof, the party against whom theobligation to pay the money is asserted shall have the right to make payment "un such payment shall not be regarded as a voluntary payment, and there shall survive the right on the part of said party toinstitutex such sum. If it shall be adjudged that there was no legal obligation on the part of said party to pay such sum or any part thereof, si entitled to recover such sum or so much thereof as it was not legally required to pay under the provisions of this Lease.
44. Aulhority. If Lessee is a corporation, trust, or general or limited partnership. each individual executing this Lease on behe represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of said entity If Lessee is a cor! partnership, Lessee shall, within thirty (30) days after execution of this Lease. deliver to Lessor evidence of such authority satisf2
45. Conflict. Any conflict between the printed provisions of this Lease and the typewritten or handwritten provisions shall bec typewritten or handwritten provisions.
46. Addendum. Attached hereto is an addendum or addenda containing paragraphs 47 through 48 whi part of this Lease.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAI AND, BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.
IF THIS LEASE HAS BEEN FILLED IN IT HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY FOR HIS APPl NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIAT BY THE REAL ESTATE BROKER OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, ' CONSEQUENCES OF THIS LEASE OR THE TRANSACTION RELATING THERETO: THE PARTIES SHALL RELY SOLEL) THE ADVICE OF THEIR OWN LEGAL COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
The partler hereto have executed this Lease at the place on the dates speclfled Immediately adjacent to thelr respective signature
Executed at .- ?he City of Carlsbad
on BY
Address BY
"LESSOR" (Corporate seal)
Carlsbad Unified school District Executed at
on BY
Address BY
"LESSEE" (Corporate seal)
For these forms write or call the American Industrial Real Estate Association, 345 South Figueroa St. M-1. Los Angeles, CA 90071 (213) 687-8777 F
(Say Center Lease)
\ a
LEASE ADDENDUM
47. Notwithstanding anything else contained in this Lease tc the contrary, Lessee shall have the right to terminate t
Lease at any time by giving thirty (30) days prior writt
notice to Lessor. In the event of such termination, rer and all other sums payable by Lessee under the terms of this Lease shall be prorated as of the date of such
termination, and any amounts owed by Lessor to Lessee ox
Lessee to Lessor shall be due and payable thirty (30) d;
following the date of such termination.
48. Lessee shall not have the right to hold over after the c
of the ten (10) year term of this Lease unless Lessee
delivers to the City, within one hundred eighty (180) d; prior to the end of said term, written notice that it
desires to continue this Lease on a month-to-month basil Fair Market Rental Value together with a one-time only
sum payable as consideration for extension of this Least a month-to-month basis in an amount equal to two percent (2%) of the sum of rent paid by Lessor to Lesso: pursuant to the terms hereof during the ten (10) year tt
Value" shall be determined, as follows:
For purposes of paragraph 48, "Fair Market Rental
(i) At least 180 days prior to the date ten
years after commencement of this Lease ("Tenth Annivers,
Date"), Lessee and Lessor shall attempt to reach agreemc as to the Fair Market Rental Value.
(ii) In the event that Lessee and Lessor are
unable to agree upon a Fair Market Rental Value within I
period, then no later than the 150th day prior to Tenth
Anniversary Date, Lessee and Lessor shall jointly attem]
to agree on the appointment of a real estate appraiser i is a member of the American Institute of Real Estate Appraisers or any successor thereto (or in the event thc American Institute or Society of Real Estate Appraisers
any successor shall not then be in existence, a
disinterested real estate appraiser having appropriate
qualifications to appraise commercial real estate as sej
forth immediately below), with at least ten (10) years
professional experience in Southern California in appraising land and improvements similar to the leased
premises. All appraisers selected pursuant to the
provisions hereof shall be impartial and unrelated,
directly or indirectly, so far as employment of service:
is concerned, to any of the parties hereto, or their
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successors. The cost of the services performed by such
single appraiser jointly appointed by the parties shall determine the "Fair Market Rental Value" in the manner herein specified and shall render his or her appraisal
within one hundred twenty (120) days after said appraiser
has been selected.
- appraiser shall be borne equally by the parties. The
(iii) Failing the joint action within the time
specified in (b) above, Lessee and Lessor shall each wit1
an additional fifteen (15) days, separately at its own cc designate any appraiser meeting the qualifications statec
in paragraph (ii) above. If two appraisers are appointec
and they concur on the Fair Market Rental Value, the Fail Market Rental Value determined by them shall be the Fair Market Rental Value. If the appraisers do not concur, ar
the difference between the respective higher and lower determinations of Fair Market Rental Value is an amount less than ten percent (10%) of the amount of the higher
determination of the Fair Market Rental Value, the mean
average of the two determinations shall be the Fair Markc
Rental Value. The two appraisers shall render their
respective appraisals within one hundred twenty (120) da3
after they have been selected.
minations exceeds the amount specified above, the two
appraisers shall jointly select a third appraiser meetinc
the qualifications set forth in paragraph (ii) above, and
if they are unable to agree on a third appraiser either c the parties to this Lease, by giving fifteen (15) days
notice to the other party, may apply to the presiding jut
of the Superior Court of San Diego County to select a thi
appraiser who meets the qualifications set forth in
paragraph (ii) above. The third appraiser, however selected, shall be a person who has not acted in any capacity for either party. Within fifteen (15) days from the date of the selection of the third appraiser, all thr
appraisers shall meet and the first two appraisers shall
present to the third appraiser all of their findings, dat
and conclusions as to the Fair Market Rental Value. The third appraiser shall review all such findings, data and
conclusions, and shall determine which of the two
appraisers' respective determinations is the more
reasonable determination. The third appraiser shall not
permitted to make any other independent determination of
Fair Market Rental Value. The appraiser's determination found by the third appraiser to be the most reasonable determination shall be the Fair Market Rental Value. The third appraiser's conclusion shall be reached within one
(iv) If the difference between the two deter-
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i
a hundred twenty (120) days from the selection of the third
appraiser.
services of the third appraiser shall be shared equally b
the District and the City.
Fair Market Rental Value occurs after the Tenth Anniversa Date, the Fair Market Rental Value, as determined shall
nonetheless commence concurrently with the first day of t
Lease term following the expiration of the initial ten (1
yea r term.
The expenses related to the selection and .
(v> In the event that the final determination
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e *
RESOLUTION NO. 88-115
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIAy APPROVING THE LOAN OF $200,000 TO THE CARLSBAD HOUSING AND REDEVELOPMENT COMMISSION.
WHEREAS, the City of Carlsbad Housing and Redevelopment Commission
requires the loan of $200,000 from the City of Carlsbad to support a
payment to the Carlsbad Unified School District; and
WHEREAS, the City Council finds that funds are available for said
loan in the Council's Contingency Account; and
WHEREAS, said loan of funds to the Redevelopment Agency will bear
interest at the rate of 8% per year on the unpaid balance; and
WHEREAS, said loan will be repaid by the Redevelopment Agency at t
rate of $29,800 per year for ten years; and
WHEREAS, this advance of funds to the Redevelopment Agency will
reduce the Council's Contingency Account balance to $1,136.373.
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of
Carl sbad, Cal iforni a, as foll ows:
1. That the above recitations are true and correct.
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2. That the loan of $200,000 to the Carlsbad Housing and Redevelopment
Commission is hereby approved and the Finance Director is authorized to
reduce the General Fund Contingency Account by $200,000 and process saic
1 oan .
PASSED, APPROVED AND ADOPTED, regular meeting of the City Council c
the City of Carlsbad, California held on the 5th day of April
1988, by the following vote, to wit:
AYES: Council Members Lewis, Kulchin, Pettine, Mamaux and Larson
NOES: None
// ABSENT: None /y, /</? /
, /; ,be.. 45: ';, i,), {,
CLAUDE A. LEWIS, Mayor
ATTEST:
ALETHA L. RAU
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