HomeMy WebLinkAbout1989-08-08; City Council; 10179; LEASE OF STORAGE SPACE,
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ClT@OF CARLSBAD - AGENDeBILL
TITLE: DEPl
LEASE OF STORAGE SPACE CITY MTG.
DEPT. PCH CITY
RECOMMENDED ACTION:
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-\ f <- Staff recommends Council adopt Resolution No ;S I , approvin
the lease of storage space at Palomar Airport Business Park
ITEM EXPLANATION:
On July 22, 1986, Council approved a three year gross leas for 5,760 sq ft of storage space at Palomar Airport Busines
Park. A summary of the costs is presented below:
YEAR MONTHLY RENTAL AND EXPENSES COST PER SQUARE FOO
1986-87 $2 , 625 $ -46
1987-08 2,785 .48
1988-89 2 , 950 .51
In May, negotiations for the renewal of the lease were begu with the realty company and members of the City staff. It wa
the consensus of the staff that a three year gross lease woul
best meet the need for adequate storage space until th
warehouse is built in Phase I1 at the Service and Safet Center. A survey of other warehouse space in the Paloma Airport Business Park indicates the costs range from $.62
$.90 sq ft for a gross lease. Therefore, the staff i
recommending renewing the present lease for the three years
A summary of the cost is presented below:
YEAR MONTHLY RENTAL AND EXPENSES COST PER SQUARE FOC
1989-90 $2 , 950 $ .51
1990-91 3 , 190 .55
1991-92 3 , 415 .59
FISCAL IMPACT:
The 1989-90 lease will cost $35,400. Unencumbered funds j
the amount of $43,200 are available in Account no. 001-82(
1410-2350 for the lease of this storage space.
EXHIBITS:
1. Lease Agreement - Exhibit I1Al1
2. Resolution NO. ,I ‘,* ’, 19
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RESOLUTION NO 89-279
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CARLSBAD, CALIFORNIA, APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF CARLSBAD
AND PALOMAR 910 ASSOCIATES, LTD.
BE IT RESOLVED by the City Council of the City I
Carlsbad, as follows:
1. That a certain agreement between the City (
Carlsbad and Palomar 910 Associates, LTD., a copy (
which is attached hereto marked Exhibit IrAII ai
incorporated herein reference, is hereby approved.
2. That the Mayor of the City of Carlsbad
hereby authorized and directed to execute a lease, a co]
of which is attached hereto marked Exhibit "A" for a)
on behalf of the City of Carlsbad.
PASSED, APPROVED AND ADOPTED by the City Council t
City of Carlsbad, at a regular meeting held on the 8
day of Augusq 1989, by the following vote, to wit:
AYES: Council Members Lewis, Kulchin and Mamaux
I NOES: None
ABSENT: Council Members Pet
ATTEST :
-
A- ALETHA L. ETENKRANZ,' City ylerk
(Seal)
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'
0 EXHIsiT A .
STANDARD FORM MULTIPLE OCCUPANCY LEASE
LEASE
Lessor: PALOMAR 910 ASSOCIATES, LTD,
Lessee: CITY OF CARLSBAD
May 2, 1989 Dated as of:
e a
A. DEFINED TERMS, EXHIBITS, TABLE OF CONTENTS, PREMISES, COM
AREAS
1. Defined Terms.
Each reference in this Lease to any of the following tit
shall incorporate the data stated for that title. Other terms are
defined in the Lease.
Landlord: PALOMAR 910 ASSOCIATES, LTD.
Tenant: CITY OF CARLSBAD
Building Location:
Street Address: 6351 Yarrow Drive, Suite C
City: Carlsbad
County: San Diego
State: California
Tenant's Floor Space: Approximately 5,760 square feet
Total Rentable Floor Space: 42,480 square feet
Term: Three years
Fixed Rent:
Oct. 1, 1989 - Sept. 30, 1990: $2,950.00 per month
Oct. 1, 1990 - Sept. 30, 1991: $3,190.00 per month
Oct. 1, 1991 - Sept. 30, 1992: $3,415.00 per month
Tenant's Share of Operating Expenses: 0%
Tenant's Share of Impositions: 0%
Scheduled Term Commencement Date: October 1, 1989
Liability Insurance Amounts:
Bodily Injury per person: $500,000.00
Bodily Injury per occurrence: $1,000,000.00
LESSOR APPROVAL:
LESSEE APPROVAL:
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Property Damage: $500,000.00
Boiler Insurance: $500,000.00
Landlord's Address: 1660 Hotel Circle North, Suite 216
San Diego, CA 92108
Tenant's Address: 1200 Elm Street
Carlsbad, CA 92008
Permitted Uses: Any lawful uses consistent with the Declarat
of Covenants and Restrictions
Declaration of Covenants and Restrictions: Copy delivered
tenant.
Recorded: October 1, 1974. Amended February 25, 1977 and
23, 1977
2. Table of Contents
Page
A. Defined Terms, Exhibits, Table of 1
Contents, Premises, Common Areas
B. Term.. . . . . . . . . . . . . . . . 4
C. Rent .... ................ 4
D. Impositions . . . . . . . . . 5
E. Insurance ................. 5
F. Repairs, Maintenance, Alterations, . . . . 6
Operating Expenses
G. Tenant's Fixtures and Personal Property . . 7
H. Utilities and Boundaries . . . . . . . . 8
I, Use of Premises , , a , a a , I , , e e , . 8
J. Damage or Destruction . . . . . . 9
K. Eminent Domain . . . . . . . . . . 11
L. Default . . . . . . . . . . . . 12
M. Assignment and Subletting a . . . 15
N. Offset Statement, Attornment and
2
* *
Subordination ............... 17
Oa Notices .assee*.**a..aaa.. 18
P. Miscellaneous ............... 18
Q. Successor Bound .............. 20
The following Exhibits are attached to this Lease after
signatures and are incorporated herein by reference thereto.
Description:
Exhibit A - Tenant's Floor Plan
3. Premises.
Landlord hereby leases to Tenant, subject to and with
benefit of the provisions of this Lease, Tenant's Floor S
"Demised Premises") in the Building extending from the top surfac
subfloor to the bottom surface of ceilings above but excluding
common stairways, stairwells, hallways, accessways, and pipes, du
conduits, wires, and appurtenant fixtures serving exclusively o
common other parts of the Building, and if Tenant's Floor S
includes less than the entire rentable area of any floor, exclu
also the remainder of the Floor Common Area.
4. Common Areas.
Tenant shall have, as appurtenant to the Demised Premi
rights to use in common, subject to reasonable rules from time
time made by Landlord of which Tenant is given notice:
(a) Building Common Areas. The common stairways
accessways, loading docks and platforms and any passage
thereto, and the common pipes, ducts, conduits, wires,
appurtenant equipment serving the Demised Premises.
(b) Floor Common Area. If the Demised Premises inc
less than the entire rentable area of any floor, the co
lobbies, hallways, toilets and other common facilities: and
(c) Land Common Area. Common walkways, sidewalks
driveways necessary for access to the Building and par1
spaces or area from time to time maintained on the real propc
upon which the Building is located ("Lot") and to the ex1
from time to time arranged by the Landlord, on adjacent !
property.
5. Landlord's Reserved Rights in Common Areas.
Landlord reserves the right from time to time, wit1
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unreasonable interference with Tenant's use:
(a) Building Changes: To install, use, maintain, re
and replace pipes, ducts, conduits, wires and appurtenant me
and equipment for service to other parts of the Building a
the ceiling surfaces, below the floor surfaces, within the w
and in the central core areas, and to relocate any pipes, du
conduits, wires and appurtenant meters and equipment include
the Demised Premises which are so located elsewhere outside
Demised Premises;
(b) Boundary Changes: To change the lines of the Lot;
(c) Facility Changes! To alter or relocate any oi
common facility; provided, however, that substitutions
substantially equivalent or better in quality.
B. TERM.
The term of this Lease is for a period of three (3) ye;
commencing October 1, 1989 and ending September 30, 1992, provil
however, Lessee shall have the right to terminate said Lease any
after completion of one (1) year of this Lease by first giving
hundred and eighty (180) days prior written notice to the Lessor or after September 30, 1990.
C. RENT.
1. Fixed Rent.
Tenant shall pay the Fixed Rent to Landlord in advance upon
first day of each month of the Term, at Landlord's address or at :
other place designated by Landlord in a notice to Tenant, without
prior demand therefor and without any deduction or setoff whatsoei
If the Term shall commence and end on a day other than the first
of a month, then Tenant shall pay, upon the commencement date of
Term or first day of the last month, a prorata portion of the Fj
Rent described in the foregoing paragraph, prorated on a per (
basis, with respect to the portions of the fractional month incli
in the Term.
2. Deposit.
Upon execution of this lease, the existing $2,950.00 depa
under the preceding 1986 - 1989 lease will not be used as payment
September 1989 rent, but shall be assigned over to this lease
payment against the last month's rent of this lease. On October
1990 and on October 1, 1991, this deposit shall be increased $3,190,00 and to $3,415.00 respectively.
LESSOR: LESSEE:
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3. Interest.
If any installment of Rent is not paid promptly when due,
shall bear interest at the lower rate of either ten percent (10%;
the maximum rate permitted by law, from the date on which it is
until the date on which it is paid, regardless of whether or not
notice of default or notice of termination has been given
Landlord. This provision shall not relieve Tenant from payment Rent at the time and in the manner herein specified.
D. IMPOSITIONS.
1. Limitation.
Nothing contained in this Lease shall require Tenant to pay
franchise, corporate, estate, inheritance, succession, or tran:
tax of Landlord, or any income, profits, or revenue tax or chai
upon the net income of Landlord; provided, however, that if at
time during the Term under the laws of the United States Governr
or the state in which the Demised Premises are located, or
political subdivision thereof, a tax or excise on rent, or any 01
tax, however described, is levied or assessed by any such polit:
body against Landlord on account of rentals payable to Landlc
Tenant shall pay one hundred percent (100%) of any such tax or ex(
on rent as Additional Rent.
2. Personal Property Taxes.
Tenant shall pay or cause to be paid, prior to delinquency,
and all taxes and assessments levied upon all trade fixtui
inventories and other personal property placed in and upon
Demised Premises by Tenant.
E. INSURANCE.
1. Fire and Extended Coverage.
During the Term Landlord shall procure and maintain in 1
force and effect with respect to the Building a policy or policie5
fire insurance with extended coverage endorsement attached, incluc
vandalism and malicious mischief coverage, and any ot
endorsements required by the holder of any fee or leasehold mortt
in an amount equal to one hundred percent (100%) of the 1
removal, and demolition) thereof.
insurance replacement value (replacement cost new, including del
2. Tenant's Fixtures.
Tenant shall assume the risk of damage to any fixtures WI
remain the property of Tenant or as to which Tenant retains the r:
of removal from the Demised Premises.
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3. Indemnification of Landlord.
Tenant shall indemnify and hold Landlord and the Demi
penalties, losses, damages, costs and expenses, demands, causes
action, claims or judgments arising from or growing out of any in:
to any person or persons or any damage to any property as a result
any accident or other occurrence during the term of this LE
occasioned by any act or omission of the Tenant, its officc
employees, agents, servants, subtenants, concessionaires, license
contractors, invitees or permittees, or arising from or growing
of the use, maintenance, occupation, or operation of the Demj
Premises during the term of this Lease, and (ii) from and agaj all legal costs and charges, including reasonable attorney's fe incurred in and about any of such matters and the defense of
action arising out of the same or in discharging the Demised Prernj
or any part thereof from any and all action arising out of the I
or in discharging the Demised Premises or any part thereof from
and all liens, charges or judgments which may accrue or be pl:
thereon by reason of any act or omission of the Tenant; provic
however, that Tenant shall not be required to indemnify Landlord
negligent acts or those of its agents or employees.
Premises harmless from and against (i) any and all liabill
any damage or injury of any kind arising as the result of Landloi
F. REPAIRS, MAINTENANCE, ALTERATIONS, OPERATING EXPENSES.
1. Operating Expense.
Landlord shall be responsible for operation, cleanj
maintenance, repair and management of the building and lot, wal
driveways, parking and loading areas, lawns and landscaping.
2. Tenant Repairs and Maintenance.
Tenant shall, at Tenant's sole cost and expense, keep
maintain the Demised Premises, subfloors and floor coverings in g
repair and in a clean and safe condition, casualties covered
insurance coverage excepted to the extent of proceeds recei]
Tenant shall, at Tenant's own expense, immediately replace all gl
in the Demised Premises that may be broken during the Term with gl
at least equal to the specifications and quality of the glass
replaced.
3. Landlord Repairs and Maintenance.
Landlord shall, at its expense, after written notice f
Tenant, repair in a prompt and diligent manner any damage
structural portions of the roof and bearing walls of the Demj
Premises; provided, however, that if such damage is caused by an
or omission of Tenant, then such repairs shall be at Tenar
expense, payable to Landlord as Additional Rent hereunder. TI
shall be no abatement of Rent during the performance of such wc
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Landlord shall not be liable to Tenant for injury or damage du
the performance of such work. Landlord shall not be liable to Te
for injury or damage that may result from any defect in
construction or conditions of the Demised Premises. Tenant wa
any right to make repairs at the expense of Landlord under any
statute, or ordinance now or hereafter in effect.
4. Inspection of Leased Premises.
Landlord, at reasonable times, upon reasonable notice, ma
upon and into the Demised Premises for the purpose of inspecting
same, or for the purpose of inspecting the performance by Tenant
the terms and conditions hereof, and for the purpose of affi
reasonable signs and displays and showing the Demised Premises
prospective purchasers, tenants and lenders.
5. Workmanlike Quality.
All repairs, alterations, additions and restoration by Land
or Tenant hereinafter required or permitted shall be done in a
and workmanlike manner and in compliance with all applicable laws
lawful ordinances, by-laws, regulations and orders of governme
authority and of the insurers of the Building.
6. Liens.
Tenant shall promptly pay and discharge all claims for work
labor done, supplies furnished or services rendered at request
Tenant and shall keep the Demised Premises free and clear of
mechanic's and materialmen's liens in connection therewith. Land
shall have the right to post or keep posted on the Demised Premi
or in the immediate vicinity thereof, any notices of
responsibilty for construction, alteration or repairs of the Dem
Premises by Tenant. If any such lien is filed, Landlord may, shall not be required to, take such action or pay such amount as
be necessary to remove such lien; and Tenant shall pay to Landlor
Additional Rent at such amounts expended by Landlord together
interest thereon at the highest legal rate from the date
expenditure.
G. TENANT'S FIXTURES AND PERSONAL PROPERTY.
Tenant, at its expense, may install any necessary t
fixtures, equipment and furniture in the Demised Premises, prov
that such items are installed and are removable without damage to
structure of the Building. Landlord reserves the right to approvl
disapprove of curtains, draperies, shades, paint, or other inte
improvements visible from outside the Demised Premises on whl
aesthetic grounds. Such improvements must be submitted
Landlord's written approval prior to installation, or Landlord
fixtures, equipment and furniture shall remain Tenant's property remove or replace such items at Tenant's sole expense. Said t
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shall be removed by Tenant upon expiration of the Term, or earl
termination of this Lease. Upon Landlord's prior written approv
Tenant may make structural alterations and may also install tempor
improvements in the interior of the Demised Premises, provided t
such temporary improvements are installed and are removable with
damage to the structure of the Building. Such temporary improveme
shall remain the property of Tenant and shall be removed by Ten
upon expiration of the Term or earlier termination of this Lea Tenant shall repair, at its sole expense, all damage caused by
installation or removal of trade fixtures, equipment, furniture,
temporary improvements. If Tenant fails to remove the forego
items on termination of this Lease, Landlord may keep and use them
remove any or all of them and cause them to be stored and sold
accordance with applicable law.
H. UTILITIES AND BOUNDARIES
1. Utilities.
Tenant shall be solely responsible for and promptly pay
charges for heat, water, gas, electricity, and any other utilit
used or consumed on the Demised Premises. Landlord shall not
liable to Tenant for interruption or curtailment of any uti1
service, nor shall any such interruption or curtailment constitut
constructive eviction or grounds for rental abatement in whole or part hereunder, If any such utilities are not separately meter
Tenant shall pay a prorata share, based on use, as determined
Landlord.
2. Easements.
Landlord reserves the right to (i) alter the boundaries of
Lot and (ii) grant easements on the Lot and dedicate for public
portions thereof without Tenant's consent, subject to provisions
Section N-2 hereof, and provided that no such grant or dedicat
shall interfere with Tenant's use of the Demised Premises
otherwise cause Tenant to incur cost or expense. From time to ti
and upon Landlord's demand, Tenant shall execute, acknowledge
deliver to Landlord or in accordance with Landlord's instructions
and all documents, instruments, maps, or plats necessary
effectuate Tenant's covenants hereunder.
I, USE OF PREMISES,
1. General,
The Demised Premises shall be used for the Permitted Us
consistent with the Declaration of Covenants and Restrictions and
supplement thereto. Tenant shall, at Tenant's sole cost and expen
comply with all of the requirements of municipal, county, sta
federal and other applicable governmental authorities, now in for
or which may hereafter be in force, pertaining to the Demi
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Premises, Building and Lot, and secure any necessary permits there and shall faithfully observe, in the use of the Demised Premis
Building and Lot, all municipal and county ordinances and state
federal statutes now in force, or which may hereafter be in for
Tenant shall obtain any required certificate of occupancy w
respect to its use of the Demised Premises, Building and Lot wit
thirty (30) days from the commencement of the Term hereof and sh
deliver a copy thereof to Landlord within said thirty (30)
period. Tenant in its use and occupancy of the Demised Premi
shall not commit waste, nor overload the floors or structure,
subject the Demised Premises to any use which would tend to dam
any portion thereof.
2. Signs.
Any sign placed or erected by Tenant on the Demised Premis
Building or Lot, except in the interior of the Demised Premis
Tenant actually occupying the Demised Premises, and no advertis
matter. No such sign shall be erected until Tenant has obtai
Landlord's written approval of the location, material, size, des
and content thereof and any necessary permit therefor. Tenant sh
remove any such sign upon termination of this Lease, and shall ret
the Demised Premises to their condition prior to the placement
erection of said sign.
3. Parking Access.
shall contain only the Tenant's name, or the name of any affiliate
In addition to the general obligation of the Tenant to com
with laws and without limitiation thereof, Landlord shall not
liable to Tenant, nor shall this Lease be affected if any park
privileges appurtenant to the Demised Premises, Building or Lot
impaired by reason of any moratorium, initiative, referend
statute, regulation or other governmental decree or action wh
could in any manner prevent or limit the parking rights of Ten
obligations imposed relative to parking rights with respect to
Demised Premises, Building and Lot shall be considered as Impositi
and shall be payable by Tenant under the provisions of Section
hereinabove.
hereunder, Any governmental changes or surcharges or other monet
J. DAMAGE OR DESTRUCTION.
1. Reconstruction.
If the Demised Premises are damaged or destroyed during
Term, Landlord shall, except as hereinafter provided, diligen repair or rebuild them to substantially the condition in which t
existed immediately prior to such damage or destruction; provi
that any damage which is estimated in good faith by Landlord to
under Five Thousand Dollars ($5,000.00) shall be repaired by Tena
and Landlord shall reimburse Tenant upon demand for expenses incur
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in such repair work.
2. Rent Abatement.
Rent due and payable hereunder shall be abated proportiona
during any period which, by reasons of such damage or destruct
Tenant reasonably determines that there is a substantial interfer
with the operation of Tenant's business in the Demised Premi
having regard to the extent to which Tenant may be required
discontinue its business in the Demised Premises. Such abate
shall continue for the period commencing with such damage
destruction which Landlord is obligated or undertakes to do. If
be determined that continuation of business is not practical pen
reconstruction, Fixed Rent due and payable hereunder shall abate
the extent of proceeds from rental abatement insurance u
reconstruction is substantially completed or until business
totally or partially resumed, whichever is the earlier.
3. Excessive Damage or Destruction.
If the building is damaged or destroyed to the extent
Landlord determines that it cannot, with reasonable diligence,
fully repaired or restored by Landlord within one hundred and ei
(180) days after the date of the damage or destruction, the
right of both Landlord and Tenant shall be the option to termi
this Lease. Notwithstanding the fact that the Demised Premises
not been damaged or destroyed, Landlord shall determine whether
building can be fully repaired or restored within the one hundred
eighty (180) day period, and Landlord's determination shall
determination, in writing, within thirty (30) days after the dat
the damage or destruction. If Landlord determines that the Buil
can be fully repaired or restored within the one hundred and el
(180) day period, or if it is determined that such repair
restoration cannot be made within said period but neither p
elects to terminate within thirty (30) days from the date of
termination, this Lease shall remain in full force and effect
Landlord shall diligently repair and restore the damage as soon
reasonably possible.
4. Uninsured Casualty.
conclusive on Tenant. Landlord shall notify Tenant of
Notwithstanding anything contained herein to the contrary,
the event of damage to or destruction of all or any portion of
Building which is not fully covered by the insurance proc
received by Landlord under the insurance policies required u
Section E-1 above, Landlord may terminate this Lease by wri
Landlord that said damage or destruction is not so covered.
Landlord does not elect to termiante this Lease, the Lease s
remain in full force and effect and the Building shall be repa
and rebuilt in accordance with the provisions for repair set f
notice to Tenant, giving thirty (30) days after the date of notic
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in Section J-1 hereinabove,
5. Waiver,
With respect to any destruction which Landlord is obligated
repair or may elect to repair under the terms of this Section
Tenant hereby waives all right to terminate this Lease pursuant
rights otherwise presently or hereafter accorded by law to tenan except as expressly otherwise provided herein,
K. EMINENT DOMAIN,
1. Total Condemnation of Demised Premises.
If the whole of the Demised Premises is acquired or condemned
eminent domain, inversely condemned or sold in lieu of condemnati
for any public or quasi-public use or purpose ("Condemned"), then
Term shall terminate as of the date of title vesting in s
proceeding, and Rent shall be adjusted to the date of terminati
Tenant shall immediately notify Landlord of any such occurrence.
2. Partial Condemnation.
If any part of the Demised Premises is partially Condemned,
such partial Condemnation renders the Demised Premises unusable
the business of the Tenant, then the Term of this Lease sh
terminate as of the date of title vesting in such proceeding and R
shall be adjusted to the date of termination. If such condemnat
is not extensive enough to render the Demised Premises unusable
the business of Tenant, then Landlord shall promptly restore
Demised Premises to a condition comparable to its condit
immediately prior to such condemnation to the extent of
condemnation proceeds recovered by Landlord, less the portion ther
lost in such condemnation, and this Lease shall continue in f
force and effect except that after the date of such title vesting
Fixed Rent shall be reduced as reasonably determined by Landlord.
any parking areas are condemned, Landlord has the option but not
obligation to supply Tenant with other parking areas,
3. Landlord's Award.
If the Demised Premises are wholly or partially condemned, t
subject to the provisions of Section K-4, Landlord shall be entit
to the entire award paid for such condemnation, and Tenant waives
right or claim to any part thereof from Landlord or the condemn
authority.
4. Tenant's Award.
Tenant shall have the right to claim and recover from condemning authority, but not from Landlord, such compensation as
be separately awarded or recoverable by Tenant in Tenant's own ri
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on account of any and all costs or loss (including loss of busine
to which Tenant might be put in removing Tenant's merchandi
furniture, fixtures, leasehold improvements and equipment to a location.
5. Temporary Condemnation.
If the whole or any part of the Demised Premises shall
condemned for any temporary public or quasi-public use or purpo
this Lease shall remain in effect and Tenant shall be entitled
receive for itself such portion or portions of any award made
such use with respect to the period of the taking which is within
Term. If a temporary condemnation remains in force at the expirat
or earlier termination of this Lease, Tenant shall pay to Landlor
sum equal to the reasonable cost of performing any obligati
required of Tenant by this Lease with respect to the surrender of
Demised Premises, including without limitation repairs
maintenance required, and upon such payment Tenant shall be excu
from any such obligations, If a temporary condemnation is for
terminate as of the date of occupancy by the condemning authori
and the damages shall be as provided in Sections K-3 and K-4 and R
shall be adjusted to the date of occupancy.
6. Notice and Execution.
established period which extends beyond the Term, the Lease sh
Landlord shall, immediately upon service of process
connection with any condemnation or potential condemnation, g
Tenant notice in writing thereof. Tenant shall immediately execu
and deliver to the Landlord all instruments that may be required
effectuate the provisions of this paragraph.
L. DEFAULT.
1. Events of Defaults.
The occurrence of any of the following events shall constit
an "Event of Default" on the part of Tenant with or without not
from Landlord: see Addendum.
a. Vacation or Abandonment. Vacation or abandonment
the Demised Premises;
b. Payment. Failure to pay an installment of Rent
other monies due and payable hereunder upon the date when s
payment is due, the failure continuing for a period of five
days after said payment is due;
C. Performance. Default in the performance of any
Tenant's covenants, agreements or obligations hereunder, exc
default in the payment of Rent or other monies, the defa
continuing for thirty (30) days after written notice ther
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from Landlord;
d. Assignment. A general assignment by Tenant for
benefit of creditors;
e. Bankruptcy. The filing of a voluntary petition
bankruptcy by Tenant, or the filing of an involuntary petit
by Tenant's creditors immediately unless involuntary, in wh
case when the petition remains undischarged for a period
thirty (30) days;
f. Receiver. The appointment of a receiver to t
possession of substantially all of Tenant's assets or of t
leasehold, the receivership0 remaining undissolved for a per
of thirty (30) days; or
g. Attachment. Attachment, execution, or other judic
seizure of substantially all of Tenant's assets or t
leasehold, the attachment, execution, or other seizure remain
undismissed or undischarged for a period of thirty (30) d
after the levy thereof.
2. Landlord's Remedies.
a. Abandonment. If Tenant vacates or abandons the Demi
Premises, this Lease shall continue in effect. Landlord sh
not be deemed to have terminated this Lease other than
written notice of termination from Landlord, and Landlord sh
have all of the remedies of a landlord provided by Sect 1951.4 of the Civil Code of the State of California. At
time subsequent to vacation or abandonment of the Demi
Premises by Tenant, Landlord may give notice of termination
shall thereafter have all of the rights hereinafter set forth
b. Termination. Following the occurrence of any Event
Default, Landlord shall have the right, so long as the defa
continues, to terminate this Lease by a written notice to Ten
setting forth: (i) the default, (ii) the requirements to c
it, and (iii) a demand for possession, which shall be effecti
three (3) days after it is given or upon expiration of the ti
specified in Section L-1 hereinabove, whichever is later.
c. Possession, Following termination under paragraph
without prejudice to other remedies Landlord may have by rea
of Tenant's default or of such termination, Landlord may then
Premises, or any part thereof, upon voluntary surrender
Tenant or expel or remove Tenant therefrom and any other pers
occupying them, using such legal proceedings as are t
available; (ii) again repossess and enjoy the Demised Premis or relet the Demised Premises or any part thereof for such t
or terms (which may be for a term extending beyond the Term)
at any time thereafter, (i) peaceably re-enter the Demi
13
e
such rental or rentals and upon such other terms and conditi
as Landlord in its sole discretion shall determine, with
right to make reasonable alterations and repairs to the Demi
Premises; and (iii) remove all personal property therefrom.
d, Recovery, Following termination under paragraph
Landlord shall have all the rights and remedies of a land1
provided by Section 1951.2 of the Civil Code of the State
California. The amount of damages which Landlord may reca following termination under paragraph b shall include the wa
at the time of the award of the amount by which the unpaid R
for the balance of the term after the time of award exceeds
amount of rental loss Tenant proves could be reasonab avoided.
e. Additional remedies. In addition to the forego
remedies, Landlord shall, so long as this Lease is
terminated, have the right to remedy any default of Tenant,
maintain or improve the Demised Premises without terminat
this Lease, to incur expenses on behalf of Tenant in seekin
new subtenant, or to cause a receiver to be appointed
administer the Demised Premises and new or existing subleas
and to add to the Rent payable hereunder all of Landlor
reasonable costs in so doing, with interest at the maximum r
permitted by law from the date of such expenditure until
same is repaid.
f. Other. If Tenant causes or threatens to cause a bre
of any of the covenants, agreements, terms or conditio
contained in this Lease, Landlord shall be entitled to obt
all sums held by Tenant, by any trustee or in any acco
provided for herein, to enjoin such breach or threatened brea
and to invoke any right and remedy allowed at law or in equ
or by statute or otherwise as though re-entry, summ
proceedings and other remedies were not provided for in t
Lease.
g. Cumulative. Each right and remedy of Landlord provi
for in this Lease shall be cumulative and shall be in addit
to every other right or remedy provided for in this Lease or
or hereafter existing at law or in equity or by statute
otherwise. The exercise or beginning of the exercise
Landlord of any one or more of the rights or remedies provi.
for in this Lease, or now or hereafter existing at law or
equity or by statute or otherwise, shall not preclude 1
simultaneous or later exercise by Landlord of any or all otl
rights or remedies provided for in this Lease or now
hereafter existing at law or in equity or by statute
otherwise.
h. No Waiver. No failure by Landlord to insist upon
performance of any term hereof or to exercise any right
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remedy consequent upon a breach thereof, and no acceptance
all or partial payment of Rent during the continuance of a
such breach, shall consitute a waiver of any such breach or
any such term. Efforts by Landlord to mitigate the dama
caused by Tenant's breach of this Lease shall not be constr
to be a waiver of Landlord's right to recover damages under t
Section L. Nothing in this Section L affects the right
Landlord to indemnification by Tenant in accordance with Sect
E-3 hereinabove for liability arising prior to the terminat
of this Lease for personal injuries or property damage.
M. ASSIGNMENT AND SUBLETTING.
1. Prohibition.
Tenant shall not assign, mortgage, pledge or otherwise transfer t
other than Tenant of all or any part of the Demised Premises, witk
the prior written consent of the Landlord in each instance.
purported assignment or subletting contrary to the provisions he1
without consent shall be void. The consent by Landlord to
assignment or subletting shall not constitute a waiver of
necessity for such consent to any subsequent assignment
subletting. As Additional Rent hereunder, Tenant shall reimbt
Landlord for reasonable legal and other expenses incurred by Land1
in connection with any request by Tenant for consent to assignment
subletting.
2. Landlord Option.
Lease in whole or in part, nor sublet or permit occupancy by any E
a. In connection with any proposed assignment or sublet
Tenant shall submit to Landlord in writing (i) the name of
proposed assignee or sublessee, (ii) such information as to
financial responsibility and standing as Landlord may reason2
require, and (iii) all of the terms and conditions upon which t
proposed assignment or subletting is to be made. Landlord shall €
an option to cancel and terminate this Lease, if the request is
assign the Lease or to sublet all of the Demised Premises; or, if
request is to sublet a portion of the Demised Premises only,
cancel and terminate this Lease with respect to such portj
Landlord may exercise said option in writing within thirty (30) c
after its receipt from Tenant of such request, and in each case z
cancellation or termination shall occur as of the date set forth
Landlord's notice of exercise of such option, which shall be not I
than sixty (60) nor more than one hundred and twenty (120) c
following the giving of such notice.
b. Cancellation. If Landlord shall exercise its option, Ter
shall surrender possession of the entire Demised Premises, or
portion thereof which is subject of the option, as the case may
on the date set forth in such notice in accordance with
provisions of this Lease relating to surrender of the Demi
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Premises at the expiration of the Term. If this Lease is cance
as to a portion of the Demised Premises only, the Fixed Rent a
the date of cancellation shall be abated and shall thereafter be
amount determined by Landlord and the Tenant's Share of Impositj
Tenant's Share of Operating Expenses and Tenant's Share of InsuI
Expenses shall be adjusted as reasonably determined by the Landlc
c. Noncancellation. If Landlord does not exercise its 01
to cancel this Lease pursuant to the foregoing provisions, Lanc
may withhold its consent to such assignment or subletting, as lor
the withholding is not done unreasonably.
d. Assumption. No assignment shall be binding upon Land1
any ground lessor or any mortgagee unless Tenant shall delivei
Landlord an assignment in recordable form which contains
assumption by the assignee, but the failure or refusal of
assignee to execute such instrument or assumption shall not re:
or discharge assignee from liability as Tenant hereunder, pro1
that the terms and provisions of the assignment or subletting :
specifically make applicable to the assignee or sublessee all of
provisions of this Section.
3. Bonus Rental.
If for any assignment or sublease, Tenant receives rent or (
consideration, either initially or over the term of the assignme1
sublease in excess of the Rent called for hereunder, or in cas(
Rent fairly allocable to such portion, after appropriate adjusl
to assure that all other payments called for hereunder
appropriately taken into account, Tenant shall pay to Landlord
Additional Rent hereunder, one-half (1/2) of the excess of each
payment of rent or other consideration received by Tenant pror
after its receipt.
4. Scope.
the sublease of a portion of the Demised Premises, in excess of
The prohibition against assigning or subletting containec
this section shall be construed to include a prohibition against
assignment or subletting by operation of law. If this Least
assigned, or if the underlying beneficial interest of Tenani
transferred, or if the Demised Premises or any part thereof be si
or occupied by anybody other than the Tenant, Landlord may co:
rent from assignee, subtenant or occupant and apply the net ai
collected to the Rent herein reserved and apportion any excess
so collected in accordance with the terms of the immedi:
preceding paragraph, but no such assignment, subletting, occupanc
collection shall be deemed a waiver of this covenant, or
acceptance of the assignee, subtenant, or occupant as tenant,
release of Tenant from the further performance by Tenant of cove]
on the part of Tenant herein contained. No assignment or sublei
shall affect the continuing primary liability of Tenant (wl
16
a a
following assignment, shall be joint and several with the assigne
and Tenant shall not be released from performing any of the ter
covenants and conditions of this Lease.
5. Waiver.
Notwithstanding any assignment or sublease, or any indulgenc
waivers or extensions of time granted by Landlord to any assignee
sublessee, or failure by Landlord to take action against any assif
or sublessee, Tenant waives notice of any default of any assignec
sublessee and agrees that Landlord may, at its option, proc
against Tenant without having taken action against or joined I
assignee or sublessee, except that Tenant shall have the benefit
any indulgences, waivers, and extensions of time granted to any I
assignee or sublessee.
6. Release.
Whenever Landlord conveys its interest in the Lot, Land1
shall be automatically released from the further performance
covenants on the part of Landlord herein contained, and from any
all further liability, obligations, costs and expenses, demar
causes of action, claims or judgments arising from or growing out or connected with this Lease after the effective date of I
release. The effeective date of said release shall be the date
assignee executes an assumption of such an assignment whereby
assignee expressly agrees to assume all of Landlord's obligatic
duties, responsibilities, and liabilities with respect to this Le2
If requested, Tenant shall execute a form of release and such ot
documentation as may be required to further effect the provisions
this Section.
N. OFFSET STATEMENT, ATTORNMENT, AND SUBORDINATION.
1. Offset Statement.
Within ten (10) days after request therefor by Landlord, 01
on any sale, assignment or hypothecation by Landlord of its inteI
in the Demised Premises, or any part thereof, an offset staten
shall be required from Tenant, Tenant shall deliver, in recordz
form, a certificate to any proposed mortgagee or purchaser, or
Landlord, certifying (if such be the case) that this Lease is in 1
force and effect; the date of Tenant's most recent payment of Rc
and that there are no defenses or offsets outstanding, or stat
those claimed by Tenant. Tenant's failure to deliver said staten
in time shall be conclusive upon Tenant that: (i) this Lease i:
full force and effect, without modification except as may represented by Landlord, (ii) there are no uncured defaults
Landlord's performance and Tenant has no right of off:
counterclaim or deduction against rent hereunder, and (iii) no n
than one period's Fixed Rent has been paid in advance.
17
6 a
2. Attornment.
Tenant shall, in the event any proceedings are brought for j
foreclosure of, or in the event of exercise of the power of si
under, any mortgage or deed of trust made by the Landlord,
thereof, or in the event of termination of the Ground Lease, in a
and if so requested, attorn to the purchaser upon such foreclos
or sale or upon any grant of a deed in lieu of foreclosure
recognize such purchaser as the Landlord under this Lease,
3. Subordination.
successors or assigns, encumbering the Demised Premises, or any p
The rights of Tenant hereunder are and shall be, at the elect
of any mortgagee, subject and suordinate to the lien of any mortg
or mortgages, or the lien resulting from any other method
financing or refinancing, now or hereafter in force against the
and/or Building of which the Demised Premises are a part, and to
advances made or hereafter to be made upon the security there
provided, however, that notwithstanding such subordination, so 1
as the Tenant herein is not in default under any of the ter
convenants and conditions of this Lease, neither this Lease nor
of the rights of Tenant hereunder upon Tenant's covenanting t
Tenant is not in default hereunder, shall be terminated or subject
termination by any trustee's sale, any action to enforce
security, or by any proceeding or action in foreclosure.
requested, Tenant agrees to execute whatever documentation may
required to further effect the provisions of this section.
0. NOTICES.
All notices required to be given hereunder shall be in writ and mailed postage prepaid by certified or registered mail, ret
receipt requested, or by personal delivery, to the address indica
in Section A-1 or at such other place or places as either Landlord
Tenant may, from time to time, respectively designate in a writ
notice to the other. Notices shall be deemed sufficiently ser
four (4) days after the date of mailing thereof.
P. MISCELLANEOUS.
1. Waiver.
No waiver of any default or breach of any covenant by eit
party hereunder shall be implied from any omission by either party
take action on account of such default if such default persists
is repeated, and no express waiver shall affect any default ot
than the default specified in the waiver, and then said waiver sh
be operative only for the time and to the extent therein stat
Waivers of any covenant, term or condition contained herein by eit
party shall not be construed as a waiver of any subsequent breach
the same covenant, term or condition. The consent or approval
18
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either party to or of any act by either party requiring furl
consent or approval shall not be deemed to waive or r el
unnecessary their consent or approval to or of any subsequent sim.
acts.
2. Accord and Satisfaction.
No payment by Tenant or receipt by Landlord of a lesser am
than the Rent payment herein stipulated shall be deemed to be o
than on account of the Rent, nor shall any endorsement or state1
on any check or any letter accompanying any check or payment as
be deemed an accord and satisfaction, and Landlord may accept
check or payment without prejudice to Landlord's right to reco
the balance of such Rent or pursue any other remedy provided in
Lease.
3. Limitations of Landlord's Liability.
The obligations of the Landlord under this Lease do
constitute personal obligations of the individual partn
directors, officers, or shareholders of Landlord, and Tenant s
look solely to the real estate that is the subject of this Lease
to no other assets of the Landlord for satisfaction of any liabi
in respect of this Lease and will not seek recourse against
individual partners, directors, officers or shareholders of Land
or any of their personal assets for such satisfaction.
4. Entire Agreement.
This Lease sets forth all the covenants, promises, agreeme
conditions and understandings between Landlord and Tenant concer
the Demised Premises, Building and Lot, and there are no covena
promises, agreements, conditions or understandings, either ora
written, between them other than as are herein set forth. Excep
herein otherwise provided, no subsequent alteration, amendm
change or addition to this Lease shall be binding upon Landlord
Tenant unless reduced to writing and signed by them.
5. Time.
Time is of the essence hereof.
6. Short Form Lease.
Concurrently herewith the parties may, at the option of ei party, execute a short form of Lease for recording, This Lease
any such short form of Lease shall be construed together as
instrument. Neither Landlord or Tenant shall record this Lease
permit the same to be recorded without the written consent of
other, but shall have the right to record any such short form.
19
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7. Attorney's Fees.
In any action or proceeding which the Landlord or the Tenant
the unsuccessful party therein agrees to pay all costs incurred
the prevailing party therein, including reasonable attorney's fe
to be fixed by the court, and said costs and attorney's fees shall
made a part of the judgment in said action. In any situation
which a dispute is settled other than by action or proceeding, Ten
shall pay all Landlord's costs and attorney's fees relating theret
8. Captions and Section Numbers.
be required to prosecute to enforce it! respective rights hereund
The captions, section numbers, article numbers and in
appearing in this Lease are inserted only as a matter of convenie
and in no way define, limit, construe, or describe the scope
intent of such sections or articles of this Lease nor in any
affect this Lease.
9. Severability.
If any term, covenant, condition or provision of this Lease
the application thereof to any person or circumstance shall to
extent be held by a court of competent jurisdiction to be inval
unenforceable, or void, the remainder of the terms, covenan
conditions, or provisions of this Lease, or the application ther
to any person or circumstance shall remain in full force and eff
and shall in no way be affected, impaired or invalidated.
10. Applicable Law.
This Lease, and the rights and obligations of the part
hereto, shall be construed and enforced in accordance with the 1
of the state in which the Demised Premises are located.
11. Examination of Lease.
Submission of this instrument for examination or signature
Tenant does not constitute a reservation of or option to Lease,
it is not effective as a Lease or otherwise until execution
delivery by both Landlord and Tenant.
Q. SUCCESSORS BOUND.
This Lease and each of its covenants and conditions shall binding upon and shall inure to the benefit of the parties hereto
the$r respective heirs, successors and legal representatives
their respective assigns, subject to the provisions hereof. Whene
in this Lease a reference is made to the Landlord, such refere
shall be deemed to refer to the person in whom the interest of
Landlord shall be vested, and Landlord shall have no obligat
hereunder as to any claim arising after the transfer ot its inter
20
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in this Demised Premises. Any successor or assignee of the Ten
who accepts an assignment or the benefit of this Lease and ent
into possession or enjoyment hereunder shall thereby assume and ag
to perform and be bound by the covenants and conditions there
Nothing herein contained shall be deemed in any manner to give
right of assignment to Tenant without the written consent
Landlord.
IN WITNESS WHEREOF, the parties have executed this Lease as
the date first above written.
If L A N D L o R D 11
PALOMAR 910 ASSOCIATES, LTD.
By: ELI PERLMAN, Managing Partner
Attest:
IT TEN ANT "
CITY OF CARLSBAD
By:
CLAUDE A. LEWIS, Mayor
Attest:
21
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ss. STATE OF CALIFORNIA )
)
COUNTY OF SAN DIEGO 1
On , before me, the undersigned, a Noti
Public in and for said County and State, personally appeal
9 known to me to be and , the corporation that executed
within instrument, known to me to be the persons who executed 1
within instrument on behalf of the corporation therein named, i acknowledged to me that such corporation executed the witl
instrument pursuant to its by-laws or a resolution of its board
directors,
WITNESS my hand and official seal.
NOTARY PUBLIC
STATE OF 1
COUNTY OF 1 ) 9s.
On , before me, the undersigned, a Noti Public in and for said County and State, personally appea
9 known to me to be and , the corporation that executed the witl
instrument, known to me to be the persons who executed the witl
instrument on behalf of the corporation therein named ,
acknowledged to me that such corporation executed the with
instrument pursuant to its by-laws or a resolution of its board
directors.
WITNESS my hand and official seal.
NOTARY PUBLIC
22
Q e
ADDENDUM TO THE STANDARD FORM MULTIPLE OCCUPANCY LEASE BY AND BETWEEN PALOMAR 910 ASSOCIATES, LTD. (LANDLORD) AND THE CITY OF CARLSBAD (TENANT) DATED AS OF
The promises, covenants, agreements and declarations made
set forth herein are intended to and shall have the same force
effect as if set at length in the body of the lease to which t
Addendum is attached (the "Lease"). To the extent that
provisions of this Addendum are inconsistent with the terms
conditions of the Lease, the terms hereof shall control:
1. Section E-2.
Section E-2 is hereby retitled to read: "Tenant's Property"
the language of said Section is hereby revised to read as follo
Tenant shall assume the risk of damage to any fixtures, goo
inventory, merchandise, equipment, furniture, and leaseh
improvements which remain the property of Tenant or as to wh
Tenant retains the right of removal from the Demised Premises,
such items during the Term of this Lease".
11
Tenant shall maintain reasonable insurance coverage with respect
2. Section F-2.
With reference to Section F-2, the following language is her
added thereto: "Tenant expressly understands that there shall be
affirmative responsibility with respect to either party in connect
with repairs to the walls of the Demised Premises relating
maturity or weathering of construction materials as contrasted
damage to the structural integrity of the building walls.
3. Section L-1.
The Semicolon following Subsection L-l(b) is hereby changed t
period and the following sentence is hereby added at the end of s
Subsection: "Should there be a consecutive failure to pay s
installments for two (2) months in a row, then Rent shall become
and payable quarterly in advance on the first day of each calen
quarter during the following one (1) year period of the Term of
Lease, after which year Rent shall again be payable monthly and t
Section shall again be in effect".
4. Section P-12.
A new Section P-12 is added entitled "Financial Statements"
contains the following language: "At any time during the Term of
Lease, Tenant shall, upon thirty (30) days' prior written notice f
Landlord in connection with any financing of the Demised Premis
provide Landlord with a current financial statement and financ
statements for each of the two (2) years prior to the curr
23
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financial statement year, Such statements shall be prepared
accordance with generally accepted accounting principles and shal:
audited by independent certified public accountants if such is
normal practice of Tenant".
5. Section P-14.
A new Section P-14 entitled "Surrender of Premises: Holc
Over" is added hereto and contains the following language:
expiration of ten (10) days after termination of the Term, Tei
shall surrender to Landlord the Demised Premises and all Tenai
improvements and alterations in good condition (except for ordi,
wear and tear occurring after the last necessary maintenance madl
Tenant and except for destruction of the Demised Premises covered
Article J) except for alterations that Tenant has the right to re1
or is obligated to remove after the provisions of Article G. Te
shall remove all its personal property within the above-stated
removal of any alterations or Tenant's personal property within
time period stated in this Section. Landlord can elect to retai
dispose of in any manner any alterations or Tenant's pers
property that Tenant does not remove from the Demised Premises
expiration or termination of the Term as allowed or required by
Lease by giving at least ten (10) days notice to Tenant. Title
any such alterations or Tenant's personal property that Land
elects to retain or dispose of on expiration of the ten (10)
period shall vest in Landlord. Tenant waives all claims aga
Landlord for any damage to Tenant resulting from Landlord's reten
or disposition of any such alterations or Tenant's personal prope
Tenant shall be liable to Landlord for Landlord's costs for stor
removing, and disposing of any alterations or Tenant's pers
property. If Tenant fails to surrender the Demised Premises
Landlord on expiration or ten (10) days after termination of the
as required by this Section, Tenant shall hold Landlord harmless all damages resulting from Tenant's failure to surrender the
Premises including without limitation claims made by a succee
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period. Tenant shall perform all restoration made necessary by
Dem
v
24
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Tenant resulting from Tenant's failure to surrender the Demi:
Premises.
IN WITNESS WHEREOF, the parties have executed this Addendum
of the day and year first above written.
PALOMAR 910 ASSOCIATES, LTD.
Date
By:
ELI PERLMAN
Its! Managing Partner
11 LA N DL 0 R D "
CITY OF CARLSBAD
Date
By:
CLAUDE A. LEWIS
Its: Mayor
" TEN A NT "
25
Appendix A
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' .1
65.0Acrn '
. lal&rn
Pah~ Airport Business Park
6231 YARRoW DRIVE. SUITE C. CARLSBAD, CALIF. 92008 -- TELEPHONE (714) 438-2552 .I