HomeMy WebLinkAbout1993-10-26; City Council; 12445; Lease Agreement Library Branch Plaza Paseo RealCI”Y OF CARLSBAD - AGEITA BILL
PLAZA PASEO REAL SHOPPING CENTER FOR
DEPT. U&M I LIBRARY BRANCH CITY MGi.~
RECOMMENDED ACTION:
Adopt Resolution No. 93 -29 6 authorizing the Mayor to execute the lease
agreement between the City of Carlsbad and the owners of Plaza Paseo Real Shopping
Center located at 6949 El Camino Real, and appropriating $16,300 from the California
Library Services Act (CLSA) grant fund balance.
l-EM EXPLJWA-ITON:
The City has been leasing space in the Plaza De La Costa Shopping Center, located at
7750 El Camino Real, for its Branch Library since February, 1985. The Branch Library
currently occupies 4,509 square feet at a cost of $1.18 per square foot, per month, or
$5,310 per month. Utilities and Maintenance Department staff have been negotiating
since December, 1992 with the current landlord and the owners of the Plaza Paseo Real
Shopping Center, where the new library facility will be constructed, in an attempt to
secure a more favorable lease for the City.
The owners of the Plaza de la Costa Shopping Center have offered to reduce the rent
for our existing space to $1.00 per square foot, per month or $4,509 per month for a period of five years. However, the owners of the Plaza Paseo Real Shopping Center,
who are quite anxious for the City to relocate its branch library there until the new
facility is built, have made a more generous offer to the City. They have offered to
lease the City a new larger suite, consisting of 5,613 square feet, at the same monthly
rate of $4,509 per month for the first two years. The rate would increase in Year Three
to $5,000 and Year Five to $5,500. This equates to $.80 per square foot, per month
initially and increases to $.98 per square foot, per month in Year Five. The lease
includes all tenant improvements and moving costs except for the relocation of the
telephone, computer, and security systems and some miscellaneous library equipment.
The latter is estimated to cost $11,500 and unappropriated California Library Services
Account funds are available for these costs. In addition, the lease may be canceled
immediately if the new library is opened during the next five years. Relocating the
branch library to the new center will result in a newer, larger facility for the public and
staff, as well as improved staff work areas, additional rest room facilities, and improved
public access. The Library Board of Trustees has approved the proposed relocation.
FISCAL IMPACI’:
The cost of the current lease at Plaza de la Costa is $5,310 per month or $63,720
annually. The cost of the lease at the new shopping center, Plaza Paseo Real, would
be $4,509 per month or $54,108, which represents an annual savings of $9,612. In
anticipation of the lower lease taking effect by July 1, the FY 93-94 library budget for the lease was reduced to $54,200. Since the negotiations continued into this fiscal
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year, an additional $4,800 will be required to cover the lease cost at the current
location through December 31,1993. An additional $11,500 is needed to pay for the
relocation of the telephone, computer and security systems and for miscellaneous
furniture and equipment.
The branch library lease is budgeted in the California Library Services Act (CLSA) State
Grant Account. The available CLSA fund balance is approximately $50,000, allowing sufficient funds to cover one-time costs totaling $16,300. Approval of the
recommended action would result in a decrease of $4,800 in lease costs for the
remaining six months of the current fiscal year and more than $24,000 over the course
of the lease.
RII3IBll-S:
1. Resolution No. 93 -a96
2. Lease Agreement on file in the City Clerk's Office
RESOLUTION NO. 93-296
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING A LEASE
AGREEMENT WITH PLAZA PASEO REAL SHOPPING CENTER FOR THE LIBRARY BRANCH
WHEREAS, lease negotiations have been undertaken with both the owners
of the Plaza de la Costa Shopping Center at 7750 El Camino Real, Carlsbad, California
and the owners of the Plaza Paseo Real Shopping Center located at 6949 El Camino
Real, Carlsbad, California for use by the Library Branch; and
WHEREAS, the lowest offer received for this lease was submitted by Plaza
Paseo Real Shopping Center; and
WHEREAS, the California Library Services Act (CLSA) State Grant Account
has sufficient unappropriated funds;
NOW THEREFORE, be it resolved by the City Council of Carlsbad,
California as follows:
1. The above recitations are true and correct.
2. An additional $4,800 for property rental and $11,500 for relocation
expenses is appropriated from the CLSA available fund balance.
3. The Lease Agreement between the City of Carlsbad and the Board of
Administration as Trustee for the Police and Fire Department
Retirement Fund and the Board of Administration as Trustee for the
Federated City Employees Retirement Fund, as owners of the Plaza
Paseo Real Shopping Center, attached hereto, is hereby approved.
4. The Mayor is hereby authorized to sign the Lease on behalf of the
city.
PASSED, APPROVED AND ADOPTED by the City Council of the City of
Carlsbad, Califomia, at its regular meeting held on the 26th day
of OCTOBER , 1993, by the following vote, to wit:
AYES: Council tiembers Lewis, Stanton, Kulchin, Nygaard, Finnila
NOES: None
ATTEST:
al2kzLAd
ALETHA L. WUJTENKRANZ, City Clerk
Table of Contents
ARTICLE I 1.1
1.2
1.3
ARTICLE II
2.1
2.2
2.3
2.4
2.5
2.6
2.7
2.8
2.9
2.10
2.11
2.12
2.13
2.14
2.15
2.16
2.17
2.18
2.19
2.20
2.21
2.22
LEASE OF PREMISES
Premises
Description of Premises
Declaration
BASIC LEASE PROVISIONS
Project Name
Tenant’s Trade Name
Premises Address
Leasable Area of Premises
Leasable Area of the Shopping Center Buildings
Percentage Rent Rate
Initial ‘Monthly Impound
Initial Fixed Minimum Rent (Annual)
Initial Fixed Minimum Rent (Monthly)
Basic Rent Adjustment
Lease Term
Target Date for Completion of Landlord ’ s Work
Target Commencement Date
Security Deposit
Use of Premises
Initial Contribution to Promotion Fund Monthly Contribution to Promotional Fund
Addresses for Payment and Notices
Brokers
Lease Addendum
First Instalhnent of Rent
Exhibits
ARTICLE III TERM AND RENT
3.1 Term
3.1.1 Commencement Date
3.1.2 Notice to Tenant
3.2 Payment of Rent
3.3 Rent
3.3.1 Fixed Minimum Rent
3.3.2 Percentage Rent
3.3.3 Additional Rent
3.3.4 Adjustment of Fixed Minimum Rent
3.3.5 Gross Receipts and Records
3.3.6 Exclusions
3.3.7 Books and Records
3.3.8 Statements
3.3.9 Audit Rights
3.4 Security Deposit
3.5 Utilities
3.6 Common Area Expense
3.6.1 Definition of Common Area
page 2
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3.6.2 Common Area Expenses
3.6.3 Proration of Corm-non Area Expenses
3.7 Advertising and Promotion Fund
3.7.1 Monthly Contribution
3.7.2 Initial Contribution
3.7.3 Committee
ARTICLE IV CONSTRUCTION OF PREMISES
4.1 Landlord and Tenant Obligations
4.2 Possession
4.3 “Substantial Completion”
4.4 Construction Activities
4.5 Delay in Possession
ARTICLE V COVENANTS OF TENANT
5.1
5.2
5.3
5.4
5.5
Use of Premises by Tenant
5.1.1 Premises Usage
5.1.2 Negative Covenants
5.1.3 Affirmative Covenants
Repairs
5.2.1 Acceptance of Premises
5.2.2 Maintenance by Tenant
5.2.3 Maintenance by Landlord
5.2.4 Notice to Landlord
5.2.5 Repairs for Tenant
Alterations
5.3.1 Alterations
5.3.2 Removal of Alterations by Tenant
5.3.3 Liens
5.3.4 Indemnity
Signs, Awnings and Canopies
5.4.1 Landlord ’ s Consent
5.4.2 Sign Criteria
5.4.3 Revised Criteria
Parking
ARTICLE VI CONTROL OF SHOPPING CENTER 6.1 Relocation of Premises
6.2 Parking and Common Area
6.2.1 Maintenance and Use of Common Area
6.2.2 Rules and Regulations
6.2.3 Control of and Changes to Common Area
6.3 Development of Shopping Center by Landlord
6.4 Right of Access
6.4.1 Easement Rights
6.4.2 Access Rights
ARTICLE VII TAXES AND ASSESSMENTS
7.1 Real Property Taxes
7.2 Taxes on Rent
7.3 Personal Property Taxes
ARTICLE VIII INSURANCE
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8.1 Insurance to be Maintained by Tenant
8.2 Insurance to be Maintained by Landlord
8.3 Waiver of Subrogation
ARTICLE IX INDEMNIFICATION
9.1 Indemnification by Tenant
9.2 Waiver and Release
ARTICLE X DAMAGE AND DESTRUCTION; EMINENT DOMAIN
10.1 Notice by Tenant
10.2 Damage and Destruction
10.3 Eminent Domain
10.3.1 Total Taking
10.3.2 Partial Taking
10.3.3 Effective Date
10.3.4 Rent Adjustment
10.3.5 Award
ARTICLE XI ASSIGNMENT AND SUBLETTING
11.1 No Assignment Without Consent
11.2 Notice of Intent to Assign
11.3 Landlord Response to Request to Assign
11.4 Tenant to Remain Liable
11.5 Other Transfers
11.6 Assignee to Assume All Lease Obligations
11.7 Attorneys ’ Fees
ARTICLE XII LANDLORD AND TENANT DEFAULT
12.1 Tenant Default
12.1.1 Failure to Pay Rent
12.1.2 Failure to Perform Covenants
12.1.3 Attachment, Bankruptcy, Receivership
12.1.4 Abandonment
12.2 Landlord Remedies
12.2.1 Termination
12.2.2 Continuation After Default
12.2.3 Damages Upon Termination
12.3 Removal of Persons and Property
12.4 Other Rights
12.5 Computation of Damages
12.6 Late Payment
12.7 Cure of Tenant Default
12.8 Landlord Default
ARTICLE XIII MISCELLANEOUS
13.1 Holding Over, Surrender of Premises
13.1.1 Surrender
13.1.2 Holding Over
13.1.3 Removal of Alterations
13.2 Estoppel Certificates and Subordination
13.2.1 Priority; Quiet Enjoyment
13.2.2 Estoppel Certificate
13.2.3 Subordination Agreement
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13.3
13.4
13.5
13.6
13.7
13.8
13.9
13.10
13.11
13.12
13.13
13.14
13.15
13.16
13.2.4 Notice to Mortgagees
13.2.5 Lease Amendments
13.2.6 Financial Statements
13.2.7 Sale by Landlord
13.2.8 Recordation
Attorneys ’ Fees
Notices
Advertising of Tenant
Interpretation
Successors
Waiver of Default
No Partnership
Applicable State Law
Broker’ s Commission
No Option
Entire Agreement
Corporate Resolutions
Delaying Causes
Subtenancies
EXHIBIT “A” SHOPPING CENTER PLAN
EXHIBIT “B” LOCATION OF THE PREMISES
EXHIBIT “C” TENANT IMPROVEMENTS
EXHIBIT “D” SIGN CRITERIA
EXHIBIT “E” RULES & REGULATIONS
EXHIBIT “F” TENANT’S OFFSET AND ESTOPPEL CERTIFICATE
ADDENDUM
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iv
COPY
PLAZA PASEO REAL SHOPPING CENTER LEASE
BY AND BETWkEN
THE BOARD OF ADMINISTRATION
as trustee for the
POLICE AND FIRE DEPARTMENT RETIREMENT FUND
and
THE BOARD OF ADMINISTRATION,
as trustee for the
FEDERATED CITY EMPLOYEES RETIREMENT FUND
AS LANDLORD
CITY OF CARLSBAD
AS TENANT
PLAZA PASEO REAL SHOPPING CENTER LEASE’
THIS LEASE is entered into as of the 18th day of NOVEMBER
199-l, by and between THE BOARD OF ADMINISTRATION AS TRUSTEE FOR THE-’
POLICE AND FIRE DEPARTMENT RETIREMENT FUND and THE BOARD OF
ADMINISTRATION AS TRUSTEE FOR THE FEDERATED CITY EMPLOYEES
RETIREMENT FUND (“Landlord”) and CITY OF CARLSBAD (“Tenant”).
ARTICLE I
LEASE OF PREMISES
1.1 PREMISES. Landlord hereby leases to Tenant and Tenant hereby hires from
Landlord, subject to all of the terms and conditions hereinafter set forth, that certain
retail/commercial space (hereinafter referred to as the “Premises”) located in the shopping
center complex known as Plaza Paseo Real (the “Shopping Center”) which is situated in
Carlsbad, California on that certain real property described in the attached Exhibit “A”. The
Shopping Center consists of multiple retail/commercial buildings (the “Shopping Center
Buildings”) and certain landscape, parking, sidewalk and driveway areas for use in common
with all tenants in the Shopping Center (the “Common Area”), as more particularly described
on the attached Exhibit “A!‘.
1.2 DESCRIPTION OF PREMISES. The Premises is located within the area
delineated by crosshatching on the attached Exhibit “B”. Prior to the commencement of the
Lease Term, and at one time during the Lease Term, at Landlord’s or Tenant’s option,
Landlord’s architect shall determine and certify in writing to the Tenant and the Landlord the
actual leasable square feet contained in the Shopping Center Buildings and the Premises,
which determination and certification shall be conclusive, and thereupon Tenant’s Fixed
Minimum Rent (as defined in Section 3.3) shall be adjusted accordingly.
1.3 DECLARATION. The Premises is subject to (and Tenant is bound by) a certain
Declaration and Reservation of Access and Reciprocal Parking Easements recorded May 7,
1990 as Instrument No. go-249319 in the Official Records of San Diego County, California
(the “CC&Rs”).
ARTICLE II
2.1
BASIC LEASE PROVISIONS
Project Name: Plaza Paseo Real
2.2 Tenant’s Trade Name: CITY OF CARLSBAD
2.3 Premises Address 6949 El Camino Real. Suite 200 (AKA ClO)
Carlsbad. CA ‘92009
2.4 Leasable Area of Premises:
adjustment under Section 1.2 above).
5.613 square feet (subject to
2.5 Leasable Area of the Shopping Center Buildings: 146.762 square feet
(subject to adjustment under Section -1.2 above).
2.6 Percentage Rent Rate: N/A % (See also Section 3.3.2 below.)
2.7 Initial Monthly Impound: $ None (See also Section 3.6.2 below.)
2.8 Initial Fixed Minimum Rent (Annual): $54.108.00 * ($9.64 per gross leasable square
foot of the Premises) (See also Section 3.3.1 below.)
2.9 Initial Fixed Minimum Rent (Monthly): $4.509.00 * ($.80 per gross leasable square
foot of the Premises) (See also Section 3.3.1 below.)
2.10 Basic Rent Adjustment: See Attached Addendum.
2.11 Lease Term: Five (5) years (See also Section 3.1 below.)
2.12 Target Date for Completion of Landlord’s Work: December 1. 1993.
2.13 Target Commencement Date: Januarv 1, 1994 (This date represents a good faith
estimate by Landlord and Tenant of date the Lease Term will commence.) (See also
Section 3.1 below.)
Actual Commencement Date: (To be inserted by Landlord
pursuant to Section 3.1.2.)
Expiration Date: (To be inserted by Landlord, pursuant to
Section 3.1.2.)
2.14 Security Deposit: $ 0 (See also Section 3.4 below.)
2.15 Use of Premises: City Librarv and for no other purposes. (See also Section 5.1
below.)
* See Addendum, Section 14.
3
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2.16 Initial Contribution to Promotional Fund: $ None (See also Section 3.7 below,)
2.17 Monthly Contribution to Promotional Fund: $ None per gross rentable square foot
of the Premises (See also Section 3.7 below.)
2.18 Addresses for Payment and Notices:
Landlord:
Emily P. Searls, Asset Manager
NBS Realty Advisors
601 California Street, Suite 1400
San Francisco, CA 94 108
(415) 781-2363
with a copy to:
Linda M. Webber
Coast Commercial Properties
4010 Barranca Pkwy., #260
h-vine, CA 92714
(7 14) 857-3557
Tenant:
CITY OF CARLSBAD
1200 Carlsbad Village Drive
Carlsbad, CA 92008
Attn: Claude A. Lewis, Mayor
(619) 438-0218
with a copy to:
Mr. Ralph Anderson CITY OF CARLSBAD
405 Oak Avenue
Carlsbad, CA 92008
2.19 Brokers: CB Commercial Real Estate Groun. Inc.
2.20 Lease Addendum: Any addendum which is attached hereto forms a part of this Lease
and is incorporated herein by this reference.
2.21 THE FIRST MONTHLY INSTALLMENT OF FIXED MINIMUM RENT PAYABLE
UNDER THIS LEASE AND THE SECURITY DEPOSIT TO BE PAID UNDER THIS
LEASE SHALL BE PAID BY TENANT TO LANDLORD AT THE TIME THIS LEASE IS
EXECUTED BY TENANT.
2.22 Exhibits: The exhibits listed below are incorporated in this Lease and are to be
construed as part hereof:
“A” Shopping Center Site Plan
“B” Location of the Premises
“C” Tenant Improvement Agreement
“D” Landlord’s Sign Criteria
“E” Rules and Regulations
“F” Estoppel Certificate
* Addendum
THIS LEASE SHALL NOT BECOME EFFECTIVE UNTIL EXECUTED BY LANDLORD
AND TENANT AND THE SUBMISSION OF THIS FORM OF LEASE TO TENANT BY
LANDLORD, OR LANDLORDS AGENT, DOES NOT CONSTITUTE AN OFFER TO
LEASE. NO EMPLOYEE OR AGENT OF LANDLORD OR ANY PERSON WITH
WHOM TENANT MAY HAVE NEGOTIATED THIS LEASE HAS ANY AUTHORITY TO
MODIFY THE TERMS HEREOF OR TO MAKE ANY AGREEMENTS,
REPRESENTATIONS, OR PROMISES UNLESS THE SAME ARE CONTAINED HEREIN
OR ADDED HERETO IN WRITING.
ARTICLE III
TERM AND RENT
3.1 TERM.
3.1.1 Commencement Date. The term of this Lease (the “Lease Term”) shall be
for the period set forth in Section 2.11 above, and shall commence as provided below:
m the date that Tenant opens for business. ,
3.1.1.2 In the event Tenant is not open for business within sixty (60)
days after the Target Commencement Date (unless the failure to open for business within said
time requirement was caused by strikes, material shortages, acts of God or Landlord, in which
event the deadline will be extended for one day of each day of delay caused by such
occurrence), Landlord, at its option, may cancel the Lease. In such event, Landlord shall take
over possession of the Premises.
3.1.2 Notice to Tenant. The actual date of commencement of the Lease
Term (the “Commencement Date”), shall be inserted in Section 2.13 of the Basic Lease
Provisions promptly upon such commencement and written notice of such commencement
shall be delivered to Tenant by Landlord. The date of expiration of this Lease, (the
“Expiration Date)“, shall be determined by computing the length of the Lease Term provided
at Section 2.11 of the Basic Lease Provisions from the Commencement Date, and shall be
inserted in Section 2.13 of the Basic Lease Provisions at the same time as the Commencement
Date is inserted.
32 PAYMENT OF RENT. Tenant hereby covenants and agrees to pay to L..andlqrd rent
in the form of:
3.2.1 “Fixed Minimum Rent”;
all as hereinafter provided. All sums due to Landlord or third parties under this Lease shall
be deemed “Rent” for the purpose of enforcing this Lease. The payment of all Rent
hereinafter set forth shall begin on the Commencement Date. Rent shall be paid in United
States currency at the office of Landlord in advance, without demand and without any
reduction, abatement, counterclaim or setoff. Time is of the essence in the payment of all
Rent payable hereunder.
33 RENT. Tenant shall pay Landlord Rent as follows:
6
3.3.1 Fixed Minimum Rent. An annual Fixed Minimum Rent in the amount set
forth in Section 2.8 above, payable in twelve. (12) equal monthly installments in the amount
set forth in Section 2.9 above, each payable in advance on the fust day of each month
throughout the Lease Term. Should the Lease Term commence on a day other than the first
day of a month, the first monthly installment of Fixed Minimum Rent shall be prorated on the
basis of a thirty (30) day month.
during each month exceeds the amount of the installment of Fixed Minimum Rent
month.
3.3.3 Additional Rent. Tenant’s prorata share (as per Section 3.62.
Common Area Expenses as defined in Section 3.6.1.
3.3.4 Adiustment of Fixed Miuimum Rent. Fixed M
increased, but in no event decreased, at the expiration of each year
the Lease Ten-n in accordance with the increase, if any, in the c
defined. The Fixed Minimum Rent, as so adjusted, shall be pai
Section 3.3.1 until the next Adjustment Date.
3.3.4.1 The adjusted Fixed Minimum Re 1 be determined on each
Adjustment Date by multiplying the Fixed Min a fraction, the denominator of
which is the Index figure for the month immed g the Commencement Date of
the Lease Term as published in the U.S. Depart f Labor, Bureau of Labor, Bureau of
Labor Statistics, Revised Consumer Price Inde rban Wage Earners and Clerical
Workers, Los Angeles/Anaheim/Riverside litan Area, all terms (1967= 100) (the
“CPI”) and the numerator of which is th I index figure for the month immediately
preceding the month during which the ular adjustment occurs.
3.3.4.2 The Inde
U.S. Department of Labor’s off
discontinued, then the most hensive official Index then in use and most nearly
answering the foregoin tion of the Index to be used. If it is calculated from a base
different from the base 967-100, figures used for calculating the adjustment shall first
be converted under pplied by the Bureau. If the described Index shall not longer
be published and n x is published by the Department of Labor, another Index
uthoritative shall be substituted by Landlord.
without limitation:
3.351 All sales made in, or upon orders placed at, or completed by delivery
g--&f
3.3.5.3 All sales and charges made for cash, credit card or upon credi
the amounts for which credit is given;
3.3.5.4 Sales and charges, whether made by Tenant or any 0th
occupants of the Premises or some part or parts hereof; and
3.355 Sales made by means of mechanical or other ve
Premises. Each sale, charge or business transaction upon installment ntract therefore
shall be treated as a gross sale for the full price or charge in the mo
charge or contract is made.
3.3.6 Exclusions. Gross Receipts shall exclude refun r merchandise returned
which were previously included in gross sales; allowances or stments granted to
customers which were previously included in gross sales of merchandise from the
Premises to any other store or stores, warehouse or ware tenant (provided such
transfers are not made for the purpose of avoiding Percentage Rent hereunder), merchandise returned to vendors; and sales, excise es which are added to the
selling price of merchandise and paid for by the c
3.3.7 Books and Records. Tenant s
and books of account reflecting all sales
order to enable Landlord to ascertain the
one or more recording cash registers
from the Premises shall be reco such cash register tapes shall be retained as part of
the required records. Landlord s duly authorized accountants, agents or attorneys
shall have the right of access at all reasonable times for the purpose of examining the
same and, if Landlord elects, ting the same, in the manner hereinafter provided.
Tenant shall keep all record or near the Premises for a period of not less than three
(3) years following the dat n which Tenant submits its report of gross sales based on such
records.
Tenant shall prepare and deliver to Landlord within twenty
each calendar month at the place where rent is then required to be
written statement signed by Tenant or Tenant’s duly authorized officer
such form and detail as Landlord shall specify the elements and amounts
de by Tenant during such calendar month or fraction thereof. With said
h month, Tenant shall pay to Landlord the amount of Percentage Rent due
In addition, Tenant shall further prepare and deliver to Landlord on or
th (30th) day following the end of each calendar year during the Lease Term
the thirtieth (30th) day after the expiration or earlier termination of the term
Lease, a complete, audited annual
ed to the California State Board of
herein above specified, any statement of gross sales required hereunder,
(i) charge Tenant an
administrative fee of $100 for each month Tenant fails to time1 such written sales
report; or (ii) treat Tenant’s failure as a material breach of th’ e, entitling Landlord to
terminate this Lease; or (iii) exercise any other remedy for in Section 12.2 below, or
any other remedy allowed by law. In the alternative case in which Landlord
questions the accuracy of any statement submitte Landlord may, at any time
within three (3) years~following Tenant’s failure mit a statement or following the
submittal of any statement, elect to cond it of all books and records of Tenant,
including without limitation, Tenan and tax returns, which in any way pertain
to or show gross sales. Such audit d by Landlord or by any authorized
representative. A statement sult of such audit shall be conclusively binding on Tenant and, in addition t Rent, if any, shown to be due by such statement, Tenant shall pay for t he audit in any case where the amount of gross sales shown
by audit are in exces o percent (2%) of the amount shown by Tenant’s statement for the
t such sales exceed ten percent (10%) of the amount shown by
rd shall be entitled to declare same to be a breach of this Lease,
e percent (9%) per annum
Tenant’s obligation hereunder. If Tenant fails to pay Rent or
otherwise defaults with respect to any provision of this Lease, use or retain all
or any portion of said deposit for the payment of any Ren
payment of any other sum which Landlord may become
Tenant’s default or which may affect Landlord’s i
Landlord for any losses or damage which Land1
or applies all or any portion of said
in an amount sufficient to restore said deposit
to the full amount required failure to do so shall be a material breach of this
Lease and Land may terminate this Lease. Landlord shall not be required to
ts general accounts. If Tenant performs all of Tenant’s
said deposit or so much thereof as had not heretofore been applied by
offset against Rent, but shall be returned to Tenant, without payment of
interest nor shall
3.5 UTILITIES. Tenant shall be solely responsible for and shall promptly pay all
electric and Dhone attributable to the Premises at the rates charged by the supply utility
companies.
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3.6 COMMON AREA 4S%?4WW
3.6.1 Definition of Common Area. The Term ‘Common Area,” as used in this
Lease means all areas within the exterior boundaries of the Shopping Center now or later
made available for the general use of Landlord and other persons entitled to occupy space in
the Shopping Center Buildings, and includes the exterior surfaces and roofs of the Shopping
Center Buildings. Without limiting this definition, Landlord may include in the Common
Area those portions of the Shopping Center presently or later sold or leased to purchasers or
tenants, as the case may be, until the commencement of construction of the building(s)
thereon, at which time there shall be withdrawn from the Common Area those areas not set
forth by such owner or lessee for common use. Common Area shall not include (i) any
improvements installed by a tenant outside of its premises, whether with or without
Landlord’s knowledge or consent, or (ii) any areas or facilities that could be considered as
Common Area except that the areas or facilities are included in the description of a premises
leased to a tenant.
applicable, the security offices, management offices, merchant association office
services (the “Common Facilities”), (x) insuring the Common Facilities and the
Area, (y) maintaining, repairing and replacing the exterior surface of ext
maintaining, repairing and replacing roofs of the buildings from time to t
Shopping Center including the Shopping Center Buildings; and (z)
repairing, replacing and maintaining the Common Utility Facilities
sum of all amounts charged to Landlord under the CC&R’s; (iii)
the cost of HVAC
maintenance contracts, and (iv) Real Property Taxes on 1
n Utility Facilities” include, but
are not limited to, sanitary sewer lines and
systems, fire protection lines and systems,
and systems, and storm drainage and reten
and systems, water lines and
er, telephone and communication lines
res not exclusively serving the premises
nter. Common Area Expenses shall
e&bed items, the following: landscaping,
painting, lighting, cleaning, trash removal,
r the Common Area; contributions toward one or
more reserves for replacemen on equipment; charges, surcharges and other levies
related to the requireme federal, state or local governmental agency; expenses
related to the Common ilities; and real and personal property taxes and assessments
Common Area improvements (including the Common Area
Buildings) and the Common Facilities; and a sum payable to
ion and overhead in an amount equal to fifteen percent (15 R) of all
xpenses for the applicable year.
10
costs of the Common Area. Common Area Expenses shall be prorated in the follo
manner:
3.6.3.1 From and after the commencement of the Term, Te
Landlord, on the fust day of each calendar month, an amount estimated by
monthly amount of Tenant’s share of the Common Area Expenses (“Man
Tenant’s initial Monthly Impound under this Lease is set forth in Section
Impound may be adjusted periodically by Landlord based on reasonable
anticipated Common Area Expenses.
3.6.3.2 Within one hundred twenty (120) days foll
calendar year during the Lease Term, or, at Landlord’s option,
shall furnish Tenant with a statement covering the calendar or
just expired, showing the actual Common Area Expenses year, the amount of Tenant’s
share of the Common Area Expenses for said calendar or fi year and the Monthly
Impound payments made by Tenant during that year. If t’s share of the Common Area
Expenses exceeds Tenant’s prior Monthly Impound s, Tenant shall pay Landlord the
deficiency within ten (10) days after receipt of the atement. If Tenant’s Monthly
Impound payments for the calendar or fiscal year ed Tenant’s actual share of the
Common Area Expenses, and provided Tenant ’ m arrears as to the payment of any Rent
, the excess shall be credited against future M y Impound payments owed by Tenant.
3.6.3.3 Tenant’s share of t mmon Area Expenses shall be the sum of the
following:
r Store has sole responsibility as to a particular
portion of the Common Area for that would otherwise be included as a Common
Area Expense item (“Res er Store”), Tenant’s share of the portion of such specific
Common Area Expense i for by such Responsible Other Store (the “Specific
Common Area Expense”) determined by multiplying the amount of such Specific
Common Area Expense b ion, the numerator of which is the number of square feet of
leasable area in the and the denominator of which is the number of square feet of
leasable area in th g Center Buildings leased and occupied by tenants as of the
commencement of icable calendar year or fiscal year (as the case may be), or at
ndar or fiscal quarter (but in no event less than eighty percent
ble area of the Shopping Center Buildings) less the leasable area
sible Other Store. It is specifically understood and agreed that for
3.6.3.3(a) and Section 3.6.3.3(b), at the option of Landlord, the
h be treated as separate Common Area Expense items:
(i) Real Property Taxes assessed against the land in the
11
the Shopping Center other th
To the extent the above Real Property Taxes are not separately assessed, Landlord
equitably apportion such Real Property Taxes among the above categories.
not allocated in
(b) As to Common Area Expenses for the Common Are
Section 3.6.3.3(a), above, Tenant’s share shall be an amount determined by
Common Area Expenses not otherwise included as an expense under S
by a fraction, the numerator of which is the number of square feet of le
Premises and the denominator of which is the number of square
Shopping Center Buildings leased and occupied by tenants as of encement of the
applicable calendar year or fiscal year (as the case may be), or
calendar or fiscal quarter (but in no event less than eighty pert
of the Shopping Center Buildings).
3.7 ADVERTISING AND PROMdTION FUND. lord may, from time to time,
establish an advertising and promotion service designed sh and maintain professional
advertising and sales promotions for the benefit of all ts in the Shopping Center. In
conjunction therewith, Landlord will establish a nd to be known as the Promotion
Fund, the proceeds of which are to be expended advertising, promotion and public
relations designed to promote the Shopping Ce nd administrative expenses), at such time
and in such manner as shall be determined b
3.7.1 Mont& Contribution. hereby agrees to pay into the Promotion Fund
monthly, as Additional Rent, the sum s in Section 2.16. Landlord agrees to pay into
the Promotion Fund an amount equal of the amounts paid into the Promotion Fund by
all of the tenants of the Shopping Ce or Landlord may choose to provide promotional and
administrative services in lieu of a contribution. The amount of Tenant’s payment
into the Promotion Fund shall be each January during the Lease Term by an amount
equal to the annual increase onsumer Price Index for each year of the Lease Term,
using the November p first January following the Term as the Base Month’and
each succeeding Nove Comparison Month, but in no event shall the annual
increase be less than rcent (4%) of the prior year’s payment into the Promotion Fund
by Tenant. Any bal remaining in the Promotion Fund at the end of any calendar year
shall be carried fo to the next calendar year to be used as provided herein.
Should Landlord elect to have a “Grand Opening”
.7.3 Committee. An Advertising and Promotion Service Committee composed of a
ative of Landlord and four (4) representatives of tenants in the Shopping Center
12
ARTICLE IV
CONSTRUCTION OF PREMISES
4.1 LANDLORD AND TENANT OBLIGATIONS. Subject to delay as provided
herein, Landlord shall, at its own cost and expense, develop the Premises in accordance with
plans and specifications prepared by Landlord or Landlord’s architect, incorporating in such
construction all items of work to be performed by Landlord as described in Exhibit “C”
attached hereto (“Landlord’s Work”), as soon as practical after all fmal drawings and
specifications for the improvements of the Premises have been adopted and approved as
provided in Exhibit “C”. Any work to be performed by Tenant as specified in Exhibit “C”,
any permits, fees, or applications for such work, or any work in addition to any of the items
listed in Exhibit “C” shall be performed or obtained by the Tenant at its sole cost and
expense (collectively “Tenant’s Work”). Any equipment or work other than those items listed
in Exhibit “C” requested by Tenant to be installed in or constructed on the Premises by
Landlord shall be paid for by Tenant prior to commencement of construction or installation of
such additional items.
4.2 POSSESSION. Upon taking nossession. and subiect to a nunch list of items to be
corrected within thirtv (30) davs atier nossession, Tenant will accept the Premises in the
condition b which it may then be and waives any right to obiect to the condition of the
Premises, appurtenances thereto and improvements thereon as of the date of accentance.
Landlord shall not be liable under this Lease to Tenant for any latent or patent defects in
the Premises, the Shopping Center Building in which the Premises is located, or the Shopping
Center. However, if such latent or natent defects m-event Tenant from occu~ving&
Premises. Tenant shall have the ripht to terminate this Lease.
4.3 “SUBSTANTIAL COMPLETION”. DELETED
4.4 CONSTRUCTION ACTIVITIES. DELETED
4.5 DELAY IN POSSESSION. Landlord shall not be liable for failure to deliver
possession of the Premises to Tenant on the Target Commencement Date set forth in
Section 2.13 above; provided, however, that if Landlord fails to deliver possession of the
Premises on or before the expiration of three (3) months from the date specified in
Section 2.13 above, either party may terminate this Lease by giving thirty (30) days’ written
notice to the other party. Thereafter, neither party shall have any further liability to the other
in connection with this Lease. Landlord shall not be deemed to be in default with respect to
the performance of any of its construction obligations herein if such default is due to any
strike, lockout, civil commotion or invasion, rebellion, hostilities, sabotage, governmental
regulations or controls, inability to obtain materials, services or financing, inclement weather,
acts of God, delay on the part of Tenant or other causes beyond the control of Landlord.
ARTICLE V
COVENANTS OF TENANT
5.1 USE OF PREMISES BY TENANT.
5.1.1 Tenant shall occupy and use the Premises only for those uses set forth in
13
Section 2.15 above and for no other purpose or purposes without the prior written consent of
Landlord.
5.1.2 Nepative Covenants. Tenant shall not:
5.1.2.1’ Use or permit the Premises to be used for any purpose other than set
forth in Section 2.15 above.
5.1.2.2 Conduct or permit to be conducted in the Premises any fire sale,
auction, bankruptcy sale, second-hand sale, going-out-of-business sale or other promotions or
sales, except for periodic sales in the normal course of business and F’riends of the Librarv
sales.
5.1.2.3 Allow any activity to be conducted on the Premises or store any
material on the Premises which will cause a cancellation or increase in the premiums or
violate the terms of any insurance policy maintained by or for the benefit of Landlord or the
Shopping Center.
5.1.2.4 Use or .allow the Premises to be used for sleeping quarters, dwelling
rooms or for any unlawful purpose or permit any cooking on the Premises without Landlord’s
prior written consent.
5.1.2.5 Solicit business, distribute advertising, obstruct, place any
merchandise, vending or amusement machines on, or, otherwise use in the conduct of its
business, any part of the Common Area of the Shopping Center, including the sidewalks in
front of or adjacent to the Premises.
5.1.2.6 Commit or allow to be committed any waste, damage or nuisance in
any portion of the Premises, or interfere with any other tenant’s use of the Common Area or
Shopping Center.
5.1.2.7 Handle, store, manufacture, treat, release, use or permit the use of any
Hazardous Substances (as defined below) on or in the Premises, or discharge any Hazardous
Substances onto the land or any surface water or ground water at or near the Premises, except
in compliance with applicable Environmental Laws (as defined below). Tenant shall comply
with the applicable provisions of the Safe Drinking Water and Toxic Enforcement Act of
1986. California Health and Safety Code Section 25249.6 et seq. Tenant shall immediately
advise Landlord in writing of (a) any and all governmental agency regulatory proceedings or
enforcement actions instituted or threatened which presently require or could require
investigation, mitigation, clean-up, alteration or abatement of conditions at the Premises, and
(b) all claims made or threatened by any party against Tenant or the Premises relating to
damage, contribution, cost recovery, compensation, loss or injury resulting from any
Hazardous Substance. “Hazardous Substances” shall mean any substance which is
(i) designated, defined, classified or regulated as a hazardous substance, hazardous material,
hazardous waste, pollutant or cant aminant under any Environmental Law, as currently in
effect or as hereafter amended or enacted, (ii) a petroleum hydrocarbon, including crude oil or
any fraction thereof and all petroleum products, (iii) PCBs, (iv) asbestos, (v) flammable,
explosive, toxic or otherwise or (ix) a reproductive toxicant. Environmental Law(s) shall
14
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mean the comprehensive Environmental Response, Compensation and Liability Act of 1980,
42 U.S.C. Sections 9601, et seq., the Resource Conservation and Recovery Act of 1979,42
U.S.C. Sections 6901 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. Sections
1801 et seq., the Clear Water Act, 33 U.S.C. Sections 1251 et seq., as said laws have been
supplemented or amended to date, the regulations promulgated pursuant to said laws and any
other federal, state or local law, statute, rule, regulation, ordinance, decree, order, permit
license, approval or authorization which regulates or proscribes the use, storage, disposal,
presence, cleanup, transportation or release or threatened release into the environment of
Hazardous Substances or pertaining to the protection of human health and safety of the
environment.
5.1.2.8 Erect or install any exterior signs or window or door signs, advertising
media or window or door lettering or placards; install any exterior lighting or plumbing
futures, shades or awnings; make any exterior decoration or painting; build any fences, walls,
barricades or other obstructions; or, install any radio, television, phonograph, antennae, loud
speakers, sound amplifiers, flashing or revolving lights, or similar devices on the roof,
exterior walls or in the windows of the Premises, or make any changes to the store front
without Landlord’s prior written consent. Any signs, lights, advertising material, loud
speakers or anything installed by Tenant on the Premises which may be seen, heard, or
experienced outside the Premises must be designed or approved by Landlord. Tenant agrees
to utilize Landlord’s designated Shopping Center sign contractor for the fabrication and
installation of Tenant’s signs. Tenant shall not display, paint or place, or cause to be
displayed, painted or placed any handbills, bumper stickers, or other advertising devices on
any vehicles parked in the Common Area of the Shopping Center, nor shall Tenant distribute
or cause to be distributed in the Shopping Center any handbills or other advertising devices.
5.1.3 Affirmative Covenants. Tenant shall:
5.1.3.1 Comply at its sole cost and expense with all laws, ordinances, codes,
orders, rules and regulations (state, federal, municipal or promulgated by other agencies or
bodies having or claiming jurisdiction) affecting or requiring improvements or modifications
to the Premises, including, without limitation (a) all laws, ordinances, codes, orders, rules and
regulations dealing with environmental protection, pollution or Hazardous Substances; and (b)
the requirements of the Americans with Disabilities Act (“ADA”).
5.1.3.2 Warehouse, store and/or stock in the Premises only such goods, wares
and merchandise as Tenant intends to offer or sale at retail at, in, from or upon the Premises.
Tenant shall use for office, clerical or other non-selling purposes only such space in the
Premises as is from time to time reasonably required for Tenant’s business in the Premises.
merchandise of s
maximum Gross
igned to produce the
s reasonably determined by Landlord for such type of
15
if any, in the Premises well lighted during the hours from sundo
prevented by causes beyond the control of Tenant. In the event
of the conditions contained in this Section 5.1.3, Landlor
all remedies herein provided, the right at its ele
Rent herein provided, but further Rent at
Rent herein provided for each and nant shall fail to conduct its business as
herein provided; said further eemed to be in lieu only of Percentage Rent as
set forth in Section 3.3.2 t have been earned during such period of Tenant’s failure
to conduct its b rovided. The parties agree that in the event of such a
lord’s damages would be impossible or impracticable to determine and
for recovery of future Rent by Landlord, set forth herein, is a reasonable
of the damage that Landlord would incur for lost Rent, costs and other
5.1.3.5 Keep the Premises, entrances thereto, walkways adjacent thereto,
loading platforms, service areas, garbage and refuse storage areas free from obstruction and
clean and neat, and arrange for the prompt and frequent pickup of rubbish at such intervals as
Landlord may direct.
5.2 REPAIRS.
5.2.1 Accerhnce of Premises. Tenant agrees that its acceptance of the Premises
(as evidenced by Tenant’s entry into possession thereof) shall constitute conclusive proof that
the Premises is, as of the Commencement Date, in a tenantable and good condition and repair.
Tenant hereby waives the right to make repairs at Landlord’s expense under the provisions of
Section 194 1 and 1942 of the Civil Code of California. Tenant hereby waives its rights, if
any, under the provisions of Section 1932, Subdivision 2 and Section 1933, Subdivision 4 of
the Civil Code of California.
5.2.2 Maintenance bv Tenant. Tenant shall, at Tenant’s sole cost and expense,
keep the Premises and every part thereof in good and sanitary order, condition and repair
(except as hereinafter provided with respect to Landlord’s obligations) including, without
limitation, the maintenance, replacement and repair of any storefront, doors, window
easements, glazing, plumbing, pipes, electrical wiring and conduits. Any work of repair or
maintenance performed by or on account of Tenant by persons other than Landlord shall be
performed by contractors reasonably approved by Landlord. Tenant shall, upon the expiration
or sooner termination of this Lease, surrender the Premises to Landlord in good condition,
broom clean, ordinary wear and tear and damage from causes beyond the reasonable control
of Tenant excepted. Any damage to adjacent premises caused by Tenant’s use of the
Premises shall be repaired at the sole cost and expense of Tenant.
5.2.3 Maintenance bv Landlord. Notwithstanding the provisions of Section 5.2.2
above, Landlord shall, repair and maintain the HVAC system (and contract for regular
professional HVAC maintenance), and the exterior walls, roof and structural portions of the
Shopping Center Buildings, unless such maintenance and repairs are caused in part or in
whole by the act, neglect, fault or omission of any duty by Tenant, its agents, servants,
16
employees, or invitees, in which case Tenant shall pay to Landlord the actual cost of such
maintenance and repairs. Landlord shall not be liable for any failure to make such repairs or
to perform any maintenance unless such failure shall persist for thirtv (30) davs after written
notice of the need for such repairs or maintenance is given to Landlord by Tenant lor such
longer aeriod as is reasonablv required rwovided Landlord commences repairs within
such 30 day period and diligently wosecutes such repairs to completion. There shall be
no withholding of rent and no liability of Landlord by reason of any injury to or interference
with Tenant’s business arising from the making of any repairs, alterations or improvements in
or to any portion of the Shopping Center Buildings or the Premises or in or to fixtures,
appurtenances and equipment therein. Tenant waives the right to make repairs at Landlord’s
expense under any law, statutes or ordinances now or hereafter in effect.
5.2.4 Notice to Landlord. Tenant shall promptly notify Landlord in writing of the
need for any repairs to be performed by Landlord at Tenant’s expense and Landlord shall
have the right to enter the Premises at any time upon reasonable notice with such personnel
and equipment as may be deemed necessary by Landlord to make such repairs. Unless
Landlord is negligent, in no event shall Landlord be liable to Tenant, for any loss, damage
(including water damage), theft, or destruction of or to any merchandise, fixtures, money or
other property belonging to any person occasioned by acts of Landlord or its agents or
employees while making such repairs. In no event shall Tenant be entitled to any
withholding of rent during periods of such repair.
5.2.5 ReDairs for Tenant. In the event Tenant fails or refuses to perform any
repairs required of it hereunder, or to make any payment in connection therewith, in addition
to all other remedies available hereunder, at law or in equity, for Tenant’s default, Landlord
may, but shall not be obligated to, enter the Premises with personnel and equipment and
perform such repairs on behalf of and at the expense of Tenant, or make such payment for
such repairs on behalf of Tenant and charge Tenant for such payments made plus interest at
the maximum legal rate allowed by law.
5.3 ALTERATIONS.
5.3.1 Alterations. Tenant shall not make or cause to be made any alterations,
additionsor improvements or install or cause to be installed any trade futures, exterior signs,
floor covering, interior lighting, plumbing futures, shades or awnings or make any changes to
the store front of the Premises without Landlord’s prior written consent. Tenant shall present
Landlord with plans and specifications for such work, construction means and methods, the
identity of the contractor to be employed and the time for performance of such work
concurrently with the request for approval. If required by Landlord, Tenant shall also provide
security for the lien free completion of such work in the form of a bond or other security
satisfactory to Landlord.
5.3.2 Removal of Alterations by Tenant. All alterations, decorations, additions
and improvements made by Tenant, or made by Landlord on Tenant’s behalf by agreement
under this Lease (collectively, “Alterations”), shall remain the property of Landlord during the
17
Lease Term and any extension of renewal thereof. No Alterations shall be removed from the
Premises without Landlord’s prior written consent. During the Lease Term, Tenant shall not
remove any of its trade fuctures or other personal property without the immediate replacement
thereof with comparable futures or property. Upon expiration of this Lease, or any renewal
term thereof, at Landlord’s option, Tenant shall remove all Alterations, and restore the
Premises as provided in Section 13.1 hereof. If Tenant fails to remove such Alterations and
restore the Premises, then upon the expiration of this Lease, or any renewal thereof, and upon
Tenant’s removal from the Premises, all such Alterations shall become the property of
Landlord and Tenant shall reimburse Landlord for the cost of removal and/or storage of such
Alterations.
5.3.3 Tenant shall keep the Premises free from any kinds of liens, Liens.
encumbrances, charges or pledges arising out of work performed or materials furnished
Tenant and shall promptly pay all contractors, materialmen, laborers, suppliers and vendors
used by Tenant to improve the Premises, so as to minimize the possibility of a lien attached
thereto. Should any such lien be made or filed, Tenant shall bond against or discharge the
same within ten (10) days after written request by Landlord.
5.3.4 Indemnity. Tenant shall indemnify, defend and hold Landlord, the Premises
and the Shopping Center and every part thereof free and harmless from and against any and
all liability, damage, claims, demands, suits, actions or expense (including attorneys’ fees)
arising out of any work done on or about the Premises by Tenant, its employees,
representatives, successors, contractors, subcontractors, materialmen and assigns.
5.4 SIGNS. AWNINGS AND CANOPIES. See Addendum, Section 15
5.4.1 Landlord’s Consent. Tenant shall not place or suffer to be placed or
maintained on the roof or on any exterior door, wall or windows (or within 48 inches of any
windows) of the Premises any sign, awning or canopy, or advertising matter on the glass of
any window or door of the Premises without Landlord’s prior written consent. Tenant further
agrees to maintain such sign, awning, canopy, decoration, lettering or advertising matter as
may be approved in good condition and repair at all times.
5.4.2 Sign Criteria. See Addendum
a canopy type sign and any other signs as requir
Landlord’s sign criteria as set forth on Exhibit “D” attached hereto (“Si
design, material, color, location, size and letter style and from the
Landlord. Tenant’s sign shall be installed prior to Tena siness and shall
thereafter be maintained by Tenant at its own ex s to maintain such sign,
Landlord may do so and Tenant shall r such cost plus a twenty percent
(20%) overhead fee. If, without Land tten consent, Tenant installs a sign that
does not conform to Landlo
maximum rate allow eimbursed by Tenant.
Landlord reserves the right to revise the Sign Criteria at
18
5.5 PARKING. Tenant and its employees shall park their vehicles only in those portions
of the Common Area from time to time designated for such purpose by Landlord. Further,
Landlord shall have the right to adopt and implement such parking programs as may be
necessary to alleviate parking problems during peak traffic periods, including requiring the
use of offsite parking for employees. Tenant shall furnish Landlord with a list of its
employees and the license numbers of their vehicles within fifteen (15) days after Tenant
opens for business in the Premises. Tenant shall be responsible for ensuring that its
employees comply with all the provision so this section and such other parking rules and
regulations as may be adopted and implemented by Landlord from time to time, including but
not limited to systems of validation, shuttle transportation or any other programs which may
be deemed necessary or appropriate by Landlord to control, regulate or assist parking by
customers of the Shopping Center.
ARTICLE VI
CONTROL OF SHOPPING CENTER
6.1.1 The new Premises shall be substantially the same in size, d’
configuration, decor, and nature as the Premises described in this
in that condition by Landlord at its cost.
6.1.2 The physical relocation of the Premises shall complished by Landlord at
its cost.
6.1.3 The physical relocation of the Pre 1 take place on a weekend and shall
be completely accomplished before the wing the weekend in which the
relocation takes place. If the physical r not been completed in that time, rent
shall abate in full from the time the p ocation commences to the time it is
completed.
6.1.4 All incidental mcurred by Tenant as a result of the relocation, including,
without limitation, costs in changing addresses on stationery, business cards,
directories, advert&n er such items, shall be paid by Landlord, provided that such
costs shall not exe Hundred Dollars ($500).
dlord shall not have the right to relocated the Premises more than two
19
-
multiplying the monthly Fixed Minimum Rent by a
the total number of gross leasable square feet in the
of which shall be the total nu
relocation.
the Premises before
6.2 PARKING AND COMMON AREA.
6.2.1 Maintenance and Use of Common Area. The manner in which the Common
Area shall be maintained shall be solely determined by Landlord. Landlord shall have the
right in its sole discre ion to allow any purchaser or tenant to maintain any portion of the
Common Area l3ebd provided such purchaser or tenant shall maintain the Common Area in
an equal or better standard as the remainder of the Common Area in the Shopping Center. If
any owner or tenant of any portion of the Shopping Center maintains any portion of the
Common Area, Landlord shall not have any responsibility for the maintenance of that portion
of the Common Area.
6.2.2 Rules and Reeulations. The use and occupancy of the Premises by Tenant
shall include the right to use the Common Area (except those portions of the Common Area
on which have been constructed or placed permanent or temporary kiosks, displays, carts and
stands and those areas used in the maintenance or operation of the Shopping Center) in
common with Landlord and other tenants of the Shopping Center and their employees, agents,
customers and invitees, subject to such reasonable, nondiscriminatory rules and regulations
concerning the use of the Common Area as may be established by Landlord from time to
time. Written notice of such rules and regulations and amendments and supplements thereto,
if any, shall be given to Tenant thirty (30) days prior to their effective date. Tenant agrees to
promptly comply with all such rules and regulations upon receipt of written notice from
Landlord. Landlord ‘s current rules and regulations are attached as Exhibit “E”. In the event
of a conflict between the terms of this Lease and the Rules and Reeulations. the terms of
this Lease shall govern.
6.2.3 Control of and Chanees to Common Area. Landlord shall have the sole and
exclusive control of the Common Area, as well as the right to make reasonablechanges to the
Common Area. Landlord’s rights shall include, but not be limited to, the right to (a) restrain
the use of the Common Area by unauthorized persons; (b) cause Tenant. to remove or restrain
persons from any unauthorized use of the Common Area if they are using the Common Area
by reason of Tenant’s presence in the Shopping Center; (c) utilize from time to time any
portion of the Common Area for promotional, entertainment and related matters; (d) place
permanent or temporary kiosks, displays, carts and stands in the Common Area and to lease
same to tenants; (e) temporarily close any portion of the Common Area for repairs,
improvements or alterations, to discourage non-customer use, to prevent dedication or an
easement by prescription, or for any other reason deemed sufficient in Landlord’s judgment;
(f) reasonably change the shape and size of the Common Area; (g) add, eliminate or change
the location of improvements to the Common Area, including, without limitation, buildings,
20
lighting, parking areas, roadways and curb cuts; and (h) construct buildings on the Common
Area.’ Landlord may determine the nature, size and extent of the Common Area and whether
portions of the same shall be surface, underground or multiple-deck.
6.3 DEVELOPMENT OF SHOPPING CENTER BY LANDLORD. It is expressly
understood and agreed that Landlord may at its sole option (but shall not be obligated to), and
without Tenant’s consent, and without liability to Tenant:
6.3.1 Develop undeveloped portions of the Shopping Center;
6.3.2 Increase the size of the Shopping Center by additions of contiguous property or
decrease the size of the Shopping Center or increase, decrease or otherwise modify the
Shopping Center Buildings, Common Area, parking layout, ingress or egress to and from the
Shopping Center; in any of which events, Landlord shall deliver to Tenant a revised
Exhibit “A” which shall be substituted in and automatically become part of ‘this Lease.
6.3.3 Build additional stories on any of the Shopping Center Buildings and construct
double-deck subterranean, or elevated parking facilities. Landlord makes no warranty or
representation whatever regarding the names or character of businesses to be conducted or the
size or location of any space to be occupied by any tenant of the Shopping Center. The
Shopping Center Buildings use designations, if any, set forth on Exhibit “A” are for
convenience only, and is not to be construed as a representation that the Shopping Center
Buildings will be put to such use; and Tenant does not rely on any such representation in
entering into this Lease.
6.4 RIGHT OF ACCESS.
6.4.1 Easement Rights. Tenant hereby grants to Landlord such licenses or
easements in, under or over the Premises or any portion or portions thereof as shall be
reasonably required for the installation or maintenance of mains, conduits, pipes or other
facilities to serve the Shopping Center or’any part thereof.
6.4.2 Access Rkhts. Landlord and its agents shall have free access to the Premises
during all reasonable hours for the purpose of examining the same and to ascertain if Tenant
is in compliance with the terms of this Lease, to exhibit the same to prospective purchasers or
tenants pursuant to this Lease and to post such notices as may be desirable or necessary in
Landlord’s sole judgment.
ARTICLE VII
TAXES AND ASSESSMENTS
s”) which may be levied or
nts in the Shopping Center,
commences an
76 TAXES ON RENT. lf at any time during the Le under the law of the
United States, or the state, county, municipality, or an subdivision thereof in which
the Shopping Center is located, a tax or excise on y other tax however described is
levied or assessed by any such political bod dlord on account of Rent payable to
Landlord hereunder or any tax based on or by expenditures made by Tenant on
behalf of Landlord, such tax or nsidered “Real Property Taxes” for purposes
of this Section 7.2 or shall be p (10) days after Tenant’s receipt of the tax
bill therefor from Landlord.
Tenant shall pay, before delinquency, all
reason thereof. For the
ARTICLE VIII
INSURANCE
8.1 INSURANCE TO BE MAINTAINED BY TENANT. At all times during the Lease
Term, Tenant, at its sole cost and expense, shall maintain in full force and effect self
insurance and moled coveraPe or coveraee with insurance companies licensed to do
business in the State of California and otherwise satisfactory to Landlord one or more policies
evidencing the following coverage:
8.1.1 Comprehensive general liability insurance or its equivalent including
premises/operations, contractual liability, independent contractors, personal injury,
products/completed operations and, if applicable, liquor liability insurance with respect to the
Premises and the business operated by Tenant and subtenants and concessionaires of Tenant
in the Premises, of which the combined single limit of general liability shall not be less than
$1 ,OOO,OOO per occurrence for bodily injury and property damage.
8.1.2 “All risk” coverage insurance covering all trade fixtures, merchandise and
personal property in or upon the Premises in amounts not less than one hundred percent
(100%) of the replacement value thereof, providing protection against any peril included
within the classification of “Fire and Extended Coverage”, including sprinkler damage, if any,
vandalism and malicious mischief.
22
8.1.3 Plate glass insurance on the Premises.
The above policies shall name Landlord, and any person, firms, or corporations designated by Landlord as additional insureds. Said entities shall not, by reason of their
inclusion under said policies, incur liability for payment of any premium. The policies shall contain a clause that insurer will not cancel or change such coverage without fust giving
Landlord thirty (30) days’ prior written notice. All insurance required hereunder shall be
issued by an insurance company having not less than a financing rating of Class B7 as rated
in the most current available “Best’s Key Rating Guide” and a copy of the policy or certifkate
of insurance shall be delivered to Landlord prior to Tenant’s occupancy of the Premises. All
public liability, property damage and other casualty policies shall be written as primary
policies, not contributing with and not in excess of coverage which Landlord may carry.
a.2 INSURANCE TO BE MAINTAINED BY LANDLORD. At all times during the
Lease Term, Landlord shall maintain “all risk” coverage insurance on the Shopping Center
Buildings with (if appropriate) a replacement cost endorsement and an agreed or stipulated
amount endorsement, rental loss insurance or any other insurance cover-ages deemed necessary
by Landlord or Landlord’s lender (collectively, “Landlord Carried Insurance”), which may be
obtained through a blanket policy or other form of pooled insurance coverage covering not
only the Shopping Center, but other property owned by Landlord or its affiliates. Landlord
Carried Insurance, shall be in an amount equal to at least ninety percent (90%) of the
replacement value of the Shopping Center Buildings (exclusive of foundation and excavation , costs). .jhP
8.3 WAIVER OF SUBROGATION. Tenant hereby waives any right of recovery against
Landlord, its successors, assigns, directors, agents and representatives in connection with any
loss or damage caused to Tenant’s property and covered by any property insurance policies of
Tenant. Tenant hereby waives on behalf of its carriers any right of subrogation it may have
against Landlord and shall notify its carrier of the waiver contained herein.
ARTICLE IX
INDEMNIFICATION
9.1 INDEMNIFICATION BY TENANT. Tenant hereby agrees to indemnify, defend
and hold Landlord harmless from and against any and all claims, demands, actions, damages,
liability and expense (including reasonable attorneys’ fees and costs of investigation with
respect to any claims, demand or action) in connection with loss of life, personal injury
and/or damage to property arising from or connected with the conduct or management of the
business conducted by Tenant on the Premises, or the occupancy or use by Tenant of the
Premises or any part thereof, or from any breach or default on the part of the Tenant in the
performance of any covenant or agreement on the part of Tenant to be performed pursuant to
this Lease (including without limitation the covenants regarding Hazardous Substances set
forth in Section X1.2.7), or from violations of or noncompliance with any governmental
requirements or insurance requirements, or from any acts or omissions of Tenant or any
person on the Premises by license or invitation of Tenant or occupying the Premises on any
part thereof under Tenant. In case Landlord shall be made a party to any litigation
commenced by or against Tenant, Tenant shall accept any tender of defense by Landlord and
23
.
shall, notwithstanding any allegations of negligence or misconduct on the part of Landlord, its
agents or employees, defend Landlord and protect and hold Landlord harmless and pay all
costs, expenses and reasonable attorneys’ fees incurred or paid by Landlord in connection with
such litigation; provided, however, Tenant shall not be liable for any such injury or damage to
the extent and in the proportion such injury or damage is ultimately determined to be
attributable to the negligence or misconduct of Landlord, its agents or employees. This
indemnification shall survive the expiration or earlier termination of this Lease.
9.2 WAIVER AND RELEASE. ExceDt to the extent caused bv the negligence or
misconduct of Landlord. or breach of anv other Drodsion of this Lease by Landlord,
Tenant agrees and this Lease is made upon the express condition that Landlord shall not be
liable, responsible, or in any way accountable, to Tenant, for any loss, theft, destruction or
damage (including but not limited to any damage caused by rain storm or other water
damage) to any goods, wares, merchandise, fixtures or other property stored, kept, maintained
or displayed in, on or about the Premises, or in, on or about any other facilities which Tenant
may have use of in conjunction with this Lease, nor for injury to or death of any person or
persons who may at any time be using, occupying or visiting the Premises or thereabouts.
ARTICLE X
DAMAGE AND DESTRUCTION; EMINENT DOMAIN
10.1 NOTICE BY TENANT. Tenant shall give immediate notice to Landlord in case of
fire, accident or other casualty in the Premises or in the Shopping Center Building in which
the Premises is located or of any damage or defects in the Premises, the Shopping Center
Building in which the Premises is located or any fixtures or equipment therein.
10.2 DAMAGE AND DESTRUCTION. I.tt the event the Premises are damaged by fue
or other peril covered by Landlord Carried Insurance, Landlord agrees to forthwith repair
same, and this Lease shall remain in full force and effect, except that Tenant shall be entitled
to a proportionate reduction of the Fixed Minimum Rent from the date of damage and,while
such repairs are being made, such proportionate reduction to be based upon the extent to
which the damage and making of such repairs shall reasonably interfere with the business
carried on by the Tenant in the Premises; provided, however, if the damage is due to the fault
or neglect of Tenant or its employees, there shall be no abatement of rent. In the event the
Premises are damaged as a result of any cause not covered by Landlord Carried Jnsurance,
then Landlord shall have the option: (1) to repair or restore such damage, in which event this ~
Lease shall continue in full force and effect, but the Fixed Minimum Rent shall be
proportionately reduced as provided above; or (2) give notice to Tenant at any time within
sixty (60) days after such damage, terminating this Lease as of the date specified in such
notice, which date shall be no more than thirty (30) days’ after the giving of such notice. In
the event of giving such notice, this Lease shall expire and all interest of the Tenant in the
Premises shall terminate on the date so specified in such notice and the Fixed Minimum Rent,
reduced in proportion to the extent, if any, such damage interfered with the business carried
on by Tenant in the Premises, shall be paid up to the date of such termination.
Notwithstanding anything to the contrary contained in this Section, Landlord shall not have
any obligation whatsoever to repair, reconstruct or restore the Premises if the damage occurs
during the last twenty-four (24) months of the Lease Term or any extension thereof.
Landlord shall not be required to repair any injury or damage by fne or other cause, or to
24
make any repairs or replacements of any leasehold improvements, fixtures, or other personal
property of Tenant.
10.3 EMINENT DOMAIN. If there is any taking of all or any part of the Premises or
the Shopping Center or any interest therein because of the exercise of the power of eminent
domain, whether by condemnation proceedings or otherwise, or any transfer of any part of the
Premises or any interest therein made in avoidance of the exercise of the power of eminent
domain (all of the foregoing being hereinafter referred to as “taking”), the rights and
obligations of Landlord and Tenant with respect to such taking shall be as follows:
10.3.1 Total Taking. If there is a taking of 50% or more of the leasable area of the
Premises, this Lease shall terminate as of the date of such taking.
10.3.2 Partial Taking. If less than 50% of the leasable area of the Premises shall be
taken, Tenant or Landlord shall have the option to terminate this Lease. The terminating
party shall give written notice to the other of its election no later than ninety (90) days after
the date Landlord receives notice that possession or title to the portion of the Premises or
Shopping Center taken has vested in the condemnor.
10.3.3 Effective Date. If this Lease is terminated in accordance with the provisions
of this Section 20.3, such termination shall become effective as of the date physical
possession of the particular portion is taken or immediate possession is ordered. The parties
shall then be released from all further liability hereunder. If this Lease is not terminated as
provided in this Section 10.3, Landlord shall restore the remainder of the improvements
occupied by Tenant so far as is practicable to a complete unit of like qualify, character, and
condition as that which existed immediately prior to the taking.
10.3.4 Rent Adiustment. If this Lease is not terminated as provided in this
Section 10.3, the Fixed Minimum Rent for the remainder of the Lease Term shall be reduced
by the proportion which the number of square feet of leasable area of the Premises taken
bears to the total leasable area of the Premises immediately before the taking.
10.3.5 Award. The entire award or compensation in such proceedings, whether for a
total or partial taking or for diminution in the value of the leasehold or for the fee, shall
belong to and be the property of Landlord and Tenant hereby assigns to Landlord all of
Tenant’s interest in any award. Tenant expressly waives the provisions of California Code of
Civil Procedure Section 1265.130, as amended from time to time.
25
ARTICLE XI
ASSIGNMENT AND SUBLETTING
11.1 NO ASSIGNMENT WITHOUT CONSENT. Tenant shall not directly or indirectly,
voluntarily or by operation of law, sell, assign, encumber, pledge or otherwise transfer or
hypothecate its interest in or rights with respect to the Premises or Tenant’s leasehold estate
hereunder (collectively, “Assignment”), or permit all or any portion of the Premises to be
occupied by anyone other than Tenant or sublet all or any portion of the Premises or transfer
any portion of its interest in or rights with respect to Tenant’s leasehold estate hereunder
(collectively, “Sublease”) without Landlord’s prior consent.
11.2 NOTICE OF INTENT TO ASSIGN. If Tenant desires at any time to enter into an
Assignment of this Lease or a Sublease of all or any portion of the Premises, Tenant shall
first give notice to Landlord of its desire to do so, which notice shall contain (a) the name
and address of the proposed assignee, subtenant or occupant, (b) the nature of the proposed
assignee’s, subtenant’s or occupant’s business to be carried on in the Premises, (c) a statement
of the proposed assignee’s, subtenant’s, or occupant’s experience and success in operating such
a business, (d) the terms and provisions of the proposed Assignment or Sublease and (e) such
fmancial information as a Landlord may reasonably request concerning the proposed assignee,
subtenant or occupant, including a financial statement showing the proposed assignee’s,
subtenant’s, or occupant’s income and net worth, and (f) a check payable to Landlord for $500
as a processing fee.
11.3 LANDLORD RESPONSE TO REOUEST TO ASSIGN. At any time within thirty
(30) days after Landlord’s receipt of the notice specified in Section 11.2, Landlord may by
notice to Tenant elect to (a) terminate this Lease as to that portion of the Premises that is
specified in Tenant’s notice, with a proportiouate abatement in the Rent, (b) consent to the
Sublease or Assignment, or (c) disapprove the Sublease or Assignment; provided, however,
that if Landlord elects not to exercise the option set forth in (a) Landlord shall not
unreasonably withhold its consent to the Assignment or Sublease. As a condition for granting
its consent to any Assignment or Sublease, however, Landlord shall require that Tenant agree
to pay to Landlord one hundred percent (100%) of the amount by which all sums payable to
Tenant in connection with such Assignment or Sublease exceed Rent payable by Tenant to
Landlord hereunder (or a proportionate amount of such Rent representing the portion of the
Premises subject to a Sublease if less than the entire Premises is subject to a Sublease). If
Landlord consents to the Sublease or Assignment within such thirty (30) day period, Tenant
may thereafter within ninety (90) days after Landlord’s consent, but not later than the
expiration of such ninety (90) days, enter into such Assignment or Sublease upon the terms
and conditions set forth in the notice furnished by Tenant to Landlord pursuant to Section 11.2.
11.4 TENANT TO REMAIN LIABLE. No consent by Landlord to any Assignment or
Sublease by Tenant shall relieve Tenant of any obligation to be performed by Tenant under
this Lease, whether arising before or after the Assignment or Sublease. The consent by
Landlord to any Assignment or Sublease shall not relieve Tenant from the obligation to obtain
Landlord’s express consent to any other Assignment or Sublease. Any Assignment or
Sublease that fails to comply with the requirements of this Article XI shall be void and, at the
option of Landlord, shall constitute an Event of Default by Tenant (as defined in
26
Section 22.1) under this Lease. The acceptance of Rent by Landlord from a proposed
assignee or sublease shall not constitute the consent to such Assignment or Sublease by
Landlord.
11.5 OTHER TRANSFERS. Any sale or other transfer, including by consolidation,
merger or reorganization, of a majority of the voting stock of Tenant, if Tenant is a
corporation, or any sale or other transfer of a majority of the partnership interests in Tenant,
if Tenant is a partnership, shall be an Assignment for purposes of this Lease. As used in this
Section 11.5, the term “Tenant” also shall mean any entity that has guaranteed Tenant’s
obligations under this Lease.
11.6 ASSIGNEE TO ASSUME ALL LEASE OBLIGATIONS. Any assignee of Tenant’s
interest in this Lease shall assume all obligations of Tenant under this Lease and shall be and
remain liable jointly and severally with Tenant for the payment of Rent, and for the
performance of all the provisions of this Lease. No assignment shall be binding on Landlord
unless the assignee or Tenant shall deliver to Landlord a counterpart of the Assignment and
an instrument in recordable form that contains a covenant of assumption by the assignee
satisfactory in substance and form to Landlord, consistent with the requirement of this
Section 11.6, but the failure or refusal of the assignee to execute such instrument of
assumption shall not release or discharge the assignee from its liability as set forth above.
11.7 ATTORNEYS’ FEES. DELETED
ARTICLE XII
LANDLORD AND TENANT DEFAULT
12.1 TENANT DEFAULT. The following shall be deemed to be events of default
(“Events of Default”) by Tenant under this Lease:
12.1.1 Failure to Pav Rent. Tenant shall fail, neglect or refuse to pay any
installrnent of Fixed Minimum Rent, Additional Rent, Percentage Rent or any other charge
including, without limitation, late charges, required to be paid by Tenant hereunder at the
time and in the amount as herein provided, or pay any monies agreed by it to be paid
promptly when and as the same shall become due and payable under the terms hereof and
such default shall continue for a period of more than three (3) days after notice thereof in
writing given to Tenant by Landlord. Landlord * s notice pursuant to this Section shall be
deemed notice under Section 1161.2 of the California Code of Civil Procedure and no
additional notice shall be required under that statute.
12.1.2 Failure to Perform Covenants. Tenant shall fail, neglect or refuse to keep
and perform any of the other covenants, conditions, stipulations or agreements herein
contained and covenanted and agreed to be kept and performed by Tenant and such default
shall continue for a period of more than fifteen (15) days after notice thereof in writing given
to Tenant by Landlord; provided, however, that if the cause for giving such notice involves
the making of repairs or other matters reasonably requiring a longer period of time than the
period of such notice, Tenant shall be deemed to have complied with such notice if Tenant
has commenced and is diligently prosecuting compliance therewith.
21
12.1.3 Attachment. Bankruutcv, Receiver&& Any attachment of levy of execution
or similar seizure of the Premises or Tenant’s merchandise, fixtures or other property at the
Premises or any foreclosure, repossession, or sale under any chattel mortgage, security
agreement or conditional sales contract covering Tenant’s merchandise, fuctures or other
property at the Premises; or the filing of any petition by or against Tenant under any chapter
of the Bankruptcy Act, or the adjudication of Tenant as a bankrupt or insolvent; or the
appointment of a receiver or trustee to take possession of all or substantially all of the assets
of Tenant or a general assignment by Tenant for the benefit of creditors; or any other action
taken or suffered by Tenant under any state or federal insolvency or bankruptcy act and the
continuation thereof for more than twenty (20) days.
12.1.4 Abandonment. Abandonment of the Premises for a continuous period in
excess of thirty (30) business days. Tenant waives any right to notice Tenant may have under
Section 1951.3 of the Civil Code of the State of California or any successor code section, the
terms of this Section 12.1.4 being deemed such notice to Tenant as required by said
Section 1951.3 or any successor code section.
12.2 LANDLORD REMEDIES. Landlord shall have the following remedies upon an
Event of Default. These remedies are not exclusive; they are cumulative in addition to any
remedies now or later allowed by law:
12.2.1 Termination. If an Event of Default occurs, Landlord shall have the
right, after any applicable notice period, to immediately terminate this Lease, and at any time
thereafter recover possession of the Premises or any part thereof and expel and remove
Tenant and any other person occupying the Premises, by any lawful means, and again
repossess and enjoy the Premises without prejudice to any of the remedies that Landlord may
have under this Lease, or at law or equity by reason of Tenant’s default or of such
termination.
12.2.2 Continuation After Default. Even though Tenant has breached this
Lease and/or abandoned the Premises, this Lease shall continue in effect for so long as
Landlord does not terminate Tenant’s right to possession under Section 12.2.1, and Landlord
may enforce all of its rights and remedies under this Lease, including (but without limitation)
the right to recover Rent as it becomes due, and Landlord, without terminating this Lease,
may exercise all of the rights and remedies of a landlord under Section 1951.4 of the Civil
Code of the State of California or any successor code section. Acts of maintenance,
preservation or efforts to lease the Premises or the appointment of a receiver upon application
of Landlord to protect Landlord’s interest under this Lease shall not constitute an election to
terminate Tenant’s right to possession.
12.2.3 Damages UDon Terhination. Should Landlord terminate this Lease
pursuant to the provisions of Section 12.2.1, Landlord shall have all the rights and remedies
of a landlord provided by Section 195 1.2 of the Civil Code of the State of California or any
successor code section, &. Landlord m8y recover from Tenant: (a) the worth at the time of
award of the unpaid Rent and other amounts which had been earned at the time of
termination; (b) the worth at the time of award of the amount by which the unpaid Rent
which would have been earned after termination until the time of award exceeds the amount
of such Rent loss that Tenant proves could have been reasonably avoided; (c) the worth at the
28
time of award of the amount by which the unpaid Rent for the balance of the Term after the
time of award exceeds the amount of such Rent loss that Tenant proves could be reasonably
avoided; and (d) any other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant’s failure to perform its obligations under this Lease or which,
in the ordinary course of things, would be likely to result therefrom. The “worth at the time
of award” of the amounts referred to in (a) and (b) shall be computed with interest at the
The “worth at the time of award” of the amount referred to in (c) shall be leeal rate.
computed by discounting such amount at the discount rate of the Federal Reserve Bank of
San Francisco at the time of the award plus one percent (1%).
12.3 REMOVAL OF PERSONS AND PROPERTY. In the event of any reentry,
Landlord may remove all persons from the Premises and all property and any signs located on
or about the Premises and place such property in storage in a public warehouse at the cost
and risk of Tenant. Except in the case of Landlord’s willful misconduct, Tenant hereby
waives all claims or demands for damages that may be caused by Landlord in reentering and
taking possession of the Premises as herein above provided and all claims or demands for
damages which may result from the destruction of or injury to the Premises and all claims or
demands for damages or loss of property belonging to Tenant or to any other person or firm
that may be in or about the Premises at the, time of such reentry.
12.4 OTHER RIGHTS. Nothing contained in this Lease shall limit Landlord to the
remedies set forth in Section 12.2, and upon Tenant’s default Landlord shall be entitled to
exercise any right or remedy then provided by law or in equity, including, but without
limitation, the right to obtain injunctive relief and the right to recover all damages caused by
Tenant’s default in the performance of any of its obligations under this Lease.
12.5 COMPUTATION OF DAMAGES.
rtion of any damages to
12.6 LATE PAYMENT. If Tenant fails to pay the Fixed Minimum Rent within five (5)
days after the same has become due, both Tenant and Landlord agree that Landlord will incur
additional expenses consisting of extra collection efforts, handling costs, and potential
impairment of credit on loans for which may be secured by this Lease. Both parties agree
that should Tenant so fail to pay its Rent, Landlord is entitled to compensation for detriment
caused by the failure, but that it is extremely difficult and impractical to ascertain the extent
of the detriment. The parties therefore agree that should Tenant fail to pay any Rent due
hereunder within five (5) days after the same becomes due, Landlord shall be entitled to
recover from Tenant six percent (6%) of the amount past due as liquidated damages. Such
past due amounts shall also bear interest at the maximum rate allowed by law from the date
due until paid. Tenant further agrees to pay Landlord any costs incurred by Landlord in the
collection of such past due Rent, including but not limited to fees of an attorney and/or
29
collection agency. Nothing herein contained shall limit any other remedy of Landlord under
this Lease. Landlord shall also have the right to require Tenant to pay any past due sums by
cashier’s check or money order. Further, should Tenant fail to pay Rent or any other charges
due hereunder in the time periods set forth herein two (2) or more times during any calendar
year of the Lease Term, Landlord may require Tenant to thereafter pay Fixed Minimum Rent
in quarterly installments in advance for the balance of the Lease Term.
12.7 CURE OF TENANT DEFAULT.
Tenant, may cure the default at Tenant’s cost.
default, pays any sum or does any
Landlord shall be due immediately
of the prime rate of the Bank of America
t greater than the maximum rate permitted
is reimbursed by Tenant.
12.8 LANDLORD DEFAULT. Landlord shall in no event be charged with default in the
performance of any of its obligations hereunder unless and until Landlord shall have failed to
commence to perform such obligations within thirty (30) days (or such additional time as
reasonably required to correct any such default) after written notice by Tenant to Landlord,
properly specifying wherein Landlord has failed to perform any such obligation. Upon the
occurrence of an event of default on the part of Landlord (and after notice and any applicable
cure period), Tenant shall have the right to bring suit for the collection of any amounts for
which Landlord may be in default or the performance of any obligation of Landlord. In
satisfying any judgment against Landlord, Tenant shall look solely to Landlord’s interest in
‘the Shopping Center for recovery, including proceeds of sale of the Shopping Center.
Landlord shall not be personally liable for any such judgment.
ARTICLE XIII
MISCELLANEOUS
13.1 HOLDING OVER, SURRENDER OF PREMISES.
13.1.1 Surrender. At the expiration or ‘earlier termination of the Lease,
Tenant shall surrender the Premises in the same condition as the Premises were in upon
delivery of possession thereto under this Lease, reasonable wear and tear excepted, and shall
surrender all keys for the Premises to Landlord at the place then futed for payment of Rent
and shall inform Landlord of all combinations on locks, safes and vaults, if any, in the
Premises. No act or conduct of Landlord, except a written acknowledgment of acceptance of
surrender signed by Landlord, shall be deemed to be or constitute an acceptance of the
surrender of the Premises by Tenant prior to the expiration of the Lease Term.
13.1.2 Holding Over. In the event the Tenant shall hold over the Premises
after the expiration of the Lease Term the consent of the Landlord, either express .or implied,
such holding over shall be construed to be only a tenancy from month-to-month, subject to all
covenants, conditions and obligations hereof and the Tenant hereby agree to pay to Landlord
one hundred twenty-five Dercent (12596,) of the Fixed Minimum Ren P &ch additional
period as Tenant shall occupy the Premises. AbJ
30
13.1.3 Removal of Alterations. If prior to the expiration or earlier
termination of this Lease or within fifteen (15) days thereafter, Landlord elects by written
notice to Tenant to require the removal of any additions, improvements, fixtures and trade
futures made by or on behalf of Tenant, Tenant shall promptly remove the additions,
improvements, fuctures, trade fixtures and installations which were designated in said notice,
and shall repair any damage occasioned by such removal; and in default thereof Landlord
may effect said removals and repairs at Tenant’s expense. The covenants of Tenant contained
herein shall survive the expiration or termination of the Lease Term.
13.2 ESTOPPEL CERTIFICATES AND SUBORDINATION.
13.2.1 Priority: Ouiet Eniovment. This Lease at the option of Landlord or
its lender shall, without need for further action by Landlord or Tenant, in all respects be
deemed junior and’ subordinate to any lien or encumbrance now or hereafter affecting the
Shopping Center, including without limitation any ground leases, mortgages, deeds of trust,
major tenant leases, easement agreements, declaration of restrictions, or other matters now or
hereafter of record. In the event of any conflict between the terms of this Lease and the
terms of any such lien or encumbrance, the provisions of the lien or encumbrance shall
prevail. Subject to the foregoing, and upon payment by Tenant of all Rent herein provided,
and upon the observation and performance of all the covenants, terms and conditions on
Tenant’s part to be observed and performed, Tenant shall quietly hold and enjoy the premises
for the Lease Term without hindrance or interruption by Landlord or any other person
lawfully or equitably claiming by, through or under Landlord, subject nevertheless to the
terms and conditions of this Lease.
13.2.2 EStODDd Certificate. Within ten (10) days after Landlord’s written
request, or in the event of any sale, financing, assignment or hypothecation of the Premises
and/or the land thereunder by Landlord, Tenant agrees to deliver in a certificate (“Estoppel
Certificate”) in the form of the attached Exhibit “F” (amended as necessarv to reflect the
correct facts as of the date of such EStODDd Certificate) to any proposed mortgageeor
purchaser, or to Landlord. Failure by Tenant to timely execute the Estoppel Certificate shall
be considered a material default by Tenant under this Lease.
13.2.3 Subordination Agreement. Upon request, and without charge
therefore, Tenant shall promptly execute and deliver to the holder of any mortgage that is a
lien or encumbrance on the Shopping Center an instrument acknowledging any assignment by
Landlord of Landlord’s rights under this Lease to any such holder in connection with such
mortgage. At the request of the holder of any such mortgage, Tenant shall execute an
agreement (“Subordination Agreement”) attorning to and recognizing such holder as Landlord
hereunder, provided that the Subordination Agreement shall contain a nondisturbance
provision as described above. Tenant’s failure to execute the Subordination Agreement within
ten (10) days after written demand by Landlord shall constitute a material default by Tenant
hereunder. Upon such attornment, this Lease shall continue in full force and effect as a direct
lease between Tenant and such holder as if Tenant and such holder had originally been the
parties to this Lease.
13.2.4 Notice to Mortpanees. Tenant agrees to give any mortgages and/or
trust deed holders, by registered mail, a copy of any notice of default served upon Landlord,
31
.
provided that prior to such notice Tenant has been notified in writing (by way of notice of
assignment of lease, or otherwise) of the addresses such mortgagees and/or trust deed holders.
Tenant further agrees that if Landlord shall have failed to cure such default within the time
provided for in this Lease, then the mortgagees and/or trust deed holders shall have the right
to commence such cure within thirty (30) days and diligently pursue the remedies necessary
to cure such default (including but not limited to commencement of foreclosure proceedings,
if necessary to effect such cure), in which event this Lease shall not be terminated while such
remedies are being so diligently pursued.
13.2.5 Lease Amendments. DELETED
13.2.6 Financial Statements. DELETED
13.2.7 Sale bv Landlord. If during the Lease Term Landlord sells its interest
in the Premises, or this Lease, or all or any portion of the Shopping Center, upon such
conveyance Landlord shall be unconditionally absolved and released of all obligations of
Landlord accruing hereunder from the date of such sale or transfer, but not from any
obligations which arose m-ior to that date.
13.2.8 Recordation. This Lease, or a short form thereof, shall not be
recorded without the prior written consent of Landlord.
13.3 ATTORNEYS’ FEES. In the event any action or proceeding shall be brought to
enforce or interpret this Lease, including without limitation unlawful detainer of the Premises
or for the recovery of any Rent due, or because of the breach of any covenant herein
contained on the part of Tenant to be kept or performed, the prevailing party shall be entitled
to recover all its costs and expenses, including, without limitation, reasonable attorneys’ fees
and expert witness fees.
13.4 NOTICES. Whenever under this Lease a provision is made for any demand, notice
or declaration of any kind, or where it is deemed desirable or necessary by either party to
give or serve any such notice, demand or declaration to the other, it shall be in writing,
delivered personally or by certified mail with postage prepaid addressed to Tenant or to
Landlord at the address set forth at Section 2.17 above. Either party may, by like notice, at
any time and from time to time designate a different address to which notices shall be sent.
Notices delivered by mail shall be deemed delivered upon receipt or refusal to accept
delivery.
13.5 ADVERTISING OF TENANT. With the exception of national or regional
advertising, Tenant agrees to refer to the Shopping Center by the name “Plaza Paseo Real” in
designating the location of the Premises in all local newspaper or other advertising, stationery,
other printed material and in all other references to location, and to include the address and
identity of its business activity in the Premises in all advertisements made by Tenant for its
operation at the Shopping Center.
13.6 INTERPRETATION. As used in this Lease and whenever required by the context
thereof, each number, both singular and plural, shall include all numbers, and each gender
shall include all genders. Landlord and Tenant as used in this Lease or in any other
32
instrument referred to in or made part of its Lease shall likewise include both the singular and
the plural, a corporation, co-partnership, individual or person acting in any judiciary capacity,
executor, administrator, trustee, or in any other representative capacity. All covenants herein
contained on the part of Tenant shall be joint and several.
13.7 SUCCESSORS. All of the terms hereof shall apply to, run in favor and shall be
binding upon and inure to the benefit of, as the case may require, the parties hereto, and also
their respective heirs, executors, administrators, personal representatives and assigns and
successors in interest, subject at all times nevertheless to the provisions of Section 3.20 of this
Lease relating to restrictions upon assignment or subletting this Lease or the Premises.
13.8 WAIVER OF DEFAULT. One or more waivers of the breach of any covenant,
term or condition of this Lease by either party shall not be construed by the other party as a
waiver of a subsequent breach of the same or any other covenant, term or condition. The
consent or approval or either party of any act by the other party of a nature requiring consent
or approval shall not be deemed to waive or render unnecessary consent to or approval of any
subsequent act. Failure of either Dartv to declare any default immediately upon the
occurrence thereof, or delay in taking any action in connection therewith, shall not waive such
default.
13.9 NO PARTNERSHIP. Nothing contained in this Lease shall be deemed or construed
by the parties or by any third party to state the relationship of principal and agent or of
partnership or of joint venture or of any association whatsoever between Landlord and Tenant,
it being expressly understood and agreed that neither the method of computation of Rent nor
any other provisions contained in this Lease nor any act or acts of the parties thereto shall be
deemed to create any relationship between Landlord and Tenant other than the relationship of
a landlord and tenant.
13.10 APPLICABLE STATE LAW. The laws of the State of California shall govern the
validity, construction, performance and enforcement of this Lease.
13.11 BROKER’S COMMISSION. Each of the parties represents and warrants that except
as is set forth in Section 2.18 above it has engaged no broker or finder in connection with
the execution of this Lease and each of the parties agree to indemnify the other against and
hold it harmless from, all liabilities arising from any such claim (including, without lirnitation,
the cost of attorneys’ fees in connection therewith). 1
13.12 NO OPTION. The submission of this Lease for examination does not constitute a
reservation of or option for the Premises and this Lease shall become effective only upon
execution and delivery thereof by Landlord and Tenant.
13.13 ENTIRE AGREEMENT. It is understood that there are no oral agreements between
the parties affecting this Lease and this Lease supersedes and cancels any and all previous
negotiations, arrangements, brochures, agreements, representations and understandings, if any,
between the parties hereto.
13.14 CORPORATE RESOLUTIONS. If a-corporation executes this Lease as a Tenant,
Tenant shall promptly furnish Landlord certified corporate resolutions attesting to the
33
.
authority of the officers to execute this Lease on behalf of such corporation.
13.15 DELAYING CAUSES. If Landlord or Tenant is delayed in the performance of any
of its obligations under this Lease because of acts of the other Dartv, acts of God or the
elements, war, riot, lockout, labor dispute, shortages of labor or materials, delays in
transportation, or any other causes beyond the reasonable control of Landlord (financial
inability excepted), then such performance shall be excused for the period of the delay and
the period for such performance shall be extended for a period equivalent to the period of
such delay, except that the foregoing shall in no way affect Tenant’s obligation to pay Rent or
the length of the term of this Lease.
13.16 SUBTENANCIES. The voluntary or other surrender of this Lease by Tenant or a
cancellation of this Lease shall not without Landlord’s prior written consent result in a merger
but shall, at Landlord’s option, terminate all existing subtenancies or operate as an assignment
to Landlord of all of Tenant’s interest in such subtenancies.
IN WITNESS WHEREOF, Landlord and Tenant have executed or caused to be executed this
Lease as of the’date fust written above.
LANDLORD:
THE BOARD OF ADMINISTRATION
ee for the POLICE AND FIRE
ENTmIREMENT FUND
Edward F. Overton, Secretary
THE BOARD OF ADMINISTRATION
as trustee for the FEDERATED CITY
Eh&WEES RlI%REMENT FUND
By: ALETHA L. RAUTENKRANZ
34
EXHIBIT “A”
U’iG CENTER PLAN SHOPP
r
II i, - - & =E urc--cnI
FUTURE LNiRARY
U.moY
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PLAZA PASEO REAL
35
EXHIBIT “B”
LOCATION OF THE PREMISES
\ vL eb , , t-------111~~ wII11iBrrm~. t- ,’ ‘i ‘” “*‘* L- . .f. 1, -
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- - - - - - - -- - - - - --
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- - - FUTURE LIBRARY u.om SC
- - -
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L A I
PLAZA PASEO REAL
36
.
EXHIBIT “C”
TENANT IMPROVEMENTS
1. Construction of the Premises. Landlord shall complete, at its own
expense, the work designated herein as “Landlord’s Work.” All other work of any character, whether performed by Landlord or Tenant, shall be at Tenant’s sole cost and expense,
including without limitation, the work designated below as Tenant’s Work. All work to be
performed by either party (a) shall be done in accordance with plans and specifications to be
approved by Landlord and in accordance with all applicable building codes and regulations
governing said construction and (b) shall become the property of Landlord and upon
installation; provided, however, installation by Tenant of Tenant’s furniture, fixtures and
equipment used solely for its business operations and its benefit shall be and remain the
property of Tenant.
2. Plans and Specifications. At Landlord’s expense, upon execution
of the Lease, Tenant shall have prepared by a licensed architect plans and specifications for
Tenant’s Work. Copy of plan attached.
3. Landlord’s Optional Work. Landlord shall perform for Tenant all
such work as described in Article 1. below, and Tenant shall perform the work as described in
Article II below. Any changes in the work described in this Exhibit “C” or the approved
plans and specifications required by any governmental authority shall be at Landlord’s sole
cost and expense.
4. Early Entry. In order to expedite the commencement of Tenant’s
business in the Premises, upon receipt of notice from Landlord, Tenant may enter the
Premises to perform Tenant’s Work; provided, however, such activity on the part of Tenant
shall be done only in such manner so as not to interfere with Landlord’s construction and
Landlord shall not be liable to Tenant for damages to or loss of such furniture, furtures or
equipment. Tenant’s indemnification of Landlord as set forth in the Lease shall apply to all
activities of Tenant, its agents, employees, subcontractors and invitees with respect to the
Premises and the Shopping Center during the construction period as herein described.
covenants to promptly comment
that Tenant’s business will be
Work to completion so
and paint its door front and any material or
h the rear entrance at a set time and manner so as
I. LANDLORD’S WORK.
A. STRUCTURE.
1. Frame, etc.: The building may be of steel frame, reinforced
concrete masonry block or wood studs as bearing wall or any combination thereof with
construction designed in accordance with governing building codes.
2. Exterior Walls: The exterior walls shall be of masonry or
such other material or materials as selected by Landlord’s architect or agent.
3. Ceiling Heights: Clear height between floor slab and ceiling
shall be no less than nine feet and shall otherwise be governed by structural design.
4. Floor Construction: Floors shall be concrete slab on grade.
5. Roof: The roof shall be composition built up, tile or as
37
. .
.
otherwise specified by Landlord’s architect or agent.
6. Demising Partitions: Demising partitions between leased
premises shall be of wood or metal stud covered with plaster board or plywood or masonry
walls. Fire walls between leased premises shall be as required by code. Toilet room walls
shall be carried to finished ceiling.
7. Exits: Exits shall be in accordance with applicable codes.
8. Dimensions; Frontage Dimension: Interior stores shall be
measured from center line to center line of demising walls. Exterior stores shall be measured
from center line of demising walls to outside face of exterior walls. Depth shall be measured
from outside face of exterior walls.
9. Door Frames: Exterior rear service door frames shall be
hollow metal construction; interior door frames shall be wood construction, or as otherwise
specified by Landlord’s architect or agent.
10. Doors: Interior doors shall be wood, hollow core. Exterior
service doors shall be hollow metal.
11. Parapets, etc.: Landlord reserves the right to provide a 12”
neutral strip between stores, centered on the line defining lease property.
B. INTERIOR FINISHES.
1. Ceilings: Suspended acoustical tile ceiling.
2. Walls: All walls shall be plaster board, plywood or masonry,
painted and ready for Tenant’s decor.
3. Sprinkler System: A fire sprinkler system based on a
standard grid and to code for the attached plan.
C. SANITARY FACILITIES.
1. Two (2) public restrooms and one (1) employee restroom per
attached plan.
D. UTILITIES.
1. Water and Sewer: Landlord will furnish water and sewer
service as required for attached plan.
2. Electricity: Landlord will furnish electrical service to Tenant’s
space to provide improvements per the attached plan.
3. HVAC: Landlord will furnish Tenant with air conditioning at
the rate of one ton for every 400 square feet of ground floor space. HVAC distribution shall
meet requirements of attached plan.
IL ADDITIONAL LANDLORD’S WORK.
A. ELECTRICAL FIXTURES AND EQUIPMENT: All electric fixtures
and electrical wiring and telephone conduit for Tenant.
B. WALLS: All interior partitions and curtain walls within the Premises,
including fne corridor if required except as set forth in Section LA.6 above.
C. COVES AND CEILINGS: All special coves and ceilings, including
one hour fne ceilings in fire corridor if required.
D. FLOOR COVERINGS: All floor coverings.
E. COFFEE BAR: Per attached plan.
F. SEWER: All sewer service charges or privilege fees shall be paid by
Landlord.
G. PERMITS: All required permits for construction of attached plan.
H. WATER: All water meter fees, meter hook up fees or privilege fees
38
shall be paid by Landlord.
i ROOF: Tenant’s and/or Tenant’s contractor shall not penetrate the roof
of the Premises without the prior written approval of Landlord.
J. OTHER: Any other work required by Tenant or required by
governmental code or ordinance not covered herein, including but not limited to fue exits and
corridors. K. TENANT’S SIGN: As per Landlord’s architect or sign contractor
(designated as “Shopping Center Sign Contractor”), Tenant must follow the sign criteria as
adopted from time to time by Landlord.
L. ROOF platform, roof opening and/or roof equipment screens for
additional Tenant’s air conditioning and equipment requirement to be installed by Landlord at
Landlord’s expense. Electrical run for Tenant sign to be installed by Landlord at Landlord’s
expense.
M. DESIGN and construction of Tenant’s storefront.
III. TENANT RESPONSIBILITY
A. TELEPHONE: All conduit, wire and installation charges for telephone
service in the Premises from telephone room or panel. Tenant shall be responsible for
making all arrangements for telephone service to the Premises.
B. ELECTRIC: Tenant to apply for meter and pay for service.
C. FURNITURE AND FIXTURES: All store fixtures, cases, wood
paneling, graphics, cornices, platforms, etc.
D. SHOW WINDOW BACKGROUND, FLOORS, ETC.: All show
windows, finish floors, show window backgrounds, show window lighting futures, and show
window doors.
E. ALARM SYSTEMS, ETC.: All alarm systems or other protective
devices for fire or theft.
F. Approval of any roof-installed equipment must be received in writing
from Landlord, and Landlord’s roofer shall make fti installation around all projections in
roof to insure overall roof guarantee.
ANY IMPROVEMENTS DONE BY TENANT SHALL MEET ALL
GOVERNMENTAL CODES AND REQUIREMENTS AND BE COMPLETED BY
LICENSED AND lNSURED CONTRACTORS AND TRADESMEN OR THE CITY’S OWN
FORCES.
39
EXHIBIT “D”
SIGN CRITERIA
The purpose of the attached crlterla is to establish sign standards necessary to balance maximum tenant identification within an overall harmony of design for the project.
The 'criteria has been designed to give tenants flexibility in personalizing their own.identity and to allow for creativity in sign design. However, since deviations from the criteria would be an injustice to all other tenants who comply, conformance to the criteria will be strictly enforced. In the interest of the center, any installed non-conforming or unapproved signs shall be brought into conformance at the expense of the tenant.
A. GENERAL REQUIREMENTS
1. Each tenant shall submit or cause to be submitted to the Owner for approval before fabrication at least two copies of detailed drawings indicating the location, size, layout, design and color of the proposed signs, including all lettering and/or graphics.
2. All signs shall be reviewed by the Owner and hls designated Sign Contractor for conformance with this criteria and overall design. quality. Approval or disapproval of sign submittal based on aesthetics of a design shall remain the sole right of the Owner. Owner shall provide tenant with written approval of tenant's signage for tenant to submit to the City of Carlsbad for tenant's sign permit.
3. Prior to installation all permits for signs and their installation required by the City of Carlsbad shall be obtained by the tenant or tenant's representative. This sign criteria is to be more restrictive than the City of Carlsbad Sign Ordinance (21.16.20 C.M.C.). Conformance to this criteria does not excuse compliance with all applicable City of Carlsbad Ordinances and standards.
4. Tenant shall be responsible for the fulfillment of all requirements and specifications.
5. All signs shall be constructed and installed at tenant's expense.
B. GENERAL SPECIFICATIONS
1. Tenant shall be responsible for the installation and maintenance of all signs.
2. Wording of signs shall not include the product sold except as part of the tenant name or insignia. Any tenant ldgos or insignias shall be considered part of the maximum sign areas under Section C. Sign Types.
3. Tenant's sign contractor shall repair any damage to any-work caused by his actions. Incomplete repairs become the responsibility of the tenant.
4. No temporary, anlmat,ed, flashing, audible, off-premise or vehicle signs are permitted.
5. No exposed lamps or tubing will be permitted;
6. No exposed raceways, crossover, conduits, conductors, transformers, etc., will be permitted.
7. Tenant's contractor shall completely install and connect sign display and primary wiring at sign location stipulated by the Owner. All signs are to be connected to an assigned J-box
PASEO REAL SIGN CRITERIA PAGE.2
provided by the Owner, which is connected and controlled at the Owner's house panel for uniform control of hours of illumination.
6. All penetrations of exterior fascia are to be sealed watertight. in color and finish to match existing exterlor.
9. Internal illumination for channel letters to be 30 mili-amp neon installation, with a low glare background color, labeled in accordance with the "National Board of Fire Underwriters Specifications."
10. Internal illumination of "Howensigns" (Type A, B, C, 6r E Signs) to be V.H.O. "Daylite" fluorescent tubes. For all signs along Alga Road, El Camino Real and Dove Lane except Type E signs on the rear elevation of Buildings A and B which shall be non-illuminated illumination will consist of H.O. "Cool White" fluorescent tubes for reduced illumination and glare.
11. No labels or other identification will be permitted on the exposed surface of the sign except those required by local ordinances.
12. The tenant shall be fully responsible f6r the operations of his sign contractor and shall indemnify, defend and hold harmless the Owner and his agents from damages or liabilities resulting from his contractor's work.
13. Registered trademarks, herein referred fo as "Registered Corporate Identity", pertains to corporate logos and logotypes that have been registered and are on file with the UNITED STATES PATENT AND TRADEMARK OFFICE in Washington D.C.
C. SIGN TYPES
MONUMENT SIGB 1 .
SJE-TJPU Single face low-level sign wall at corner of Alga Road and El Camino Real as shown on Page 1 of 6. The decorative- treated wall will tie-in with the architecture of the project buildings. The wall will incorporate three (3) internally illuminated tenant sign panels. Sign panels will be fabricated from moulded fiberglass to resemble ceramic tile. These " t i 1 e " backgrounds will be opaque, with only the respective sign copy to be halo illuminated around semi-opaque colored letters. Registered corporate identity logotypes only will be permitted on these signs, or if tenant does not have such a logotype, tenant must choose from the "Approved Letterstyles" shown on page 3 of 6. Semi-opaque letter color shall be Rohm & Haas Red Plex #2283 unless tenant's registered corporate identity includes a color specification, in which case such specification shall be allowed. .
.s,?an,-Tree B* --.L Single face, low-level sign wall at both sides of the main entrance at Alga Road and at the southwest corner of El
Camino Real and Dove Lane as shown on Page 1 of 6. The decorative-treated walls will tie-in with.the architecture of the project buildings. Each sign will incorporate three (3) internally illuminated tenant sign panels as shown. Sign panels to be fabricated from moulded fiberglass to resemble ceramic tile. These "tile' backgrounds will be opaque, with copy halo illuminated around semi-opaque colored letters . Reglstered corporate identity logotypes only will be permitted on these signs, or if tenant does not have such a logotype, tenant must choose from the "Approved Letterstyles" shown on page 3 of 6. Semi-opaque letter color shall be Rohm & Haas. Red Plex X2283 unless tenant's registered corporate identity includes a color specification, in which case such specification shall be allowed.
Sfcm Type B-l: - Single - faced, low-level directional sign, .
41
PLAZA PASEOAEAL SIGN CRITEF PAGE 3
placed in center 'island of Secondary entrance off Alga Road as shown on Page 6 of 6. Three (3) equal site panels with typical identification for each as shown on Page 2 of 6. These panels to be internally illuminated as per item 8.10 above.
2 .: .-_. .QuEx~_o~~~~~x~ ~&~-.Type~-C~ Single face. low level directional signs. Internally illuminated individual tenant sign panels with directional arrows. Typical letterstyle and colors for all sign panels as shown on Page 2 of 6. Located where indicated on Page 6 of 6.
SisUm.eJze~2 Single face, exterior illuminated, surface- mounted directory as' shown on Page 2 of 6. Removable plagues with vinyl die cut graphics. Located at pedestrian plazas as shown on Page 6 of 6.
‘3 TENANT BUILDING--S_I_Nz -..L---m-Y
shLn_2w2?e_D : Internally illuminated individual pan channel letters for "in-line" tenants with thirty- six (36) feet or more of shop lineal frontage as shown on Page 3 of 6. Letters will have translucent Plexiglas faces for direct illumination. Maximum letter height - 16". Maximum sign length not to exceed 60% of respective shop lineal frontage. No stacking shall be allowed. See Page 6 of 6 for locations.
_s_iq??-~~le_Dz~ Internally illuminated individual pan channel letters for tower parapet locations and areas with at least five (5) feet of blank vertical fascia area over the highest point of an awning or surface break. See Page 6 of 6 for locations. A maximum letter height of (22)" will be allowed while maintaining a minimum of (2) feet of clearance, to either side, between any corner, angle, obstruction, or change in the flat wall surface and a minimum of one (1) foot from the bottom of the sign to the top of an awning or surface break. Stacked copy (2 lines) may be permitted at these locations if both lines of copy do not exceed 3'0" in total height including a six inch (6") minimum space between lines.
Type D and Dl signs will have (5)" deep anodized bronze returns (DuPont 42663-D) and (3/4") bronze trim cap edges. Letterstyles for signs must be selected from "Approved Letterstyles" list as shown on page 3 of 6. unless tenant graphics are part of a registered corporate identity program. Letter color shall be Rohm and Haas Red Plex X2283 unless tenant's registered corporate identity includes a color specification, in which case such specification shall be allowed..
si!zLzYP_e_-EL Single face, internally illuminated cabinet sign
for "in-line" tenants with less than thirty-six (36) feet of shop lineal frontage. Surface-mounted to building fascia at closest proximity to respective shop entrance as shown on Page 6 of 6. Sign is fabricated from fiberglass with a dimensional, moulded border and simulated ceramic tile background. Sign background is opaque with illuminated outline around semi-opaque letters. Typical color of letters: Red #2283, unless part of registered corporate identity program. Letterstyle for signs must be selected from the "Approved Letterstyles" shown on page 3 of 6, unless tenant graphics are part of a registered corporate identity program. Sign Size: 6" deep X 22" high X 12'0" long.
Tenants in buildings A and B on Alga Road will be allowed (1) additional sign type "El' on the rear elevation facing Alga Road.. This sign to be typical in all ways to Sign Type "El' on the storefront elevation except that such signs shall not be illuminated.
Sian Type FL Only double face sandblasted wood arcade sign and attachment bracket, as shown on Page 3 of 6. Placed perpendicular to storefront of "in -line" tenants, at close
42
.
PLAZA PASEO L SIGN CRITERIh Page 4 .
proximity to respective shop entrance. Generic descriptions of service provided or business name only, to appear on this sign, in Letterstyle: Belwe Bold Condensed, as shown on Page 3 of 6. Colors used on this sign are open to tenant, subject to Landlord approval.
Shz-Xus G : -_--- Non-illuminated letters on awnings for rear of upper level tenant spaces in~buildings C & D, as shown on Page 5 of 6. Letterstyle shall be Belwe Medium with twelve inches (12") clear on each end of copy. Letter color: white. Generic description of service provided o_r business name only to appear on awning signs.
M-~x&e.!k!%9~slUc Internally illuminated channel letters identifying the name of market in size, area, and location as shown on Page 4 of 6. In addition, four (4) Type E signs identifying services provided by the market in locations shown on Page 4 of 6. Letterstyle and color of market tenant identification signs per tenant's registered corporate identity program.
Theater B_u_.ilainnl_.LE_x_c_ludinq B&Q-l&inq FL Internally illuminated channel letters identifying the name of the theater in size, area, and locations as shown on Pages 4 of 6 and 6 of 6. Letterstyle and color of theater identification signs per tenant's registered corporate identity program.
Internally illuminated theater marque signs identifying the films presently showing at the theater in size, area and locations shown on Page 4 of 6 and 6 of 6. The marque signs shall use H.O. (Cool White) fluorescent tubes for reduced illumination and glare.
Pad Buildinas A 6(x Each building shall be allowed one (1) Type D-l sign facing El Camino Real and two (2) Type D signs on two (2) other elevations as shown on Page 6 of 6. Letterstyle, lettersize, color and other specifications to conform to same restrictions as per Types D and D-1 on this page and on Page 3 of 6. Maximum copy length shall not exceed twenty four (24) feet.
4 ALL OTHER SIGNS: ~~~---~---
TGLfL!s~_Si-snsi As shown on Page 2 of 5 at various locations as necessary or per code.
A_ddressinq: Each building within the project will be addressed by means of (12)" high numerals, fabricated from aluminum and painted Kawneer X26 Light Bronze. One (1) set of numerals for each elevation which faces onto a public street or parking lot, to be placed onto building fascia. Typical letterstyle: HELVETICA MEDIUM.
SIGN CONTRACTOR: JOHN HOWENSTINE, INC. 3188 nJ" Airway Avenue Costa Mesa, CA 92626 714/557-4064
8/30/89
43
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49
EXHIBIT ‘73”
RULES & REGULATIONS
Landlord hereby establishes the following rules and regulations for the safety,
care and cleanliness of (i) the store areas (hereinafter referred to as the “demised premises”)
of all tenants of the Shopping Center (hereinafter referred to as the “tenant”), (ii) the Common
Area; and (iii) the Shopping Center in general, and for the preservation of good order:
A. FOR THE COMMON AREAS
1. All floor areas of the demised premises (including vestibules, entrances,
and air returns), doors, fixtures, windows, and plate glass shall be in a clean, safe and good
condition.
2. Tenant shall provide for removal of all construction debris, packing and
delivery materials during tenant improvements and fucturization. During normal course of
business, all trash, refuse, and waste materials shall be stored in adequate containers and
regularly removed from the demised premises. These containers shall not be visible to the
general public and shall not constitute a health or fire hazard, or a nuisance to any other
tenant. In the event that any tenant shall fail to remedy such a health or fire hazard, or
nuisance, within five (5) days after written notice by Landlord, Landlord may remedy and/or
correct such health or fire hazard or nuisance at the expense of the tenant involved.
3. No portion of the demised premises shall be used for lodging purposes.
4. The sidewalks, entrances, passages, courts, stairways, corridors and halls
of the Shopping Center shall not be obstructed or used for any purpose other than ingress and
egress. The roof of the demised premises shall not be used for the storage of any property
and access to roof area shall be strictly limited to Landlord’s personnel only. No tenant and
no employees of any tenant shall go upon the roof of the Building without the prior written
consent of Landlord.
5. No public telephone, newsstand, shoeshine stand, refreshment, vending
or other coin operated machine shall be installed or placed on the sidewalk or walkway area
adjacent to the demised premises or on the Common Areas without Landlord’s prior written
approval in each instance.
6. No person or persons shall use the demised premises, or any part
thereof, for conducting therein a second-hand store, auction, distress or fire sale or bankruptcy
sale, or “going-out-of-business” sale or “lost our lease” sale, without Landlord’s prior written
consent.
7. No portion of the demised premises shall be used for the storage of any
merchandise, materials or other properties, other than those reasonably necessary for the
operation of tenant’s business. Landlord may, from time to time, inspect the demised
premises to insure compliance with the foregoing provisions.
8. Tenant shall not store, use or permit to be used in, or about the
Premises any toxic or hazardous substances including, but not limited to, radioactive
materials, asbestos or polychlorinated biphenyls. Tenant shall comply, at its expense, with all
federal, state and local statutes or regulations concerning environmental conditions, emissions,
pollutants and controls.
9. Tenant shall not black out or otherwise obstruct the windows of the
demised premises without Landlord’s prior written consent. Tenant shall not place or suffer
to be placed or maintained on the roof or any exterior door, wall or window (or within 48
inches of any windows) of the demised premises any sign, awning or canopy or advertising
50
matter on the glass of any window or door of the demised premises without Landlord’s prior
written consent.
10. No awnings or other projections shall be attached to the outside walls of
the Shopping Center Buildings without the prior written consent of Landlord. No hanging
planters, television sets or other objects shall be attached to or suspended from ceilings without the prior written consent of Landlord. No curtains, drapes, blinds, shades or screens
shall be attached to or hung in, or used in connection with, any window or door of the
Shopping Center Buildings without the prior written consent of Landlord.
11. No signs, advertisements or’notices shall be exhibited, painted or
affixed by any tenant on any part of, or so as to be seen from the outside of, the demised
premises or the Shopping Center Buildings without the prior written consent of Landlord. In
the event of the violation of the foregoing by any tenant, Landlord may remove same without
any liability, and may charge the expense incurred in such removal to the tenant violating this
rule.
12. The wash room partitions, mirrors, wash basins and other plumbing
fixtures shall not be used for any purpose other than those for which they were constructed,
and no sweepings, rubbish, rags or other substances shall be thrown therein. All costs
incurred to correct damage resulting from any misuse of the fixtures by a tenant or such
tenant’s servants, employees, agents, visitors or licensees shall be promptly reimbursed to
Landlord by such tenant upon demand.
13. No tenant shall mark, paint, drill into, or in any way deface any part of
the demised premises or the Shopping Center Buildings without the prior written consent of
Landlord. No boring, cutting or stringing of wires shall be permitted except with the prior
written consent of Landlord and as Landlord may direct.
14. No tenant shall cause or permit any unusual or objectionable odors to
escape from the demised premises.
15. No tenant shall make, or permit to be made any unseemly or disturbing
noises, sounds or vibrations or disturb or interfere with occupants of this or neighboring
buildings or premises or those having business with them, whether by the use of any musical
instrument, radio, phonograph, unusual noise, or in any other way.
16. No tenant shall throw or permit to be thrown anything out of doors or
down the passageways.
17. If a tenant provides its customers with the use of shopping carts .and/or
baskets, such tenant shall be responsible for causing said carts and/or baskets to be stored
only in areas designated by Landlord. If such tenant fails to routinely collect and store said
carts as necessary, Landlord may assume the responsibility of same and may bill the tenant
involved on an estimated monthly basis for such service.
18. No tenant shall do or permit anything to be done to the demised
premises, or bring or keep anything therein, which shall in any way increase the rate of fire
insurance on the Shopping Center Buildings or on the property kept therein, or obstruct or
interfere with the rights of other tenants, or in any way injure or annoy them, or conflict with
the regulations of the Fire Department or the fire laws, or with any insurance policy upon the
Shopping Center Buildings or any part thereof, or with any rules and ordinances established
by the local health authority or other governmental authority.
19. No additional locks or bolts of any kind shall be placed upon any of the
doors or windows by any tenant, nor shall any changes be made in existing locks or
mechanisms thereof without prior written consent of Landlord.
20. Landlord shall have the right to prohibit any advertising by any tenant
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which, in Landlord’s opinion, tends to impair the reputation of the Shopping Center and upon
written notice from Landlord any tenant shall refrain from or discontinue such advertising.
21. All equipment of any electrical or mechanical nature shall be placed by
tenants in their premises in settings approved by Landlord, to absorb or prevent any vibration,
noise or annoyance.
22. No air conditioning unit or any other similar apparatus shall be installed
or used by any tenant without the prior written consent of Landlord.
23. Landlord will direct electricians as to where and how telephone or
telegraph wires are to be introduced. No boring or cutting for wires or stringing of wire will
be allowed without the prior written consent of Landlord. The location of telephones, call
boxes and other equipment affixed to the premises shall be subject to the approval of
Landlord.
B. FOR THE COMMON AREA
1. All tenants and their authorized representatives and invitees shall use
any roadway or walkway only for ingress and egress to and from the stores in the Shopping
Center. Use of the Common Area shall be in an orderly manner in accordance with
directional or other signs or guides. Roadways shall not be used at a speed in excess of ten
(10) miles per hour and shall not be used for parking or stopping, except for the immediate
loading or unloading of passengers. Walkways shall be used only for pedestrian travel.
2. Tenants and their authorized representatives and invitees shall not use
the parking areas for anything but parking motor vehicles. All motor vehicles shall be parked
in an orderly manner within the painted lines defining the individual parking places. During
peak periods of business activity, Landlord may impose any and all controls Landlord deems
necessary to operate the parking lot, including but not limited to the length of time for
parking use.
3. No person shall use any utility area or truck loading area reserved for
use in conducting business. except for the specific purpose for which permission to use these
areas has been given.
4. No employee shall use- any area for motor vehicle parking except the
area specifically designated for employee parking. Employees may only utilize said employee
parking during the employee’s scheduled hours. No tenant shall designate an area for
employee parking except the area designated in writing by Landlord.
5. Without the prior written consent of Landlord, Tenant shall not invite
catering/food vending vehicles in or about the Shopping Center Buildings or the parking areas
of the Shopping Center.
6. Without the prior written consent of Landlord, no person shall use any
of the Common Area for:
60 Vending, peddling or soliciting orders for sale or distribution of
any merchandise, device, service, periodical, book, pamphlet, or other matter;
(b) Exhibiting any non-professional sign, placard, banner, notice or
other written material;
(cl Distributing any circular, booklet, handbill, placard or other
material;
Cd) Soliciting membership in any organization, group, or association,
or soliciting contributions for any purposes;
69 Parading, patrolling, picketing, demonstrating, or engaging in
conduct that might interfere with the use of the Common Area or be detrimental to any of
the business establishments in the Shopping Center;
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0 Using the Common Area for any purpose when none of the
business establishments in the Shopping Center is open for business;
tfd Discarding any paper, glass, or extraneous matter of any hind,
except in designated receptacles;
00 Except for normal and customary sound devices for Tenant’s
drive-through facilities, using sound-making device that is grossly annoying or unpleasant to
the general public; or
(9 Damaging any sign, light standard, or furture, landscaping
material or other improvement or property within the Shopping Center.
The above listing of specific prohibitions is not intended to be exclusive, but is
intended to indicate the manner in which the right to use the Common Area solely as a means
of access and convenience in shopping at the business establishments in the Shopping Center
is limited and controlled by Landlord.
Tenant acknowledges receipt of these rules and regulations as of this 2 W
day of kU#*b#W ,199s
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EXECIBIT “F”
TENANT’S OFFSET AND ESTOPPEL CERTIFICATE
TO:
Re: Lease dated , by and between a as
Landlord, and , as Tenant, covering premises commonly
known as , in the City of , County of
, State of .
Gentlemen: The undersigned Tenant certifies and represents to , its
attorneys and representatives, in respect to the above-described lease (the “Lease”) as follows:
1. Tenant is in full and complete possession of the premises covered by
the Lease (the “Premises”), which consist of approximately square feet. Tenant
accepts and hereby ratifies the method of computation and determination of the square
footage of the Premises provided in the Lease and waives any right it may have to disclaim
or dispute such computation and determination.
2. All space and improvements covered by the Lease have been completed
and furnished in accordance with the provisions of the Lease and to the satisfaction of the
Tenant, and Tenant has fully accepted the Premises.
3. The Landlord named in the Lease, and its successor in interest, if any
(collectively called “Landlord”), has satisfied all commitments, arrangements or
understandings made to induce Tenant to enter into the Lease, and Landlord is not in any
respect in default in the performance of the terms and provisions of the Lease, nor is there
now any fact or condition which with notice or lapse of time, or both, would become such a
default.
4. Tenant is not in any respect in default under the terms and provisions of
the Lease, nor is there any fact or condition which with notice, the passage of time, or both,
would ripen into a default.
5. Tenant has not assigned, transferred or hypothecated its interest under
the Lease, except as follows:
6. The Lease, a copy of which is attached hereto, with each page of the
Lease initialed by the undersigned, is for a total term of 0 Years commencing ) and ending , has not been in any respect
modified, altered or amended, and contains the entire agreement between Landlord and
Tenant, except as follows:
“None.“)
(List and attach initialed copies of all amendments and modifications or write
54
7. There are no offsets or credits against rentals payable under the Lease
and neither Tenant nor any predecessor of Tenant has made any payment to Landlord as a
security deposit or advance or prepaid rent, except as follows:
8. Tenant (a) does not have any right to renew or extend the term of the
Lease, (b) does not have any option or preferential right to purchase all or any part of the
Premises or all or any part of the property of which the Premises are a part, and (c) does not
have any right, title or interest with respect to the Premises other than as Tenant under the
Lease. There are no understandings, contracts, agreements or commitments of any kind
whatsoever in respect of the Lease or the Premises, except as expressly provided in the Lease
or in any amendment or supplement to the Lease set forth in paragraph 6 above.
9. As of the date hereof, the minimum annual rent under the Lease is
DOLLARS ($ ), subject to escalation in
accordance with the terms and provisions of the Lease, and said amount is being paid by
Tenant in monthly payments of DOLLARS
($ -). Tenant is current in the payment of rent to Landlord.
10. Tenant waives any and all claims it might have which arise out of any
acts of omissions of Landlord or Landlord’s predecessors arising prior to the date of this
Certificate, including, without limitation, the charging, computation and allocation of all costs
and expenses which are reimbursable by Tenant, and hereby certifies that such costs and
expenses have been properly charged, computed and allocated.
11. The Lease is in full force and effect, and Tenant has no defenses,
setoffs or counterclaims against Landlord arising out of the Lease or the operation or
maintenance of the property of which the Premises are a part or in any way relating thereto or
arising out of any other transaction between Tenant and Landlord.
12. Tenant has not filed nor been the subject of a filing of a petition under
the federal bankruptcy law or any insolvency laws or any laws for composition of
indebtedness or for the reorganization of debtors, nor has Tenant made a general assignment
for the benefit of creditors, and Tenant is not insolvent in any sense.
13. Tenant has received no’notice of a prior sale, transfer, assignment,
hypothecation or pledge of the Lease or of the rents secured therein.
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14. Tenant will not terminate its Lease for any default on the part of the
Landlord without fmt giving notice to:
specifying the default in reasonable detail, arid affording
a reasonable opportunity to make performance for the Landlord.
DATED: , 19--
TENANT:
BY
Its:
56
ADDENDUM
ADDENDUM TO THAT CERTAIN PLAZA PASEO REAL SHOPPING CENTER LEASE,
BY AND BETWEEN THE BOARD OF ADMINISTRATION, AS THE TRUSTEE FOR
THE POLICE AND FIRE DEPARTMENT RETIREMENT FUND, AND THE BOARD OF
ADMINISTRATION, AS TRUSTEE, FEDERATED CITY EMPLOYEES RETIREMENT
FUND, AS LANDLORD, AND CITY OF CARLSBAD, AS TENANT, FOR THE
PROPERTY LOCATED AT 6949 EL CAMINO REAL, SUITE 200, CITY OF CARLSBAD,
‘COUNTY OF SAN DIEGO, STATE OF CALIFORNIA.
Section 14.
Section 15.
Section 16.
Base Rent
Base Rent in Sections 2.8 and ,2.9 shall commence upon Tenant’s opening for
business. All corresponding dates shall be adjusted according to the date that
Tenant opens for business.
Rent Schedule
January 1, 1994 - December 31, 1995 $4,509.00 per month, gross
January 1, 1996 - December 3 1, 1997 $5,000.00 per month, gross
January 1, 1998 - December 3 1, 1998 $5,500.00 per month, gross
TENANT SHALL BE ABLE TO CANCEL THIS LEASE ANY TIME
PRIOR TO THE EXPIRATION OF THIS LEASE UPON THE OPENING
OF THE NEW CITY LIBRARY ON THE PROPERTY ADJACENT TO
PLAZA PASEO REAL SHOPPING CENTER WITHOUT ANY
FURTHER LIABILITY BY GIVING LANDLORD NINETY (90) DAYS
WRITTEN NOTICE.
Sigaee
Tenant shall place a permanent sign above the front door of the premises per
Landlord’s sign criteria attached as Exhibit “D”. In addition, Tenant shall
diligently pursue with the City of Carlsbad, signage above the blue awnings
facing (east) the Vons’ parking lot and a monument sign at the NWC of Dove
and El Camino Real. Said signage shall be vacated at the expiration of their
tenancy with the sign rights remaining with the existing premises. All sign
costs shall be at the expense of Landlord.
Movim Allowance
Landlord shall contribute a maximum of ten thousand dollars ($lO,OOO.OO) to
tenant for the specific costs of relocating the La Costa Branch Library to the
leased premises.
57
“CONSULT YOUR ATTORNEY/ADVISOR - This document has been prepared for approval
by your attorney. No representation or recommendation is made by CB COMMERCIAL
REAL ESTATE GROUP, INC. of the agents or employees as to the legal sufficiency, legal
effect, or tax consequences of this document or the transaction to which it relates. These are
questions for your attorney.
In any real estate transaction it is recommended that you consult with a professional, such as
a civil engineer, industrial hygienist or other person with experience in evaluation the
condition of the property, including the poss’ le resen
underground storage tanks. ~ Teng(of asbestos, hazardous materials and
Landlord’s Initials
58