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HomeMy WebLinkAbout1989-08-08; City Council; Resolution 89-279t 4 t 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 1 20 21 22 23 24 25 26 27 28 I, 0 RESOLUTION NO 89 - 2 7 9 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A LEASE AGREEMENT BETWEEN THE CITY OF CARLSBAD AND PALOMAR 910 ASSOCIATES, LTD. BE IT RESOLVED by the City Council of the City 0: Carlsbad, as follows: 1. That a certain agreement between the City 0: Carlsbad and Palomar 910 Associates, LTD., a copy 0: which is attached hereto marked Exhibit IrAtl anc incorporated herein reference, is hereby approved. 2. That the Mayor of the City of Carlsbad i; hereby authorized and directed to execute a lease, a cop: of which is attached hereto marked Exhibit qqA1l for an' on behalf of the City of Carlsbad. PASSED, APPROVED AND ADOPTED by the City Council o City of Carlsbad, at a regular meeting held on the 3 day of August; 1989, by the following vote, to wit: AYES: Council Members Lewis, Kulchin and Mamaux NOES: None ABSENT: Council Members Pet ATTEST: ALETHA L. RAUTENKRANZ,' City Flerk (Seal) e e EXHIBIT A i I STANDARD FORM MULTIPLE OCCUPANCY LEASE LEASE Lessor: PALOMAR 910 ASSOCIATES, LTD. Lessee: CITY OF CARLSBAD Dated as of: May 2, 1989 J I 0 0 A. DEFINED TERMS, EXHIBITS, TABLE OF CONTENTS, PREMISES, COMM AREAS 1. Defined Terms. Each reference in this Lease to any of the following tit1 shall incorporate the data stated for that title, Other terms are defined in the Lease. Landlord: PALOMAR 910 ASSOCIATES, LTD. Tenant: CITY OF CARLSBAD Building Location: Street Address: 6351 Yarrow Drive, Suite C City: Carlsbad County: San Diego State: California Tenant's Floor Space: Approximately 5,760 square feet Total Rentable Floor Space: 42,480 square feet Term: Three years Fixed Rent: Oct. 1, 1989 - Sept. 30, 1990: $2,950.00 per month Oct. 1, 1990 - Sept. 30, 1991: $3,190.00 per month Oct. 1, 1991 - Sept. 30, 1992: $3,415.00 per month Tenant's Share of Operating Expenses: 0% Tenant's Share of Impositions: 0% Scheduled Term Commencement Date: October 1, 1989 Liability Insurance Amounts: Bodily Injury per person: $500,000.00 Bodily Injury per occurrence: $1,000,000.00 LESSOR APPROVAL: LESSEE APPROVAL: 1 ! L a e Property Damage: $500,000.00 Boiler Insurance: $500,000.00 Landlord's Address: 1660 Hotel Circle North, Suite 216 San Diego, CA 92108 Tenant's Address: 1200 Elm Street Carlsbad, CA 92008 Permitted Uses: Any lawful uses consistent with the Declarati of Covenants and Restrictions Declaration of Covenants and Restrictions: Copy delivered tenant. Recorded: October 1, 1974. Amended February 25, 1977 and M 23, 1977 2. Table of Contents Page A. Defined Terms, Exhibits, Table of 1 Contents, Premises, Common Areas B. Term.................... 4 C. Rent ........ ............ 4 D. Impositions . . . . . . . . . . . . . . . 5 E. Insurance . . . . . . . . . . . . . . . . . 5 F. Repairs, Maintenance, Alterations, . . . . . 6 Operating Expenses G. Tenant's Fixtures and Personal Property . . 7 H. Utilities and Boundaries . , . . . . . . . 8 I. Use of Premises . . . . . . 8 J. Damage or Destruction . . . . . . . s . 9 K. Eminent Domain . . . . . . . . . . . . . . 11 L. Default .................. 12 M. Assignment and Subletting . . . . . . . . . 15 N. Offset Statement, Attornment and 2 4 * e 0 Subordination ............... 17 0. Notices .................. 18 P. Miscellaneous ............... 18 Q. Successor Bound .............. 20 The following Exhibits are attached to this Lease after signatures and are incorporated herein by reference thereto. Description: Exhibit A - Tenant's Floor Plan 3. Premises. Landlord hereby leases to Tenant, subject to and with benefit of the provisions of this Lease, Tenant's Floor Sp "Demised Premises") in the Building extending from the top surface subfloor to the bottom surface of ceilings above but excluding common stairways, stairwells, hallways, accessways, and pipes, duc conduits, wires, and appurtenant fixtures serving exclusively or common other parts of the Building, and if Tenant's Floor Sp includes less than the entire rentable area of any floor, exclud also the remainder of the Floor Common Area. 4. Common Areas. Tenant shall have, as appurtenant to the Demised Premis rights to use in common, subject to reasonable rules from time time made by Landlord of which Tenant is given notice: (a) Building Common Areas. The common stairways accessways, loading docks and platforms and any passagek thereto, and the common pipes, ducts, conduits, wires, appurtenant equipment serving the Demised Premises. (b) Floor Common Area. If the Demised Premises incl less than the entire rentable area of any floor, the con lobbies, hallways, toilets and other common facilities; and (c) Land Common Area. Common walkways, sidewalks driveways necessary for access to the Building and park spaces or area from time to time maintained on the real propc upon which the Building is located ("Lot") and to the ext from time to time arranged by the Landlord, on adjacent I property. 5. Landlord's Reserved Rights in Common Areas. Landlord reserves the right from time to time, wit1 3 2 4 a 0 unreasonable interference with Tenant's use: (a) Building Changes: To install, use, maintain, repa and replace pipes, ducts, conduits, wires and appurtenant mete and equipment for service to other parts of the Building abc the ceiling surfaces, below the floor surfaces, within the wal and in the central core areas, and to relocate any pipes, duct conduits, wires and appurtenant meters and equipment included the Demised Premises which are so located elsewhere outside t Demised Premises; (b) Boundary Changes: To change the lines of the Lot; (c) Facility Changes: To alter or relocate any otl common facility; provided, however, that substitutions z substantially equivalent or better in quality. B. TERM. The term of this Lease is for a period of three (3) yea1 commencing October 1, 1989 and ending September 30, 1992, providc however, Lessee shall have the right to terminate said Lease anytj after completion of one (I) year of this Lease by first giving ( hundred and eighty (180) days prior written notice to the Lessor or after September 30, 1990. C. RENT. 1. Fixed Rent. Tenant shall pay the Fixed Rent to Landlord in advance upon 1 first day of each month of the Term, at Landlord's address or at SI other place designated by Landlord in a notice to Tenant, without : prior demand therefor and without any deduction or setoff whatsoevc If the Term shall commence and end on a day other than the first ( of a month, then Tenant shall pay, upon the commencement date of 1 Term or first day of the last month, a prorata portion of the Fi: Rent described in the foregoing paragraph, prorated on a per d: basis, with respect to the portions of the fractional month incluc in the Term. 2. Deposit. Upon execution of this lease, the existing $2,950.00 depo, under the preceding 1986 - 1989 lease will not be used as payment September 1989 rent, but shall be assigned over to this lease payment against the last month's rent of this lease. On October 1990 and on October 1, 1991, this deposit shall be increased $3,190.00 and to $3,415.00 respectively. LESSOR: LESSEE: 4 c I 0 0 3. Interest. If any installment of Rent is not paid promptly when due, shall bear interest at the lower rate of either ten percent (10%) the maximum rate permitted by law, from the date on which it is ( until the date on which it is paid, regardless of whether or not notice of default or notice of termination has been given Landlord. This provision shall not relieve Tenant from payment Rent at the time and in the manner herein specified. D. IMPOSITIONS. 1. Limitation. Nothing contained in this Lease shall require Tenant to pay i franchise, corporate, estate, inheritance, succession, or trans: tax of Landlord, or any income, profits, or revenue tax or char: upon the net income of Landlord; provided, however, that if at i time during the Term under the laws of the United States Governml or the state in which the Demised Premises are located, or i political subdivision thereof, a tax or excise on rent, or any otl tax, however described, is levied or assessed by any such politic body against Landlord on account of rentals payable to Landlo: Tenant shall pay one hundred percent (100%) of any such tax or exc: on rent as Additional Rent. 2. Personal Property Taxes. Tenant shall pay or cause to be paid, prior to delinquency, i and all taxes and assessments levied upon all trade fixturl inventories and other personal property placed in and upon Demised Premises by Tenant. E. INSURANCE. 1. Fire and Extended Coverage. During the Term Landlord shall procure and maintain in f force and effect with respect to the Building a policy or policies fire insurance with extended coverage endorsement attached, includ vandalism and malicious mischief coverage, and any ot: endorsements required by the holder of any fee or leasehold mortg' in an amount equal to one hundred percent (100%) of the f, insurance replacement value (replacement cost new, including deb removal, and demolition) thereof. 2. Tenant's Fixtures. Tenant shall assume the risk of damage to any fixtures wh remain the property of Tenant or as to which Tenant retains the ri of removal from the Demised Premises. 5 c I 0 0 3. Indemnification of Landlord. Tenant shall indemnify and hold Landlord and the Demis Premises harmless from and against (i) any and all liabilit penalties, losses, damages, costs and expenses, demands, causes action, claims or judgments arising from or growing out of any injc to any person or persons or any damage to any property as a result any accident or other occurrence during the term of this Les occasioned by any act or omission of the Tenant, its office1 employees, agents, servants, subtenants, concessionaires, licensec contractors, invitees or permittees, or arising from or growing c of the use, maintenance, occupation, or operation of the DemiE Premises during the term of this Lease, and (ii) from and agair all legal costs and charges, including reasonable attorney's fef incurred in and about any of such matters and the defense of t action arising out of the same or in discharging the Demised Premic or any part thereof from any and all action arising out of the si or in discharging the Demised Premises or any part thereof from i and all liens, charges or judgments which may accrue or be plac thereon by reason of any act or omission of the Tenant; providc however, that Tenant shall not be required to indemnify Landlord j any damage or injury of any kind arising as the result of Landlorc negligent acts or those of its agents or employees. F. REPAIRS, MAINTENANCE, ALTERATIONS, OPERATING EXPENSES. 1. Operating Expense. Landlord shall be responsible for operation, cleanil maintenance, repair and management of the building and lot, wall driveways, parking and loading areas, lawns and landscaping. 2. Tenant Repairs and Maintenance. Tenant shall, at Tenant's sole cost and expense, keep i maintain the Demised Premises, subfloors and floor coverings in g( repair and in a clean and safe condition, casualties covered insurance coverage excepted to the extent of proceeds receivc Tenant shall, at Tenant's own expense, immediately replace all gl; in the Demised Premises that may be broken during the Term with gli at least equal to the specifications and quality of the glass replaced. 3. Landlord Repairs and Maintenance. Landlord shall, at its expense, after written notice f Tenant, repair in a prompt and diligent manner any damage structural portions of the roof and bearing walls of the Demi Premises; provided, however, that if such damage is caused by an or omission of Tenant, then such repairs shall be at Tenan expense, payable to Landlord as Additional Rent hereunder. Th shall be no abatement of Rent during the performance of such wo 6 I * 0 0 Landlord shall not be liable to Tenant for injury or damage dur the performance of such work. Landlord shall not be liable to Ten for injury or damage that may result from any defect in construction or conditions of the Demised Premises. Tenant wai any right to make repairs at the expense of Landlord under any 1 statute, or ordinance now or hereafter in effect. 4. Inspection of Leased Premises. Landlord, at reasonable times, upon reasonable notice, may upon and into the Demised Premises for the purpose of inspecting same, or for the purpose of inspecting the performance by Tenant the terms and conditions hereof, and for the purpose of affix reasonable signs and displays and showing the Demised Premises prospective purchasers, tenants and lenders. 5. Workmanlike Quality. All repairs, alterations, additions and restoration by Landl or Tenant hereinafter required or permitted shall be done in a g and workmanlike manner and in compliance with all applicable laws lawful ordinances, by-laws, regulations and orders of governmen authority and of the insurers of the Building. 6. Liens. Tenant shall promptly pay and discharge all claims for work labor done, supplies furnished or services rendered at request Tenant and shall keep the Demised Premises free and clear of mechanic's and materialmen's liens in connection therewith. Landl shall have the right to post or keep posted on the Demised Premis or in the immediate vicinity thereof, any notices of I responsibilty for construction, alteration or repairs of the Demj Premises by Tenant. If any such lien is filed, Landlord may, shall not be required to, take such action or pay such amount as be necessary to remove such lien; and Tenant shall pay to Landlorc Additional Rent at such amounts expended' by Landlord together t interest thereon at the highest legal rate from the date expenditure. G. TENANT'S FIXTURES AND PERSONAL PROPERTY. Tenant, at its expense, may install any necessary tl fixtures, equipment and furniture in the Demised Premises, provj that such items are installed and are removable without damage to structure of the Building. Landlord reserves the right to approvc disapprove of curtains, draperies, shades, paint, or other intel improvements visible from outside the Demised Premises on whc aesthetic grounds. Such improvements must be ' submitted Landlord's written approval prior to installation, or Landlord remove or replace such items at Tenant's sole expense. Said t~ fixtures, equipment and furniture shall remain Tenant's property 7 J 8 e a shall be removed by Tenant upon expiration of the Term, or earlj termination of this Lease. Upon Landlord's prior written approvz Tenant may make structural alterations and may also install tempor? improvements in the interior of the Demised Premises, provided th such temporary improvements are installed and are removable witho damage to the structure of the Building. Such temporary improvemen shall remain the property of Tenant and shall be removed by Tena upon expiration of the Term or earlier termination of this Leas Tenant shall repair, at its sole expense, all damage caused by t installation or removal of trade fixtures, equipment, furniture, temporary improvements. If Tenant fails to remove the foregoi items on termination of this Lease, Landlord may keep and use them remove any or all of them and cause them to be stored and sold accordance with applicable.law. H. UTILITIES AND BOUNDARIES 1. Utilities, Tenant shall be solely responsible for and promptly pay a charges for heat, water, gas, electricity, and any other utiliti used or consumed on the Demised Premises, Landlord shall not liable to Tenant for interruption or curtailment of any utili service, nor shall any such interruption or curtailment constitute constructive eviction or grounds for rental abatement in whole or part hereunder. If any such utilities are not separately meterel Tenant shall pay a prorata share, based on use, as determined Landlord. 2. Easements. Landlord reserves the right to (i) alter the boundaries of tl Lot and (ii) grant easements on the Lot and dedicate for public UI portions thereof without Tenant's consent, subject to provisions ( Section N-2 hereof, and provided that no such grant or dedicatic shall interfere with Tenant's use of the Demised Premises ( otherwise cause Tenant to incur cost or expense. From time to timt and upon Landlord's demand, Tenant shall execute, acknowledge ar deliver to Landlord or in accordance with Landlord's instructions a1 and all documents, instruments, maps, or plats necessary 1 effectuate Tenant's covenants hereunder. I. USE OF PREMISES. 1. General. The Demised Premises shall be used for the Permitted Uses consistent with the Declaration of Covenants and Restrictions and a~! supplement thereto. Tenant shall, at Tenant's sole cost and expense comply with all of the requirements of municipal, county, state federal and other applicable governmental authorities, now in force or which may hereafter be in force, pertaining to the Demise 8 i * e e Premises, Building and Lot, and secure any necessary permits theref and shall faithfully observe, in the use of the Demised Premise Building and Lot, all municipal and county ordinances and state a federal statutes now in force, or which may hereafter be in forc Tenant shall obtain any required certificate of occupancy wj respect to its use of the Demised Premises, Building and Lot with thirty (30) days from the commencement of the Term hereof and sha deliver a copy thereof to Landlord within said thirty (30) d period. Tenant in its use and occupancy of the Demised Premis shall not commit waste, nor overload the floors or structure, n subject the Demised Premises to any use which would tend to dama any portion thereof. 2. Signs. Any sign placed or erected by Tenant on the Demised Premise Building or Lot, except in the interior of the Demised Premise shall contain only the Tenant's name, or the name of any affiliate Tenant actually occupying the Demised Premises, and no advertisj matter. No such sign shall be erected until Tenant has obtair Landlord's written approval of the location, material, size, desl and content thereof and any necessary permit therefor. Tenant shs remove any such sign upon termination of this Lease, and shall rett the Demised Premises to their condition prior to the placement erection of said sign. 3. Parking Access. In addition to the general obligation of the Tenant to corn1 with laws and without limitiation thereof, Landlord shall not liable to Tenant, nor shall this Lease be affected if any parkj privileges appurtenant to the Demised Premises, Building or Lot z impaired by reason of any moratorium, initiative, referendl statute, regulation or other governmental decree or action whJ could in any manner prevent or limit the parking rights of Tens hereunder. Any governmental changes or surcharges or other monets obligations imposed relative to parking rights with respect to t Demised Premises, Building and Lot shall be considered as Impositic and shall be payable by Tenant under the provisions of Section hereinabove. J. DAMAGE OR DESTRUCTION. 1. Reconstruction. If the Demised Premises are damaged or destroyed during t Term, Landlord shall, except as hereinafter provided, diligent repair or rebuild them to substantially the condition in which t€ existed immediately prior to such damage or destruction; provic that any damage which is estimated in good faith by Landlord to under Five Thousand Dollars ($5,000.00) shall be repaired by Tenar and Landlord shall reimburse Tenant upon demand for expenses incur] 9 I , 0 0 in such repair work. 2. Rent Abatement. Rent due and payable hereunder shall be abated proportionatc during any period which, by reasons of such damage or destructic Tenant reasonably determines that there is a substantial interferer with the operation of Tenant's business in the Demised Premisc having regard to the extent to which Tenant may be required discontinue its business in the Demised Premises. Such abatemr shall continue for the period commencing with such damage destruction which Landlord is obligated or undertakes to do. If be determined that continuation of business is not practical pend: reconstruction, Fixed Rent due and payable hereunder shall abate the extent of proceeds from rental abatement insurance uni reconstruction is substantially completed or until business totally or partially resumed, whichever is the earlier. 3. Excessive Damage or Destruction. If the building is damaged or destroyed to the extent tf Landlord determines that it cannot, with reasonable diligence, fully repaired or restored by Landlord within one hundred and eigf (180) days after the date of the damage or destruction, the sc right of both Landlord and Tenant shall be the option to termin; this Lease. Notwithstanding the fact that the Demised Premises h2 not been damaged or destroyed, Landlord shall determine whether t building can be fully repaired or restored within the one hundred E eighty (180) day period, and Landlord's determination shall conclusive on Tenant. Landlord shall notify Tenant of j determination, in writing, within thirty (30) days after the date the damage or destruction. If Landlord determines that the Buildj can be fully repaired or restored within the one hundred and eigl (180) day period, .or if it is determined that such repair restoration cannot be made within said period but neither pal elects to terminate within thirty (30) days from the date of s; termination, this Lease shall remain in full force and effect a Landlord shall diligently repair and restore the damage as soon reasonably possible. 4. Uninsured Casualty. Notwithstanding anything contained herein to the contrary, the event of damage to or destruction of all or any portion of t Building which is not fully covered by the insurance procee received by Landlord under the insurance policies required und Section E-1 above, Landlord may terminate this Lease by writt notice to Tenant, giving thirty (30) days after the date of notice Landlord that said damage or destruction is not so covered. Landlord does not elect to termiante this Lease, the Lease sha remain in full force and effect and the Building shall be repair and rebuilt in accordance with the provisions for repair set for 10 < e e in Section J-1 hereinabove. 5. Waiver. With respect to any destruction which Landlord is obligated repair or may elect to repair under the terms of this Section Tenant hereby waives all right to terminate this Lease pursuant rights otherwise presently or hereafter accorded by law to tenan1 except as expressly otherwise provided herein. K. EMINENT DOMAIN. 1. Total Condemnation of Demised Premises. If the whole of the Demised Premises is acquired or condemned eminent domain, inversely condemned or sold in lieu of condemnatic for any public or quasi-public use or purpose ("Condemned"), then 1 Term shall terminate as of the date of title vesting in SI proceeding, and Rent shall be adjusted to the date of terminatic Tenant shall immediate.ly notify Landlord of any such occurrence. 2. Partial Condemnation. If any part of the Demised Premises is partially Condemned, E such partial condemnation renders the Demised Premises unusable f the business of the Tenant, then the Term of this Lease sht terminate as of the date of title vesting in such proceeding and RE shall be adjusted to the date of termination. If such condemnat1 is, not extensive enough to render the Demised Premises unusable f the business of Tenant, then Landlord shall promptly restore t Demised Premises to a condition comparable to its conditj immediately prior to such condemnation to the extent of E condemnation proceeds recovered by Landlord, less the portion therc lost in such condemnation, and this Lease shall continue in fu force and effect except that after the date of such title vesting t Fixed Rent shall be reduced as reasonably determined by Landlord. any parking areas are condemned, Landlord has the option but not t obligation to supply Tenant with other parking areas. 3. Landlord's Award. If the Demised Premises are wholly or partially condemned, th subject to the provisions of Section R-4, Landlord shall be entitl to the entire award paid for such condemnation, and Tenant waives a right or claim to any part thereof from Landlord or the condemni authority. 4. Tenant's Award. Tenant shall have the right to claim and recover from t condemning authority, but not from Landlord, such compensation as m be separately awarded or recoverable by Tenant in Tenant's own rig 11 i 1 0 0 on account of any and all costs or loss (including loss of busines; to which Tenant might be put in removing Tenant's merchandisl furniture, fixtures, leasehold improvements and equipment to a n' location. 5. Temporary Condemnation. If the whole or any part of the Demised Premises shall condemned for any temporary public or quasi-public use or purpos this Lease shall remain in effect and Tenant shall be entitled such use with respect to the period of the taking which is within t Term. If a temporary condemnation remains in force at the expirati or earlier termination of this Lease, Tenant shall pay to Landlord sum equal to the reasonable cost of performing any obligatio required of Tenant by this Lease with respect to the surrender of t Demised Premises, including without limitation repairs a maintenance required, and upon such payment Tenant shall be excue from any such obligations. If a temporary condemnation is for established period which extends beyond the Term, the Lease sha terminate as of the date of occupancy by the condemning authorit and the damages shall be as provided in Sections R-3 and K-4 and Re shall be adjusted to the date of occupancy. 6. Notice and Execution. receive for itself such portion or portions of any award made f Landlord shall, immediately upon service of process connection with any condemnation or potential condemnation, gi Tenant notice in writing thereof. Tenant shall immediately execut and deliver to the Landlord all instruments that may be required effectuate the provisions of this paragraph. L, DEFAULT. 1. Events of Defaults. The occurrence of any of the following events shall constitt an "Event of Default" on the part of Tenant with or without not: from Landlord: see Addendum. a. Vacation or Abandonment. Vacation or abandonment the Demised Premises; b. Payment. Failure to pay an installment of Rent other monies due and payable hereunder upon the date when si payment is due, the failure continuing for a period of five days after said payment is due; C. Performance. Default in the performance of any Tenant's covenants, agreements or obligations hereunder, excc default in the payment of Rent or other monies, the defal continuing for thirty (30) days after written notice thert 12 e 0 from Landlord; d. Assignment. A general assignment by Tenant for tl benefit of creditors; e. Bankruptcy. The filing of a voluntary petition : bankruptcy by Tenant, or the filing of an involuntary petitic by Tenant's creditors immediately unless involuntary, in whil case when the petition remains undischarged for a period 1 thirty (30) days; f. Receiver. The appointment of a receiver to ta possession of substantially all of Tenant's assets or of th leasehold, the receivership0 remaining undissolved for a peri of thirty (30) days; or g. Attachment. Attachment, execution, or other judici seizure of substantially all of Tenant's assets or th leasehold, the attachment, execution, or other seizure remaini undismissed or undischarged for a period of thirty (30) da after the levy thereof. 2. Landlord's Remedies. a. Abandonment. If Tenant vacates or abandons the Demis Premises, this Lease shall continue in effect. Landlord sha not be deemed to have terminated this Lease other than written notice of termination from Landlord, and Landlord sha have all of the remedies of a landlord provided by Secti 1951.4 of the Civil Code of the State of California. At a time subsequent to vacation or abandonment of the Demis Premises by Tenant, Landlord may give notice of termination a shall thereafter have all of the rights hereinafter set forth. b. Termination. Following the occurrence of any Event Default, Landlord shall have the right, so long as the defau continues, to terminate this Lease by a written notice to Tena setting forth: (i) the default, (ii) the requirements to cu it, and (iii) a demand for possession, which shall be effectiv three (3) days after it is given or upon expiration of the tim specified in Section L-1 hereinabove, whichever is later. C. Possession. Following termination under paragraph without prejudice to other remedies Landlord may have by reas of Tenant's default or of such termination, Landlord may then at any time thereafter, (i) peaceably re-enter the Demis Premises, or any part thereof, upon voluntary surrender Tenant or expel or remove Tenant therefrom and any other perso occupying them, using such legal proceedings as are th available; (ii) again repossess and enjoy the Demised Premise or relet the Demised Premises or any part thereof for such te or terms (which may be for a term extending beyond the Term) 13 5 0 0 such rental or rentals and upon such other terms and conditic as Landlord in its sole discretion shall determine, with t right to make reasonable alterations and repairs to the Demis Premises; and (iii) remove all personal property therefrom. d. Recovery.' Following termination under paragraph Landlord shall have all the rights and remedies of a landlc California. The amount of damages which Landlord may recol following termination under paragraph b shall include the WOI at the time of the award of the amount by which the unpaid Rc for the balance of the term after the time of award exceeds 1 amount of rental loss Tenant proves could be reasonab! avoided. provided by Section 1951.2 of the Civil Code of the State e. Additional remedies. In addition to the forego: remedies, Landlord shall, so long as this Lease is n terminated, have the right to remedy any default of Tenant, maintain or improve the Demised Premises without terminati this Lease, to incur expenses on behalf of Tenant in seeking new subtenant, or to cause a receiver to be appointed administer the Demised Premises and new or existing sublease and to add to the Rent payable hereunder all of Landlord reasonable costs in so doing, with interest at the maximum re permitted by law from the date of such expenditure until t same is repaid. f. Other. If Tenant causes or threatens to cause a brea of any of the covenants, agreements, terms or condition contained in this Lease, Landlord shall be entitled to obta all sums held by Tenant, by any trustee or in any accou provided for herein, to enjoin such breach or threatened breac and to invoke any right and remedy allowed at law or in equi or by statute or otherwise as though re-entry, summ proceedings and other remedies were not provided for in th Lease. g. Cumulative. Each right and remedy of Landlord provid for in this Lease shall be cumulative and shall be in additi to every other right or remedy provided for in this Lease or n or hereafter existing at law or in equity or by statute otherwise. The exercise or beginning of the exercise Landlord of any one or more of the rights or remedies provid for in this Lease, or now or hereafter existing at law or equity or by statute or otherwise, shall not preclude t simultaneous or later exercise by Landlord of any or all 0th rights or remedies provided for in this Lease or now hereafter existing at law or in equity or by statute otherwise. h. No Waiver. No failure by Landlord to insist upon t performance of any term hereof or to exercise any right 14 e 0 remedy consequent upon a breach thereof, and no acceptance all or partial payment of Rent during the continuance of an such breach, shall consitute a waiver of any such breach or any such term. Efforts by Landlord to mitigate the damag caused by Tenant's breach of this Lease shall not be constru to be a waiver of Landlord's right to recover damages under th Section L. Nothing in this Section L affects the right Landlord to indemnification by Tenant in accordance with Secti E-3 hereinabove for liability arising prior to the terminati of this Lease for personal injuries or property damage. M. ASSIGNMENT AND SUBLETTING. 1. Prohibition. Tenant shall not assign, mortgage, pledge or otherwise transfer th Lease in whole or in part, nor sublet or permit occupancy by any pa other than Tenant of all or any part of the Demised Premises, witho the prior written consent of the Landlord in each instance. A purported assignment or subletting contrary to the, provisions here without consent shall be void. The consent by Landlord to a assignment or subletting shall not constitute a waiver of t necessity for such consent to any subsequent assignment subletting. As Additional Rent hereunder, Tenant shall reimbur Landlord for reasonable legal and other expenses incurred by Landlo in connection with any request by Tenant for consent to assignment subletting. 2. Landlord Option. a. In connection with any proposed assignment or subleas Tenant shall submit to Landlord in writing (i) the name of t proposed assignee or sublessee, (ii) such information as to i financial responsibility and standing as Landlord may reasonab require, and (iii) all of the terms and conditions upon which th proposed assignment or subletting is to be made. Landlord shall ha an option to cancel and terminate this Lease, if the request is 1 assign the Lease or to sublet all of the Demised Premises; or, if tl request is to sublet a portion of the Demised Premises only, 1 cancel and terminate this Lease with respect to such portio1 Landlord may exercise said option in writing within thirty (30) da: after its receipt from Tenant of such request, and in each case sut cancellation or termination shall occur as of the date set forth : Landlord's notice of exercise of such option, which shall be not le: than sixty (60) nor more than one hundred and twenty (120) da: following the giving of such notice. b. Cancellation. If Landlord shall exercise its option, Tena: shall surrender possession of the entire Demised Premises, or ti portion thereof which is subject of the option, as the case may bl on the date set forth in such notice in accordance with tl provisions of this Lease relating to surrender of the Demisl 15 0 0 Premises at the expiration of the Term. If this Lease is cancel as to a portion of the Demised Premises only, the Fixed Rent al the date of cancellation shall be abated and shall thereafter be amount determined by Landlord and the Tenant's Share of Impositic Tenant's Share of Operating Expenses and Tenant's Share of Insurc Expenses shall be adjusted as reasonably determined by the Land101 C. Noncancellation. If Landlord does not exercise its opt to cancel this Lease pursuant to the foregoing provisions, Land1 may withhold its consent to such assignment or Subletting, as long the withholding is not done unreasonably. d. Assumption. No assignment shall be binding upon Landlc any ground lessor or any mortgagee unless Tenant shall deliver Landlord an assignment in recordable form which contains assumption by the assignee, but the failure or refusal of assignee to execute such instrument or assumption shall not rele or discharge assignee from liability as Tenant hereunder, provi that the terms and provisions of the assignment or subletting sh specifically make applicable to the assignee or sublessee all of provisions of this Section. 3. Bonus Rental. If for any assignment or sublease, Tenant receives rent or ot consideration, either initially or over the term of the assignment sublease in excess of the Rent called for hereunder, or in case the sublease of a portion of the Demised Premises, in excess of SI Rent fairly allocable to such portion, after appropriate adjustmc to assure that all other payments called for hereunder i appropriately taken into account, Tenant shall pay to Landlord, Additional Rent hereunder, one-half (1/2) of the excess of each SI payment of rent or other consideration received by Tenant prompt after its receipt. 4. Scope. The prohibition against assigning or subletting contained this section shall be construed to include a prohibition against E, assignment or subletting by operation of law. If this Lease assigned, or if the underlying beneficial interest of Tenant transferred, or if the Demised Premises or any part: thereof be sub1 or occupied by anybody other than the Tenant, Landlord may colle rent from assignee, subtenant or occupant and apply the net amou collected to the Rent herein reserved and apportion any excess re so collected in accordance with the terms of the immediate preceding paragraph, but no such assignment, subletting, occupancy collection shall be deemed a waiver of this covenant, or t acceptance of the assignee, subtenant, or occupant as tenant, or release of Tenant from the further performance by Tenant of covenan on the part of Tenant herein contained. No assignment or subletti shall affect the continuing primary liability of Tenant (whic. 16 .I e 0 following assignment, shall be joint and several with the assignec and Tenant shall not be released from performing any of the tern covenants and conditions of this Lease. 5. Waiver. Notwithstanding any assignment or sublease, or any indulgence waivers or extensions of time granted by Landlord to any assignee sublessee, or failure by Landlord to take action against any assigr or sublessee, Tenant waives notice of any default of any assignee sublessee and agrees that Landlord may, at its option, proct against Tenant without having taken action against or joined SI assignee or sublessee, except that Tenant shall have the benefit any indulgences, waivers, and extensions of time granted to any SI assignee or sublessee. 6. Release. Whenever Landlord conveys its interest in the Lot, Landlc shall be automatically released from the further performance covenants on the part of Landlord herein contained, and from any i all further liability, obligations, costs and expenses, demanc causes of action, claims or judgments arising from or growing out t or connected with this Lease after the effective date of si release. The effeective date of said release shall be the date 1 assignee executes an assumption of such an assignment whereby 1 assignee expressly agrees to assume all of Landlord's obligatio] duties, responsibilities, and liabilities with respect to this Lea: If requested, Tenant'shall execute a form of release and such otl documentation as may be required to further effect the provisions this Section. N. OFFSET STATEMENT, ATTORNMENT, AND SUBORDINATION. 1. Offset Statement. Within ten (10) days after request therefor by Landlord, or on any sale, assignment or hypothecation by Landlord of its inter1 in the Demised Premises, or any part thereof, an offset statemi shall be required from Tenant, Tenant shall deliver, in recorda' form, a certificate to any proposed mortgagee or purchaser, or Landlord, certifying (if such be the case) that this Lease is in f: force and effect; the date of Tenant's most recent payment of Re, and that there are no defenses or offsets outstanding, or stat: those claimed by Tenant. Tenant's failure to deliver said statem in time shall be conclusive upon Tenant that: (i) this Lease is full force and effect, without modification except as may represented by Landlor,d, (ii) there are no uncured defaults Landlord's performance and Tenant has no right of offs, counterclaim or deduction against rent hereunder, and (iii) no m than one period's Fixed Rent has been paid in advance. 17 , 0 0 2. Attornment. Tenant shall, in the event any proceedings are brought for t foreclosure of, or in the event of exercise of the power of sa under, any mortgage or deed of trust made by the Landlord, i successors or assigns, encumbering the Demised Premises, or any pa thereof, or in the event of termination of the Ground Lease, in an and if so requested, attorn to the purchaser upon such foreclosu or sale or upon any grant of a deed in lieu of foreclosure a: recognize such purchaser as the Landlord under this Lease. 3. Subordination. The rights of Tenant hereunder are and shall be, at the electic of any mortgagee, subject and suordinate to the lien of any rnortgai or mortgages, or the lien resulting from any other method ( financing or refinancing, now or hereafter in force against the LC and/or Building of which the Demised Premises are a part, and to a: advances made or hereafter to be made upon the security thereof provided, however, that notwithstanding such subordination, so lon as the Tenant herein is not in default under any of the terms convenants and conditions of this Lease, neither this Lease nor an of the rights of Tenant hereunder upon Tenant's covenanting tha Tenant is not in default hereunder, shall be terminated or subject t termination by any trustee's sale, any action to enforce th security, or by any proceeding or action in foreclosure. I requested, Tenant agrees to execute whatever documentation may b required to further effect the provisions of this section. 0. NOTICES. All notices required to be given hereunder shall be in writin, and mailed postage prepaid by certified or registered mail, retur: receipt requested, or by personal delivery, to the address indicate( 'in Section A-1 or at such other place or places as either Landlord 01 Tenant may, from time to time, respectively designate in a writtel notice to the other. Notices shall be deemed sufficiently serve( four (4) days after the date of mailing thereof. P. MISCELLANEOUS. 1. Waiver. No waiver of any default or breach of any covenant by either party hereunder shall be implied from any omission by either party to take action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the waiver, and then said waiver shall be operative only for the time and to the extent therein stated. Waivers of any covenant, term or condition contained herein by either party shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition. The consent or approval by 18 i 0 0 either party to or of any act by either party requiring furtl consent or approval shall not be deemed to waive or renc unnecessary their consent or approval to or of any subsequent simi: acts. 2. Accord and Satisfaction, No payment by Tenant or receipt by Landlord of a lesser am01 than the Rent payment herein stipulated shall be deemed to be otl than on account'of the Rent, nor shall any endorsement or statemt on any check or any letter accompanying any check or payment as Re be deemed an accord and satisfaction, and Landlord may accept su check or payment without prejudice to Landlord's right to recove the balance of such Rent or pursue any other remedy provided in th Lease. 3. Limitations of Landlord's Liability. The obligations of the Landlord under this Lease do n constitute personal obligations of the individual partner directors, officers, or shareholders of Landlord, and Tenant sha. look solely to the real estate that is the subject of this Lease a] to no other assets of the Landlord for satisfaction of any liabili: in respect of this Lease and will not seek recourse against tl individual partners, directors, officers or shareholders of Landlo: or any of their personal assets for such satisfaction. 4. Entire Agreement. This Lease sets forth all the covenants, promises, agreements conditions and understandings between Landlord and Tenant concernir the Demised Premises, Building and Lot, and there are no covenants promises, agreements, conditions or understandings, either oral o written, between them other than as are herein set forth. Except a herein otherwise provided, no subsequent alteration, amendment change or addition to this Lease shall be binding upon Landlord o Tenant unless reduced to writing and signed by them. 5. Time. Time is of the essence hereof. 6. Short Form Lease, Concurrently herewith the parties may, at the option of eithel party, execute a short form of Lease for recording. This Lease an( any such short form of Lease shall be construed together as onc instrument. Neither Landlord or Tenant shall record this Lease nor permit the same to be recorded without the written consent of the other, but shall have the right to record any such short form. 19 t 0 0 7. Attorney's Fees. In any action or proceeding which the Landlord or the Tenant m be required to prosecute to enforce its respective rights hereunde: the unsuccessful party therein agrees to pay all costs incurred the prevailing party therein, including reasonable attorney's fee to be fixed by the court, and said costs and attorney's fees shall made a part of the judgment in said action, In any situation which a dispute is settled other than by action or proceeding, Tena shall pay all Landlord's costs and attorney's fees relating thereto 8. Captions and Section Numbers. The captions, section numbers, article numbers and indt appearing in this Lease are inserted only as a matter of convenient and in no way define, limit, construe, or describe the scope ( intent of such sections or articles of this Lease nor in any WI affect this Lease. 9. Severability. If any term, covenant, condition or provision of this Lease c the application thereof to any person or circumstance shall to an extent be held by a court of competent jurisdiction to be invalid unenforceable, or void, the remainder of the terms, covenants conditions, or provisions of this Lease, or the application therec to any person or circumstance shall remain in full force and effec and shall in no way be affected, impaired or invalid.ated. 10. Applicable Law. This Lease, and the rights and obligations of the partie hereto, shall be construed and enforced in accordance with the law of the state in which the Demised Premises are located. 11. Examination of Lease. Submission of this instrument for examination or signature b Tenant does not constitute a reservation of or option to Lease, an it is not effective as a Lease or otherwise until execution an delivery by both Landlord and Tenant. Q. SUCCESSORS BOUND. This Lease and each of its covenants and conditions shall b binding upon and shall inure to the benefit of the parties hereto an the$r respective heirs, successors and legal representatives an their respective assigns, subject to the provisions hereof. Wheneve in this Lease a reference is made to the Landlord, such referencl shall be deemed to refer to the person in whom the interest of thc Landlord shall be vested, and Landlord shall have no obligatio] hereunder as to any claim arising after the transfer ot its interes. 20 \, e 0 in this Demised Premises. Any successor or assignee of the Tena who accepts an assignment or the benefit of this Lease and ente into possession or enjoyment hereunder shall thereby assume and agr to perform and be bound by the covenants and conditions thereo Nothing herein contained shall be deemed in any manner to give right of assignment to Tenant without the written consent Landlord. IN WITNESS WHEREOF, the parties have executed this Lease as the date first above written. "LANDLORD" PALOMAR 910 ASSOCIATES, LTD. Attest: By : ELI PERLMAN, Managing Partner "TENANT" I CITY OF CARLSBAD Attest: By: CLAUDE A. LEWIS, Mayor 21 rlr 0 STATE OF CALIFORNTA 1 COUNTY OF SAN DIEGO 1 1 ss. On , before me, the undersigned, a Nota Public in and for said County and State, personally appear' 9 known to me to be t and , the corporation that executed t within instrument, known to me to be the persons who executed t. within instrument on behalf of the corporation therein named, a1 acknowledged to me that such corporation executed the with: instrument pursuant to its by-laws or a resolution of its board ( directors. WITNESS my hand and official seal. NOTARY PUBLIC STATE OF COUNTY OF 1 1 1 SS. On , before me, the undersigned, a Notar Public in and for said County and State, personally appeare Y known to me to be tk and C , the corporation that executed the withj instrument, known to me to be the persons who executed the withi instrument on behalf of the corporation therein named ar acknowledged to me that such corporation executed the withir: i,nstrument pursuant to its by-laws or a resolution of its board c directors. WITNESS my hand and official seal. NOTARY PUBLIC 22 ~ I* e m ADDENDUM TO THE STANDARD FORM MULTIPLE OCCUPANCY LEASE BY AND BETWEEN PALOMAR 910 ASSOCIATES, LTD. (LANDLORD) AND THE CITY OF CARLSBAD (TENANT) DATED AS OF The promises, covenants, agreements and declarations made a. set forth herein are intended to and shall have the same force a: effect as if set at length in the body of the lease to which th Addendum is attached (the "Lease") . To the extent that t: provisions of this Addendum are inconsistent with the terms a conditions of the Lease, the terms hereof shall control: 1. Section E-2. Section E-2 is hereby retitled to read: "Tenant's Property" a: the language of said Section is hereby revised to read as follow "Tenant shall assume the risk of damage to any fixtures, good inventory, merchandise, equipment, furniture, and leaseho improvements which remain the property of Tenant or as to whic Tenant retains the right of removal from the Demised Premises, a1 Tenant shall maintain reasonable insurance coverage with respect 1 such items during the Term of this Lease". 2. Section F-2. With reference to Section F-2, the following language is here1 added thereto: "Tenant expressly understands that there shall be I affirmative responsibility with respect to either party in connectic with repairs to the walls of the Demised Premises relating 1 maturity or weathering of construction materials as contrasted 1 damage to the structural integrity of the building walls. 3. Section L-1. The Semicolon following Subsection L-l(b) is hereby changed to period and the following sentence is hereby added at the end of sai Subsection: "Should there be a consecutive failure to pay SUC installments for two (2) months in a row, then Rent shall become du and payable quarterly in advance on the first day of each calenda quarter during the following one (1) year period of the Term of th Lease, after which year Rent shall again be payable monthly and thj Section shall again be in effect". 4. Section P-12. A new Section P-12 is added entitled "Financial Statements" an contains the following language: "At any time during the Term of th Lease, Tenant shall, upon thirty (30) days' prior written notice fro Landlord in connection with any financing of the Demised Premises provide Landlord with a current financial statement and financia statements for each of the two (2) years prior to the curren 23 i ,> J 0 e financial statement year. Such statements shall be prepared accordance with generally accepted accounting principles and shall audited by independent certified public accountants if such is t normal practice of Tenant". 5. Section P-14. A new Section P-14 entitled "Surrender of Premises: Holdi Over" is added hereto and contains the following language: 11 expiration of ten (10) days after termination of the Term, Tena shall surrender to Landlord the Demised Premises and all Tenant improvements and alterations in good condition (except for ordina wear and tear occurring after the last necessary maintenance made Tenant and except for destruction of the Demised Premises covered Article J) except for alterations that Tenant has the right to rem0 or is obligated to remove after the provisions of Article G. Tena shall remove all its personal property within the above-stated ti period. Tenant shall perform all restoration made necessary by t: removal of any alterations or Tenant's personal property within ti time period stated in this Section. Landlord can elect to retain 1 dispose of in any manner any alterations or Tenant's person; property that Tenant does not remove from the Demised Premises 1 expiration or termination of the Term as allowed or required by th: Lease by giving at least ten (10) days notice to Tenant. Title t any such alterations or Tenant's personal property that Land101 elects to retain or dispose of on expiration of the ten (10) d: period shall vest in Landlord. Tenant waives all claims again: Landlord for any damage to Tenant resulting from Landlord's retentic or disposition of any such alterations or Tenant's personal propert] Tenant shall be liable to Landlord for Landlord's costs for storing removing, and disposing of any alterations or Tenant's persona property. If Tenant fails to surrender the Demised Premises t Landlord on expiration or ten (10) days after termination of the Ter as required by this Section, Tenant shall hold Landlord harmless frc all damages resulting from Tenant's failure to surrender the Demise Premises including without limitation claims made by a succeedin // // // // // // // // // // // // // // // // 24 ., i c, * * a Tenant resulting from Tenant's failure to surrender the Demisl Premises. IN WITNESS WHEREOF, the parties have executed this Addendum 2 of the day and year first above written. PALOMAR 910 ASSOCIATES, LTD. Date By : ELI PERLMAN Its: Managing Partner "LANDLORD'' CITY OF CARLSBAD Date By: CLAUDE A. LEWIS Its: Mayor "TENANT" I 25 . ."". "_ .__" __ \ "~iiii~i~~;l~i..l::i~r~ 622' """ """_- - . cLiL ~ """."" m . .. . . 65.OAcrn ' I'dornar Airport Business Park 6231 YARROW DRIVE. SUITE C, CARLSBAD. CALIF. 92008 ". TELEPHONE (714) 438-2552 .r