HomeMy WebLinkAbout1988-04-05; Housing & Redevelopment Commission; 96; Administrative Office ProjectHOUSING ANCY9EDEVELOPMENT COMMIShN - AGENDA BILL 0
3# 96 TITLE: CARLSBAD SENIOR CITIZENS CENTER AND DEPT. HD.a<
TG. 415188 CARLSBAD UNIFIED SCHOOL DISTRICT CITY A
EPT. CM ADMINISTRATIVE OFFICE PROJECT * CITY MGR.
1ECOMMENDED ACTION:
Adopt Resol uti on No. /o/ approving an agreement between the City of
Carlsbad, the Carlsbad Housing and Redevelopment Commission and the Carlsbad Unified School District for joint development of the project, and adopt Resolution No. && accepting a loan from the City of Carlsbad.
ITEM EXPLANATION:
The attached agreement between the City of Carlsbad, the Carlsbad Housing and
Redevelopment Commission and the Carlsbad Unified School District is the culmination of approximately two (2) years of discussions concerning the
joint development of this project. In general terms, the basic concept for
the development of this joint project as set forth in the attached formal
agreement includes:
The District will transfer approximately 3.31 acres of property
located at 801 Pine Avenue to the Carlsbad Housing and Redevelopment
Commission. The value of the land has been established by a joint City/School District real estate appraisal at approximately $1.6 million.
The Commission will construct a 27,000 square foot building that will house a 15,000 square foot Senior Citizens Center and 12,000 square feet of administration office space for the District. The $3.5 million project will be financed from the proceeds of the redevelop- ment tax allocation bond issue.
The Commission will lease the office space to the District for 10 years at $29,800 per year. At the end of the lease, the District will receive a condominium ownership interest in the office space.
The Commission will advance $200,000 to the District for relocation expenses and temporary office space rent while the project is being constructed.
The District has the option of using a portion of the Public Safety and Service Center for 10 years for an annual rent of $10,000 to house District service storage facilities.
The City will direct all aspects of the development of the entire project through the programming, design, and construction phases. Upon completion of the construction of the project, which is scheduled to be the summer of 1989, the School District will occupy the
facilities within the project specifically designed to meet the
administrative office needs of the District.
Page 2 of Agenda Bill No. 96
The Carlsbad Unified School District Board took action to formally approve the agreement at its march 23, 1988 meeting. City staff recommends approval of the attached agreement with the School District to begin the development of this project.
FISCAL IMPACT:
The City Council on April 7, 1987, approved and appropriated a $300,000 loan from the City's General Capital Construction Fund to the Redevelopment Fund for the estimated cost of project design and development. The cost of the design of the project in accordance with the terms and conditions of the
architectural consultant agreement will be $233,000. Therefore, no addition- al project funds are required until May 1988, at which time it is estimated the project will be ready for solicitation of construction bids.
The project is recommended to be funded from a combination of sources. Design funding has been advanced to the Commission from the City's General Capital Construction Fund in the form of a loan. $3.5 million will be available for the project from the proceeds of the sale of tax allocation bonds by the Commission.
Preliminary design of the project has been completed by the architect. The project being proposed by the design committee and architect is slightly
larger than originally anticipated in the agreement. The proposed building
will contain 28,300 square feet (15,343 square feet for the Senior Center and
12,957 square feet for the School District). The preliminary estimate of
construction costs for the project is $3,459,000. With the addition of
design expenses of $300,000, the total cost of the project is now estimated
at $3,759,000.
It is recommended that the Commission proceed with the project as proposed by the design committee and architect. The total estimated project cost of $3,759,000 would be funded with $3.5 million from the tax allocation bond sale and $300,000 advance from General Capital Construction Fund which has already been approved and appropriated by the Council. It is further recommended that the $300,000 advance be contributed to the project from the General Capital Construction Fund and not be added to the general debt of the Redevelopment Fund.
If the Commission concurs, this recommendation will be implemented at the time bids are awarded for the project.
This agenda bill also authorizes a loan of $200,000 from the contingency account to the Redevelopment Fund. The Redevelopment Fund will advance
$200,000 to the School District for relocation expenses. The $200,000 relocation advance will eventually be recovered from the annual lease payments that the District will make to the Commission for ten years after the project is completed. The contingency account balance will be $1,136,373 after this transfer.
Page 3 of Agenda Bill No. g6
With adoption of the resolutions in this agenda bill, the Commission will be approving the agreement between the City, the Commission and the District for
the project and will be accepting a loan from the City in order to make the
$200,000 relocation payment to the District. Therefore, it is recommended
that the Commission adopt the attached resolutions.
EXHIBITS:
1. Resolution No. 101 approving an agreement with the City of
Carlsbad, the Carlsbad Housing and Redevelopment Commission and the Carlsbad Unified School District for the joint development of a Senior Citizens Center and District Administrative Office Complex.
2. Resolution No. 102 accepting a loan from the City of Carlsbad.
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RESOLUTION NO. lo'
A RESOLUTION OF THE HOUSING AND REDEVELOPMENT COPIMISSION
OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING AN AGREEMENT
BETWEEN THE CITY OF CARLSBAD AND THE CARLSBAD UNIFIED SCHOOL
DISTRICT FOR THE DEVELOPMENT OF A JOINT SENIOR CENTER/SCHOOL ADMINISTRATIVE OFFICE COMPLEX.
WHEREAS, the City has adopted Ordinance No. 9639 on July 20, 1982,
which ordinance approves the Village Area Redevelopment Plan ("Redevelop-
ment Plan") and establishes the Village Project Area ("Project Area")
pursuant to the California Community Redevelopment Law (Health and Safety
Code Section 33000 et seq.) for the redevelopment, replanning, and
redesigning of certain blighted areas within the City of Carlsbad which
require redevelopment in the interest of health, safety, and general
welfare of the City of Carlsbad; and
WHEREAS, the District, the Commission and the City wish to enter
into an Agreement for Cooperation to provide mutual aid and assistance in
the redevelopment of certain areas of the City through the acquisition,
relocation, and construction of public school facilities and other public *
facilities; and
WHEREAS, the District, the Commission and the City recognize the
need to provide adequate public school facilities and other public
services and amenities to serve the Project Area and the District. The
District, the Commission and the City have determined that such
facilities are a benefit to the Project Area and that there are no other
reasonable means of financing the construction of such public school
facilities and other public facilities. Accordingly, it is the purpose
of the Agreement to create a cooperative relationship among the Commis-
sion, the District and the City to provide for the implementation of
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projects which are of mutual benefit to the Commission and the District
and the community at large by utilizing the combined resources of the
Commission, the District and the City to carry out the goals of the
Redevelopment Plan and of the District.
NOW, THEREFORE, BE IT RESOLVED by the Housing and Redevelopment Commis-
sion of the City of Carlsbad, California, as follows:
1. That the above recitations are true and correct.
2. That the agreement between the City of Carlsbad, the Carlsbad
Housing and Redevelopment Commission and the Carlsbad Unified School
District attached hereto as Exhibit A, is hereby approved.
PASSED, APPROVED AND ADOPTED at a special meeting of the Housing and
Redevelopment Commission held on the 5th day of April, 988, by the
-4 following vote, to wit:
AYES: Commissioners Lewis, Kulchin, Pettine, Mamaux and Larson
NOES: None
ABSENT: None
ATTEST:
R AAh ALETHA L. RAUTERKRANZ, City Clerk\
CLAUDE A: Lb/IS, Chairperson
EXHiBlT A TO RESOLUTION NO. 101
AGREEMENT FOR COOPERATION BETWEEN THE CARLSBAD UNIFIED SCHOOL DISTRICT, THE CARLSBAD HOUSING AND REDEVELOPMENT COMMISSION, AND THE CITY OF CARLSBAD
1. PARTIES AND DATE
1.1 This Agreement is entered into this day of I 1988 by and among the CARLSBAD UNIFIED SCHOOL DISTRICT, a public agency ("District"), the CARLSBAD HOUSING AND REDEVELOPMENT COMMISSION ('Commission"), and THE CITY OF CARLSBAD ("City").
2. RECITALS
2.1 The City has adopted Ordinance No. 9639 on July 20, 1982, which ordinance approves the Village Area Redevelopment Plan ("Redevelopment Plan') and establishes the Village Project Area ("Project Area") pursuant to the California Community Redevelopment Law (Health and Safety Code Section 33000 et seq.) for the redevelopment, replanning and redesigning of certain blighted areas within the City of Carlsbad which require redevelopment in the interest of health, safety, and general welfare of the City of Carlsbad.
2.2 The District, the Commission and the City wish to enter into this Agreement for Cooperation to provide mutual aid and assistance in the redevelopment of certain areas of the City through the acquisition, exchange, relocation, and construction of public school facilities and other public facilities. More specifically, and subject to the conditions described hereinafter, the Commission and the District wish to cooperate in connection with the following redevelopment activities:
(a) Conveyance of a portion of property owned by the District (which property to be conveyed is legally described in Exhibit A attached hereto and incorporated herein by reference) (the "District Site") to the Commission in exchange for the construction of a Senior Citizen Center which will include District administrative offices and the Undivided Interest (as defined in Section 5.4 below) (the 'Administrative Offices"). Such District Administrative Offices are to be leased by the Commission to the District for a term of ten (10) years or as hereafter provided and thereafter conveyed to the District pursuant to the terms hereof. The Senior Citizen Center, including the District Administrative Office, is hereinafter described as the "Center", and the Senior Citizen Center, excluding the District Administrative Offices, is hereinafter described as the "Commission's Interest". The
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Commission may convey the District Site and/or Center (exclusive of the Administrative Offices) to the City subject to the terms and conditions of this Agreement, and
(b) The temporary relocation of the certain various District uses presently operating on the District Site.
2.3 The District, the Commission and the City recognize the need to provide adequate public school facilities and other public services and amenities to serve the Project Area and the District. The District, the Commission and the City have determined that such facilities are a benefit to the Project Area and that there are no other reasonable means of financing the construction of such public school facilities and other public facilities. Accordingly, it is the purpose of this Agreement to create a cooperative relationship among the Commission, the District and the City to provide for the implementation of projects which are of mutual benefit to the Commission and the District and the community at large by utilizing the combined resources of the Commission, the District and the City to carry out the goals of the Redevelopment Plan and of the District.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants contained herein, the parties hereto agree as follows:
3. DISTRICT SITE
The Commission has completed and the District hereby approves the site plan for the development of the Center ("Center Plan") attached hereto as Exhibit B and incorporated herein by reference. District hereby consents to any land use
\ entitlement applications submitted by the Commission or its designee prior to conveyance of the District Site to the Commission which are substantially consistent with the Center Plan. The District shall convey title to the District Site, free and clear of all liens and encumbrances except those approved by the Commission, as more specifically set forth in Section 4 below; provided, however, in the event District fails to receive State Agency approval or is otherwise legally prohibited from conveying the District Site to Commission, this Agreement shall be terminated and neither party shall have any rights or obligations hereunder.
3.2 Upon conveyance of title to the District Site to the Commission, the Commission, in exchange, shall undertake redevelopment of the District Site in accordance with the Center Plan.
3.3 Any redevelopment activities undertaken by the Commission on the District Site shall meet the following requirements:
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(a) A Floor Plan for the Administrative Offices, containing no less than 12,000 square feet, shall be submitted to the District for its approval, which approval shall not be unreasonably withheld. Within twenty (20) business days after receipt of a Floor Plan for the Administrative Offices, the District shall approve of such Floor Plan or shall provide the Commission with a written statement setting forth the reasonable basis upon which the District withholds its consent, provided that upon revision by the Commission of a Floor Plan for the Administrative Offices to address the matters set forth in any such written disapproval by the District, such revised Floor Plan shall be deemed approved by the District.
(b) The schedule of work shall be developed jointly by the Commission and the District, and approved, in writing, by the District to assure minimum disruption to Pine School (located adjacent to the District Site) and the administrative responsibilities of the District. Any requested approval of such schedule of work shall be delivered by the District to the Commission within 20 business days after receipt thereof.
3.4 District shall vacate the District Site by August 1, 1988, unless otherwise notified by the Commission of a later date established by thirty (30) days' written notice.
4. CONVEYANCE OF THE DISTRICT SITE
4.1 The District hereby agrees to convey the District Site to the Commission upon the terms and conditions hereinafter set forth, in exchange for the lease and conveyance to the District by the Commission of the Administrative Offices and other consideration as set forth herein.
4.2 The transfer of the District Site to the Commission shall occur after the Commission has approved a Floor Plan for the Administrative Offices and after the Commission has awarded a contract for construction of the Center. The terms "Close of Escrow," "Closing" and/or "Closing Date" are used herein to mean the time the District's grant deed is filed of record in the Office of the County Recorder of San Diego County.
4.3 On or before 12:00 o'clock noon on the day preceding the Closing Date, the District shall deposit with First American Title Insurance Company ("Escrow Agent") any instruments required by Escrow Agent to comply with the terms hereof.
4.4 At least five (5) days prior to the Closing Date, the District shall deliver to Escrow Agent a grant deed conveying the District Site to the Commission which document shall be duly executed and acknowledged by the District and/or such
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persons as the title insurer may require in order to issue the title policy described herein, together with any title documents required pursuant to Section 4.6 below. On or before the Closing Date, the District shall deposit with Escrow Agent such other instruments as may be required of the District to permit Escrow Agent to comply with the terms hereof.
4.5 On the Closing Date, Escrow Agent shall record the grant deed described in Section 4.4, above, provided Escrow Agent obtains assurance that First American Title Insurance Company is prepared to issue its CLTA policy of title insurance covering the District Site and showing title vested in the Commission in the amount of One Million Five Hundred Eighty Thousand Dollars ($l,SSO,OOO) subject only to the following:
(a) Non-delinquent general real property taxes;
(b) Approved exceptions shown in the preliminary title report to be approved by the Commission pursuant to Section 4.6 below; and
(c) Exceptions consented to (in writing) or created by the Commission.
4.6 The Commission shall promptly order a preliminary title report for the District Site, together with copies of all documents referenced therein as exceptions. The Commission shall have until April 1, 1988, to approve or disapprove the condition of title of the District Site. In the event that any matters are shown on the preliminary title report which are not acceptable to the Commission, the Commission shall have the right to disapprove same on or before April 1, 1988, by so notifying the District in writing. In the event the Commission fails to notify the District in writing of a disapproved exception prior to April 1, 1988, the exceptions shown therein shall be deemed approved by the Commission. The District shall, within thirty (30) days thereafter, notify the Commission in writing, whether the District agrees, at its sole expense, to cause the removal of a disapproved exception. If District fails to respond, the District shall be deemed to have refused to remove the disapproved exception. If the District refuses or is deemed to have refused to remove the disapproved exception, the Commission may either waive its prior objections and proceed with the escrow or cancel this transaction by written notice to the District and Escrow Agent within ten (10) days following the receipt of the District's notice (or ten (10) days following the date the District is deemed to have refused, if the District fails to provide notice). In the event the Commission elects to terminate this Agreement pursuant to the provisions of this Section, the Commission and District agree to immediately execute any document required to cause Escrow Agent to cancel the escrow, less escrow
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cancellation charges, if any, after which time neither party shall have any further obligation to the other under this Agreement.
4.7 Real property taxes, if any, assessed against the District Site for the fiscal year in which Close of Escrow occurs shall be prorated as of the Close of Escrow on the basis of a thirty (30) day month. The Commission will pay the Escrow Agent's fee, Escrow Agent's drafting charges, recording charges and documentary transfer tax in an amount determined by Escrow Agent and the title policy premium on the policy herein described.
4.8 Escrow Agent will cause the County Recorder of San Diego County to mail the grant deed covering the District Site to the Commission at the address set forth for the Commission herein. Escrow Agent will further deliver to the Commission by United States mail, the title policy called for herein.
4.9 The District will deliver fee title in the District Site to the Commission at Close of Escrow.
5. CONVEYANCE OF THE ADMINISTRATIVE OFFICES
5.1 The Commission agrees to demolish the existing buildings located on the District Site except for the relocatable classrooms to be relocated by the District pursuant to Section 6.2, below, and to construct the Center in a timely manner in accordance with the Center Plan. The Commission further agrees to construct the Administrative Offices in accordance with Floor Plan approved by the District, which Administrative Offices shall occupy not less than 12,000 square feet of office space within the Center. The building in which the Administrative Offices will be situated shall be developed by the Commission as an office condominium. The Commission shall take all necessary steps to prepare and/or file a condominium plan, covenants, conditions and restrictions, and any other documents necessary to develop the condominium project. Commission shall defend, indemnify and hold District harmless with respect to any losses, damages, liabilities, claims, actions, judgments, court costs and legal or other expenses incurred as direct or indirect consequence of the construction of the Center by the Commission for the period commencing upon District vacation of the District Site and terminating upon commencement of the Administration Offices Lease.
5.2 Within thirty (30) days after completion of the Administrative Offices in accordance with the plans and specifications, the Commission shall (i) deposit a Grant Deed conveying a condominium interest in the Administration Office to the District into an escrow with First American Title
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Insurance Company and, (ii) the Commission, as lessor, and the District, as lessee, shall execute the Lease for the Administrative Offices in the form of Exhibit C attached hereto and incorporated herein by this reference (the "Administrative Offices Lease"). In addition to the foregoing, after completion of the Center and as long as the District holds a real property interest in the Administrative Offices, the Commission will grant the District, without additional charge, the right to use an auditorium, which the Commission intends to construct in the Center, for the District's board meetings twice each month, and at other times on an as available as-needed basis. The Administrative Offices Lease shall be for a term of ten years, and shall provide for rent equal to the sum of base rent in an amount equal to Twenty-Nine Thousand Eight Hundred Dollars ($29,800.00) per year, payable in arrears, plus in an amount equal to the monthly assessments as would be calculated under paragraph 5.4 below (together the "Rent"). The Administrative Offices Lease shall provide for termination by the District prior to the termination of the ten (10) year term upon payment of the total annual rent remaining for the balance of the ten (10) year period. A memorandum of the Administrative Offices Lease, in the form of Exhibit D attached hereto, shall be executed and acknowledged by the Commission and recorded in the Official Records of San Diego County upon the effective date of the Administrative Offices Lease.
5.3 Concurrently with execution of the Administrative Offices Lease and deposit of the Grant Deed, the Commission shall cause the building in which the Administrative Offices will be situated to become an office condominium (the "Conversion").
5.4 Following (a) the end of the ten (10) year term of the Administrative Offices Lease, provided the Administrative Offices Lease has not been terminated prior to the end of such ten (10) year term and the District is not then in default in the payment of the Rent or any other sums payable by the District pursuant to the terms thereof, and (b) the completion of the Conversion, the Commission shall convey to the District, for no additional consideration, a fee interest in the condominium Administrative Offices together with an undivided interest in the Center common area equal to a fraction the numerator of which is the total square footage of the Administrative Offices as shown in the Condominium Documents approved by the Commission and the District and the denominator of which is the total square footage of the Center building as shown in said Condominium Documents ("Undivided Interest"). The Condominium Documents shall require the formation of a committee comprised of a designee of the Commission and a designee of the District and the on-site manager to review the operation and maintenance of the Center. It is understood and
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agreed that upon the conveyance of the Administrative Offices to the District, the District will be required to pay monthly assessments to the Commission covering common area and building exterior maintenance obligations, the District's percentage share of which shall be determined by utilizing the Undivided Interest calculation immediately above. The Administrative Offices and the Undivided Interest are hereinafter referred to collectively as the "AdministrativefOffices."
5.5 The Commission's obligation to convey the Administrative Offices to the District shall be satisfied by delivering to First American Title Insurance Company instructions to record the Grant Deed held by First American pursuant to Section 5.2 hereof. Title to the Administrative Offices shall be subject only to nondelinquent real property taxes and covenants, conditions, restrictions, easements, rights and rights of way of record approved by the Commission and the District. The District shall bear all expenses in connection with such conveyance including, without limitation, documentary transfer taxes, escrow charges (if any), recording charges and title policy premiums. Real property taxes and assessments, if any, shall be prorated as of the date of delivery of such grant deed to the District.
6. TEMPORARY RELOCATION OF DISTRICT USES
6.1 The District Site is currently occupied by four (4) uses, as follows:
(a) Administrative offices
(b) Relocatable classrooms
(c) The storage of District vehicles
(d) Warehousing of District supplies including food supplies and gardening equipment
6.2 The District shall be responsible for locating replacement offices for the administrative offices referenced above (the "Replacement Offices') during the period of construction of the Center.
6.3 Vehicle storage for the District's approximately sixty (60) vehicles and/or the warehousing of the District supplies referenced above shall, at the District's option, be provided for by the City at the Safety Center owned by the City and located at 2560 Orion Way, Carlsbad, California (the "Safety Center') on a month to month tenancy with the rental rate to be agreed upon by the City and the District; provided the District's rental obligation shall be $833.33 per month if District elects to both store its approximately sixty (60) vehicles and/or warehouse the District supplies.
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If the District elects to have such storage provided for by the City, the District and the City shall, concurrently with the execution of this Agreement, execute the Lease for the Safety Center space in the form of Exhibit E attached hereto and incorporated herein by this reference (the "Safety Center Lease"). The Safety Center Lease shall provide for the District to store its approximately sixty (60) vehicles and/or warehouse its District supplies and supplies related to the District's ancillary office uses in a 3600 square foot modular facility for a month-to-month basis commencing on at the agreed upon rent, payable monthly in advance. The'District shall be responsible for all taxes, maintenance and insurance in connection with the leased premises, all as more specifically set forth in the Safety Center Lease. In the event the District does not vacate the Safety Center at the end of the Safety Center Lease term, the Safety Center Lease shall be extended on a month-to-month basis at rent equal to the "Fair Market Rental Value", as defined below. Notwithstanding the foregoing, the Safety Center Lease shall terminate at the end of such ten year term unless the District delivers to the City, within one hundred eighty (180) days prior to the end of the ten (10) year Safety Center Lease term, written notice that it desires to continue the Safety Center Lease on a month-to-month basis at Fair Market Rental Value together with a one-time only sum payable as consideration for extension of the Safety Center Lease on a month-to-month basis in an amount equal to two percent (2%) of the sum of rent paid by the District to the City under the Safety Center Lease during the ten (10) year term.
(a) For purposes of Section 6.3 hereof, "Fair Market Rental Value" shall be determined, as follows:
(i) At least 180 days prior to the date ten (10) years after commencement of the Safety Center Lease ("Tenth Anniversary Date"), the District and the City shall attempt to reach agreement as to the Fair Market Rental Value.
(ii) In the event that the District and the City are unable to agree upon a Fair Market Rental Value within such period, then no later than the 150th day prior to Tenth Anniversary Date, the District and the City shall jointly attempt to agree on the appointment of a real estate appraiser who is a member of the American Institute of Real Estate Appraisers or any successor thereto (or in the event the American Institute or Society of Real Estate Appraisers or any successor shall not then be in existence, a disinterested real estate appraiser having appropriate qualifications to appraise commercial real estate as set forth immediately below), with at least ten (10) years professional experience in Southern California in
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appraising land and improvements similar to the leased premises. All appraisers selected pursuant to the provisions hereof shall be impartial and unrelated, directly or indirectly, so far as employment of services is concerned, to any of the parties hereto, or their successors. The cost of the services performed by such appraiser shall be borne equally by the parties. The single appraiser jointly appointed by the parties shall determine the "Fair Market Rental Value" in the manner herein specified and shall render his or her appraisal within one hundred twenty (120) days after said appraiser has been selected.
(iii) Failing the joint action within the time specified in (b) above, the District and the City shall each within an additional fifteen (15) days, separately at its own cost designate any appraiser meeting the qualifications stated in paragraph (ii) above. If two appraisers are appointed and they concur on the Fair Market Rental Value, the Fair Market Rental Value determined by them shall be the Fair Market Rental Value. If the appraisers do not concur, and the difference between the respective higher and lower determinations of Fair Market Rental Value is an amount less than ten percent (10%) of the amount of the higher determination of the Fair Market Rental Value, the mean average of the two determinations shall be the Fair Market Rental Value. The two appraisers shall render their respective appraisals within one hundred twenty (120) days after they have been selected.
(iv) If the difference between the two deter- minations exceeds the amount specified above, the two appraisers shall jointly select a third appraiser meeting the qualifications set forth in paragraph (ii) above, and if they are unable to agree on a third appraiser either of the parties to the Lease, by giving fifteen (15) days notice to the other party, may apply to the presiding judge of the Superior Court of San Diego County to select a third appraiser who meets the qualifications set forth in paragraph (ii) above. The third appraiser, however selected, shall be a person who has not acted in any capacity for either party. Within fifteen (15) days from the date of the selection of the third appraiser, all three appraisers shall meet and the first two appraisers shall present to the third appraiser all of their findings, data and conclusions as to the Fair Market Rental Value. The third appraiser shall review all such findings, data and conclusions, and shall determine which of the two appraisers' respective determinations is the more reasonable determination. The third appraiser shall not be permitted to make any other independent determination of Fair Market Rental Value. The appraiser's determination
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found by the third appraiser to be the most reasonable determination shall be the Fair Market Rental Value. The third appraiser's conclusion shall be reached within one hundred twenty (120) days from the selection of the third appraiser. The expenses related to the selection and services of the third appraiser shall be shared equally by the District and the City.
(v) In the event that the final determination of Fair Market Rental Value occurs after the Tenth Anniversary Date, the Fair Market Rental Value, as determined shall nonetheless commence concurrently with the first day of the Lease term following the expiration of the initial ten (10) year term.
6.4 The Commission shall pay the District the sum of Two Hundred Thousand Dollars ($200,000.00) to cover the District's costs of relocating all facilities set forth in this Section 6, as well as rental for the Replacement Offices during the period of construction of the District Administrative Offices in the Center (collectively the "Relocation Amount"). The Commission and the District hereby acknowledge and agree that the Relocation Amount is fair and reasonable compensation for such costs of relocation and rental and the Commission shall not have any obligation to pay the District an amount in excess of -~ the Relocation Amount for such costs of relocation and rental, except if and to the extent that a delay in construction of the Center exceeds one (1) year from the date the District vacates, in which case the Commission shall reimburse the District, upon receipt of evidence of costs incurred, for any rent payable by the District until the District relocates to the Center.
The payment of the Relocation Amount shall be in the form of a check payable to the District, which check shall be delivered by the Commissioner to the District on or before .
6.5 The Commission hereby acknowledges and agrees that it shall be solely and completely responsible for (a) the removal of that certain fuel tank located on the District Site, including any grading or other work necessary to restore the surface of the District Site following such removal, and (b) ensuring that such removal of said fuel tank and the condition of the District Site following such removal comply with all applicable federal, state and local laws, regulations, ordinances and rules. The District shall reimburse Commission for all costs associated with the disposal or treatment of Hazardous Materials, as hereafter defined.
The District hereby further agrees to indemnify and hold the Commission harmless from and against, any losses, damages, liabilities, claims, actions, judgments, court costs
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and legal or other expenses (including attorneys' fees) which
the Commission may incur as a direct or indirect consequence of
the use, generation, manufacture, disposal, threatened
disposal, transportation or presence of "Hazardous Materials"
(as hereinafter defined) in, on, under or about the District
Site. For purposes of this Section, "Hazardous Materials"
shall mean any oil, flammable explosives, asbestos, urea
formaldehyde insulation, radioactive materials, hazardous wastes, toxic or contaminated substances or similar materials,
including, without limitation, any substances which are "hazardous substances", "hazardous wastes", "hazardous materials" or "toxic substances" under the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. $9601, et seq., the Hazardous Materials Transportation Act, 49 U.S.C.-$1801, et seq., the Resource Conservation and Recovery Act, 42 U.S??. 96901, et seq., Sections 25117 and 25316 of the California Health& Safety Code, or any other applicable environmental law, ordinance or regulation.
7. RIGHTS OF FIRST REFUSAL TO PURCHASE
7.1 If, at any time following the conveyance of the Administrative Offices by the Commission to the District, the District determines to offer to sell or receives an offer to purchase the Administrative Offices on terms and conditions acceptable to the District, the District shall communicate
such fact to the Commission and provide the Commission with a
written description of the price and terms of such intended
offer to sell or received offer to purchase within fifteen (15)
calendar days of determination or receipt of such an offer (the
"Notice of Offer"). The Commission shall have forty-five (45)
calendar days following receipt of the Notice of Offer in which to deliver written notice to the District of the Commission's
exercise of the Right of First Refusal to purchase the
Administrative Offices upon the same terms and conditions as
contained in such Notice of Offer. If Commission exercises
this right, the District shall sell the Administrative Offices to the Commission on the same terms and conditions contained in the Notice of Offer. If the Commission fails to exercise this Right of First Refusal within said period, the District may thereafter sell the Administrative Offices upon the same
terms. The provisions of this Section shall be operative each
time the District determines to sell the Administrative Offices
to a third party.
7.2 If, at any time following the lease or conveyance of the Administrative Offices by the Commission to the District,
the Commission determines to offer to sell, or receives an offer to purchase, the Commission's Interest on terms and
conditions acceptable to the Commission, the Commission shall communicate such fact to the District and provide the District
3/21/88 3738r/2410/01 -ll-
.
with a written description of the price and terms of such intended offer to sell or received offer to purchase within fifteen (15) calendar days of determination or receipt of such an offer (the "Notice of Offer"). The District shall have forty-five (45) calendar days following receipt of the Notice of Offer in which to deliver written notice to the Commission
of the District's exercise of the Right of First Refusal to
purchase the Commission's Interest upon the same terms and
conditions as contained in such Notice of Offer. If the
District exercises this right, the Commission shall sell the Commission's Interest to the District on the same terms and conditions contained in the Notice of Offer. If the District fails to exercise this Right of First Refusal within said period, the Commission may thereafter sell the Commission's
Interest upon the same terms. The provisions of this Section
shall be operative each time the Commission determines to sell
the Commission's Interest to a third party.
8. GENERAL PROVISIONS
8.1 This Agreement, inasmuch as it binds the District to sell, exchange and/or grant real property under certain conditions/events, must be executed in accordance with applicable provisions of the Education Code as must each real property transaction, subject to approval by the appropriate State Agency.
8.2 If any party to this Agreement commences litigation
against any other party for the purpose of determining and
enforcing its rights hereunder, or for money damages for a
breach hereof or for other equitable relief related hereto, the
prevailing party shall be entitled to receive from the losing
party, attorney's fees in the amount determined by the Court,
together with costs reasonably incurred in prosecuting and
defending such action.
8.3 No broker's commission or finder's fee shall be payable as a result of this transaction. The District and the Commission each agree to and hereby does indemnify and hold the other harmless from and against any claim, demand and/or liability asserted or established against said other party by or in favor of any third party for a brokerage commission or finder's fee based on their agreement with such party.
8.4 Unless otherwise specifically provided, all notices, demands or other communications given hereunder shall be in
writing and shall be deemed to have been delivered upon actual personal delivery or as of three (3) business days after mailing by registered or certified mail, return receipt requested, postage prepaid, addressed as follows:
3/21/88 3738r/2410/01 -12-
If to The District:
Attn:
If to the Commission:
Attn:
Copies To: City Attorney
Attn:
If to the City
Attn:
or to such address or to such other person as any party shall designate to the other for such purpose in the manner hereinabove set forth.
8.5 This agreement contains the entire agreement between the parties relating to the transactions contemplated hereby and all prior agreements, understandings, representations and statements, oral or written, are merged herein.
IN WITNESS WHEREOF, the parties hereto have executed the Agreement as of the day and year first above written.
CARLSBAD UNIFIED SCHOOL DISTRICT
Dated By: President, Board of Trustees
CARLSBAD HOUSING AND REDEVELOPMENT COMMISSION
Dated By: CHAIRMAN
ATTEST:
CITY OF CARLSBAD
Dated By:
3/21/88 3738r/2410/01 -13-
EXHIF”” A TO AGREEMENT
LEGAL DESCRIPTION
of Proposed Parcel ‘A
City of Carlsbad Senior Center G Administration Building
Parcel A of ROS # filed in the office of the County
Recorder of the County of San Diego on , 1987, more
specifically described as follows:
8eginning at the Northerly corner of Lot 17, Block 59 of Map of Carls-
bad Highlands in the Town of Carlsbad, County of San Diego, State of Cali-
fornia, according to Map thereof No. 1661 filed in the office of the recorder
of said County on March 1, 1915; thence proceeding South 34O33’ East along
the Westerly line of said Block 59, a distance of 129.7 feet; thence South
5S027’3S1’ West a distance of 169.2 feet: thence South 34’33’ East ‘a distance of
100.9 feet; thence South 55’27’35” West a distance of 201.8 feet; thence South
34O33’ East a distance of 116.8 feet; thence South 5S027’35” West a distance of
7.8 feet; thence South 34O33’ East a distance ,,of 169.2 feet; thence South
5S027’3St1 West a distance of 141 .l feet to the Westerly line of Lot 18 Block
45, of said map 1661; Thence North 34O33’ West along said Westerly line a
distance of 516.6 feet to the Westerly corner of Lot 17, of Block 46 of said
Map 1661; thence North 5S027’35” East along the southerly Right-of-way line
of Pine Drive as shown on said Mao 1661 a distance of 519.93 feet to the
Point of Beginning.
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EXHIBIT C TO AGREEMENT
STANDARD INDUSTRIAL LEASE - MULTI-TENANT
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
om 4
1. Parller. This Lease, dated. for reference purposes only. ismadebyandbetween Carlsbad fbusw and afloat cb'mkssion ,19-.
and
(herein called “Lessor”)
(heretn called “Lessee”).
2. Premises, Perklng end Common Aloes.
2.1 Proml8er. Lessor hereby leases to LOSS00 and Lessee IOases from Lesror for the term, at the rental, and upon all of the conditions set forth
herein, real property situated In the County of : , State of ifornia . . commonly known as they .R
and described as
herein referred to as the “Premrses”. as may be outlined On an Exhibit attached hereto, including rights to the Common Areas as herelnafte; specified but not including any rtghts to the roof of the Premises or to any Building in them Center. The Premises are a portion of a bullding, herein referred to as the “Building.” The Premises, the Building. the Common Areas, the la buildings and improvements thereon, are herein collectively referred to as the ‘%u&Wi&Zenter/
d upon which the sameare located, along with all other
2.2 Vehlcfe Perklng. Lessee shall be entitled to vehicle parking spaces. unreserved and unassigned, on those portions of the Common Areas designated by Lessor for parking. Lessee shall not use more parking spaces than said number. Said parking spaces shall be used Only for parkmg by vehicles no larger than full size passenger automobiles or pick-up trucks, herein caffed’“Permitfed SizeVehicles.“Vehlcles other than Permitted Size Vehicles are herein referred to as “Oversized Vehicles.”
2.2.1 Lessee shall not permit or allow any vehicles that belong to or are controlled by Lesseeor Lessee’s employees, suppliers, shippers, customers, or invitees to be loaded, unloaded, or parked in areas other than those designated by Lessor for such activities.
2.2 2 If Lessee permits or allows any of the prohibited activities described in paragraph 2.2 of this Lease, then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor.
2.3 Common Areer - Deflnlllon. The term “Common Areas” is defined as all areas and facilities Outside the Premisesand within the exterior boundary line of the- Center that are provided and designated by the Lessor from time to time for the general non-exclusive use Of Lessor. Lessee and of other lessees Of the- Center and their respectiveemployees. suppliers, shippers, customers and invitees. including parktng areas, loadmg end unloading areas, trash areas, roadways, sidewalks, walkways, parkways. driveway8 and landscaped areas.
2.4 Common Areer - Lerseo’s Rlghfs. Lessor hereby grants to Lessee, for the benefit of Lessee and its employees, suppliers, shippers, customers and tnvitees. during the term of this Lease. the non-exclusive right to use, in common with Others entitled to such use. the Common Areas as they exist from time to time, subject IO any rights, powers, and privileges reserved by Lessor under the terms hereof or under the terms of any rules and regulations or restrictlons governtng the useof thm Center. Under nocircumstances shall the right herein granted to use the Common Areas be deemed to include the right to store any property. temporarily or permanently, in the Common Areas, Any such storage shall be permitted only by the prior written consent of Lessor or Lessor’s designated agent, which consent may be revoked at any time. In the event that sny unauthorized storage shall occur then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor.
2 5 Common Areer - Rules and Regulellonr. Lessor or such other person(s) as Lessor may appoint shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to establish. modify, amend and enforce reasonable rules and regulations with respect thereto. Lessee agrees to abide by and conform to all such rules and regulations, and to cause its employees, supplIers. shippers, customers, and invttees to so abide and conform. Lessor shall not be responsible to Lessee for the non-compliance with said rules and regulations by other lessees of the- Canter. .
2.6 Common Arees - Changes. Lessor shall have the right, in Lessor’s sole discretion, from time to time:
(a) To make changes to the Common Areas, including, without limitation, changes in the location, size, shape and number of driveways, entrances, parktng spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas and walkways: (b) To close temporarily any of the Common Areas for maintenance purposes so long as reasonable access to the Premises remains avallable. Ic) To, designate other land outside the boundaries of the&+&et&f Center to be a part of the Common Areas: (d) To add additional buildings and Improvements to the Common Areas; (e) To use the Common Areas while engaged in making additional improvements. repairs or alteratlons lo the h&t&~& Center. or any portion thereof; (f) To do and perform such other acts and make such other changes in. to or with respect to the Common Areas and &a&&r4 Center as Lessor may, in the exercise of sound business judgment, deem to be appropriate.
2.6.1 Lessor shall at all times provide the parking facilities required by applicable law and in no event shall the number of parking spaces that Lessee is entitled to under paragraph 2.2 be reduced.
3. Term.
3.1 Term. The term of this Lease shall be for tm !lO! v-n
commencing on and ending on unless sooner terminated pursuant to any prowsion hereof.
3 2 Delay In Po8rerrion. NotwIthstanding said commencement date, if’for any reason Lessor cannot deliver possession of the Premises lo Lessee on said date. Lessor shall not be subject to any liability therefor. nor shall such failure affect the validity of this Lease or the obligations of Lessee hereunder or extend the term hereof, but in such case, Lessee shall not be obligated to pay rent or perform any other obligation 01 Lessee under the terms of this Lease, except as may be otherwlse provided in this Lease. until possession of the Premises IS tendered to Lessee: provided. . however, that II Lessor shall not have delivered possession of the Premises within sixty (60) days from said commencement date. Lessee mav at Lessee’s optlon. by notlce in writing to Lessor withm ten (10) days thereafter, cancel this Lease, in which event the parties shall be discharged frcm all obllgallons hereunder; provided further, however, that if such written notice of Lessee is not received by Lessor within said ten (10) day period. Lessee’s right to cancel thts Lease hereunder shall terminate and be of no further force or effect.
3 3 Early Porscrrlon. If Lessee occuptes the Premises prior to said commencement date, such occupancy shall be subject to all provlslons of this Lease, such occupancy shall not advance the termmation date, and Lessee shall pay rent for such period at the initial monthly rates sel forlh below . 4. Rent.
4.1 Base Rent. Lessee shall pay to Lessor, as Base Rent for the Premises, without any offset or deduction. except as may be otherwIse .
expressly provided in this Lease. on the -----~~~~~~~~~.~~reOf.~~payment* ‘~~~2f t -mu armt.versmE3-Fh.e ^ L--d. ._-. _~_. ._I_ h
Rent for any period during the term hereof which is for less than one bshall be a pro rata portion of the Base Rent. Rent shall be payable In
lawful money of the Umted States to Lessor at theaddressstated herein o T o such other personsorat such other places as Lessor may deslgnate In writing. YtQP
4.2 Dperat)ng Expenses. Lessee shall pay lo Lessor durtng the term hereof, in addition to the Base Rent. Lessee’s Share. as hereInafter defined. of all Cperatmg Expenses, as hereInafter defined. during each calendar year of the term of this Lease, cn accordance with the following provlslons:
{“bl
“Lessee’s Share” is defmed. for purposes of this Lease. as percent.
“Operating Expenses” IS defmed, for purposes of this Lease. as all costs Incurred by Lessor, If any. for: (I) The operation. repalr and mamtanence. In neat. clean, good order arid condition, of the followtng~ (aa) The Common Areas. mcluding parking areas, loading and unloadmg areas, trash areas. roadways. sIdewalks. walkways,
parkways, drlveways. landscaped areas. stnping. bumpers, irrlgatlon systems, Common Area lightmg facilltles and lences and gates; (bb) Trash disposal services; (cc) Tenant directones. (dd) Fire detection systems including sprinkler system maintenance and repair;
Inltlrlr:
@ American lndustrlal Real Estate Assoclatlon 1981 MULTI TENANT-MODIFIED NET
lee) Security s ‘es: (11) Any other
(11) --/Ice to be provided by LeSSOr that IS elsewhere tn Ii-5 Lease stated to be an “Operating expense;”
(111) *V deducme Portion Of an Insured !OSS ConCernin any of the Items or matters described In th,s paragraph 4 2;
(iv) The cost of the premiums for the ffabrllty and Property insurance pohc~ss to be maIntamed by Lessor under paragraph 8 hereof:
(v) The amount Of the real Property tax to be paid by Lessor under paragraph 16.1 hereof:
(C) The cost of water, gas and electrtcity,to service the Common Areas, The inclusion Of the improvement% facllltres and Services set forth in paragraph 4,2(b)(i) of the definltton of Operating Expenses shall not be deemed to impose an obligation upon LesSOr to efther have said improvements or factlItres or to provide those ServlCeS unless the &@w&G~ Center already has the same, LeSSOr already provides the servtces, or Lessor has agreed elsewhere in this Lease to provide the Same or
some of them. (d) Lessee’s Share of Operating Expenses shall be payable by Lessee within ten (16) days after a reasonably detaIled statement of actual expenses IS presented to LeSSee by LeSSOr. At LeSSOr’S Option. however. an amount may be estimated by Lessor from ttme to ttme of Lessee’s Share of annual Operattng Expenses and the same shall be payable monthly or quarterly, as Lessor shall desIgnate, during each twelve-month period of the Lease term, on the same day as the ease Rent is due hereunder, In the event that Lessee pays Lessor’s estrmate of Lessee’s Share of Operating Expenses as aforesatd. Lessor shall deliver to Lessee withm sixty (60) days after the exprration of each calendar year a reasonably derailed statement showlng Lessee’s Share Of the actual Operating Expenses incurred durrng the precedrng year, If Lessee’s payments under lh,e paragraph 4 2(d) durtng said precedmg year exceed LeSSee’S Share as Indicated on sard statement, Lessee shalt be entttled to credit the amount of saJch overpayment against Lessee’s Share Of Operating Expenses next falling due, If Lessee’s payments under this paragraph during said preceding year were less than Lessee’s Share as Indicated on said statement, Lessee shall pay to Lessor the amount of the deficiency wrthrn ten (10) days after delivery by Lessor to Lessee of said statement.
5. Security Deporlt. Lessee shall depostt with Lessor upon execution hereof S as security for Lessee’s faithful performance of Lessee’s obhgations hereunder. If Lessee fails to pay rent or other charges due hereunder, or otherwise defaults with respect to any provlslon of thus Lease. Lessor may use. apply or retain aff or any portlon of said deposit for the payment of any rent or other charge In default or for the payment of any other sum to which Lessor may become obhgated by reason of Lessee’s default, or to compensate Lessor for any loss or damage which LeSSOr may Suffer thereby. ff Lessor So uses or apptles att or any portion of satd deposit. Lessee shall withm ten (10) days after wntten demand therefordepostt cash with LeSSOr in an amount sufficient to reStOre said deposit to the full amount then required of Lessee. If the monthly rent shall, from time to time, lncreasb durmg the term Of this Lease, Lessee shall, at the hme of such increase, deposit with Lessor addItIona) money as a security deposit so that the total amount Of the securtty deposct held by Lessor shall at all times bear the same proporhon to the then current Base Pent as the inltial securtty deposit bears to the initial Base Rent set forth In paragraph 4. Lessor shall not be required to keep said security depoelt
Separate from its general aCCOuntS. If Lessee performs al) of Lessee’s oblcgations hereunder, safd deposit. or so much thereof as has not theretofore been applied by Lessor, shall be returned, wlthout payment of interest or other Increment for Its use, to Lessee (or, at Lessor’s OptIon, to the last asslgnee. If any, of Lessee’s interest hereunder) at the eXpiratlOn of the term hereof, and after Lessee has vacated the Premises. No trust relatIonship is created herein between Lessor and Lessee with respect to said Security Deposit.
6. Us.. , . 9 6.1 Use. The Premises shall be used and occupied only for s 1 VQ nf f it-es
or any other use which is reasonably comparable and for no other purpose.
6.2 Compliance wtth Law.
(a) Lessor warrants to Lessee that the Premises, in the state existing on the date that the Lease term commences, but without regard to the use for which Lessee WIII occupy the Premises, does not violate any covenants or restrichons of record, or any applicable burldIng code, regulationorordinance in effect on such LeaSa term commencement date. In theevent It isdetermined that this warranty has been vIolated, then It shall be the obligation of the Lessor, after written notice from Lessee, to promptly, at Lessor’s sole cost and expense, rectify any such vlolatlon. In the event Lessee does not give 10 LeSSOr written notice of the violation of this warranty within six months from the date that the Lease term commences, the correction of same shall be the obligation of the Lessee at Lessee’s sole cost. The warranty contained in this paragraph 6 2(a) shall be of no force or etfect if, prior to thedate Of this Lease, Lessee was an owner or occupant of the Premtses and. In such event, Lessee shall correct any such violation at Lessee’s sole cost.
(b) Except as provided in paragraphs.l(a) Lessee shall, at Lessee’s expense, promptly comply with all applicable statutes. ordinances. rutes. regulations. orders, covenants and restrictions of record, and requuements of any fire insurance underwrcters or rating bureaus, now in effect or whtch may hereafter come into effect, whether or not they rellect a change in policy from that now existing, during the term or any part of the term hereof, relating m any manner to the Premises and the occupation and use by Lessee of the Premises and of the Common Areas, Lessee shall not use nor permit the use of the Prerntses or the Common Areas In any manner that WIII tend to create waste or a nuisance or shall tend to disturb other occupants of the’““‘^L”“LCenter.
6.3 Condltlon 01 Premlaea.
(a) Lessor shall deliver the Premises to Lessee clean and free of debris on the Lease commencement date (unless Lessee is already in possession) and Lessor warrants to LOSS44 that the plumbing, lighting, air conditioning. heating, and loading doors in the Premises shall be In good operating conditfon on the Lease COmmenCement date. In the event that it is determined that this warranty has been violated. then rt shalt be the obltgation of Lessor, after recerpt of written notice from Lesseesetting forth with specificity the nature of theviolation. to promptly, at Lessor’s sole cost, rectcty such violation. Lessee’s failure to give such written notice to Lessor withtn thirty (30) days after the Lease commencement date shall cause the conclusive presumption that Lessor has complied with all of Lessor’s obligations hereunder. The warranty contained in this paragraph 6.3(a) shall be of no torte or effect if prior to the date of this Lease, Lessee was an owner or occupant of the Premises.
(b) Except as otherwise provided in this Lease, Lessee hereby accepts the Premises in their condition existing as of the Lease commencement date or the dale that Lessee takes possession of the Premises, whrchever is earlier. sub)ect to all appltcable zoning, munlclpal, county and state laws, ordinances and regulations governing and regulating the use of the Premises, and any covenants or restrtctions of record, and accepts thts Lease subject thereto and to all matters disclosed thereby and by any exhibits attached hereto. Lesseeacknowledges that netther Lessor nor Lessor’s agent has made any representation or warranty as to the present or future suitabthty of the Premises for theconduct of Lessee s business.
7. Mdntenenco, Ropelra, Alterattona and common Area ServIcea.
7.1 Lesao<r OblIgatIona. Subject to the provisions of paragraphs 4 2 (Operating Expenses), 6 (Use), 7.2 (Lessee’s Obligattons) and 9 (Damage or Destruction) and except fordamagecaused by any negligent or intentional act or omission of Lessee, Lessee’s employees, supplIers. shippers, customers, or invitees. in which event Lessee shall repair the damage, Lessor, at Lessor’s expense, subject to reimbursement pursuant to paragraph 4.2. shall keep in good condition and repair the foundations. exterior walls, structural condition of interior bearing walls, and roof of the Premises, as well as the parking lots, walkways. driveways. landscapin t fences, signs and ut)lity installations of the Common Areas and all parts thereof, as well as providing the services for which there is an Operating xpense pursuant to paragraph 4.2. Lessor shall not, however, be obltgated to paint the exterioror interior surfacrotexterior walls, nor shall Lessor be required to maintain, repair or replace windows, doors or plate glass ot the Premises. Lessor shall have no obligation to make repairs under this paragraph 7.1 until a reasonable time after receipt of written nottce from Lessee of the need for such repairs. Lessee expressly waives the benefits of any statute now or hereafter in effect which would otherwtse afford Lessee the right to make repairs at Lessor’s expense or to terminate this Lease because of Lesror’s failure to keep the Premises in good order, condition and repair. Lessor shall not be liable fordamagoaor loss of any kind or nature by reason of Lessor’s failure to furnish any Common Area Services when such failure is caused by accident. breakage, repairs, strikes. lockout, or other labor disturbances or disputes of any character. or oy any other cause beyond the reasonable control of Lessor.
7.2 Loaaee’a Obllgatlona
(a) Subject to the provisions of paragraphs 8 (Use), 7.1 (Lessor’s Obligations), and 9 (Damage or Destruction), Lessee, at Lessee’s expense, shall keep in good order, condition and repair the Premises and every part thereof (whether or not thedamaged portron of the Premises or the means 01 repairing the same are reasonably or readily accessable to Lessee) including. wrthout hmiting the generality of the foregoing. dll plumbing, heating, ventilating and air conditioning systems (Lessee shall procure and maintain, at Lessee’s expense, a ventrlating and air conditioning system maintenancecontract). electrical and lighting facilities and equipment within the Premises, fixtures, interior walls and lnterlor surfacesof exteriorwafls. ceilmgs. windows, doors, plateglass. and skylights located within the Premises. Lessor reserves the rrght to procure and
maintain theventilating and ai,rconditioning system maintenance contract and If Lessor so elects, Lessee shall reimburse Lessor. upon demand. for the cost thereof.
(b) If Lessee fails to perform Lessee’sobfigatiorfs under this paraoranh 7 2or clndarrny **ha-o---=‘“;” .-i *!‘tT ’ rb?X. kfSsOr may eh!e: Ijpos,:l:;“:;.,,....o.. .-:_.. .< .;..i; u-I- ,.,,,w ~l;r~o,~rl~(~~~~tr~es~~~lencept In thecaseolemergency,in which nonot)ceshal) berequired). FerfOrm
such obligations on Lessee’s behalf and put the Premises in good order, condition and repair, and thecost thereof together wrth Interest fhereon at the maximum rate then allowable by law shall ba due and payable as additional rent to Lessor together with Lessee’s next Base Rent InslaHment
(c) On the last day of the term hereof, or on any sooner termination, Lessee shall surrender the Premises to Lessor in the same condltlon as received, ordinary wear and tear excepted, clean and free of debris. Any damage or deterioration of the Premrses shall not be deemed orolnary wear and tear 11 the same could have been prevented by good maintenance practices. Lessee shall repair any damage to the Premises occasloned by the installation or removal of Lessee’s trade fixtures, alterations. furnishings and equrpment. Notwnhstandmg anything to the Contrary otherwrse stated m this Lease, Lessee shall leave the air lines, power panels, etectrtcal dislrtbutton systems, Itghtmg fixtures, space heaters. air condrtionmg, plumbing and fencing on the Premises in good operating condition.
7 3 AltoratIons and AddItIona
(a) Lessee shall not, wrthout Lessor’s prior written consent make any alterations, improvements, addnions. or Utility lnStallatlOnS In. on or about the Premtses. or the lndustrral Center. except for nonstructural alterations to the Premrses not exceedmg 52.506 in Cumulatrve costs. during the term of this Lease. In any event, whether or not in excess of $2.500 in cumulative cost, Lessee shall make no change or alterahon to the
MULTt TENANT-MOOtFlED NET Initial*:
@American lndustnal Real Estate Association 1981 -2-
ex!eftOr Of the PremtSeS nor the exterlOr Of the BUlldiflg nor the Industrial Canter without LeSSOr’S priorwritten consent, As used ,n th,s paragraph 7 3 the term “Utllily fnstaffatlon” shall mean carpetlflg, wlndow covertogs. air fines, power panels, electrical distrjbution systems, fighting fixtures. space heaters, air condttionmg. plumbing. and fencmg. Lessor may require that Lessee remove any or aff of said alterations. improvements. addttions or Utility Installations at the expiratron of the term, and restore the Premisesand the industrial Center to their prior condition Lessor may
require Lessee to provide Lessor, at Lessee’s sole cost and expense, a lien and completion bond in an amount equal to one and onehalf times the estimated cost of such Improvements. to Insure Lessor against any liability for mechamc’s and materialmen’s liens and to insure completion 01 the work. Should Lessee make any alterations, improvements, additions or Utility Installations without the prior approval of Lessor, Lessor may, at any time during the term of this Lease, require that Lessee remove any or all of the same.
(b) Any alterations, Improvements, addilions Or Utility lnStallatiOnS In or about the Premises or the la&&&of Center that Lessee shall destre to make and which requires the consent of the Lessor shall be presented to Lessor in written form, with proposed detailed plans. If Lessor shall give tts consent, the consent shall be deemed conditioned upon Lessee acquiring a permit to do so from appropriate governmental agencies, the furnrshing of a copy thereof to Lessor prior to the commencement of the work and the compliance by Lessee of all condItionsof said permit in a prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for labor or materials furnished or alleged to have been furnished to or for Lessee at orforuse ,n the Premises. which claims are or may be secured by any mechamc’s or materlalmen’s lien against the Premises, or thw Center. or any Interest thereon Lessee shall give Lessor not less than ten (10) days’ notice prior to thecommencement of any work in the Premises. and Lessor shall have the rlght to post nottces of non-responslbillty in or on the Premises or the Building as provided by law. If Lessee shall, In good faith, contest the vahdfty of any such hen. Claim or demand, then Lessee shall. at its soleexpensedefend itself and Lessor agamst the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof against the Lessor or the Premises or the l&&&i&l Center. upon the condition that 11 Lessor shall require, Lessee shall furnish to Lessor a surety bond satisfactory to Lessor ln an amount equal to such contested lien claim or demand indemmfymg Lessor against liability for the same and holding the Premises and the la&s&al Center free from the effect of such lien or Claim. In addition. Lessor may require Lessee to pay Lessor’s attorneys fees and costs in partlclpatlng in such actlon if Lessor shall decide It IS to Lessor’s best interest to do so.
(d) All alterations, improvements, additions and Utility Installations (whether or not such Utility Installations constitute trade fixtures of Lessee), which may be made on the Premises. shall be the property of Lessor and shall remain upon and be surrendered with the Premises at the expiration of the Lease term, unless Lessor requires their removal pursuant to paragraph 7,3(a). Notwithstanding the provlsions of this paragraph 7.3(d). Lessee’s machinery and equipment. other than that which is affixed to the Premisesso that it cannot be removed without material damage to the Premises. and other than Utility Installations, shall remarn the property of Lessee and may be removed by Lessee subject to the provlslons of paragraph 7.2.
7.4 Utility Addlllons. Lessor reserves the right to install new or additional utility facilities throughout the Building and theCommon Areas for the benefit of Lessor or Lessee. or any other lessee of the Industrial Center. including. but not by way of IimitatIon, such utilities as plumbing, electrical systems. securtty SyStemS. communication systems, and fire protection and detection systems, so long as such installatIona do not unreasonably interfere with Lessee’s use of lhe Premises.
8. Insurance: lndomnlty.
8.1 Llablllty Insurancr - Lessee. Lessee shall, al Lessee’s expense, obtain and keep in force during the term of this Lease a policy of Comblned Single Limit Bodily lniury and Property Damage insurance insuring Lessee and Lessor against any liability arising out of the use, occupancy or maintenance of the Premises and the- Center. Such insurance shall be in an amount not less than $500.000 rJfJ per occurrence. The pohcy shall insure performance by Lessee of the indemnity provisions of this paragraph 8. The limtts of said insurance shall not, however, limit the liability of Lessee hereunder.
8.2 Llablllty Insurance- Lessor. Lessor shall obtain and keep in force during the term of this Leasea policy of Combined Single Limit Bodily lnlury and Property Damage Insurance. insuring Lessor. but not Lessee, against any liability arising out of the ownership, use, occupancy or mamtenance of thm Center IIT an amount not less than $500.000.00 per occurrence.
6 3 Property Insurance. Lessor shall obtatn and keep in force during the term of this Leasea policy or policies of insurance coverlng loss or damage to the &fue&a4 Center improvemenls. but not Lessee’s personal properly, fixtures, equipment or tenant improvements, in an amount not to exceed the lull replacement value thereof, as the same may exist from time to time, providing protection against all perils Included wilhtin the classlficalion of fire. extended coverage. vandalism, malicious mischief, flood (in the event same is requcred by a lender having a lten on Ihe Premises) special extended perils (“a!1 rusk”. as such term is used in the insurance industry), plate glass insurance and such olher Insurance as Lessor deems advisable. In addition. Lessor shall obtain and keep in force, during the term of this Lease. a policy of rental value insurance coverlng a period of one year, with loss payable to Lessor, which insurance shalt also cover all Operating Expenses for said period. lo the event that the Premises shall suffer an insured loss as defined II-I paragraph 9.1 (g) hereof. the deductible amounts under thecasualty msurancepolicles relating to the Premises shall be paid by Lessee.
8.4 Paymenl of Premium Increase.
(a) After the term of this Lease has commenced. Lessee shall not be responsible for paying Lessee’s Share of any increase tn the property insurance premium forth -enter specified by Lessor’s insurance carrier as betng caused by the use. acts or omlsslons of any other lessee of the Industrial Center. or by the nature of such other lessee’s occupancy which create an extraordinary or unusual risk
(b) Lessee. however. shall pay the entirety oi any increase in the property insurance premium for the Industrial Center over whal 11 was immediately prtor to Ihe commencement 01 the term of this Lease il the increase IS specified by Lessor’s insurance carrier as being caused by Ihe nature of Lessee’s occupancy or any act or omission of Lessee.
8.5 Insurance Pollcles. Insurance required hereunder shall be in companies holding a “General Policyholders Rating” of at least f3 plus. or such other rating as may be required by a lender having a lien on the Premises. as set forth m the most current issue of “Best’s Insurance Guide Lessee shall not do or permit to be done anything which shall invalidate the Insurance policies carried by Lessor. Lessee shall deliver IO Lessor copies of Iiab~lity insurance policies required under paragraph 8.1 or certificates evtdencmg the existence and amounts of such insurance wthm seven (7) days after the commencement date of this Lease. No such policy shall be cancellable or subject to reduction of coverage or other modification except after thirty (30) days prtor written notlce to Lessor. Lessee shall, at least thirty (30) days prior to the expiration of such pohcles furmsh Lessor with renewals or “binders” thereol.
6 6 Waiver of Subrogation. Lessee and Lessor each hereby release and relieve the other. and waive th’ecr entire right of recovery agatns? the other for loss or damage arisng out of or mctdent to the perils insured against which perils occur in, on or about the Premises. whether due lo Ihe negligence of Lessor or Lessee or their agents, employees, contractors and/or invitees. Lessee and Lessor shall, upon obtaining the polrcles 01 insurance required give notice to the Insurance carrier or carriers that the foregoing mutual waiver of subrogation IS contamed In this Lease
8 7 IndrmnlIy. Lessee shall indemmfy and hold harmless Lessor from and against any and all claims arising ,from Lessee’s use of !he m Center. or from the conduct of Lessee’s business or from any actlvlty. work or thmgs done. permitted or suffered by Lessee in or about the Premises or elsewhere and shall further indemnify and hold harmless Lessor from and agamst any and all claims arislng from any breach or default in Ihe performance of any obltgation on Lessee’s part to be performed under the terms of this Lease. or arising from any act or omission of Lessee or any of Lessee’s agents, contractors, or employees. and from and against all costs, attorney’s fees, expenses and liabilitces incurred in the defensr? 01 any such ctaim or any actcon or proceedmg brought thereon; and in case any action or proceeding be brought against Lessor by reason of any st,cn . claim. Lessee upon notice from Lessor shall defend the same at Lessee’s expense by counsel reasonably satisfactory to Lessor and Lessor snalt cooperate with Lessee In such defense. Lessee, as a material part of theconsIderation to Lessor. hereby assumes all risk of damage to prooerl, cl Lessee or ln)ury to persons. in. upon or about the M Center arising from any cause and Lessee hereby waives all claims in respect thereof against Lessor.
8 8 Exemption of Lessor from Liability. Lessee hereby agrees that Lessor shall not be liable for injury to Lessee’s business or any ICST ~1 income therefrom Or for damage to the goods. wares, merchandise or other property of Lessee, Lessee’s employees, InvlteeS. CUSIOmerS. or drv other person In or about the Premtses or the I- Center. nor shall Lessor be liable for mfury to the person of Lessee. Lessee’s employpes agents or contractors. whether such damage or injury IS caused by or results from fire, steam, electricity, gas. water or rain, or from the breakage leakage. obstruction or other defects of pipes. sprinklers. wires, apphances. plumbing, aircondttlonmg or hghting fixtures. or from any olher cause whether said damage or inficry results from conditions arising upon the Premises or upon other portions of the w <enter. or from olher
sources or places and regardless of whether the cause of such damage or infury or the means of repairing the same IS inaccessible IO Lessee Lessor shall not be IlabJe for any damages artsmg!romanv act or neqlect of any nther l?+nn nrr*l?rn+ fir ~IQV ef thr.++::!r*? ‘:?!PI, 7”’ “.: -’ !“c ‘;.‘,-e ’ li ‘ul i&$sqr~ IO C~I~O~CG the prc:is;tiii5 of d.,r oiimr i&&e oi it& kaa%s&& Centet.
9. DamrgeorDestructfon. SEE PARAGIWH 47 B-1
of the Premtses.
f the Premises are damaged or destroyed to the extent that the COSt Of repair IS fifty percent
or more of the
muses are a part IS damaged or destroyed to the extent
s damaged or destroyed to fhe
(el “Industrial Center Bulldmgs” shall mean all of the buildings on the Industrial Center site.
Initials: MULTI TENANT-MODIFIED NET e Amencan lnduslnal Real Estate Assoclatton 198 I -3-
an Subject to the provtsions Of paragraphsQ.4 and 9.5. if al any time during the term of thrs Lease there 1s d falls ml0 theclasslfication Of either Premtses partial DamageOf Premises Euildmg Partral Oamaqe, th
Lessor’s expense ch damage to the Premises. but not Lessee’s fixtures, iqurpment or tenant In-iprovements, - n as reasonably possible and thus I continue in full force and effect.
ease there is damage whrch IS not an lnsur I Oamage. unless caused by a neglrge events Lessee from usrng the Prem ense. rn whrch event this Lease shal d effect. or (ii) gave written notice to Lessee wrthm th occurrence of such damage of Less nd termmate this Lease as of the date of the occurren gl’re such notice of L el and terminate thus Lease, Lessee shall have the rr notice to grve wrrtten nottce to Lessor 0 e’s mtenhon to repair such damage at Lessee’s e whrch event thus Lease Shall continue In d effect, and Lessee shall proceed to m parrs as soon as reasonably possble If Lessee does not give such notrce wrthin S period thus Lease shall be cancelled and as of the date of the occurrence of such damage.
9 3 Premises Total Destructton; Premises otal Deetructlon: Induetrlal ldlnge Total Destructlon.
(a) Subtect to the provrsionsof paragraph 9.5. if at any timedurin of this Lease there IS damage, whether or not It IS an Insured Loss, and whrch falls Into the ClaSSlflcatlOnS Of lndustrral Center Surldtngs Total Destruction. then Lessor fixtures. equtpment or tenant improvements. as soon as re effect. or (II) grve wrrtten notrce to Lessee wtthtn thirty (30) ch damage of Lessor’s intentron to cancel and fermlnate thrs Lease, rn whrch case thus Lease shall be can the occurrence of such damage.
9.4 Damage Near End of Term.
(a) Subject to paragraph 9.4(b). if at any time during th not an Insured Loss, which fallswrthin theclassification of Pr as of the date of occurrence of such damage by giving wrl occurrence of such damage.
(b) Notwtthstanding paragraph 9 4 renew this Lease. and the time within which sard optron may be exercrsed has not yet exptr serf at all, no later than twenty (20) days alter theoccurrenceot an Insured Loss falling with1 he last six months of the term of this Lease. If Lessee duly exercises such option durmg sa ense. reparr such damage, but not Lessee’s fixtures. equrpment or tenant tmprovements. tinue in full force and effect. If Lessee falls to exercrsesuch option durmg said twenty (20) eriod. then Less ay at Lessor’soption ter d cancel this Lease as of the expiratron of sard twenty (20) day period by giving writt ice to Lessee of Lessor’s election to do so within ten ys after the expiration of said twenty (20) day perrod. notwrthstanding any term ISIO~ in the grant of option to the contrary.
9 5 Abatement of Ren(; Less
s or restores the Premises,pursuant to the provisions of thts pa nt payable hereunder for the rror restoration continues shall be abated in proportion to the Lessee’s use of the Premrses nt. if any, Lessee shall have no claim against Lessor for any dama ason of any such damage, destructton. reparr or re
II be obligated to repair or restore the Premises under the provisions of this paragraph 9 an in ninety (90) days after such obligation shall accrue, Lessee may at Lessee’s option cancel a Ice of Lessee’s election to do so at any time prior to the commencement of such repair or res of the date of such nottce.
ot commence such
atlon - Advance Psymente. Upon termination of this Lease pursuant to this paragraph 9. an equitableadjustm vance rent and any advance payments made by Lessee to Lessor. Lessor shall, in addition. return to Lessee so it as has not theretofore been applied by Lessor.
-J’-- - .___ _- __ -. -- =-._ -- -, - _ - - -----
lg. Re8l Property Taxer.
10.1 Payment of Taxer. Lessor shall pay the real property tax, as defined in paragraph 10.5. applicable to the- Center subject to reimbursement by Lessee of Leseee’e Share of euch taxes in accordance with the provisions of paragraph 4.2, except aa otherwise provtded in paragraph 10.2.
10 2 Addlllonel Improvemenle. Lesseeshell not be responsible for paying Lessee’s Shareof any increase in real property tax specrfied in the tax assessor’s records and work sheets as being caused by addttional improvements placed upon the+&Miet Center by other lessees or by Lessor for the exclusive enjoyment of such other lessees. Lessee shall. however, pay to Lessor at the time that Operating Expenses are payable under paragraph 4.2(c) the entirety of any increase in real property tax if assessed solely by reason of additional improvements placed upon the Premrses by Lessee or at Lessee’s request.
10.3 Oeflnllfon of “Real Property Tex.” As used herein, the term “real property tax” shall include any form of real estate tax or assessment. general, specral. ordinary or extraordinary, and any license fee. commercral rental tax, improvement bond or bonds, levy or tax (other than Inheritance. personal mcome or estate taxes) imposed on the- Centeror any portion thereof by any authority having the direct or IndIrect power to tax, mcluding any city, county, state or federal government, or any school, agricultural, sanitary, fire, street, drainage or other Improvement distract thereof, as against any legal or equitable interest of Lessor in the- Center or in any portion thereof, as agamst Lessor’s rcght to rent or other income therefrom, and asagainst Lessor’s businessof leasing themcenter. The term”reaf property tax” shall also include any tax, fee, levy, assessment or charge (I) in substitution of. partially or totally, any tax, fee, levy, assessment or charge heremabove included within the definrtron of “real property tax,’ or (ii) the nature of which was hereinbefore included within the definition of “real property tax,” or (iir) which is imposed for a service or right not charged prior to June 1,197Q. or. if previously charged, has been increased since June 1, 1978 or
(IV) which is Imposed as a result of a transfer. erther partial or total, of Lessor’s interest in the f+&&&M Centeror which is added to a tax or charge hereinbefore tncluded wtthin thedefinrtion of real property tax by reason of such transfer, or(v) which is imposed by reason of this transactlo”. any modrfications or changes hereto, or any transfers hereof.
10.4 Jofnt Aseeeement. If thel”““““‘“Center is not separately assessed, Lessee’s Share of the real property tax liabrlity shall be an equltahle proportion of the real property taxes for all of the land and improvements included within the tax parcel assessed, such proportion to be determ’hed by Lessor from the respective valuations assrgned in the assessor’s work sheets or such other information as may be reasonably available Lessor s reasonable determinatton thereof, in good faith. shall be conclustve.
10.5 Personal Property Texee.
(a) Lessee shall pay prior to delinquency all taxes assessed against and levied upon trade fixtures, furnishings. equipment and all alher personal property of Lessee contained in the Premises or elsewhere. When possible, Lessee shall cause said trade fixtures. furmshmgs. equlpment and all other personal property to be assessed and billed separately from the real property of Lessor.
(b) If any of Lessee’s said personal property shall be assessed with Lessor’s real property, Lessee shall pay to Lessor the taxes attrrbutable to Lessee within ten (10) days after recetpt of a written statement setting forth the taxes applicable to Lessee’s property.
11. Utllitlee. Lessee shall pay for all water, gas, heat, light, power, telephone and other uti,lities,and services supplied to the Prcrnr?t,:. ‘._ ,L,:..r, wrth any taxes thereon. If any such servtces are nntfe,nzr-?r!;,.:c z:“!c:;J ia itre Fttorr~%. Lessa, shaii pay atiessor’s option, either Lessee’s Share or a rca;o.&:, rau~~r uuri :u-ne aetermrned by Lessor of all charges jointly metered wtth other premises in the Budding.
12. Asslgnmenl and Subleltlng.
MULTI TENANT-MOOIFIEO NET ,@Amerrcan lndustrral peat Estate Association 1981 -4-
Ini!lale:
ante of any of the terms hereof, Lessor may proceed directly against Less agamst said assig of Lessee, wrthout Lessee of ltabtlity
12.4 Terms and Condl sublethng by Lessee of all o ppllcable to Subletting. Regardless of Lessor’s consent, the following terms a t of the Premises and shall be included in sublerserr:
(a) Lessee hereby as d transfers to Lessor all of Lessee’s interest in all rentals and into
tion shalt not relreve
nditions shall apply to any
r nor by reason of the collectron h any of Lessee’s obltgatrons to receipt of a written notrce from e rents due and to become due nt and requett from Lessor, and that such
e to the contrary. Less ault exists and notwrthstanding any notlce r Lessor for any such rents so pard by sard
ease entered into by Lessee shall b I use only such form of sublease without Lessor’s prior written co ‘t of Lessor. to have assumed and h obligations as are contrary to
riting by Lessor. In entering into any y Lessor. such sublease shall not be into a sublease under thrs Lease, be obligation herein to be performed by lease to which Lessor has expressly
or alter the primary liability of Lessee to pay the
t subletting by Lesseeor to any assignment ents of the sublease or any amendments or out obtaining their consent and such actton
(g) In the event Le he performance of its obligations under this Le obligation to do so. may requ torn to Lessor, in which event Lessor shall unde its option and without any tions of Lessee under SUCII sublease from the time of the prepaid rents or security depo
required of Lessee under a sublease shall also require the consent 01 L
er assign or sublet all or any part of the Premises without Lessor’s prior wrt
written consent to any subletting of the Premises by Lessee shall not constitute an acknowledgem t no default then se of the obligattons to be performed by Lessee nor shall such consent be deemed a waiver of any then ext stated by Lessor at the time.
ith respect to any subletting to which Lessor has consented, Lessor agrees todeliver acopy of any noticeof default uch sublessee shall have the right to cure a default of Lessee within ten (10) days after service of said notice of del and the sublessee shall have a right of reimbursement and offset from and against Lessee lor any such defaults cured b
5 Attorney’s Fees. In the event Lessee shall assign or sublet the Premises or request the consent of Lessor to any assignment or Su
13. Defaull; Remedlor.
13.1 Default. The occurrence of any one or more of the following events Shall constitute a material default of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to make any payment of rent or any other payment required to be made by Lessee hereunder, as and when due. where such failure shall continue for a period of three (3) days after written notice thereof from Lessor to Lessee. In the event that Lessor serves Lessee with a Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes such Notice to Pay Rent or Ouit shall also constitute the nohce requtred by this subparagraph.
(c) Except as otherwise provided in this Lease. the failure by Lessee to observe or perform any of the covenants. conditions or provisrons of this Lease to be observed or performed by Lessee. other than described in paragraph (b) above, where such failure shall continue for a period of thrrty (30) days after written nottce thereof from Lessor to Lessee: provided, however, that if the natureof Lessee’s noncompliance is such that more than thtrty (30) days are reasonably required for its cure. then Lessee shall not be deemed to be in default if Lessee commenced such cure withrn said thirty (30) day period and thereafter diltgently prosecutes such cure to completion. To the extent permitted by law, such thirty (30) day notice shall constrtute the sole and exclusive notice required to be given to Lessee under applicable Unlawful Detainer statutes.
(d) (i) The making by Lessee of any general arrangement or general assignment for the benefit of creditors; (ii) Lessee becomes a “debtor” as defined tn 11 U.S.C. 5101 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismrssed wrthm sixty (60) days); (iii) the appointment of a trustee or recetver to take possession of substantially all of Lessee’s assets located at the Premises or of Lessee’s interest In this Lease, where possessron is not restored to Lessee wtthin thirty (30) days; or (iv) the attachment, execuhon or other judtcral seizure of substantrally all of Lessee’s assets located at the Premrses or of Lessee’s interest in this Lease, where such serzure IS not dtscharged within thirty (30) days. In the event that any provision of this paragraph 13.1 (d) is contrary to any applicable law, such provisron shall be of no force or effect.
(e) The discovery by Lessor that any financial statement given to Lessor by Lessee. any assignee of Lessee, any subtenant of Lessee, any successor in interest of Lessee or any guarantor of Lessee’s obligation hereunder, was matertally false. .
13 2 Remedies. In the event of any such material default by Lessee, Lessor may at any time thereafter. with or without notice or demand and wtthout limthng Lessor in the exercise of any right or remedy which Lessor may have by reason of such default:
(a) Termrnate Lessee’s right to possession of the Premises by any lawful means, in which case this Lease and the term hereof shall terminate and Lessee shall immediately surrender possession of the Premises to Lessor. In such event Lessor shall be entitled to recover from Lessee all damages incurred by Lessor by reasnn ol Lessee’s rtefat!lt inrr8tr(inr h*-t -nr t’mrten to, th expenses of reletttng. rncluarrrgir&e&sary renovetion and ettcratior
*-TV ~)f rcc~--%; ycszsion of the Premises. I of :f,~;;-Prc.r~;itie3, i QPJOFB&$~& hilot ney’s fees. and any real estate commrssron
actually pard; the worth at the trme of award by the court having jurisdiction thereof of the amount by whtch the unpaid rent for the balance of the term after the time of such award exceeds the amount of such rental loss for the same period that Lessee proves could be reasonably avoided. that portion of the leasmg commtsston paid by Lessor pursuant to paragraph 15 applicable to the unexpired term Of thts Lease.
(b) Maintain Lessee’s right to possession in which case this Lease shall continue in effect whether or not Lessee shall have vacated or abandoned the Premrses. In such event Lessor shall be entitled to enforce all of Lessor’s rights and remedies under this Lease, mcludmg the rrght to recover the rent as It becomes due hereunder.
(c) Pursue any other remedy now or hereafter avarlable to Lessor under the laws or judicial decisions of the state wherein the Premises are located Unpard tnstallments of rent and other unpaid monetary obligations of Lessee under the terms of thts Lease shall bear interest from the date due at the maximum rate then allowable by law.
13 3 Default by Lessor. Lessor shall not be in default unless Lessor fails to perform obligatrons requrred of Lessor wtthin a reasonable time. but in no event later than thirty (30) days after wrrtten nottce by Lessee to Lessor and to the holder of any first mortgage or deed of trust coverlng the Premises whose name and address shall have theretofore been furnished to Lessee in writing, specifymg wheretn Lessor has failed to perform such oblrgation. provided. however, that if the nature of Lessor’s obligation is such that more than thirty (30) days are required for performance then Lessor shall not be in detault it Lessor commences performance within such thirty (30) day period and therealter diligently prosecutes the Sameto completion.
Inltlalr: MULTI TENANT-MOOIFIED NET @Amencan Industrial Real Estate Assocratron 1961 -5-
13 4 Lale Charges. Lessee hereb,- .knowledges rhat late payment by Lessee to Lessor m dase Rent, Lessee’s Share of Operattng Expenses or other sums due hereunder will cause Lessqr ‘0 InCUr COstS n?t COntemplatsd by this Lease, the exact amount of whlCh ~111 be extremely d,ff,Cult to ascertaIn Such costs Include. but are 001 Imuted lo. prOCeSStng and aCCOUnting charges, aod latecharges whtch may be Imposed on Lessor by the terms of any mortgage or trust deed covertng the PrOperty. Accordingly. of any installment of Base Rent. Operating Expenses, or any other sum due from Lessee shall not be received by Lessor or Lessor’s designee wlthin ten (10) days after such amount shall be due. Ihen. wIthout any requirement for nohce to Lessee, Lessee shall pay to Lessor a late charge equal to 6% of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate Of the COStS Lessor wllf inCUr by reason of late payment by Lessee. Acceptance of such late charge by Lessor shall in no event conslitute a waiver Of Lessee’s default with respect to such overdueamount nor prevent Lessor from exerclslng any of the other rqhts and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for three (3) consecutive lnstallments of any of the aforesaid mOnetary obligations of LOSSW, then Base Rent shall automatically become due and payable quarterly In advance, rather than monthly, notwithstanding paragraph 4.1 or any other prowsion of this Lease 10 the contrary.
all remam rn oor area of the
broker(s). the sum of S or brokerage services rendered by said brok
which isgranted to Lessee under this r this Lease, or if Lessee acquires any rights lo the Premls imilar lo what Lessee would have acquired had an OptIon f the term of (his Lease after tween the parties pertaining or shall pay said broker(s) a
16. Estopprl Certlficrto.
(a) Each party (as”responding party”) shall at any time upon not less than ten (10) days’prior written notice from the other party (“requesting party”) execute, acknowledge and deliver lo the requesting party a statement in writing (i) certifymg that this Lease IS unmodified and in full force and effect (or, if modified, stating the nature of such modification and certtfying that this Lease. as so modified, is in full force and effect) and the date 10 which the rent and other charges are paid in advance, if any, and (ii) acknowledging that there are not. to the responding party’s knowledge, any uncured defaults on the part of the requesting party, or specifying such defaults if any are claimed. Any such statement may be conclusively retled upon by any prospective purchaser or encumbrancer of the Premises or of Ihe business of the requesting party.
(b) At rhe requesting party’s option, the failure todeliversuch statement within such timeshall beamaterialdefault of this Lease by the party who IS to respond. wlthout any further notice lo such party, or it shall be conclusive upon such party that (i) this Lease is in full force and effect, wlthoul modification except as may be represented by the requesting party, (ii) there are no uncured defaults in the requestmg party’s performance, and (iii) if Lessor is the requesting party, not more than one monIh’s rent has been paid in advance.
(c) If Lessor desires to finance, refinance, or self the Property, or any part thereof. Lessee hereby agrees to deliver to any lender or purchaser designated by Lessor such financial statements of Lessee as may be reasonably required by such lender or purchaser. Such statements shall include the past three (3) years’ financial statements of Lessee. All such financial statements shall be received by Lessor and such lender or purchaser in confidence and shall be used only for the purposes herein set forth.
17. Lessor’s Llabifity. The term “Lessor” as used herein shall mean only the owner or owners, at the time in question, of the fee title or a lessee’s Interest In a ground lease of thewcenter. and except as expressly provided in paragraph 15. in the event of any transfer of such trtle or Interest. Lessor herem named (and in caseof any subsequent transfers then thegrantor) shall be relieved from and after the dateof such transfer of all liability as respects Lessor’s obligations Ihereafter lo be performed, provided that any funds in the hands of Lessor or the then grantor at the time of such transfer, in which Less- has an interest, shall be delivered to the grantee. The obligations contained in this Lease to be performed by Lessor shall, subject as aforesaid, be binding on Lessor’s successors and assigns, only during their respective perrods of ownership.
16. Saverabillty. The Invalidity Of any provision of this Lease as determined by a court of competent jurisdiction, shall in no way affect the validtty of any other provision hereof.
19. Interest on Past-due Obllgetlons. Excepl as expressly herein provided, any amount due lo Lessor not paid when dueshall bear interest at the maxImum rate lhen allowable by law from the date due. Payment of such interest shall not excuse or cure any default by Lessee under this Lease; prowded, however, that interest shall not be payable on late charges incurred by Lessee nor on any amounts upon which late charges are paid by Lessee.
20. Time of Essence. Time is of the essence with respect to the obligations lo be performed under (his Lease.
21. Addltlonal Rent. All monetary obligations of Lessee lo Lessor under the terms of this Lease, including but not limited to Lessee’s Share of Operating Expenses and insurance and tax expenses payable shall be deemed to be rent.
, 22. Incorporation of Prior Agreements; Amendments. This Lease contains all agreements of the parties with respect to any matter mentloned hereln. No prior or contemporaneous agreement or understanding pertaining to any such matter shall be effective. This lease may be modlfled in wrltmg only, s!gned by the parties in interest at the time of the modification. Except as otherwise stated in this Lease. Lessee hereby acknowledges that nellher the real estate broker listed In paragraph 15 hereof nor any cooperatmg broker on this Vansaction nor the Lessor or any employee or agents of any of said persons has made any oral or wrItten warranties or representations to Lessee relative (0 the condition or use by Lessee of the Premtses or the Property and Lessee acknowledges that Lessee assumes all responstbtlity regarding the Occupational Safety Health Act. the legal use and adaptability of the Premises and the compliance thereof with all applicable laws and regulations in elfect during the term of this Lease except as otherwise specifically stated in this Lease. .
23. Notlces. Any notice required or permitted to be given hereunder shall be in writing and may be given by personal delivery or by cerfifled mall. and I{ given personally or by mail. shall be deemed sufficiently given if addressed lo Lesseeor to Lessor at the address noted below the signature of the respective parties. as the case may be. Either party may by notice to the other specify a different address for notice purposes except that upon Lessee’s taking possesston of the Premises, the Premises,shalf constitute Lessee’s address for notice purposes. A copy of all nottceq renulred or perm0ted to$e gtven to Lessor t\siiaf&i Sira~~~\;urc~‘~tI~iirly ttanoc&ted to such party or parties at such addresses as Lessor may from Iime to time hereafter designate by notice to Lessee.
24. Waivers. No waiver by Lessor or any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by Lessee of Ihe same or any other provisiom. Lessor’s consent 10. or approval of. any act shall not be deemed lo render unnecessary the obtalnlng of Lessor’s consent to or approval of any subsequent acl by Lessee. The acceptanceof rent hereunder by Lessor shall not be a waiver of any preceding breach by Lessee of any provision hererof. otherthan the failure of Lessee to pay the particular rent so accepted, regardless of Lessor’s knowledge of such precedmg breach al the time of acceptance of such rent.
25. Aecordlng. Either Lessor or Lessee shall, upon request of the other, execute, acknowledge and deliver to the other a “short form” memorandum of this Lease for recording purposes.
26. Holding Over. If Lessee, with Lessor’s consent. remains in possession of (he Premises or any part thereof after the expiration of Ihe term hereof, such occupancy shall be a tenancy from month lo month upon all the provisions of this Lease pertaming to theobligations of Lessee. bdd)
frcmrmnth to mnth.
MULTI TENANT--MODIFIED NET 9 American Industrial Real Estate Association 1981
initials:
,
27. Cumulative Remedles. No remedy or election hereunder shall be deemed eXCtUSiVe but shall, wherever possible, be cumulative with att other remedres at law or in equity.
28. Covenants and Condltlons. Each provision of this Lease performable by Lessee shall be deemed both a covenant and a concjition.
29. Binding Effect; Choiceof Law. Subject to any provisions hereof restricting assignment orsublettin paragraph 17. this Lease shall bind the parties, their perSOnat representatives, successors and assigns. 0. by Lesseeand subject to the provisions of
the State where the- hrs Lease shall be governed by the laws of Center is located and any titigation concernmg this Lease behveen the parties hereto shall be initiated in the county in whrch the- Center is located.
30. Subordlnstlon.
(a) Thus Lease. and any Optron granted hereby, at Lessor’s option, shall besubordinate to any ground lease, mortgage, deed of trust, or any other hypothecatron or secunty now or hereafter placed upon the Industrial Center and to any and all advances made on the securrty thereof and to all renewals, modificatrons. consolidations, replacements and extensions thereof. Notwithstanding such subordination. Lessee’s rtght to quret possessron of the Premrses shall not be disturbed If Lessee is not in default and so long as Lesseeshall pay the rent and observe and perform all of the provisions of thts Lease, unless thus Lease IS otherwrse terminated pursuant to its terms. If any mortgagee, trustee or ground lessor shall elect to have this Lease and any Optrons granted hereby prior to the lien of its mortgage, deed of trust or ground lease, and shall give wrrtten notrce thereof to Lessee, this Lease and such Options shall be deemed prior to such mortgage, deed of trust or ground lease, whether this Lease or such Ophons are dated prior or subsequent to the date of satd mortgage, deed of trust or ground lease or the date of recording thereof.
(b) Lessee agrees to execute any documents required to effectuate an attornment. a subordination or to make this Lease or any Option granted herein prior to the lien of any mortgage, deed of trust or ground lease, as the case may be. Lessee’s failure to execute such documents within ten (10) days after wrrtten demand shall constitute a material default by Lessee hereunder without further notice to Lessee or, at Lessor’s option, Lessor shall execute such documents on behalf of Lessee as Lessee’s attorney-in-fact. Lessee does hereby make, constrtute and irrevocably appomt Lessor as Lessee’s attorney-in-fact and in Lessee’s name, placeand stead, toexecutesuch documents in accordance with this paragraph 30(b).
31. Attorney’s Fees. If either party or the broker(s) named herein bring an action to enforce the terms hereof or declare rights hereunder, the prevailing party in any such action, on trial or appeal, shall be entitled to his reasonable attorney’s fees to be paid by the losing party as fixed by the court. The provisions of this paragraph shall inure to the benefit of the broker named herein who seeks to enforce a right hereunder.
32. Lessor’s Access. Lessor and Lessor’s agents shall have the right to enter the Premises at reasonable times for the purpose of inspecting the same, showing the same to prospective purchasers, lenders, or lessees, and making such alterations, repairs, improvements or addrtions to the Premises or to the building of whrch they are part as Lessor may deem necessary or desirable. Lessor may at any time place on or about the Premises or the Building any ordinary “For Sale” signs and Lessor may at any time during the last 12gdays of the term hereof place on or about the Premises any ordinary “For Lease” signs. All activities of Lessor pursuant to this paragraph shall be without abatement of rent, nor shall Lessor have any liabiltty to Lessee for the same.
33. Auctions. Lessee shall not conduct. nor permit to be conducted, either voluntarily or involuntarily, any auction upon the Premises or the Common Areas wtthout first having obtained Lessor’s prior written consent. Notwithstanding anything to the contrary in this Lease, Lessor’shall not be obligated to exercise any standard of reasonableness in determining whether to grant such consent.
34. Slgns. Lessee shall not place any sign upon the Premises or the&&us&al Center without Lessor’s prior written consent, Under no circumstances shall Lessee place a sign on any roof of th&adu&W Canter.
35. Merger. The voluntary or other surrender of this Lease by Lessee, or a mutual cancellation thereof. or a termination by Lessor, shall not work a merger, and shall, at the option of Lessor, terminate all or any existing subtenancies or may, at theoption of Lessor, operate as an assignment to Lessor of any or all of such subtenancies.
36. Consents. Except for paragraph 33 hereof. wherever in this Lease the consent of one party is required to an act of the other party such consent shall not be unreasonably withheld or delayed.
37. Guarantor. In the event that there is a guarantor of this Lease, said guarantor shall have the same obligations as Lessee under this Lease.
36. Oulet Possesslon. Upon Lessee paying the rent for the Premises and observing and performing all of the covenants, conditions and provisrons on Lessee’s part to be observed and performed hereunder, Lessee shall have quiet possession of the Premises for the entire term hereof subject to all of the provisions of this Lease. The individuals executing this Lease on behalf of Lessor represent and warrant to Lessee that they are lully authorired and legally capable of executing this Lease on behalf of Lessor and that suchexecution is binding upon all parties holding an ownership interest in the Property.
may be exercised only by the subletting the Premises or any y other than Lessee, provided, his Lease. The Options, if any. from thus Lease in any manner,
d or renew this Lease a later option cannot be exercised
noncompliance all Lessor is due from cd, or (III) at any
. hme after an event such default to
Lessee), nor (iv) in 3,1(c), whether
or not the defaults to the time tha e subject Optron.
all not be extended or son of Lessee’s mabrlrty to
of an Option shall terminate and be of no further force or cise and during the term of this Lease. (i) Lessee tails to pa ation becomes due (wcthout any necesstty of Lessor to grv
40. Security Measures. Lessee hereby acknowledges that Lessor shall have no obligation whatsoever to provide guard service or other security measures for the benefit of the Premrses or the Industrial Center. Lessee assumes all responsibility for the protectton Of Lessee. its agents. and cnvttees and the property of Lessee and of Lessee’s agents and invitees from acts of third parties. Nothing herem contained shall prevent Lessor. at Lessor’s sole optron. from providing security protectron for the Industrial Center or any part thereof, in whrch event the Cost thereof shall be Included wrthln the definrtron of Operating Expenses, as set forth in paragraph 4.2(b).
41. Easements. Lessor reserves to itself the right. from time to time, to grant such easements, rightsand dedications that Lessor deems necessary or desrable. and to cause the recordafron of Parcel Maps and restrictions. so long as such easements, nghts. dedicatrons. Maps and restrlctlons do not unreasonably Interfere wrth the use 01 the Premrses by Lessee. Lesseeshall sign any of the aforementioned documents upon requeSt Of Lessor and failure !r? do so shall constitute a materral default of this Lease by Lessee without the need for further nOtICe to Lessee.
42. Performance Under Protest. II at any hme a drspute shall arise as to any amount or sum of money to be paid by one party to the other under the provtslons hereof. the party against whom the obligatron to pay the money IS asserted shall have the rrght to make payment “under protest” and such payment shall not be regarded as a voluntary payment, and there shall survive the right on the part of sard party to institute Suit for recovery of such sum If II shall be adfudged that there was no legal oblrgatron on the part of said party to pay such sum or any part thereof, said party shall be enlllled to recover such sum or so much thereof as 0 was not legally required to pay under the provisrons of this Lease.
MULTl TENANT-MODIFIED NET CAmerican lndustrlal Real Estate Assoclatlon 1981 -?-
Initials:
43. Authorfty. If Lessee IS a corporation. trust, or general or limited partnership, each individual executing this Lease on behalf of such entity represents and warrants thaf he or she is duly authorrred to execute and delrver this Leaseon behalf of said entity, If Lessee 1s a corporation. trust or partnership, Lessee shall, wrthin thirty (30) days after executron of this Lease, deliver to Lessor evidence of such authority satrsfactory to Lessor.
44. Confllct. Any conflict between the prmted provisionsof this Lease and the typewritten or handwritten provisions, if any, shall becontrolfed by the typewrrtten or handwritten provisions.
46. Offer. Preparalron of thus Lease by Lessor or Lessor’s agent and submission of same to Lessee shall not be deemed an offer to lease, Thrs Lease shall beCOmb brndmg upon Lessor and Lessee only when fully executed by Lessor and Lessee.
46. Addendum. Attached hereto is an addendum or addenda containing paragraphs through N/A which consfrtute a part of thus Lease.
47. DAMAGE AND TESTRUCTION.
For purposes of this paragraph, "Insured Loss" shall mean damage or destruction which was covered bj, an event required to be covered by the insurance described in paragraph 8. The fact that an Insured Loss has a deductible amount shall not make the loss an uninsured loss.
(I) Insured Loss: If at any time during the term of this Lease there is damage or destrtction cf the Premises which is an Insured Loss, then Lessor shall, at Lessor's expense, repair such damage to the Premises, but not Lessee's fixtures, equipment or tenant imnrovements as soon as reasonably possible and this Lease shall continue in full force and effect:
(2) Uninsured Loss: If at any time during the term of this Lease there is damage or destruction of the Premises which is not an Insured Loss, Lessee shall make the repairs at Lessee's expense and this Lease shall continue in full force and effect.
(3) Waiver: Lessor and Lessee waive the provisions of any statute. which relate to termination of leases vher leased property is destroyed and agree that such event shall be
governed by the terms of this Lease. Under no circumstances shall Lessee be entitled to abatement of rent as a result of damage or destruction of the Premises.
LESSOR AND LESSEE HAVE CAREFULLY READ AN0 REVfEWEO THfS LEASE AN0 EACH TERM AN0 PROVISION CONTAINEO HEREIN AND. BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED AN0 VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT. AT THE TfME THfS LEASE IS EXECUTED. THE TERMS OF THfS LEASE ARE COMMERCIALLY REASONABLE AN0 EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AN0 LESSEE WITH RESPECT TO THE PREMISES.
THIS LEASE HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY FOR APPROVAL. NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN INOUSTRfAL REAL ESTATE ASSOCIATION OR BY THE REAL ESTATE BROKER OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTfON RELATING THERETO: THE PARTIES SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN LEGAL COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
LESSOR LESSEE
Carlsbad Housing and Redevelopment Commission Carlsbad Unified School District
BY BY - - - :. “. I’,..,, .:, .- ., . -7
BY BY
Executed on Executed on
AODRESS FOR NOTICES AN0 RENT AOORESS
For these forms wrote the American Industrial Real Estate Association, 350 South Figueroa St., Suite 275. Los Angeles, CA 90071 (213) 687-6777 Form 1OOMT 8181
EXHLBIT D TO AGREEMENT
RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO:
i STRADLING, YOCCA, CARLSON bc RAUTH ) 660 Newport Center Drive Suite 1600 ; Newport Beach, California 92660 ) Attn: Joel H. Guth ) 1 [Space above line for recorder's use only.]
MEMORANDUM OF LEASE
This Memorandum of Lease is made as of the day of I
19 by and between the CARLSBAD HOUSING AND REDEVELOPMENT COMMISSION -
("Lessor") and the CARLSBAD UNIFIED SCHOOL DISTRICT, a public agency
("Lessee").
By this Memorandum of Least, for good and adequate consideration and
pursuant to all the terms and conditions set forth in that certain least
agreement by and between Lessor and Lessee and dated as of I 19 -’
(the "Lease Agreement"), all the terms and conditions of which art made a
part hereof as though fully set.forth herein, (1) Lessor does hereby lease to
Lessee and Lessee does hereby let from Lessor that certain real property,
together with the improvements located thereon, situated in the County of San
Ditgo, State of California, more particularly described in Exhibit “A”
attached hereto and incorporated herein by this reference (the "Premises"),
for a term of ten (10) years commencing on , 19 and ending on -
# 19 -' unless sooner terminated in accordance with the Least
Agreement: and (2) Lessor dots hereby agree that following the end of said
ten (10) year term, provided the Least Agreement has not been terminated
prior to the end of such ten (10) year term and Lessee is not then in default
in the payment of rent or any other sums payable by Lessee pursuant to the
terms of the Least Agreement, Lessor shall convey to Lessee a fee interest in
the Premises pursuant to the trrms af the Lczrc ?,;::::.-;.:x_:‘ x.i? tkt ei:Li.~
Agreement for Cooperation Between Carlsbad Unified School District, the
Carlsbad Housing and Redtvtlopmtnt Commission and the City of Carlsbad dated
, 1988, all of the terms and conditions of which are made a part
hereof or though fully set forth herein.
ALL WITNESS WHEREOF, the parties have executed this Memorandum of
Lease as of the date first above written.
"Lessor"
"Lessee"
3754r/5705/001
THE CARLSBAD HOUSING AND REDEVELOPMENT COMMISSION
By: Its:
THE CARLSBAD UNIFIED SCHOOL DISTRICT
By:
Its:
-2-
-EXHIBIT A TO MEMORANDUM
OF LEASE
EXHIBIT A
DESCRIPTION OF PREMISES
School Administrative Offices
As shown on the attached floor plans.
/I -p-Is: .-.,-- .‘. i. . i ,A /I,
11-t ~$JpY---J,i;. .pp--- I I r+F I i -c/. . ,w.&y-u ; . . I-I-y---- --, ----a --
I --
!;I -f+ .,. ..‘I .“.: ,.:‘, _
.
EXHJBIT E TO AGREEMENT STANWRD INDUSTRIAL LEA’? - GROSS
AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION
1. Pertlea. This Lease, dated. for reference purposes only,
between ‘h=i (21-m * 19 , is made by and
and Carl&ad I?nified school District (herein called “Lessor”)
(herein called “Lessee”).
2. Promises. LeSsOr hereby leases f0 Lessee and Lessee leases from Lessor for the term, at the rental, and upon all of the conditions set forth
herem. that certain real property situated in the County of m the Safety Center Slate of r;ll fn*
commonly known as
and described as a 3600 square foottiilarfacilitv and parkinq and storaqe area as shown on attached plot plan
Said real property including the land and all improvements therein, is herein called “the Premises”.
3. Term.
3.1 Term. The term of this Lease shall be for ten (10) Wm
commencing on and ending on
unless sooner termmated pursuant to any provision hereof.
3.2 Deley In Possession. Notwithstanding said commencement date, if for eny reason Lessor cannot deliver poasersion of the Premises to Lessee on said date. Lessor shall not be subject to any liability therefor. nor shall such failure affect the validity of this Lease or the obligations of Lessee hereunder or extend the term hereof, but m such case, Lessee shall not be obligated to pay rent until possession of the Premises is tendered to Lessee: provrded, however, that if Lessor shall not have delivered possession of the Premises within sixty (60) days from said commencement date, Lessee may. at Lessee’s option, by notice in writing to Lessor within ten (10) days thereafter, cancel this Lease, in which event Ihe parhes shall be discharged from all obligations hereunder: provided further, however, that if such written noticeof Lessee is not received by Lessor within sard ten (IO) day period. Lessee’s right to cancel this Lease hereunder shall terminate and be of no further force or effect.
3.3 Early Possession. If Lessee occupies the Premises prior to said commencement date, such occupancy shall be subject to all provisions hereof, such occupancy shall not advance the termination date, and Lesseeshall Pay rent for such period at the inrtial monthly rates set forth below apiversary , in advance, on t e
shall pay Lessor upon the execution hereof $ -0. as rent for fhP- f i rst F nf the tpnn nf tbi G Tn
Rent for any period during the term hereof which is for less than one month shall be a pro rata portion of the monthly installment Rent shall be payable in lawful money of the United States to Lessor at the address stated herein or to such other persons or at such other places as Lessor may designate in wrmng.
5. Securlly Deposit. Lessee shall deposit with Lessor upon execution hereof $ as security for Lessee’s faithful performance of Lessee’s obligatrons hereunder. If Lessee fails to pay rent or other chargesdue hereunder. or otherwisedefaults with respect !o any proviston Of thus Lease, Lessor may use. apply or retain all or any portion of said deposit forthe payment of any rent or other charge in default or for the payment of any other sum to which Lessor may become obligated by reason of Lessee’s default, or to compensate Lessor for any loss or damage which Lessor may suffer thereby. If Lessor so uses or applies all or any portion of said deposit, Lessee shall within ten (10) days after wrttten demand therefor deposit cash with Lessor in an amount sufficient to restore said deposit to the full amount hereinabovestated and Lessee’s failure to do so shall be a material breach of this Lease. If the monthly rent shall, from time to time, increase during the term of this Lease, Lessee shall thereupon deposit with Lessor additional security deposit so that the amount of security deposit held by Lessor shall at all times bear the same proportion to current rent as the original security deposit bears to the original monthly rent set forth in paragraph 4 hereof. Lessor shall nof be required to keep said deposit separate from its general accounts. If Lessee performs all of Lessee’sobligations hereunder, said deposit, or so much thereof as has not theretofore been applied by Lessor, shall be returned, without payment of interest or other increment for its use, to Lessee (or. at Lessor’s option. to the last assignee, if any, of Lessee’s interest hereunder) at the expiration of the term hereof, and after Lessee has vacated the Premises. No trust relationship is created herein between Lessor and Lessee with respect to said Security Deposit.
6. Use.
6.1 Use. The Premises shall be used and occupied only for Storage OF m vphdba w _ 1* I supplies md sumlies related to I;essee 9 v
or any other use which is reasonably comparable and for no other purpose.
6.2 Compflance with Law. (a) Lessor warrants to Lessee that the Premises, in its state existing on the date that the Lease term commences, but without regard to the use for which LesseewrIt use the Premises, does not violate any covenants or restrictions of record. or any applicable building code, regulatton or ordinance in effect on such Lease term commencement date. In the event it is determined that this warranty has been violated, then it shall be the obligation of the Lessor, after written notice from Lessee, to promptly, at Lessor’s sole cost and expense, rectify any such violation. In the evr-nt Lessee does not give to Lessor written notice of the violation of this warranty within six months from the date that the Lease term commences. the correction of same shall be the obligation of the Lessee at Lessee’s sole cost. The warranty contained in this paragraph 6.2 (a) shall be of no force or effect if, prior to the date of this Lease, Lessee was the owner or occupant of the Premises, and, in such event, Lessee shall correct any such violation at Lessee’s sole cost.
(b) Except as provided in paragraph 6.2(a). Lessee shall, at Lessee’s expense, comply promptly with all applicable statutes, ordmances. rules, regulations, orders, covenants and restrictions of record, and requirements in effect during the term or any part of the term hereof. regulatsnq the use by Lessee of the Premises, Lessee shall not use nor permit the use of the Premises in any manner that will tend to create waste or a nuisance or, 11 there shall be more than one tenanl in the building containing the Premises, shall tend to disturb such other tenants.
6.3 Condltlon of Premises.
(a) Lessor shall deliver the Premises to Lessee clean and free of debris on Lease commencement date (unless Lessee is already in possessron) and Lessor further warrants to Lessee that the plumbing. lighting. air conditioning, heating, and loading doors in the Premises shall De in good operatmg condihon on the Lease commencement date. In Ihe event that it is determined that thiswarranty has been vrolated. then II shzll he the oblrgatron of Lessor. after rececpt of wrltten notice from Lessee setting forth with specificity the nature of the violation. to promptly. at Lessor s sole cost. rectify such violation. Lessee’s farlure to give such written notice to Lessor within thirty (30) days after the Lease commencement dale shall cause the conclusive presumption that Lessor has complied with all of Lessor’s obligations hereunder. The warranty contalned in this paragraph 6.3(a) shall be of no force or effect if prior to the date of this Lease, Lessee was the owner or occupant of the Premises.
(b) Except as otherwise provided in this Lease. Lessee hereby accepts the Premises in their condition existing as of the Lease ~~~~~~~~~~~~~~~~~~~~ UW~ w tile uaiv ww L~MYW takeb Pu~sessrorl of the Premises, whichever’is eerlier, subject to all applicable zoning. munlclPal. county and state laws. ordinances and regulations governing and regulating the use of the Premises, and any covenants or restrichons of record. and accepts this Lease subfect thereto and to all matters disclosed thereby and by any exhibits attached hereto Lessee acknowledges that nellher Lessor nor Lessor s agent has made any representation or warranty as to the present or future suitabllity of the Premises for the conduct Of Lessee S busmess.
7. Maintenance. Repaln end Afleretfons.
keep In good order.
7 J Lessee’s Obllgatlons.
(a) Subject to the provisIons of Paragraphs 6. 7.1 and 9, Lessee, at Lessee’s expense, shall keep in good order, condition and repalr the PremlSeS and every part thereof (whether or not the damaged portion of the Premises or the means of repairing the same are reasonably or readily accessable to Lessee) includmg. without limiting the generality of the foregoing, all plumbing, heating, air conditioning, (Lessee shall procure and
Inltfalr:
@ American Industrial Real Estate Association 1980 GROSS
.- .- .
malntaln. at Lessee’s expense. an air conditioning system mamte?ance contract) ventilating, electrical and lighting facttitiea and equipment Within
tile Pf4miser. flxtur09. intertor wall9 4nd Interior 4urf4cO Of ext4rtor w4ll9, ceilings, windows. doors. pt4te gt499+ 4nd Skylights, toCatCd wcthin the Premrses. and all landscaping, driveways. parking tOt9. fence9 and scgns located in the Premises 4nd att sidewalks and parkways adjacent to th4 Premises.
(b) If Lessee fails to perform Lessee’9 obligations under this Paragraph 7.2 or under any other paragraph of this Lease. Lessor may at Lessor’s Option enter upon the Premises after lOdays’ prlOr Written notice t0 Lessee (except In the case of emergency, in which case no notice Shalt be required). perform Such obligations on Lessee’s behalf and put the Premises in good order, condition 4nd repair, and the cost thereof together
with interest thereon at the maximum rate then allowable by i4W shall be due and payable 49 additional rent to Lessor together with Lessee’s next rental mstallment.
(C) On the last day of the term hereof. Or On any Sooner termination. Lessee shall surrender the Premises to Lessor in the 44me condition as recetved, or&nary wear and te4r excepted, Clean and free Of debris. Lessee shalt repair any damage t0 the Premise9 occ49ioned by the mstallatlon of removal of its trade fixtures, furnishings and equipment. NotwithStanding anything to the contrary otherwise stated in this Lease,
Lessee shall leave the air tines. power panels. eleCtriCat distribution systems, lighting fixtures, space heaters, air conditioning, plumbing and fencing on the premE.es In good operating condition.
7 3 Atter4tions 4nd Additlonr.
(4) Lessee shall not. wlthout LeSSOr’S Prior wrltten consent make any alterstions, improvements, addition4, or Utility lnst4llation4 in, On or about the PremlSes. except for nOn4truCtur4l alteration4 not exceeding $2.500 in cumulative co4t4 during the term of thi4 L444e. tn 4ny event,
whether or not In eXCe9S Of $2.500 in CUmlJlatiVe Cost. Lessee shall make no change Or alteration t0 the exterior Of the Premise9 nor the exterior of
the bulldIng On the PremlS45 without LeSsOr’S prior written consent. A9 Used in this Paragraph 7.3 the term “Utltity tn9tatlatiOn” shalt mean carpeting. wcndow COv4fingS. air lines, power panels. electrical distribution syrtems. lighting fixtures. space heaters, air conditioning. plumttlng, and fencing. Lessor may require that Lessee remove any or all of said alterations, improvements, additions or Utility Inst4llations at the expiration of the term, and restore the Premtses to their prior condition. Lessor may require Lessee to provide Lessor, at Lessee’s sole cost and expense. 4 lien and completion bond in an amount equal to one and onahalf times the estimated cost of such improvements. to insure Lessor 4g4inst any liability for mechanic’s and materIalmen’S liens and to insure completion of the work. Should Lessee make any alter4tions. improvements, addltlons or Uttllty lnstallatlons wtthout the prior approval of Lessor, Lessor may require tnat Lessee remove any or all of the Same.
(b) Any alterations. improvements, addltlons or Utility Installations in. or about the Premises that Lessee Shall desire t0 make and which requires the COnSent Of the Lessor shall be presented to Lessor in Wntten form, With proposed detailed plans. If Lessor shall give it9 cOn9ent. the consent shall be deemed conditioned upon Lessee acquiring 4 permit to do So from appropriate governmental agencies, the furnishing of 4 copy thereof to Lessor prior to thecommencement of the work and the compliance by Lesseeof all condition9 of said permit in 4 prompt and expeditious manner.
(c) Lessee shall pay, when due, all claims for laboror material9 furnished or alleged to have been furnished to or for Lessee 4t or for use in the Premises. which claims are or may be secured by any mechanics’ or materialmen’s lien against the Premtses or any interest therein. Lessee Shall give LeSSOr not less than ten (10) days’ notice prior to the commencement of any work in the Premises, and Lessor shall have the right to post notices of non-responsibility in or on the Premise9 as provided by law. If Lessee shall, in good faith, contest the validity of any such lien, claim or demand, then Lessee shall. at its sole expense defend itself and Lessorageinst the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof against the Lessor or the Premises, upon the condition that if Lessor shall require, Lessee shall furnish to Lessor a surety bond satisfactory to Lessor in an amount equal to such contested lien claim or demand indemnifying Lessor against IlabIlity for the same and holding the Premises free from the effect of such lien or claim, In addition, Lessor may require Lessee to pay Lessor’s attorney9 fees and costs in participating in such action if Lessor shall decide it is to its best interest to do 90.
(d) Unless Lessor requires their removal, 4s set forth In Paragraph 7.3(a). all alterations, improvements. addition9 and Utility ln9t4llation9 (whether or not such Utility Installations constitute trade fixtures of Lessee), which may be made on the Premises, shall become the property ot Lessor and remain upon and be surrendered with the Premises et the expiratlon of the term, Notwithstanding the provisions of thts Paragraph 7 3(d). Lessee’s machinery and equcpment. other than that which is affixed to the Premises so that it cannot be removed without material damage t0
lhe Presmlses. shall remain the property of Lessee and may be removed by Lessee subject to the provisions of Paragraph 7.2(c).
8. Insur4nce; Indemnity.
8.1 Llabillty lnsurrncr - Lessee. Lessee shall, at Lessee’s expense, obtain and keep in force during the term of this Lease a policy of Combined Single Limit Bodily Injury and Property Damage Insurance insuring Lessee and Lessor against any liability arising out of the use, occupancy or maintenance of the Premises and all other areas appurtenant thereto. Such insurance shall be in an amount not less than $!%IO.OOtJ per occurrence. The policy shall insure performance by Lessee of the indemnity provisions of this Paragraph 8. The limits of said insurance Shalt not, however, limit the liability of Lessee hereunder.
., IQ
damage to the Premises, but not Lesse+$s fixtures, equipment or tenant improvement9 in an amount not to exceed the full replacement value thereof, as the same may exist from time to time, providing protection against all perils included within the classiflccltion of fire, extended coverage, vandalism, m4liciouS mischief, flood (in the event same is required by 4 lender hrving 4 lien on the Premises) special extended peril9 (“all risk”, as such term is used in the insurance industry) but not plrte glas4 insurance.-
6.4 P4yment of Premium Increue.
(a) Lessee shall pay to Lessor, during the term hereof, i? addition to the rent, the amo!nt of anyw.premiums for the insurance required under Paragraph-S.3 g
(b) Lessee shall pay any Such premium i-ur---- to Lessor within 30 days after receipt by Lessee of a copy of the premium statement or other satisfactory evidence of the amount due. If the insurance policies maintained cover other improvement9 in addition to the Premises. Lessor shall also deliver to Lessee a statement of the amount of such- attributable to the Premises and showing in reasonable detail. the manner in which such amount was computed. If the term of this Lease shall not expire concurrentlywith thp expiration of the penod covered by such insurance. Lessee’s liability for premium- shall be prorated on an annual basis. premum
6 5 Insurance Pollcler. Insurance required hereunder shall be in companies holding a “General Policyholders Rating” of at least 8 plu¶. or such other rating as may be required by a lender having a lien on the Premises. as set forth in the most current issue of “Best’s InSuranCe Gu+de ’ Lessee shall deliver to Lessor copies of policres of liability insurance required under Paragraph 8.1 or certificate9 evidencing the existence and amounts of such insurance. No such policy shall be cancellable or subject to reduction of coverage or other modification except after thirty (30) days’ prior written notice to Lessor. Lessee shall, at least thirty (30) days prior to the expiration of such policies, furnish Lessor with renewals or “binders” thereof, or Lessor may order such insurance and charge the cost thereof to Lessee, which amount shall be payable by Lessee upon demand. Lessee shall not do or permit to be done anything which shall invalidate the insurance policies referred to in Paragraph 8.3.
6.6 Waker 01 Subroqatlon. Lessee and Lessor each hereby release and relieve the other, and waive their entire right of recovery against the other for loss or damagearising out of or incident to the perils insured against under paragraph 8.3, which perils occur in. on or about the Premises,
whether due to the negligence of Lessor or Lessee or their agents. employees. contr4ctors and/or invitees. Lessee and Lessor shall. upon obtatnlng
the policies of insurance required hereunder, give notice to, the insurance carrier or carrier9 that the foregoing mutual wrriver Of subrogation 19 contained In th1.q t ~?*a _. ~ .,., .._...--..*.L? .me, /. ,, i. - __ . . . . . . r*...,.*“- ,. _.A . . . .-
8.7 Indemnity. Lessee shall indemnify and hold harmless Lessor from and again? any and all claims arising from Lessee’s use of Ike Premtses. or from the conduct of Lessee’9 business pr from any activity. work or thmgs done, permltted or suffered by Lessee in or about the Premrses or elsewhere and shall further indemnify and hold harmless Lessor from and against any and all claim9 arismg from any breach or default
I” the performance of any obligation on Lessee’s part to beperlormed under the terms of this Lease. or arising from any negligence of the Lessee. or any of Lessee’s agents. contractors, or employees, and from and againstall costs, attorney’s fees, expenses and liabilities incurred in the defense of any such claim or any actton or proceeding brought thereon; and in case any action or proceeding be brought against Lessor by reason Of any Such claim. Lessee upon notice from Lessor shall defend the same at Lessee’9 expense by counsel satisfactory to Lessor. Lessee. 49 4 material part Of the
conslderatlon to Lessor, hereby assumes all risk of damage to property or injury to persons, in, upon or about the PremlSeS arising from any cause and Lessee hereby waives 411 claims In respect thereof against LeSSOr.
8 8 Exemptlon of Lessor from Llablllty. Lessee hereby agrees that Lessor shall not be liable for injury to Lessee’s business or any loss Of Income therefrom or for damage to the goods, wares, merchandise or other property of Lessee, Lessee s emplOyee9. inVitee9. customers. or any
other person rn or about the Premises. nor shall Lessor be liable for Injury to the person of Lessee, Lessee’9 employees, agent9 or Contractors.
whether such damage or injury is caused by or results from fire, steam, electricity, gas. water or ram, or from the breakage, leakage, obstructton Or
other defects of pipes. sprinklers. wires. appliances, plumbing, air conditioning or lighting fixtures, or from any other cause, whether the said damage or Injury results from conditions artsing upon the Premise9 or upon other portions of the butlding of which the Premise9 area part. Or from other sources or places and regardless of whether the cause of such damageor injury or the means of repairing the same is inaccessible 10 Lessee. Lessor shall not be llable for any damages arIsIng from any act or neglect of any other tenant, If any, of the building in which the PremlSeS are located.
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* 9. Damage or Destructlon.
9.1 Deflnltlonr.
(a) “Premises Partial Damage” shall herein mean damage or destruction to the Premises to the extent that the cost of repatr is less then 50% of the fair market value of the Premisoa immediately prior to such damrgo or destruction. “Premise8 Building Partial Dama P e” shall hereto mean damage or destruction to the building of which the Premises are a pert to the oxtOni that the cost of repaic Is less than 50% o the fair market
value of such building as a whole immediaiely prior to such damage or destruction.
(b) “Premises Total Destruction” shall herein mean damage or destruction to the Premises to the extent that the cost of repair is 50% or more of the fair market value of the Premises immediately prior to such damage or destruction. “Premises Building Total Destruction” shall hereto mean damage or destructton to the building of which the Premises are a part to the extent that the cost of repair is 50% or more of the fair market value of such building as a whole immediately prior to such damage or destruction.
(c) “Insured Loss” shall herein mean damage or destruction which was caused by an event required to be covered by the insurance described in paragraph 6.
9.2 Parllaf Damage- Insured Losa. Subject to the provisions of paragraphs 9.4.9.5 and 9.6, if at any time during the term of this Lease there is damage which is an Insured Loss and which falls into the classification of Premises Partial Damage or Premises Building Partial Damage, then Lessor shall, at Lessor’s sole cost. repalr such damage. but not Lessee’s fixtures, equipment or tenant improvements, as soon as reasonably possible and thts Lease shall continue in full force and effect.
9.3 Partial Damage - Uninsured LOSS. Subject to the provisions of Paragraphs 9.4.9.5 and 9.6. if at any time during the term of this Lease there is damage which is not an Insured LOSS and which falls within the classification of Premises Partial Damage or Premises Bullding Parttat Damage. unless caused by a negligent or willful act of Lessee (in which event Lessee shall make the repalrs at Lessee’s expense), Lessor may at Lessor’s optlon either (i) repair such damage as soon as reasonably possible at Lessor’s expense, in which event this Lease shall continue In full torte and effect. or (ii) give written notice to Lesseewilhin thirty (30) days after the dateof theoccurrence of such damage of Lessor’s intention to cancel and termmate this Lease, as of thedate of the occurrence of such damage. In theavent Lessor elects to give such noticeof Lessor’s intentton to cancel and termmate this Lease. Lessee shall have the right within ten (10) days after the receipt of such notice to give written notlce to Lessor of Lessee’s intention to repair such damage at Lessee’s expense, without reimbursement from Lessor, in which event thts Lease shalt continue In lull force and effect, and Lessee shall proceed lo make such repairs as soon aa reasonably possible. If Lessee does not give such notice within such lo-day period thts Lease shall be cancelled and terminated as of the date of the occurrence of such damage.
9.4 Total Destructlon. If at any time during the term of this Lease there is damage, whether or not an Insured Loss, (including destruction required by any authortzed public authority). which falls into the classification of Premises Total Destruction or Premises Bullding Total Destruction, this Lease shall automatically terminate as of the date of such total destruction.
9.5 Damage Near End of Term.
(a) If at any time during the last six months of the term of this Lease there is damage. whether or not an Insured Loss, which falls within the classification of Premises Partial Damage, Lessor may at Lessor’s option cancel and terminate this Lease as of the date of occurrence of such damage by givtng written notice to Lessee of Lessor’s election to do so within 30 days after the date of occurrence of such damage.
(b) Notwithstanding paragraph 9.5(a). in the event that Lessee has an option to extend or renew this Lease. and the time within which said option may be exercised has not yet expired, Lessee shall exercise such option, if it is to be exercised at all, no later than 20 days after the occurrence of an Insured Loss falling within the classification of Premises Partial Damage during the last six months of the term of this Lease. If Lessee duly exercises such option during said 20 day period, Lessor shall. at Lessor’s expense. repair such damage as soon as reasonably possible and this Lease shall continue in full force and effect. If Lessee fails to exercise such option during said 20 day period, then Lessor may at Lessor’s option terminate and cancel this Lease as of the expiration of said 20 day period by giving written notice to Lessee of Lessor’s election lo do so wlthm 10 days after the expiration of said 20 day period, notwithstanding any term or provision in the grant of optton to the contrary.
9.6 Abatement of Rent: Lessee’s Remedies.
(a) In the event of damage described in paragraphs 9.2 or 9.3, and Lessor or Lessee repairs or restores the Premises pursuant to the provisions of this Paragraph 9. the rent payable hereunder for the period during which such damage. repair or restoration continues shall be abated in proportton to the degree to which Lessee’s use of the Premises is impaired. Except for abatement of rent, if any, Lessee shall have no claim against Lessor for any damage suffered by reason of any such damage, destruction, repair or restcration.
(b) If Lessor shall be obligated to repair or restore the Premises under the provisions of this Paragraph 9 and shall not commence such repair or restoration within 90 days after such obligations shall accrue, Lessee may al Lessee’s option cancel and terminate this Lease by giving Lessor written notice of Lessee’s election to do so at any time prior to the commencement of such repair or restoration. In such event this Lease shall terminate as of the date of such notice.
9.7 Termlnailon -Advance Payments. Upon termination of this Lease pursuant to this Paragraph 9. an equitable adjustment shall be made concerning advance rent and any advance payments made by Lessee to Lessor. Lessor shall, in addition, return to Lessee so much of Lessee’s securtty deposit as has not theretofore been applied by Lessor.
9.8 Walver. Lessor and Lessee waive the provisions of any statutes which relate to termination of leases when leased property is destroyed and agree that such event shall be governed by the terms of this Lease.
10. Real Property Taxes.
10.1 Les=71 Payment of lax Increase. 4eeeer s all pay the real property tax, as defined in paragraph 10.3, applicable to the Premises:+uM&d,
Sue ,A payment shall be made by Lessee within thirty (30) days after receipt of Lessor’s written statement setting forth the amount of sucrciner nd the computation thereof. If the term of this Lease shall not expire concurrently with the expiration of the tax fiscal year, Lessee’s liability for increased taxes for the last partial lease year shall be prorated on an annual basis.* tax
1e
10.3 Deflnltlon al “Real Property Tax”. As used herein, the term “real property tax” shall include any form of real estate tax or assessment, general, special, ordinary or extraordinary, and any license fee. commercial rental tax, improvement bond or bonds, levy or tax (other than inheritance. personal mcome or estate taxes) imposed on the Premises by any authority having the direct or indirect power to tax, including any cltv. state or federal aovernment. or anv school. aaricultural. sanitarv. fire. street. drainaae or other imoravement district thereol. as aaamst anv legal or equitable interest of Less& in tfie Premiiecor in the r&al prop&y oi which the Premises are a pak. as against Lessor’s righito rent or othir income therefrom, and as against Lessor’s business of leasing the Premises. The term “real property tax” shall also include any tax, fee, levy, assessment or charge (i) in substitution of, partially or totally, afiy tax, fee, levy, assessment or charge hereinabove included within the definition of “real property tax,” or (ii) the nature of which was hereinbefore included within the definition of “real property tax,” or (iii) which is imposed for a service or right not charged prior to June 1. 1976. or. if previously charged, has been increased since June 1. 1976. or (iv) which is imposed as a result of a transfer. either partial or total. of Lessor’s interest in the Premises or which is added to a tax or charge hereinbelore included within the definition of real property tax by reason of such transfer, or(v) which is imposed by reason of this transaction, any modifications or changes hereto, or any transfers hereof.
10.4 Joint Assessment. If the Premises are not separately assessed, Lessee’s liability shall be an equitable proportion of the real property taxes for all of the land and improvements included within the tax parcel assessed, such proportion to be determined by Lessor from the respective valuations assigned in the assessor’s work sheets or such other information as may be reasonably available. Lessor’s reasonable determination thereof, In good faith. shall be conclusive.
10.5 Personal Property Taxes.
(a) Lessee shall pay prior lo delinquency all taxes assessed against and levied upon trade fixtures, furnishings, equipment and all other personal property of Lessee contalned in the Premises or elsewhere. When possible, Lesseeshall causesaid trade fixtures, furnishings. equipment and all other personal property to be assessed and billed separately from the real property of Lessor.
(b) If any of Lessee’s said personal property shall be assessed with Lessor’s real property, Lesseeshall pay Lessorthe taxes attributable to Lessee within 10 days after receipt of a written statement setting forth the taxes applicable lo Lessee’s property.
11. Utlllties. Lessee shall pay for all water, gas, heat, light, power, telephone and other utilities and services supplied to the Premises. together wllh any taxes thereon If any such services are not separately metered to Lessee, Lessee shall pay a reasonable proportion to be determined by Lessor of all charges jotntly metered with other premises.
12. Assignment rnd Subletting.
12.1 Lessor’s Consent Requlred. Lessee shall not voluntarily or by operation of law assign, transfer, mortgage, sublet, or otherwise transfer or encumber all or any , part of Lessee s interest in this Lease or in the Premises. Yli)knl.,(h I a-
ter such assignmenl or f whom shall not be necessary.
12.3 No Releaseof Lessee. Regardless of Lessor’sconsent. no subletting Lesseeof Lessee’sobligallon or alter the ereunder. The acceptance of rent by to one assignment or sublettmg shall Lessee or any successor of Lessee. In y of exhausting remedies agamst sand iflcations to thisLease wtth assignees eretoand such action shall not relieve
Lessee of liability und
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13. Defaulis; Remrdles.
13.1 Dofaults. The occurrence of any one Or mOfa Of the following events shall COnstitUte a material default and breach of this Lease by Lessee:
(a) The vacating or abandonment of the Premises by Lessee.
(b) The failure by Lessee to makeany payment Of rent Or any other payment required to be made by Lessee hereunder, as and when due. where such farlure shall continue for a period of three days after written notice thereof from Lessor to Lessee. In the event that Lessor serves Lessee with a Nohce toPay Rent or Quit pursuant to applicable Unlawful Retainer statutes such Notice to Pay Rent or Quit shall also constrtute the notice requrred by this subparagraph.
(c) The failure by Lessee to observe or perform any of thecovenants. conditions or provisions of this Lease to be observed or performed by Lessee. other than described lo perrgraph (b) above, where such fallure shall continue for a period of 30days after written notlce thereof from Lessor to Lessee; provided, however, that If the nature of Lessee’s default is such that more than 30 days are reasonably required for its cure, then Lessev shall not be deemed to be in default if Lessee commenced such cure within said 30-day period and thereafter diligently prosecutes such cure to completion.
(d) (I) The making by Lessee of any general arrangement or assignment for the benefit of creditors; (ii) Lessee becomes a “debtor” as deftned m 11 U S C. §I01 or any successor Statute thereto (unless. in the case of a petition filed against Lessee, the same is dismissed wlthtn 60 days); (iti) the appointment of a trustee or receiver to take possession of substantially ail of Lessee’s assets located at the Premises or of Lessee’s Interest m thts Lease, where possession is not restored to Lessee wdhin 30 days: or (iv) the attachment, executron or other judicial seczure of substanhally all of Lessee’s assets located at the Premises or of Lessee’s interest in this Lease, where such seizure IS not discharged wtthin 30 days. Provtded, however, in the event that any provision of thus paragraph 13.1 (d) is contrary to any applicable law, such provision shall be of no force or effect.
(e) The discovery by Lessor that any financial statement given to Lessor by Lessee, any assignee of Lessee. any subtenant of Lessee, any successor in interest 01 Lessee or any guarantor of Lessee’s obligation hereunder, and any of them, was materially false.
13 2 Remedies. In the event of any such material default or breach by Lessee. Lessor may at any time thereafter. with or without notice or demand and wlthout limtting Lessor in the exercise of any rrght or remedy which Lessor may have by reason of such default or breach:
(a) Terminate Lessee’s right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shalt Immediately surrender possession of the Premises to Lessor. In such event Lessor shall beentitled to recover from Lessee all damages incurred by Lessor by reason of Lessee’s default including, but not limited to, the cost of recovering possession of the Premises: expenses of reletting, including necessary renovatron and alteration of the Premrses. reasonable attorney’s fees. and any real estate commission actually paid; the worth at the time of award by the court having jurrsdiction thereof of the amount by which the unpaid rent for the balance of the term after the time of such award exceeds the amount of such rental loss for the same period that Lessee proves could be reasonably avoided; that portion of the leasing commrssion paid by Lessor pursuant to Paragraph 15 applicable to the unexpired term of this Lease.
(b) Mamtam Lessee’s right to possesston in which case this Leaseshall continue in effect whether or not Lesseeshall have abandoned the Premises. In such event Lessor shall be entitled to enforce all of Lessor’s rights and remedies under this Lease, including the right to recover the rent as 11 becomes due hereunder. (c) Pursue any other remedy now or hereafter available to Lessor under the laws or judicial decisions of the state wherein the Premises are located. Unpatd installments of rent and other unpaid monetary obligations of Lessee under the terms of this Lease shall bear interest from the date due at the maximum rate then allowable by law.
13.3 Default by Lossor. Lessor shall not be in default unless Lessor fails to perform obligations required of Lessor within a reasonable time, but in no event later than thirty (30) days after wrnten notice by Lessee to Lessorand to the holder of any first mortgage or deed of trust covermg the Premises whose name and address shall have theretofore been lurnished to Lessee in writing. specifying wherein Lessor has failed to perform such obligation: provtded. however, that if the nature of Lessofs obligation is such that more than thirty (30) days are required for performance then Lessor shall not be in default if Lessor commences performance within such 30-day period and thereafter diligently prosecutes the same to completton.
13.4 Late Charges. Lessee hereby acknowledges that late payment by Lessee to Lessor of rent and other sums due hereunder will cause Lessor to Incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not llmlted to. processing and accounting charges, and late charges which may be imposed on Lessor by the terms of any mortgage or trust deed covering the Premrses. Accordingly, if any installment of rent or any other sum due from Lessee shall not be received by Lessor or Lessor’s designee within ten (10) days after such amount shall be due, then. without any requirement for notice to Lessee, Lessee shall pay to Lessor a late charge equal to 6% of such overdue amount. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Lessor WIII incur by reason of late payment by Lessee. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee’s default with respect to such overdue amount. nor prevent Lessor from exercising any of theotherrights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for three (3) consecutive installments of rent. then rent shall automatically become due and payable quarterly in advance, rather than monthly, notwithstanding paragraph 4 or any other provision of thia Lease to the contrary.
13.5 Impounds. In the event that a late charge is payable hereunder, whether or not collected, for three (3) installments of rent or any other monetary obligahon of Lessee under the terms of this Lease, Lessee shalt pay to Lessor, If Lessor shall so request, in addition to any other payments required under thrs Lease. a monthly advance installment. payableat thesame time as the monthly rent. as estimated by Lessor, for real property tax and insurance expenses on the Premises which are payable by Lessee under the terms of this Lease. Such fund shall be established to insure Davment when due. before delinauencv. of anv or all such real orooertv taxes and insurance oremiums. If the amounts paid to Lessor bv iessee under the provisions of this’paragraph ard insufficient to discharge ri\e obligations of Lessrdto pay such real property taxes and insurance premiums as the same become due, Lessee shall pay to Lessor, upon Lessor’s demand, such additional sums necessary to pay such obligations. All moneys pald to Lessor under this paragraph may be intermingled with other moneys of Lessor and shall not bear interest. In the event of a default in the obligations of Lessee to perform under this Lease, then any balance remaining from funds paid to Lessor under the provisions of this paragraph may, at the option of Lessor, be applied to the payment of any monetary default of Lessee in lieu of being applied to the payment of real property tax and insurance premiums.
14. Condomnatlon. If the Premises or any portion thereof are taken under the power of eminent domain. or sold under the threat of the exercise of satd power (all of which are hereln called “condemnation”). this Lease shall terminate as to the part so taken as of the date the condemnmg authority takes title or possession, whichever first occurs. If more than 10% of the floor area oi the building on the Premises, or more than 25% of the land area of the Premises which is not occupied by any building, is taken by condemnation, Lessee may, at Lessee’s option, to be exercised m wrrting only within ten (10) days after Lessor shalt have given Lessee written notice of such takin days after the condemning authority shall have taken possession) terminate this Lease as o P (or in the absence of such notice, withm ten (10) the date the condemning authority takes such possesslon. If Lessee does not terminate this Lease in accordance with the foregoing. this Lease shall remain in full force and effect as to the portton of the Premrses remaining, except that the rent shall be reduced in the proportion that thefloor areaof the building taken bears to the total floor area of the building situated on the Premises. No reduction of rent shall occur if the only area taken is that which does not have a building located thereon. Any award for the taking of all or any part of the Premises under the power of eminent domain or any payment made under threat of the exercise of such power shall be the property of Lessor, whether such award shall bemade as compensation fordiminution in value of the leasehold or for the taking of the fee, or as severancedamages; provided, however, that Lesseeshall beentitled to any award for lossof or damage to Lessee’s trade fixtures and removable oersonal orooertv. In the event that this Lease is not terminated bv reason of such condemnation. Lessor shall to the extent of severance damagei received by Lessor in connectlon with such condemnation, repair any damags to ths Premiies caused by such condemnation except to theextent that Lessee has been reimbursed therefor by thecondemning authority. Lessee shall pay any amount in excess of such severance damages required to complete such repair.
transactions, Lessor shall pay said
16. Estoppsl Ceftlflcato.
(a) Lessee shall at any time upon not less than ten (10) days’ prior written notice from Lessor execute, acknowledge and deliver to Lessor a slalement In wrltmg (i) certifying thst this Lease is unmodified a.nd In full force and effect (or, if modified, stating the nature of such modification and cefttfylng that this Lease. as so modified, is in full force and effect) and the date to which the rent and other charges are paid in advance, tf any. and (II) acknowledging that there are not, to Lessee’s knowledge, any uncured defaults on the part of Lessor hereunder. or specifying such defaults if any are clalmed. Any such statement may be conclusively relied upon by any prospective purchaser or encumbrancer of the Premises.
(b) At Lessor’s option, Lessee’s failure to deliver such statement within such time shall be a material breach of this Lease or shhll be conclusive upon Lessee (I) that this Lease is in full force and effect. without modification except as may be represented by Lessor. (ii) that there are no uncured defaults in Lessor’s performance, and (iii) that not more than one month’s rent has been paid in advance or such failure may be considered by Lessor as a default by Lessee under this Lease.
Inltlals:
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(c) If Lessor desires to finan:e. refinance. Or sell the Premises, or any part thereof, Lessee hereby agrees to deliver to any lender or purchaser designated by Lessor such flna,nClal statements of Lessee as may be reasonabfy required by such fender or purchaser, Such StatementS shall include the past three years’ financial Statements of Lessee. All such financial statements shall be received by Lessor and such lender or purchaser in confidence and shall be used only for the purposes herein set forth.
,l7. Le?aofr Lieblilty. The term “Lessor” es used herein shell mean only the owner or owners at the time in question of the fee title or a lessee’s Interest In a ground lease of the Premises. end except as expressly provided in Paragraph 15, in the event of any transfer of such title or interest. Lessor herein named (and in case of any subsequent transfers then the grantor) shall be relieved from and after the date of such transfer of all liability es respects Lessor’s obligations thereafter to be performed. provided that any funds in the hands of Lessor or the then grantor at the time of such transfer, in which Lessee has an interest, shall be delivered to the grantee. The obligationscontained in thib Lease to be performed by Lessor shall, subject as aforesatd. be binding on Lessor’s successors and assigns, only during their respective periods of ownership.
19. Sevorabflfty. The invalidity of any Provision of this Lease as determined bye court Qf competent jurisdiction, shall in no way affect the validity of any other provision hereof.
19. Merest on Past-due Cbllgatfons. Except as expressly herein provided, any amount due to Lessor not paid when due shall bear interest at the maximum rate then allowable by law from the date due. Payment of such interest shall not excuseor cure any default by Lessee under this Lease, Provided. however, that interest shall not be Payable on late charges incurred by Lessee nor on any amounts upon which late charges are pald by Lessee.
20. flmo of Essence. Time is of the essence.
21. Addltlonal Rent. Any monetary obligations of Lessee to Lessor under the terms of this Lease shall be deemed to be rent.
22. fnCOrpOratlOn Of PrfOr AgreementS; Amendmenfs. This Lease contains all agreements of the parties with respect to any matter mentioned herein. NO prior agreement Or understanding pertaining to any such matter shall be effective. This Lease may be modified in writing only, signed by the parties in interest at the time of the modification. Except as otherwise stated ln this Lease, Lessee hereby acknowledqes that neither the real eSf8t8 broker listed in Paragraph 15 hereof noranycooperatinq brokeron thistransaction northe Lesrororanyemployeeroragen)sof anyof said
perSOnS has fflade any Oral Of Written WafrantieS or repreSentattOnS t0 Lessee relativetO the condition Of USe by LeSSee Of Said Premises and Lessee acknowledges that LOSSee assumes all responsibility regarding the Occupational Safety Health Act, the legal use and adaptability of the Premises and the Compliance thereof with all applicable laws and regulations in affect during the term of this Lease except as otherwise specifically Stated in this Lease.
23. Notlces. Any notice required or permitted to be given hereunder shall be in writing and may be given by personal delivery or by certified mail, end if given personally or by mail, shall be deemed sufficiently given if addressed to Lessee or to Lessor at the address noted below the signature of the respective parties, as the case may b,e. Either party may by notice to the other specify a different address for notice purposes except that upon Lessee’s taking possession of the Pfemlses, the Premises shell constitute Lessee’s address for notice purposes. A copy of all notices required or permitted to be given to Lessor hereunder shall be concurrently transmitted to such party or parties at such addresses as Lessor may from time to time hereafter designate by notice to Lessee.
24. WalvWS. NO waiver by Lessor or any provision hereof shall be deemed a waiver of eny other provision hereof or of any subsequent breach by bSSO0 Of the same or any other provision. Lessor’s consent to. or approval of any act. shalt not be deemed to render unnecessary the obtaining of LeSSOr’S consent to or approval of any subsequent act by Lessee. The acceptanceof rent hereunder by Lessor shall not be a waiverof any praalng breach by Lessee of any provision hereof, other than the failure of Lessee to pay the particular rent so accepted, regardlessof Lessor’s knowledge of such preceding breach et the time of acceptance of such rent.
25. Recordlng. Either Lessor or Lessee shall, upon request ot the other, execute, acknowledge and deliver to the other a “short form” memorandum of this Lease for recording purposes.
remedies at law or in equity.
29. Covenanls and Condlflons. Each provision of this Lease performable by Lessee shall be deemed both a covenant and a condition.
29. Blndlng Elfect; Cholceof Law. Subject to any provisions hereof restricting assignment or subletting by Lessee end subject to the provisions of Paragraph 17. this Lease shall bind the parties, their personal representatives. successors and assigns. This Lease shell be governed by the laws of the State wherein the Premises are located.
30. Subordlnallon.
(a) This Lease. at Lessor’s option, shalt be subordinate to any ground lease. mortgage, deed of trust. or any other hypothecatlon or security now or hereafter placed upon the real property of which the Premises are a part and to any and all advances made on the security thereof and to all renewals, modifications, consolidations. replacements and extensions thereof. Notwithstanding such subordination, Lessee’s right to quiet possession of the Premises shall not be disturbed it Lessee is not in default and so long as Lessee shall pay the rent end observe and perform all of the provisions of this Lease, unless this Lease is otherwise terminated pursuant to its terms. If any mortgagee, trustee or ground lessor shall elect to have this Lease prior to the lien of its mortgage, deed of trust or ground lease, and shall givewritten notice thereof to Lessee. this Lease shall be deemed prior to such mortgage, deed of trust. or ground lease, whether this Lease is dated prior or subsequent to the date of said mortgage. deed of trust or ground lease or the data of recording thereof.
(b) Lessee agrees to executeany documents required to effectuate en attornment, a subordination orto make this Lease priorto the lien of any mortgage, deed of trust or ground lease, as the case may be. Lessee’s failure toexecutesuch documents within 10 days after written demand shall constitute a material default by Lessee hereunder, or, et Lessor’s option, Lessor shall execute such documents on behalf of Lessee as Lessee’s attorney-in-fact. Lesseedoes hereby make, constitute and irrevocably appomt Lessor as Lessee’s attorney-in-fact and in Lessee’s name, place and stead, to execute such documents in accordance with this paragraph 30(b).
31. Atlorney’r Fees. If either party or the broker named herein brings en action to enforce the terms hereof or declare rights hereunder, the prevailing party in any such action, on trial or appeal. shell be entitled to his reasonable attorney’s fees to be paid by the losing party es fixed by the court. The provisions of this paragraph shall inure to the benefit of the broker named herein who seeks to enforce a right hereunder.
32. Lessor’s Access. Lessor end Lessor’s agents shall have the right to enter the Premises et reasonable times for the purpose of inspecting the same, showing the same to prospective purchasers, lenders, or lessees. and making such alterations, repairs, improvements or additions to the Premises or to the building of which they are a part es Lessor may deem necessary or desirable. Lessor may et any time place on of about the Premises any ordinary “For Sale” signs and Lessor may at any time during the last 120 days of the term hereof place on or about the Premtses any ordinary “For Lease” signs, all without rebate of rent or liability to Lessee.
33. Auctions. Lessee shall not conduct, nor permit to be conducted, either voluntarily or involuntarily, any auction upon the Premises wlthout first having obtained Lessor’s prior written consent. Notwithstanding anything to the contrary in this Lease. Lessor shall not be obligated to exercise any standard of reasonableness in determining whether to grant such consent.
34. Signs. Lessee shall not place any sign upon the Premises without Lessor’s prior written consent except that Lessee shall have the rqht. without the prior permission of Lessor to place ordinary and usual for rent or sublet signs thereon. .
35. Merger. The voluntary or other surrender of this Lease by Lessee, or a mutual cancellation thereof, or a termination by Lessor, shall not work a merger, and shall, at the option of Lessor, terminate all or any existing subtenancies or may, at the option of Lessor, operate as an asslgnmenl 10 Lessor of any or all of such subtenancies.
38. Consenls. Except for paragraph 33 hereof, wherever in this Lease the consent of one party is required toari act of the other party. such consent shall not be unraasonehly .‘--.‘hV’Y.
37. Gurrmtor. In the event that there is e guarantor of this Lease, said guarantor shell have the same obligations as Lessee under this Lease.
39. OufetPossesafon. Upon Lessee paying the rent lor the Premises and observing end Performing ail of the covenants, conditions and provisions on Lessee’s part to be observed and performed hereunder, Lessee shall have quiet possessiOn of the Premises for the entIre term hereof
subject to ait of the provIsions of thus Lease. The individuals executing this Lease on behalf of Lessor represent and warrant to Lessee that they sre
fully authofized and legally capable of executing this Lease on behalf of Lessor end that Such execution is binding upon all partles holding an ownership interest in the Premises.
Inltlals:
GROSS -5-
IIons. In the event that Lessee has any multiple options to extend or renew this Lease a later optio extend or renew this Lease has been so exerctsed.
(al Lessee shal time commencing from the date alleged In satd notlceof defa Lessee and unpaid (wllhOul default clescrlbed rn paragra event that Lessor has gtven paragraph 13.4 for each of s that Lessee Intends to exerctse the subject
(b) The period of trme within whrch an Optio
ntrary. (I) dunng the
essee). or (IV) the mes payable under cod prior to the hme
exercise an Ophon because of the provistons of tended or enlarged by reason crf Lessee’s inabrlity to
n Option shall terminate and be o e or effect, notwlthstanding Lea ch exercise and during the term of this Lease, (i) Lessee fail r a monetary oblt
40. Muftlple Tenant Bullding. In the event that the Premises are part of a larger building or group of bulldings then Lessee agrees that tt will abtde by, keep and observe all reasonable rules and regulations which Lessor may make from time to lime for the management, safety, care, and cleanltness of the bulldIng and grounds, the parking of vehicles and the preservation of good order theretn as well as for the conventence of other occupants and tenants of the bullding. The vtolattons of any such rules and regulations shall be deemed a maternal breach of thts Lease by Lessee.
41. Security Measures. Lessee hereby acknowledges that the rental payable to Lessor hereunder does not include the cost of guard service or other secunty measures, and that Lessor shall have no obligation whatsoever to provide same. Lesseeassumes all responsibility for the protection of Lessee. 11s agents and invftees from acts of thud partlea.
42. Easements. Lessor reserves to itself the right, from time to time, to grant such easements, rightsanddedications that Lessordeemsnecessary or desirable. and to cause the recordatton of Parcel Maps and restrictions. so long as such easements, rtghts. dedications, Maps and restrictIons do not unreasonably interfere wtlh the use of the Premises by Lessee. Lessee shall stgn any of theaforementioned documents upon request of Lessor and failure to do so shall constitute a material breach of this Lease.
43. Performance Under Protest. If at any time a dispute shall arise as toanyamount or sum of money to be paid byoneparty to theother underthe prowsIons hereof. the party agamst whom the obhgation to pay the money is asserted shall have the right to make payment “under protest” and such payment shall not be regarded as a voluntary payment. and there shall survive the right on the part of said party to institutesuit for recovery of such sum. If It shall be adjudged that there was no legal obltgation on the part of said party to pay such sum or any part thereof, said party shall be entitled to recover such sum or so much thereat as tt was not legally required to pay under the provisions of thts Lease.
44. Authority. If Lessee is a corporation, trust. or general or limited partnership each individual executing this Lease on behalf of such entity represents and warrants that heorshe is duly authortred to execute and deliver this Lease on behalf of said entity. If Lessee is a corporatton. trust or partnership, Lessee shall. within thirty (30) days after execution of this Lease, deliver to Lessor evidence of such authority satisfactory to Lessor.
45. Conflict. Any conflict between the printed provisions of this Lease and the typewritten or handwritten provisions shall be controlled by the typewritten or handwritten prowsions.
46. Addendum. Attached hereto is an addendum or addenda contaming paragraphs 47 through 48 which constitutes a part of thts Lease.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN 4ND. BY EXECUTION OF THIS LEASE, SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.
IF THIS LEASE HAS BEEN FILLED IN IT HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY FOR HIS APPROVAL. NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN tNDUSTRtAL REAL ESTATE ASSOCIATION OR BY THE REAL ESTATE BROKER OR ITS AGENTS OR EMPLOYEES AS TO THE LEGALSUFFICIENCY, LEGAL EFFECT, OR TAX CONSEOUENCES OF THIS LEASE OR THE TRANSACTION RELATING THERETO: THE PARTIES SHALL RELY SOLELY UPON THE ADVICE OF THEIR OWN LEGAL COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
The partles hereto have l xeculed this Lease at the placr on the dates speclflrd Immedlrtely l dlacont lo thetr r8spectlve slgnotures.
Executed at The City of Carlsbad
on _.-__--_..- _ -___--. LI BY
Address BY
“LESSOR” (Corporate sear)
Executed at CarkbadUnified School District
on BY
Address
“LESSEE’ (Corporate seal)
For these fOrmS wrlte or Call the American lndustfiat Reel Estate Assootetion, 245 South Figueroa St, M-l, Los Angeles CA 90071 (213) 687-8777 Form 105g 780
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LEASE ADDENDUM
47. Notwithstanding anything else contained in this Lease to the contrary, Lessee shall have the right to terminate this
Lease at any time by giving thirty (30) days prior written notice to Lessor. In the event of such termination, rent and all other sums payable by Lessee under the terms of this Lease shall be prorated as of the date of such termination, and any amounts owed by Lessor to Lessee or by Lessee to Lessor shall be due and payable thirty (30) days following the date of such termination.
48. Lessee shall not have the right to hold over after the end of the ten (10) year term of this Lease unless Lessee delivers to the City, within one hundred eighty (180) days prior to the end of said term, written notice that it desires to continue this Lease on a month-to-month basis at Fair Market Rental Value together with a one-time only sum payable as consideration for extension of this Lease on a month-to-month basis in an amount equal to two percent (2%) of the sum of rent paid by Lessor to Lessor pursuant to the terms hereof during the ten (10) year term.
For purposes of paragraph 48, “Fair Market Rental Value” shall be determined, as follows:
W At least 180 days prior to the date ten (10) years after commencement of this Lease (“Tenth Anniversary Date”), Lessee and Lessor shall attempt to reach agreement as to the Fair Market Rental Value.
(ii) In the event that Lessee and Lessor are unable to agree upon a Fair Market Rental Value within such period, then no later than the 150th day prior to Tenth Anniversary Date, Lessee and Lessor shall jointly attempt to agree on the appointment of a real estate appraiser who is a member of the American Institute of Real Estate Appraisers or any successor thereto (or in the event the American Institute or Society of Real Estate Appraisers or any successor shall not then be in existence, a disinterested real estate appraiser having appropriate qualifications to appraise commercial real estate as set forth immediately below), with at least ten (10) years professional experience in Southern California in appraising land and improvements similar to the leased premises. All appraisers selected pursuant to the provisions hereof shall be impartial and unrelated, directly or indirectly, so far as employment of services is concerned, to any of the parties hereto, or their
successors. The cost of the services performed by such appraiser shall be borne equally by the parties. The single appraiser jointly appointed by the parties shall determine the “Fair Market Rental Value” in the manner herein specified and shall render his or her appraisal within one hundred twenty (120) days after said appraiser has been selected.
(iii) Failing the joint action within the time specified in (b) above, Lessee and Lessor shall each within an additional fifteen (15) days, separately at its own cost designate any appraiser meeting the qualifications stated in paragraph (ii) above. If two appraisers are appointed and they concur on the Fair Market Rental Value, the Fair Market Rental Value determined by them shall be the Fair Market Rental Value. If the appraisers do not concur, and the difference between the respective higher and lower determinations of Fair Market Rental Value is an amount less than ten percent (10%) of the amount of the higher determination of the Fair Market Rental Value, the mean average of the two determinations shall be the Fair Market Rental Value. The two appraisers shall render their respective appraisals within one hundred twenty (120) days after they have been selected.
(iv) If the difference between the two deter- minations exceeds the amount specified above, the two appraisers shall jointly select a third appraiser meeting the qualifications set forth in paragraph (ii) above, and if they are unable to agree on a third appraiser either of the parties to this Lease, by giving fifteen (15) days notice to the other party, may apply to the presiding judge of the Superior Court of San Diego County to select a third appraiser who meets the qualifications set forth in paragraph (ii) above. The third appraiser, however selected, shall be a person who has not acted in any capacity for either party. Within fifteen (15) days from the date of the selection of the third appraiser, all three appraisers shall meet and the first two appraisers shall present to the third appraiser all of their findings, data and conclusions as to the Fair Market Rental Value. The third appraiser shall review all such findings, data and conclusions, and shall determine which of the two appraisers’ respective determinations is the more reasonable determination. The third appraiser shall not be permitted to make any other independent determination of Fair Market Rental Value. The appraiser’s determination found by the third appraiser to be the most reasonable determination shall be the Fair Market Rental Value. The third appraiser’s conclusion shall be reached within one
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hundred twenty (120) days from the selection of the third appraiser, The expenses related to the selection and services of the third appraiser shall be shared equally by the District and the City.
(VI In the event that the final determination of Fair Market Rental Value occurs after the Tenth Anniversary Date, the Fair Market Rental Value, as determined shall nonetheless commence concurrently with the first day of the Lease term following the expiration of the initial ten (10) year term.
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RESOLUTION NO. 102
A RESOLUTION OF THE HOUSING AND REDEVELOPMENT COmISSION
OF THE CITY OF CARLSBAD, CALIFORNIA, ACCEPTING THE LOAN OF
$200,000 FROM THE CITY OF CARLSBAD FOR RELOCATION ASSISTANCE FOR THE CARLSBAD UNIFIED SCHOOL DISTRICT.
WHEREAS, the Carlsbad Housing and Redevelopment Commission intends
to enter into an agreement with the Carlsbad Unified School District to
bassist in relocation of offices; and
WHEREAS, the Housing and Redevelopment Commission requires the loan
,of $200,000 from the City to provide funding for this project; and
WHEREAS, the Housing and Redevelopment Commission finds that suffi-
~ cient unobligated funds are not available within the Agency's existing
~ funds; and
WHEREAS, said loan of $200,000 will be repaid to the City of
Carlsbad at an interest rate of 8% per year with annual payments due at
,the end of each year in the amount of $29,800 for ten years; and
I NOW, THEREFORE, BE IT RESOLVED by the Housing and Redevelopment
ICommission of the City of Carlsbad, California, as follows:
1. That the above recitations are true and correct.
2. That said loan of funds is accepted.
I PASSED, APPROVED AND ADOPTED at a special meeting of the Housing and
'Redevelopment Commission of the City of Carlsbad, California on the 5th
day of April, 1988, by the following vote, to wit:
AYES: Commissioners Lewis, Kulchin, Pettine, Mamaux and Larson
NOES: None
ABSENT: None
L-x----
ALETHA L. RAUTENKRANZ,