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. ", CITY OF SANTA MONICA" ~!.
CITY ATTORNEY'S OFFICE MEMO
DATE: June 10, 1982
TO: Carol Korade
FROM:: Barbara C. Fox, Law Clerk
SUBJECT: Sea Colony Bikeway Lease
According to Stan Scholl, General Services, the bikeway involved in
the lease has already been constructed. The SeaColony Homeowners
Association will not sign the lease or pay the City the agreed upon
amount ($35,000) until the gate they require for their security is
installed. The gate cannot be installed until the Coastal Commission
gives its approval.
According to John Jalili, Assistant City Manager, the Coastal Comm'n
will not approve construction of the single gate. It is withholding
its approval until the entire redevelopment area involved is approved
by the City Council. Jalili will be presenting the redevelopment
plan to the Council on June 15 and July 6, 1982. He expects to get
City Council approval, and Coastal Commission approval by the
beginning of September, 1982.
At that time the lease should be presented to Sea Colony for
signatures and payment, and the gate can be constructed immediately.
Sea Colony Homeowner's Association I phone number is 392-842l.
Sea Colony Homeowner's Association II phone number is 392~8877.
Represent tives of both will need to sign the lease. The $35,000
is a one t1 e only payment. Marty has a copy of the map Exhibit "A".
The pro osed Addendum to Lease contains terms and conditions not
found i the Standard Industrial Lease.
r
. . ~ .
~
ADDENDUM TO LEASE
~ 48. Paragraphs 6.3(a), 12.2, 15, 39.1, 39.2, 39.3, 39.4
are herein deleted and shall have no force and effect.
. 49. c;ONSTRUCTION
(a) It is the intent of Lessor and Lessee to have
constructed a concrete walkway and bikeway, along with
lighting and landscaping in a north to south configuration
over the property owned by lessor (pursuant to Contract
Number 3703(ccs) and Change Order Number 1, Item Number 2).
The specific area is hereinafter referred to as the Premises.
(b) It shall be the responsibility of Lessor to
construct the walkway/bikeway, but all expenditures thereafter
for maintenance, improvements, replacement or for any other
purpose shall be the sole responsibility of Lessee.
(c) It shall be the responsibility of Lessor to
construct the walkway/bikeway for a total of $85,200. The
Lessee's rental payment of $35,000 shall be used to offset
part of the construction costs. Upon payment of the
construction costs by Lessor, Lessor shall 'cease to have
any further financial obligation for the balance of the
Lease Term.
50. USE OF PREMISES -
(a) Lessee expressly agrees to use the Premises
continuously during the Lease Term for purposes of
providing a north/south walkway and bikeway.
(b) Lessee shall be permitted to lock the gate at the
north end of the Premises to restrict both bicycle and
pedestrian traffic from dUSk to dawn for purposes of increasing
the security of the adjacent residential developments.
From dusk to dawn, the Premises can be restricted to residents
of the adjacent residential developments, their guests and
other necessary personnel designated by Lessee for the
proper maintenance and sec~tA of the preyises and adjacent bl'
areas. AT cUi ()t~ -f-i~ vt'mtJ<< sAPt/, bt Of~ +0 #u. f U I 0 ~
51- LIABILITY -LESSOR NOT LIABLE
Lessor shall not be liable to Lessee for any damage
to Lessee or Lessee's property for any cause, nor shall
Lessor be liable for any latent or patent defect in the
Premises or adjoining areas. Lessee shall give prompt notice
to Lessor in case of fire or accident on the Premises which
result in damages to the accessway or adjoining improvements,
but Lessor's receipt of such notice shall not impose upon
Lessor any duty, liability or obligation which it has not
expressly assumed or w~ch it has disclaimed in the Lease.
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. ' . .
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52. INSURANCE
(see attached)
. .
. 53. ATTORNEY'S FEES
If Lessor shall engage the services of an attorney
for the purpose of collecting any rent, additional rent,
or other sums due from Lessee, having first given Lessee
five days notice of its intention to do so, Lessee shall
pay the reasonable fees of such attorney regardless of the
fact that no legal proceedings or action may have been
filed or commenced.
54. GENERAL PROVISIONS
Csee attached)
-2-
,y/lUU.{/ldA1Cf - (f/~O;;L)
. -. (q0 )
5:1, a. Tenant's Insurance Obligations. Tenant agrees
~ that from and after the date of delivery of the Premises from
Landlord to Tenant, Tenant shall carry and maintain at its own
, cost and expense the following types, amounts and forms of
insurance:
(l) Public Liability Insurance. Public liability
insurance for any and all liability arising out of the
maintenance or use of the Premises in an amount not less than "~1
~50 ,~~~ per pers~p; and,_$500, 000 per<?~;;~'~~~~~, a~~~$lOO !:~_~Q/ >>~.) .
for loss resulting in damage to or destruction ~f pr~~rty. A
~_.._".,---<,------_.--~--......,..-,;...-. ~-~--
combined single limit policy with aggregate limits in the amount
of~_rJ>_~~,O~O will be considered equivalent to the required
minimum limits. All such bodily injury and property damage
insurance shall specifically include, in addition to the above,
contractual liability insurance covering the insuring provisions
of this Lease and the performance by Tenant of the indemnity
agreements in Section 6cabove.
(2) Workers' Compensation Insurance. Workers'
Compensation Insurance shall comply with the applicable law in
the county and state where the Premises are located. ~/
(3 ) Policy Provisions. All of the policies
required to be obtained by Tenant pursuant to the provisions of
~
(;
L
-3 -
. ~~ {fl, ;} 1J :;,)
the this section shall be with companies and in policies whose
form is satisfactory and acceptable to Landlord.~~~ch policy
. shall designate Landlord as an additional named insured. '"'
il-
Although named as an insured, Landlord shall be entitled to ' 'It'
. }j;;?
.
recover under said policies for any loss occasioned to it, its
servants, agents and employees by reason of the negligence of
Tenant. ! Tenant shall provide Landlord with certificates of
insurance issued by each of the insurance companies issuing any
of the policies required pursuant to the provisions of this
section, and said certificates shall provide that the insurance
issued thereunder shall not be altered or cancelled until after
30 days written notice to Landlord. All public liability,
property damage and other casualty pOlicies shall be written as
primary policies, not contributing with and not in excess of
coverage which Landlord may carry. Tenant may satisfy its
insurance obligations hereunder by carrying such insurance under
a "blanket" policy or pOlicies of insurance.
b. Waiver of Subrogation Rights. Tenant agrees that
in the event of loss due to any of the perils for which it has
~ agreed to provide insurance, that Tenant shall look solely to
~ ~ its insurance for recovery. Tenant hereby grants to Landlord on
_/ behalf of any insurer providing insurance to either Tenant or
Landlord with respect to the Premises, a waiver of any right of
subrogation which any such insurer of said Tenant may acquire
against Landlord by virtue of the payment of any loss under such
insurance.
(t~
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-1- 7
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.
.
Sf 0!J .. Interpretation. The language in all parts of this
Lease shall be in all cases construed simply according to its
fair meaning, and not strictly for or against Landlord or
Tenant. Any reference to any section herein shall be deemed to
include all subsections thereof unless otherwise specified or
reasonably required from context.
Ch) <<;. Landlord and Tenant Relationship. Nothing
contained in this Lease shall be deemed or construed to create
the relationship of principal and agent or of partnership or of
joint venture or of any association between Landlord and Tenant,
and neither the provisions contained in this Lease nor any acts
of the parties hereto shall be deemed to create any relationship
between Landlord and Tenant other than the relationship of
Landlord and Tenant.
-. ---'------- . ----~--_..- ----~
--
-<; )-
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. STAN. INDUSTRIAL LEA" NET ~
~ AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION ;jJ;.
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1. PllrII... This Lease, dated, for reference purpQSeS only, 9J-.0U.. ,19 &;C , is made by and
between -rile (if'1 elf J(),c-fr.. !J!Jy![co.. , cA ,?" PM :;;; f f;> (,it, tJ]\.J
j', .,Ill 'CA, ,
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Se.u. CD!.":;J li Oi'YlRVWV/C,c)? q-::soc 1ft-I d-, (herein called "Lessor"}
1-. and :J -~ S(f, ('pI", :II
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D I.- t' :' ( !\' .,-,.-;' {./v ;; I ;)1:i' 'A " I 1')C U y. J'Y~ ((~JJ
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Said real property including the land and all improvements therein, is herein called "the Premise&".
3. T.......
3.1 Term. The term of this Lease shall be for
commencing on and ending on ..:2 0'37
unless sooner terminated pursuant to any provision hereof.
3.2 D~ In Pou....on. Notwithstanding said commencement date, If for any reason Lessor cannot deliver possession of the Premises to
Lessea on sai 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 until possession of the Premises is tendered
to Lessee; provided, 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 Lessorwithin ten (10) days thereafter, cancel this Lease, in which event the parties shall
be discharged from all obligations hereunder; provided further, however, that if such wrillen notice of Lessee is not received by Lessor within said
ten (10) day period, Lessee's right to cancel this Lease hereunder shall terminate and be of no further force or effect. -
3.3 Early Poueulon. 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 Lessee shall pay rent for such period at the initial monthly rates set forth ,below.
4. Rent. Lessee shall pay to Lessor as rent for the Premises~ paymentltOf $ :J ':S J 000 'Z. ;m....:l.A .. e~
'i -der Qf!.e~ m~R~''''l~el__r. L.a_... a;~J... ~a1~ ~1lI~~' upocJ'I:;;A':I"ulion.f")8te'Of$ as rent for i-Ae / e4.J.e ~
;
;)i-'!"0 ;0'.1 J(J'UU cr -ff1t: ",'H.t'(f(rc /f{ ( "6 -r/<ic> LeaSGI
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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 oflhe United States to Lessor atlhe address stated herein or to such other persons or a!Such other places as Lessor may
designate in writing.
i- 5. Securlly Deposit. Lessee shall deposit with Lessor upon execution hereof $ 9 as security for Lessee's faithful
performance of Lessee's obligations hereunder. If Lessee fails to pay rent or other charges due hereunder. or otherwise defaults with respect to any
provision oflhis Lease, Lessor may use, apply or retain all or any portion of said deposit for the payment of any rent or other charge in default orlor
the payment of any other sum to which Lessor may become obligated by reason of Lessee's default, orto 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 wrillen
demand therefor deposit cash with Lessor in an amount sufficient to restore said deposit to the full amount hereinabove stated 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 not be
required to keep said deposit separate from its general accounts, If Lessee performs all of Lessee's obligations hereunder. said deposit, or so much
thereof as has not theretofora been applied by Lessor, shall be returned, without payment of interest orother 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
P.remises, No trust relationShip Is created herein between Lessor and Lessee with respect to said Security Deposit.
6. U...
. ,6.1 U..: The Pr~ises shall be used and occupied only for
j,'-. ,..,. ., . .tJ' d..c ~ ,...
or any ot~r use hich is reasonably co arable and for no ther purpose.
6,2 Compliance with Law.
(a) Lessor warrants to Lessee that the Premises. In lis state existing on the datethatlhe Lease term commences, but without regard to the
use for Which Lessee will use the Premises, does not violate any covenants or restrictions of record, or any applicable building code, regulation 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 event
Lessee does not give to Lessor written notice of the violation of this warranty within six months from the datil that the Lease term commences, the
correction of same shall be the obligation ofthe 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 oflhis Lease, Lessee was the owner Or occupant ofthe 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 promplly with all applicable statutes, ordinances,
rules, regulations, orders, covenants and restrictions of record, and requirements in effect during the term or any part of the term hereof, regulating
the use by Lessee of the Premises. Lesseeshall not use nor permit the use of the Premises in any manner that will tend to create waste or a nuisance
or, if t!>ere shall b&;fnore than one tenant in the building containing the Premises. shall tend to disturb such other tenants.
6:3''Condltlon ~PramlseL c' .
~"'P- Z (a)1.essor sh~liver the Premises to Lessee clean and frlle of debrl~on Lease commencement datEr (unless Lessee Is already in , LL
. '0' possession) and ..essor fu her warr~essee that theplumbing. Iightln~, alrcO'nditloning, heating, and loading doors in the Premises shall be, "y'
\) in good operating C()ndition n the L e c?mmenc:ement date, In the e~enlt at it is deternlined thalthis warranty has been violated, then it shall ~i';'j. ;/
, . '.' the obligation of LeSSo,r, after celpt of wfltten notice from Lessee selling forth With speCifiCity the nature of the Violation, to promptly, at Lessor s.....
. ';: sole cosl. rectify such vlolation, essee's failure to give such wrillen notice to Lessor within thirty (30) days after the Lease commencement date
" I shall cause the conelusiVa'presu . ption that Lessor has complied with all of Lessor's obligations hereunder, ',he warranty contained in this
, paragrallh &;3"(a) sh~ be of nofc;>r e or effect if prior to the date of this Lease, Lessee was the owner or occupan: of the Premises.
(b) Except as otherwise provided in this Lease, Lessee hereby accepts the Premises in their condllion existing as of the Lease
commencement date or the date that Lessee takes possession of the Premises, whichever Is earlier, subject to all applicable zoning, municipal,
county and state laws. ordinances and regulations gOVernin~ and regulating the use of the Premises, and any covenants Or restrictions of record.
and accepts this Lease subject thereto and to all mailers disc osed thereby and by any exhibits attached hereto. Lessee acknowledges that neither
Lessor nor Lessor's agent has made any representation or warranty as to the present or future suitability of the Premises for the conduct of Lessee's
business.
7. Maintenance, Repal" end Alterations.
7.1 laseee's Obligations. Lessee shall keep in good order, condition and repair the Premises and every part thereof, structural and non
structural, (whether or not such portion oflhe Premises requiring repair, or the means of repairing the same are reasonably or readily accessible to
Lessee, and whether or not the need for such repairs occurs as a result of Lessee's use, any prior use. the elements or the age of such portion ofthe
Premises) including, without limiting the generality of the foregoing, all plumbing, heating, air conditionln~, (Lessee shall procure and maintain, at
Lessee's expense, an air conditioning system maintenance contract) ventilating, electrical, lighting facilities and equipment within the Premises,
fixtures. walls (interior and exterior), foundations, ceilings, roofs (interior and exterior), floors, windows, doors, plate glass and skylights located
within the Premises, and all landscaping, driveways, parking lots, fences and signs located on the Premises and sidewalks and parkways adjacent
to the Premises.
7,2 Surrender. On the last day of the term hereof, or on any sooner termination, Lessee shall surrender the Premises to Lessor in the same
'ondition as when received, ordinary wear and tear excepted, clean and free Of debris. Lesaee shall repair any damage to the Premises occasioned
lnlllall:
vican Industrial Real Estate Association 1980 NET
r e e
.
by theln.tallatlon or removal of L_'. trade fixtures. fuml.hlng. and equipment Notwithstanding anything to the contrary Otherwise atated In
this Lease. Lessee .halll..vethe air line., power panels. electrical dl.trlbutlon .y.tem..llghtlng flxtur88, apace h..ters, air conditioning. plumbing
and fencing on the praml_ In good operating condItion.
7.3 LftMr'. Rights. If L_falla to perform L....... obligation. underthl. Paragraph 7. or under any other paragraph ofthl.l.eaM. Lessor
may at Its option (but shall not be required to) enter upon the Preml.e. after ten (10) deys' p-rlor written notice to L..... (except In the caae of an
emergency, In which ca.e no notice shall be required), performauch obligation. on L_. behalf and putthasameln good order, condition and
repair, and the cost thereof together with Interest thereon at the maximum rate tte'l allowable by law .hall become due and payable.. additional
rental to Lessor together with Lessee's next rental Installment.
7.4 Lessor'. Obligations. Except forthe obll~ations of Lessor,under Paragraph 6.2(a) an6&.3taHrelatlAIl to \ales.r'. .u.rrentyJ, Paragraph 9
(relaling to destruction ofthe Premises) and under aragraph 14 (relating to condemnation ofthe Preml_), it IS intended by the part,.. hereto that
lessor have no obligation, in any manner whatsoever, to repair and maintain the Premls.. nor the building located thereon nor the :lulPment
therein, whether structural or non structural, all of which Obllp,atlOnS are intended to be that of the Lessee under Paragraph 7.1 hereo . Less..
e . ressly waives the benefit of eny statute now or hereinafter n effeCt which would otherwise afford Lessee the right to make repairs at Lessor's
xpense or to terminale this Lease because of L or'. failure to k..p the premi.es In good order, condition and repair.
.5 Alleratloml and Addltl-. ~ .-
a) Less.. shall not, withou ' or'. P . r r onsent make any alteration . Improvements, additions. or Utility Inatallatlons in, on or
about th remises, except for nonstructural alterations not exceeding $2.500 In c uletive costs during the term of this Lease. In any event,
whether or ot in excess of $2,500 In cumulative cost, lessH fhall make no chang r alteration to the exterior of the Premises nor the exterior of
the building on the Premises without Lessor's prior wr'tte" consent As use In this Para~raPh 7.5 the term "Utility Inlltallation" .hall mean
carpeting, win w coverings. air lines, power panels, electrical distribution s ems, lighting ixtures, space h..ters, air conditioning, plumbing,
and fencing, les r may require that lessee remove any or all of said alterat' s, improvements, additions or Utility Installations atthe expiration of
the term, and rest the Premises to their prior condition. lessor may r ulre lessee to provide lessor, at Lessee's sole cost and expense, a lien
and completion bon in an amount equal to ona and one-half times th timated cost of such improvements, to Insure Lessor against any liability
for mechanic's and m erialmen's liens and to insure completion the work, Should Lessee make any alterations, improvements, additions or
Utility Installations with tthe-prior approval of lessor, Lessor ay require that lessee remove any or all of the same.
(b) Anyalteratio ,improvements, additions or Utili Installations in, or about the Premises that Lessee shall desire to make and which
requires the consent of the ssor shall be presented to Le or in written form, with proposed detailed plans. If Lessor shall give its consent, the
consent shall be deemed con itioned upon Lessee acqu' ng a permit to do so from approprialegovernmental agencies, the furnishing of a copy
thereol to Lessor prior to the co mencement ofthe wo and the compliance by Lessee of all conditions of said permit in a prompt and expeditious
manner.
(c) Lesseeshallpay.wh due, all claim or labor or materials furnished or alleged to have been furnished to or for Lessee at or for use In
the Premises, which claims are or m be s&cu y any mechanics' or materialmen's lien againstthe Premises or any interesttharain. Lesseeshall
give Lessor not less than ten (10) de . noti prior to the commencement of any work in the Premises, and Lessor shall have the right to pO$t
notices 01 non-responsibility in or on t ~ mises 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 ex nse defend itself and Lessor againstthe same and shall pay and satisfy any such adverse judljlmentthat
may be rendered thereon before the e ore entthereof againstthe Lessor orthe Premises, upon the condition that if Lessor shall require, Lessee
shall lurnish to Lessor a surety bon atisfac ry to Lessor in an am.>unt equal to such contested lien claim or damand indemnitylng Lessor against
liability for the~me and holdin he Premise free from the effect of such lien or claim. In addition, Lessor may require Lessee to pay Lessor's
_.' aUor~~~_!l"d ~osts In I! Icipatlng in suc action if Lessor shall decide it Is to its best Interest to do so.
-,~._.. -' - (d) - U'nless Lessor requires their removal, asset forth in Paragraph 7.5(a), 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 become the property of
Lessor and remain upon and be surrendered with the Premises at the expiration of the term. Notwithstanding the provisions of this Paragraph
7.5(d), Lessee's machinery andequlpment, other than that which is affixed to the Premises so that it cannot be removed without material damage to
the Pr\!mises, shall remain the property of Lessee and may be removed by Lessee subject to the provisions of Paragraph 7.2.
.~
8, Insuranca Indemnity.
8,1 Insuring Party. As used in this Paragraph 8, the term "Insuring,f:,rty" sh.aU mean the party who has the obligation to obtain the Property
Insurance required hereunder. The insuring party shall be designated in aragraph 46 hereof, In the event Lessor is the inaurlng perty, Lessor shall
also maintain the liability insurance described in paragraph 8.2 hereof, In addition to, and not In lieu of, the insurance required to be maintained by
Lessee under said paragraph 8.2, but Lessor shall not be required to name Lessee as an additional insured on such policy. Whether the insuring
party is the Lessor or the Lessee, Lessee shall. asaddltional renttorthe Premises, pay the cost of all Insurance required hereunder, except for that
portion of the cost attributable to Lessors liability Insurance coverage in excess of $1 ,000,000 per occurrence. If Lessor is the insuring party Lessee
shall, within ten (10) days following demand by Lessor, reimburse Lessor for the cost of the Insurance so obtained. .'
8.2 Liability Insuranca. Lessee shall, at Lessee's expense obtain and keep in force during the term of this Lease a policy of Combined Sing~,
Limit, Bodily Injury and Property Damage insurance insuring Lessor and Lessee against any liability arising out ofthe ownership, use, occupancy
.or 'ntenance ofthe Premises and all areas appurtenanlthereto, Such insurance shall be a combined single limit policy In an amount nolless than '
500,0 -er'OCcUrr~he policy shall insure performance by Lessee of the indemnity provisions of this Paragraph 8, The limits of sal -
insurance s all nOl, owever, limit the liability of Lessee hereunder.
8.3 Property Insuranea, ?
(a) The insuring party shall obtain and keep in force during the term oUhis Lease a policy or policies of insurance covering loss or damage
to the pre~~, in the amount of the full replacement value thereof, as the same may 1I~~om time to time, which replacement value Is
1 now $ ~-~ 000 , but in no event less than the total amount required by lendt! having liens on the Premises, against all perils eo
included WIthin t e classification of fire, extended coverage. vandalism, malicious mischief, flood (in the event same is required by a lender having a
lien on the Premises), and special extended perils ("all risk" as such term is used In the Insurance Industry). Said insurance shall provide for
payment of loss thereunder 10 Lessor or to the holders of mortgages or deeds of trust on the Premises, The insuring party shall, In addition, obtain
and keep in force during the term of this Lease a policy of rental value Insurance covering a period of one year, with loss payable to Lessor, which
insurance shall also cover all real estate taxes and insurance costs for said pariod. A stipUlated value or agreed amount endorsement deleting the
coinsurance provision of the policy shall be procured with said insurance as well as an automatic Increase in insurance endorsement causing the
Increase In annual property insurance coverage by 2'lb per quarter, If the insuring party shall fall to procure and maintain said insurance the other
party may, but shall not be required to, procure and maintain the same, but at the expense of Lessee, "such insurance coverage has a deductible
clause, the deductible amount shall not exceed $1,000 per occurrence, and Lessee shall be liable for such deductible amount.
(b) lithe Premises are part of a larger building. or ilthe Premises are part ola group of buildings owned by Lessor which are adjacenlto
the Premises, then Lessee shall pay for any Increase in the property Insurance of such other bUilding or buildings if said increase is caused by
Lessee's acts, omissions, use or occupancy of the Premises.
(c) If the Lessor is the insuring party the Lessor will not Insure LeSsee's fixtures, equipment or tenant Improvements unless the tenant
Improvements have become a part of the Premises undar paragraph 7, hereof. But if Les... is the insuring party the Lesseeshllll insure its fixtures,
equipment and tenant improvements.
8.4 Ineuranca Poflcl... Insurance required hereunder shall be in companies holding a "General Policyholders Rating" of at least B 8'U~' or
such other rating as may be required by a lender having a lien on the Premises. as set forth in the most current issue of "Best's Inaurance uide".
The Insuring party shall deliver to the other party copies of policies of such insurance or certificates evidencing the existence and amounts of such
insurance with loss pahable clauses as required by this paragraph 8, No such policy shall be cancellable orsubjectto reduction of coverage or other
modification except a er thirty (30) days' prior written notice to Lessor, If Lessee is the insuring party Lessee shall, at least thirty (30) days prlorto
the expiration of such policies, furnish Lessor with renewals or "binders" thereof, or LesSor may order such insurance and charge the cO$tthereof
10 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. "Lessee does or permits to be done anything which shall Increase the cO$tofthe Insurance policies
referred to in Paragraph 8.3, then Lessee shall forthwith upon Lesaor's demand reimburse Lessor for any additional premiums attributable to any
act or omission or operation of Lessee causing such increase in the cost of insurance. " Lessor is the insuring party, and if the insurance policies
mainlalned hereunder cover other improvements in addition to the Premises, Lessor shall deliver to Lessee a written statemrA~attin~ forth the
amount of any such insurance cost increase and showing in reasonable delallthe manner in which it has been computed. . c9. ,7 ) ;}
8.5 Waiver of Subrogation. Lessee and Les_eech hereby release and relieve the-ether. and waive their entire right of recovery ,ainat the f! 7
other for 100s or damage arising out of or incidantto the perils insured against under paragraph 8.3, which perils occur In, on or about the remises, (0
whether due to the negligence of-lessor or Lessee or their agents, employees, contractors and/or Invitees. Lessee and Lessor shall, upon obta,ining
the policies of Insurance required hereunder, give notice to the insurance carrier or carriers that the foregoing mutual waiver of subrogatIon is
contained in this Lease,
- 8,6 Indamnlty. Lessee shall Indemnify and hold harmless Lessor from and against any and all claima arl~ from Lessee's use of the
-I Premises, or from the conduct of Lessee's business or from eny activity, work or things done, permitted or suffe by Lessee in or about the
Premises or elsewhere and shall further indemnity and hold harmless Lessor from and against any and all claims arising from any breach or default
in the performance of any obligation on Lessee's part to be performed undar the terms of this Lease, or arising from any negligence ofthe Lessee, or
any of Lessee's agents, contractors, or employees. and from and against all costs, attorney's fees, expen_ and liabilities incurred in the dafense of
any such claim or any action or proceeding broughtthereon; and In case any action or procee(jing be brought against Lessor by reason of any such
claim, Lessee upon notice from Lessor shall defend the same at Lessee's expense by counsel satisfactory to Lessor. Les..., as a material part of the
consideration 10 Lessor, hereby assumes all risk of damege to property or injury to persona, in, upon or about the Premises arising from any cause
and Lesslle hereby waives all claima in respect thereof against Lessor.
8.7 Examptlon of ~ from Liability, Lessee hereby agrees that Lessor ahall 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 employees, Invitees, customers, or any
other person in or aboutlhe Premises, nor shall Lessor be liable for injury to the person of Lessee, L_'s employees, agents or contractors,
whether such damage or in/ury Is caused by or results from fire, steam, electricity, gas, water or rain, or from the breakage,leakage, obstruction or
'ther defects of pipes, spr nklers, wires, appliances, plumbing. air conditioning or lighting fixtures, or from any other cause, whether the said
"lage or injury resulls from conditions arising upon the Premises or upon other portions ofthe building of which the Premis811 are a pert, or from
'sources or places and regardless of whether the cause of such damage or injury or the means of repairing the same is inaccesslblelo lessee,
qhall not be liable for any damages arlsin? from any act or neglect of any other tenant, if any, of the building In which the Pramlses are
. . ~
. -..-.-, -,
9.1 DeftnlllonL
(a) "Pramlses Partial Damage" shall herein mean damage or destruction to the Premises to the extent that the cost 0/ repair is less than
, 50% ofthe then replacement cost ofthe Premises, "Premises Building Partial Damage" shail herein mean damage or destruction to the building Of
which the Premises are a part to the extent that the cost of repair is less than 50% of the then replacement cost of such building as a whole.
(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 ofthe then replacement cost ofthe Premises. "Premises Building Total Destruction" shall herein mean damage or destruction to the building
of which the Premises are a part to the extent that the cost of repair is 50% or more of the then replacement cost of such building as a whole.
(c) "Insured Loss" shail herein mean damage or destruction which was caused by an event required to.be covered by the insurence
described in paregraph 8. '
9.2 Partial Damage -Inaured Loa. Subjectto the provisions of parapraPhs 9.4.9,5 and 9.6. if at any time during the term ofthis Leasethere
Is damage which is an Insured Loss and which fails into the classification 0 Premises Partial Damage or Premises Building Partial Damage. then
Lessor shail, at Lessor's expanse, repair such damage, but not lessee's fixtures. equipment or tenant improvements unless the same have become a
part of the Premises pursuant to Paragraph 7.5 hereof as soon as reasonably possible and this Lease shall continue In full force and effect.
Notwithstanding the above, if the Lessee is the insuring party, and If the insurance proceeds received by Lessor are not sufficient to effect such
repair, Lessor shail give notice to leasee ofthe amount required in addition tothe insurance proceeds to effect such repair. Lessee shall contribute
the required amount to lessor within ten days after Lessee has received notice from lessor of the shortage in the insurance. When Lessee shall
contribute such amount to lessor, Lessor shall make such repslrs as soon as reasonably possible and this Lease shail continue In fuil force and
effect. Lessee shall In no event have any right to reimbursement for any such amounts so contributed.
9,3 Partial Damage - Uninsured Loa. 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 fails within the classification of Premises Partial Damage or Premises Building Partial
Damage, unless caused by a negligent or willful act of Lessee (in which event Lessee shail make the repairs at Lessee's expense!, Lessor may at
Lessor's option either (i) repair such damage as soon as reasonably possible at Lessor's expanse, in which event this Lease shail continue in full
force and effect, or (il) give written notice to Lessee within thirty (30) days after the date of the occurrence of such damage of lessor's Intention to
cancel and terminate this Lease, as of the date ofthe occurrence of such damage, In the event lessor elects to flive such notice of lessor's intention
to cancel and terminate this lease, lessee shall have the rightwithin ten (10) days after the receipt of such not,ce to ~ve written notice to Lessor of
lessee's intention to repair such damage at Lessee's expense, without reimbursement from Lessor, in which event t is Lease shall continue in full
force and effect, and Lessee shall proceed to make such repeirs as soon as reasonably possible, If Lessee does not give such notice within such
to-day period this Lease shall be clincelled and terminated as of the date of the occurrence of such damage.
9.4 Total De.tructlon. If at any time during the term of this Lease there is damage, whether or not an Insured loss, (including destruction
requtred by any authorized public authority), which falls into the classification of Premises Total Destruction or Premises Building Total
Destruction. this lease shall automatically terminate as of the date of such total destruction.
9,5 Damage N_ End 0' Term.
(a) If at any time during the last six months ofthe term ofthis 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 0' the date of occurrence of such
damage by giving 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 eventthat 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 to do so
within 10 days after the expiration of said 20 day period. notwithstanding any term or provision in the grant of option to the contrary.
9,6 Abatement 0' Aent; L-.a'a Aemedles.
(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 proportion 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 restoration.
Ib) 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 accure, Lessee may at Lessee's o~tion 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 suc repair or restoration. In such event this Lease
shall terminate as of the date of such notice.
9,7 Termination - Advance Payments. Upon termination ofthis Lease pursuantto 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
security deposit as has not theretofore been applied by Lessor.
9.8 Waiver. lessor and Lessee waive the provisions of any statutes which relate to termination of leases when leased property Is destroyed
and agree that such event shall be governed by the terms of this Lease.
10. Aul Property Taxes.
10.1 Payment 0' Taxes. lessee shall pay the real property tax, as defined In paragraph 10,2, applicableto the Premises during the term ofthis
lease. All such payments shall be made at least ten (10) days prlorto the delinquency date of such payment. Lessee shall promptly furnish lessor
with satisfactory evidence that such taxes have been paid. If any such ta~es paid by Lessee shall cover any periOd ot time prior to or after the
expiration of the term hereof, Lessee's share of such taxes shall be equitably prorated to cover only the period ot time within the tax fiscal year
durln~ which this Lease shall be in effect, and Lessor shall reimburse lessee to the extent required. It Lessee shall fail to pay any, such taxes,Lessor
shall ave the right to pay the same, in which case Lessee shall repay such amount to Lessor with Lessee's next rent instal ment together with
interest at the maximum rate then allowable by law.
10.2 Definition of "Aeal Property Tax". As used herein, the term "real property tax" shall include any form of real estate tax or assessment,
ge'neral, special, ordinary or extraordinary, and any license fee, commercial rental tax, Improvement bond or bonds, levy or tax (other than
Inheritance, personal income or estate taxes) Imposed on the Premises by any authority having the direct or indirect power to tax, including any
city, state or federal government, or any school, agricultural, sanitary, fire, street. drainage or other improvement district thereof, as against any
legal or equitable Interest of Lessor in the Premises or in the real property of which the Premises are a part, as a~alnst lessor's right to rent or other
income therefrom, and as against Lessor's business of leasing the Premises. The term "real property tax" s all also Include any tax, fee, levy,
assessment or charge (i) in substitution of, partially or totally, any tax. fee, levy, assessment or charge hereinabove Included within the definition of
"real property tax." or (i1) the nature of which was hereinbefore included within the definition of "real property tax," or liii) which is imposed tor a
service or right not charged prior to June 1.1978, or, if previously charged. has been increased since June 1,1978. or (iv) which is 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 hereinbefore included within the
definition ot real property tax by reason of such transfer, or (v) which is imposed by reason ofthls transaction, any modifications or changes hereto,
or any transfers hereof,
10.3 Joint A.....ment. If the Premises are not separately assessed, Lessee's liability shall be an equitable proportion of the real property
taxes for all ofthe land and Improvements included within thetax 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.
10.4 P_nal Property Taxes.
(a) Lessee shall pay prior to delinquency all taxes assessed against and levied upon trade fixtures, furnishings, equipment and all other
personal property of Lessee contained in the Premises or elsewhere. When possible. Lessee shall causa said trade fixtures, furnishings, equipment
and all other personal property to be assessed and billed separately from the real prop.erty of Lessor.
(b) If any of Lessee's said personal property shall be assessed with Lessor's real property, Lessee shall pay Lessor the taxes attributable to
Lessee within 10 days after receipt of a written statement setting forth the taxes applicable to Lessee's property,
11. Utllltl... Lessee shall pay for all water, gas, heat, light, power, telephone and other utilities and services supplied to the Premises, together
with 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 jointly metered with other premises.
y- AnIl1llment and Subletting.
12.1 L_f' Con_t Aequlred. Lessee shall not voluntarily or by operation of law assign, transfer, mortgage, sublet, or otherwise transfer or
encumber all of any part of Lessee's Interest in this Lease or In the Premises, without Lessor's prior written consent, which lessor shall not
unreasonably withhold. Lessor shall raspond to Lessee's request for consent hereunder in a timely manner and any attempted assignment, transfer,
mortgage, encumbrance or subletting without such consent shall be void, and shall constitute a breach of this lease.
12.2 I:: _ Aftlllat.. Notwithstanding the provisions of paragraph 12.1 hereof, Lessee may assign or sublet the Premises, or any portion
thereof, w t lessor's consent, to any corporation which controls, Is controlled by or is under common control with Lessee, or to any
corporation res from the merger or consolidation with lessee, or to any parson or entity which acquires all the assets of Lessee as a going
concern of the bustl1 hat is being conducted on the Premises, provided that said assignee assumes, in full, the obligations of Lessee under this
Lease. Any such assilJrlm hall not,ln any way, affect or limit the liability of Lessee under the terms ofthis Lease even If after such assignment or
: subletting the terms of1hls le re materially changed or altered without the consent of Lessee, the consent of whom shall not be necessary.
~, 12.3 No A..... ofL_ Rega lellS o/Lessor's consent, no subletting or allSlgnment shall release Lessee 0' Lessee's obligation or alter the
primary liability of Lessee to pay the rent and to perform all other obligations to be performed br. Lessee hereunder. The acceptance of rent by
Lessor from any other person shall not be deemed to be a waiver by Lessor of any fcrovlsion hereo . Consent to one _ignment orsubletting shall
not be deemed consent to any subsequent assignment or subletting. In the event 0 default by any _Ignee of Lessee or eny successor of Lessee,ln
the performance of any ofthe terms hereof, Lessor may proceed directly against Lessee without the necessity of eXhaUStln~ remedies against said
assignee. Lessor may consent to subaequent assignments or subletting ofthls Lease or amendments or modifications to th s Lease with assigneas
InItIaIe:
NET -1-
,
, of Lessee, without notlfyln~ Lessee, or any successor of Leasee, and without obtaining Its orthelr consent thereto and such actiOn shall not relieve
Lessee of liability under th s Lease.
12,4 "ltomey'a F-. In the event Lessee shall assign or aublet the Premlsee Or request theconaent of LlllI8Orto anbi assignment or subletting
or II Lessee shall request the consent of Leasorfor any act Leasee prop0888 to do then Lessee ahall pay Lassor'a reasona e attorneys '- Incurred
In connection therewith, auch attorneys '- not to exceed $350.00 for each such request.
13. Defaulla; R.......
13.1 D.....1ts. The occurrence of anyone or more of the following avants shall constitute a material default and breach of this Lease by
L.....:
(a) The vaC!t~n90r" abandonment of the Premises by Lessee.
(b) The failure. bjl Lessee tll make am~.p!l)'ment of rent or any other payment required to be made by Lessee hereunder, as and when due,
where such failure shall coriflnuefor aparfod~d8')'Sjifterwrllten notice thereof from Lessorto L8S8ll8.ln theevenlthat Lessoraerves Leasee
with a Notice to Pay Rent or Quit pursuant to applicable Unlawful Detainer statutes su'ch Notice to Pay Rent or Quit shall also constitute the notice
required by lhls subparagraph,
(c) The failure by Lessee to observe or parform any of the covenants, COnditions or provisions of this Lease to be observed or performed
by Lessee, other than described in paragraph (b) abova, where such failure shall continue for a pariod of 30 days after written notice hereoffrom
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
Lessee shall not be deemed to be In default If Lessee commanced such cure within said 3D-day parlod and thereafter dlllgantly proaecutes such
cure to completlo~.
(d) (I) The making by Lessee of any general arrangement or assignment fe,rthe benefit of creditors; (II) Lessee becomes a "debtor" as
defined In 11 U.S.C, ~1 01 or any successor statute thereto (unless, In the case 01 s petition filed against Lessee, the same is dismissed within 60
dSys); (III) the appointment of a trustee or receiver to take possession of substantially all of Lessee's assets loceted althe Premises or of Lessee's
interest .n thiS Lease, where possession Is not restored to Lessee within 30 days; or (Iv) the attachment, execution or other judicial seizure of
substantially ell of Lassee's assets located at the Premises orof Leasee's Interest in this Lease, where such seizure is not discharged within 30 days.
Provided, however. In the eventthat any provision olthls paragraph 13,1 (d) Is contrary toany applicable law, such provision shall be of no force or
effect. _
(e) The discovery boY Lessorthatanyfinanclal statement given to Lessor by Lessee, any assignee of Lessee, any subtenant of L8S8ll8, any
successor In Interest of Lessee or any guarantor of Lessee's obligation hereunder, and any of them, was materially false,
13.2 Remedlea. In the event of any such meterial default or breach by Lessee, Lessor may at any time thereafter, with or without notice or
demand and without limiting Lessor In the exercise of any right 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 Lasseeshall
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 reason of Lessee's defaulllncluding, but not limited to, the cost of recovering possesSion olthe Premises; expenses of relettlng.lncludlng
necessary renovation and alteration olthe Premises, reasonable attorney's fees, and any real estata commission actually paid: the worth at thetime
of award by the court having jurisdiction 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 olthe leasing commission
paid by Lessor pursuant to Paragraph 15 applicable to the unexpired term of this Lease,
(b) Maintain Lessee's right to possession In which case this Lease shall continue In effect whether or not Lessee shall 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 righlto recover the rent
as it becomes due hereunder. .
(c) Pursue any other reme<fy now or hereafter available to Lessor under the laws or judicial decisions olthe state wherein the Premises are
located, Unpaid Installments of rent and other unpaid monetary obligations of Lessee under the terms olthis Lease shell bear interest from the date
due at the maximum rate then allowable by law,
13,3 Default by Lelsor. Lessor shall not be in default unless Lassorfails to perform obligations required of Lassorwlthin a reasonable time,
but in no event later than thirty (30) days after written notice by Lassee to Lessor and to the holder of any lirst mort~ageor deed of Irust covering the
Premises whose name and address shall have theretofore been furnished to lessee in writing, specifying wherein essor has failed to perform such
obligation; 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 default I! Lessor commences performance within such 3D-day period and thereafter diligently prosecutes the same to
completion,
13,4 Lat" Charges. Lessee hereby acknowledges that late payment by Lessee to Lessor of rent and other sums due hereunder will cause
Lessor to incu r costs not contemplated by this Lease. the exact amount of which will be extremely difficult to ascertain. Such costs include, but are
not limited to, processing and accounting charges, and late charges which may be Imposed on Lessor by the terms of any mortiage or trust deed
covering the Premises, Accordingly, I! any Installment of rent or any other sum due from Lessee shall not be received by Lessor or essor's designee
within ten (10) days after such amount shall be due, then, without any requirementfor 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 reprasents a fair and reasonable estimate of the costs Lessor
will incur by reason of late payment by Lessee. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lassee's default
with respecllo such overdue amount, nor prevent Lessor from exercising any oltheother rights and remedies granted hereunder, In theeventthat 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 this 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 obligation of Lessee under the terms olthls Lease, Lessee shall pay to Lessor, I! Lassor shall so request. In addition to any other payments
required under this Lease. a monthly advance installment, payable at the same 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 01 this Lease. Such fund shall be established to Insure
payment when due, before delinquency, of any or all such real property taxes and insurance premiums, If the amounts paid to Lessor by Lessee
under the provisions of this paragraph are Insufficient to discharge the obligations of Lessee to pay such real property taxes and Insur,lnce
premiums as the same become due,lesseeshall pay to Lessor, upon Lessor's demand. such additional sums necessary to pay such obligations, All
moneys paid to Lessor under this paragraph may be Intermingled with other moneys of Lessor and shall not bear Interesl.ln the event of e default in
the obligations of Lessee to perform under this Lease, then any balance remaining from funds paid to Lassor under the provisions olthis 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. Condemnation. if the Premises or any portion thereof are taken under the power of eminent domain, or sold under the threat of the exercise of
said power (all of which are herein called "condemnation"), this Lease shall terminate as to the part so taken as of the date the condemning
authority takes title or possession, whichever Ii rst occurs, if more than 10% olthe floor area of 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 In
writing only within ten (t 0) days after Lessorshail have given Lessee written notice of such takinr (or In the absence of suCh notice. within ten (10)
days after the condemning authority shall have taken possession) terminate this Lease as 0 the date the condemnin~ authority takes such
oossession, if lassee does not terminate this Lease In accordance with the foregoing, this Lease shall remain in full force an effect as tothe portion
of the Premises remaining, except that the rent shall be reduced In the proportion that the floor area of the building taken bears to the total floor area
of the building situated on the Premises, No reduction of rent shall occur I! 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 be made as compensation for diminution In valueolthe leasehold
or forthe taking 01 the fee, or as severance dama~as: provided, however, that Lessee shall be entitled to anr award for loss of or damage to Lessee's
trade fixtur6s and removable personal property. n the event that this Lease is not terminated by reason 0 such condemnation, Lessor shell to the
extent of severance damages received by Lessor in connection with such condemnation, repair any damage to the Premises caused by such
condemnation except to the extent that Lessee has been reimbursed therefor by the condemning authority. Lessee shall pay any amount In excess
of such severance damages required to complete such repair.
~rok"'a Fee.
~ . (a) Upon execution ot this Lease by both parties, Lessor shall pay to
LIcensed real estate
brok ~), a as set forth In a separate agreement between Lessor and said broker(s). or In the event there is no separate agreement between
Lessora~bro r(s), the aum of$ . for brokerage services rendered by said broker(s) to Lessor in this transaction.
(b) sorfurt agrees that ifL8S8ll8 exercises any Option as defined In paragraph 39.1 olthis Lease, which Is granted to Lessee under
f:J this Lease, or ariy,Subseque granled option which is substantially similar to an Option granted to Lessee under thiS Lease, or II Lessee acquires
~ any rights to the Premises or 0 r premises described In this Lease which are sUbstantial~ similar to what Lessee would have acquired had an
'\ '", Option herein granted to Lessee b exercised. or I! Lessee remains In possession of the remises after the expiration of the term of this Lease
\! after having tailed to eXllr{:lse an Optio or if said broker(s) are the procuring cause of any other lease or sale entered into between the parties
~ ' pertaining to the Premises and/or any adla t property in which Lessor has an Interest. then as to any of said transactions, Lessor shall pay said
broker(s) a fee In accordance with the schedu f said broker(s) In effect at the time of execution of this Lease,
(c) Lessor a\lrees to pay sa,id fee not only ehall of Lessor but also on behalf of any person, corporation, association, or other entity
having an ownership onterest In said real property or any thereof. when such fee Is due hereunder. Any transferee of Lessor's Interest In this
Lease, whether such transfer Is by agreetllllnt Or by operation aw, shall be deemed to have assumed Lessor's obligation under this Paragraph 15,
Said broker shall be a third party beneficla)y.,of the provisions of this Paragraph 15,
,1. EatoppeI CarIlfIcaIe.
(a) Lessee shall at any lime upon not less than ten (10) days' prior written notice from Lessor execute, acknowledge and deliver to Lessor a
statement In writin~ (i) certifying that this Leese Is unmodified and.n full force and effect (or,1I modified, stating the nature of such modification and
certifying that this ease, as so modified, Is in full force and effect) and the date to which the rent and other charges are paid in advance. I! any, and
(i1) aCknOWledglnx that there are not, to Lessee's knowledge, any uncured defaults on the part of Lessor hereunder, or specifying such defaults If
any are claimed. ny such statement may be conclusively relied upon by any prospective purchaser or encumDrancer of the Premises,
(b) At Lessor's option, Lessea's failure to deliver such statement within such time shall be a material breach of this Lease or shall be
If_ . lnIlIalI: -
NET' -4-
- 'po' YV T............-.--
II. OpUona.
39.1 Dennltlon. As used In this peragraph the word "Option" e following meaning: (1) the right or option to extend lheterm of this
Lease or to renew this Lease or to extend or renew any I essae has on other property of LlllI8Or: (2) the option or right of first refusal to
lease the Premises or the right of first offer to lease mises orthe right of first refusal to lease other property of Lessor or the right offlrst oHer
to leese other property of Lessor; (3) the ri plion to purchase the Premiaes, orthe right ot first refusal to purchase the Premises, or the right of
first offer to purchase the Pre ' r ght or option to purchase other property of Lessor. or the right of first refusal to purchaae other property
ot Lassor or the rl offer to purchase other property of l.lllI8Or.
....... -
, . . 39.2 0__ PwHneL Each Option glted to Lessee In this Lease are personal to Lessltnd may not be axercised or be assigned,
! voluntarily or involuntarily, by orto any person orentity other than Lessee, provided, however, the 0 tlon may be exercised by or assigned to any
Lessee Affiliate as defined In paragraph 12.2 of this Lease. The Options herein granted to L are notesslgnable separate and apart Irom this
Lease.
39.3 MuHIpIe Option.. In the event that Lassee has any multiple options to
unless the prior option to extend or renew this Lease has been so exercised.
39.4 Effect of DetlIuIt on Optlona.
(a) Lessee shail have no right to exercise an Option, notw' anding any provision In the ~rant of Option to the contrary, (i) during the
time commencing from the date Lessor gives to Lessee a notice elault pursuanlto paragraph 13.1 b) or 13.1 (c) and continuing until the default
alleged in said notice of default is cured, or (Ii) during the . CI of time commencing on the day after a monetary obligation to Lessor is due from
Lessee and unpaid (without any necessity for notice th Ito Lessee) continuing until the obligation is paid, or (Iii) at any time after an event of
delault described in paragraphs 13.1 (a), 13.1 (d). or . (e) (without any necessity of Lessor to 81ve notice of such default to Lessee), or (iv) in the
event that Lessor has ~ven to Lessee three or notices of delault under paragraph 13.1 (b . where a late charge has become payable under
paragraph 13.4 for eec 01 such defaults, oragraph 13.1 (c), whether or not the defaults are cured, during the 12 month period prior to the time
that Lessee intends to exercise the subj ption.
(b) The period of time with' which an Option may be exercised shail not be axtended or enlarged by reeson of Lessee's inability to
exercise an Option because of t rovlsions of paragraph 39.4(a).
(c) Ail rights of Le under the provisions of an Option shall terminate and be of no furtherforce or effect, notwithstanding Lessee's due
and timely exercise ofth ption, if, after such exercise and during the term olthls Lease, (I) Lessee lails to pay to Lessor a monetary obligation 01
Lessee for a period days after such obligation becomes due (withoutany necessitr. 01 Lessor to give notice thereof to Lessee), or (ii) Lessee
fails to com men 0 cure a default speCified in paragraph 13.1 (c) within 30 days after t e date that Lessor gives notice to Lessee of such default
and/or Les ails thereafter to diligently prosecute said cure to completion, or (iii) Lessee commits a default described in paragraph 13,1 fa),
13.1 (d) 3.1 (e) (without any necessity of Lessor to give notice ofsuch defaultto Lessee), or (iv) Lessor Rives to Lessee three or more notices of
dela under peragraph 13,1 (b), where e late charge becomes payable under paragraph 13.4 for each suc default, or paragraph 13.1 (c), whether
or ot the defaults are cured.
4D. Mulllple Tenent Building. In the event thalthe Premises are part of a larger building or group of buildings then Lessee agrees that it will abide
by, keep and observe all reasonable rules and regulations which Lessor may make Irom time to time for the management, salety. care. and
cleanliness 01 the building and grounds, the parking of vehicles and the preservation of good order therein as well as for the convenience of other
occupants and tenants olthe building. The violations of any such rules and regulations shail be deemed a material breach of this Lease by Lessee,
41. Security Me..ura Lessee hereby acknowledges that the rental payable to Lessor hereunder does not include the cost of guard service or
other security measures. and that Lessor shall have no obligation whatsoever to provide same.l.essee assumes ail responsibility lor~he protection
of Lessee, its agents and invitees from acts of third parties.
42. Eaements. Lessor reserves to itself the right. from time to time. to grant such easements, rights and dedications that Lessor deems necessary
or desirable. and to cause the recordation of Parcel Maps and restrictions, so long as such easements, rights, dedications, Maps and restrictions do
not unreasonably interfere with the use of the Premises by Lessee, Lessee shail sign any olthe aforementioned documents upon request of Lessor,
and failure to do so shall constitute a material breach 01 this Lease.
43. Performence Under Protest. If at any time a dispute shall arise as to any amount or sum of money to be paid by one party to the other under the
provisions hereof, the party against whom the obligation to pay the money is asserted shall have the right to make payment "under protest" and 0,
such payment shall not be regarded as a VOluntary payment. and there shall survive the right on the part of said party to institute suit for recovery 01 -=
such sum, If it shall be adjudged thatthere was no legal obligation on the part of said party to pay such sum or any part thereof, said party shall be 'E
entitled to recover such sum or so much thereof as it was not legally required to pay under the provisions of this Lease. ;t
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44. Authority. If Lessee is a corporation, trust, or general or limited partnership, each individual executin!lthis Lease on behalf of such entity 'i:
represents and warrants that he or she Is duly authorized to execute and deliver this Lease on behalf 01 said entIty, If Lessee is a corporation. trust or .$1
partnership. Lessee shall, within thirty (30) days after execution of this Lease, deliver to Lessor evidence of such authority satisfactory to Lessor. l:l
45. Conflict. Any conflict between the printed ~rovisions olthis Lease and the typewritten or handwritten provisions shall be controlled by the l
typewritten or handwritten provisions.'
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48. Insuring P.rty. The insuring party under this lease shall be the , ',2
47. Addendum. Attached hereto is an addendum or addenda containing paragraphs through which constitutes i
a part of this Lease. E
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LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN -g
AND, 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 OFTHIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE :
INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES. '. . ' !
IF THIS LEASE HAS BEEN FILLEO IN IT HAS BEEN PREPARED FOR SUBMISSION TO YOUR ATTORNEY FOR~~~ioVAL. !!
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NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE A OCIATION OR .~
BY THE REAL ESTATE BROKER OR ITS AGENTS OR EMPLOYEES AS TO THE LEGAL SUFFICIENCY. L!GAL EFFECT, OR TAX :c
CONSEQUENCE3 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. C
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The pertl.. hereto h.ve executed this L.... at the p1.ce on the dates specified Immediately .cIf_t to tIIelr respective sIgn.tu..... ~
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Executed at ,,) CVf//t../ 'fJ'thu U; ()4 i&( ~ 0
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For these 1000000S write or call1he Amerlcan.1 Real Estate Assocl.tion, 350 SOuth Flguer. Angeles, CA 90071.
(213)687-8777 Form 204n 780
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I THIS LEASE is entered into as of this day of ~
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(J , 1981, by and between CITY OF SANTA MONICA, a chartered ~
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municipal corporation of the State of California (hereinafter i
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~0 referred to as "Landlord ") and both SEA COLONY HOMEOWNER'S
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ASSOCIATION I and SEA COLONY HOMEOWNER'S ASSOCIATION II
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(hereinafter referred to collectively as "Tenant"), is made with
, .,,; reference to the following: /1
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RECITALS q, / .
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1. within the City of Santa Monica, a certain area has
~ been designated as the Ocean Park Redevelopment Project. There
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j are two multi-unit developments in the project area known as Sea
Colony. The two developments are separated by property
owned by Landlord which Tenant seeks to lease from Landlord with
certain improvements as specified below.
2. It is the intent of Landlord and Tenant to have
constructed a concrete walkway and bikeway, along with lighting
and landscaping, in a north to south configuration pursuant to
Contract Number 3703 (CCS) and Change Order Number 1, Item
Number 2, over the property owned by Landlord.
3. The property to be leased is parallel to and between
Nielson Way and Barnard Way, and perpendicular to the east/west
leg of the walkway/bikeway which runs from Main Street to
Barnard Way on the north and Kinney Street on the south. The
specific area is more particularly described (set off in red
. .
ink) on the map attached hereto as Exhibit "An, and is
hereinafter referred to as the Premises.
4. Both Landlord and Tenant desire construction of the
north/south accessway in the Ocean Park Redevelopment Project in
a manner which enhances the security in the project area.
Therefore both parties agree that from dusk to dawn the
accessway will be restricted through the use of a gate which
will be locked during those night hours.
5. Landlord and Tenant shall each contribute to the
construction cost of the north/south accessway, but all
'----
expenditures thereafter for maintenance, improvements,
replacement or for any other purpose shall be the sole
responsibility of Tenant so that public expense is minimized.
6. Landlord desires to enter into this Lease for the
rental of the north/south accessway upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing recitals
and other good and valuable consideration, the receipt and
sufficiency of which the parties hereto hereby acknowledge,
Landlord does hereby lease to Tenant and Tenant does hereby
lease from Landlord the Premises (as defined below) for the
covenants and considerations and upon the terms and conditions
hereinafter set forth, and Landlord and Tenant do hereby agree
as follows:
. .
1. TERM.
This Lease shall commence on October , 1981 and shall
end on October , 2036 (hereinafter referred to as "Lease
Term"). This 55 year Lease Term is subject to termination
during the Lease Term upon failure of Tenant to comply with the
terms and conditions of this Lease.
2. RENT.
within 60 days of the effective date of this Lease, Tenant
shall pay Landlord the sum of $35,000, which shall constitute
Tenant's portion of the construction costs of the Premises.
3. CONSTRUCTION.
It shall be the responsibility of Landlord to construct
the Premises for a total cost of $85,200. The Tenant's rental
payment of $35,000 shall be used to offset part of the
construction costs. Upon payment of the construction cost by
Landlord, Landlord shall cease to have any further financial
obligation for the balance of the Lease Term.
4. USE OF PREMISES.
a. Tenant expressly agrees to use the Premises
continuously during the Lease Term for purposes of providing a
north/south walkway and bikeway.
b. Tenant shall be permitted to lock the gate at the
north end of the Premises to restrict both bicycle and
pedestrian traffic from dusk to dawn for purposes of increasing
the security of the adjacent residential developments. From
dusk to dawn, the Premises can be restricted to residents of the
. .
adjacent residential developments, their guests and other
necessary personnel designated by Tenant for the proper
maintenance and security of the Premises and adjacent areas.
5. MAINTENANCE AND REPAIR.
a. Tenant Repairs and Maintenance. Tenant shall, at
its own cost and expense, keep and maintain in good and usable
condition and repair the Premises and every part thereof,
including without limitation, the street, lighting, landscaping
and gate at the north end of the Premises.
b. Landlord Repairs and Maintenance. The Landlord
shall not at any time be required to make any improvements or
repairs whatsoever with respect to the Premises after completion
of the north/south walkway and bikeway.
c. Reconstruction. Tenant shall bear the sole
financial responsibility for replacement of the Premises if for
any reason it becomes partially or totally destroyed.
6. LIABILITY - HOLD HARMLESS.
a. Landlord Not Liable. Landlord shall not be liable
to Tenant for any damage to Tenant or Tenant1s property from any
cause, nor shall Landlord be liable for any latent or patent
defect in the Premises or adjoining areas. Tenant shall give.
prompt notice to Landlord in case of fire or accident on the
Premises which result in damage to the accessway or adjoining
improvements, but Landlord1s receipt of such notice shall not
impose upon Landlord any duty, liability or obligation which it
. .
has not expressly assumed or which it has disclaimed in the
Lease.
b. Waiver. Tenant, as a material part of Landlord's
consideration for this Lease, hereby assumes all risks of damage
to the Premises or personal injury or death caused by Tenant or
its employees, agents, contractor, invitees, licensees or anyone
else whomsoever, to persons in, upon or about the Premises, and
Tenant hereby waives all claims with respect thereto against
Landlord.
c. Indemnity; Hold Harmless. Tenant agrees to, and
shall, indemnify and hold harmless Landlord against and from any
loss, cost, damage, liability, penalties, liens, causes of
action or claims occurring, suffered or incurred in connection
with (1) any and all claims of damage or injury arising from
Tenant's use of the Premises or from any activity, work,
construction or things done, permitted or suffered by Tenant in
or about the Premises, ( 2 ) any and all claims arising from any
breach or default in the performance of any obligation of Tenant
hereunder, including without limitation, Tenant's obligation to
procure certain insurance as hereinafter provided, (3) any and
all litigation related to the Premises where Landlord without
fault has been joined as a party therein or ( 4 ) any other act or
omission of Tenant or any of its agents, employees, contractors,
invitees or licensees. This obligation of Tenant to indemnify
Landlord shall include the retention of legal counsel and
investigation costs and all other reasonable costs, expenses and
liabilities from the first notice that any claim or demand has
I or may be made, including without limitation, any and all
I
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judgments, fines, amounts paid on account thereof (whether in
settlement or otherwise), cost of appeal and costs of
settlement, provided such settlement is made without bad faith,
misfeasance or gross negligence.
7. INSURANCE.
a. Tenant's Insurance Obligations. Tenant agrees
that from and after the date of delivery of the Premises from
Landlord to Tenant, Tenant shall carry and maintain at its own
cost and expense the following types, amounts and forms of
insurance:
(1 ) Public Liability Insurance. Public liability
insurance for any and all liability arising out of the
maintenance or use of the Premises in an amount not less than
$250,000 per person and $500,000 per occurrence, and $100,000
for loss resulting in damage to or destruction of property. A
combined single limit policy with aggregate limits in the amount
of $1,000,000 will be considered equivalent to the required
minimum limits. All such bodily injury and property damage
insurance shall specifically include, in addition to the above,
contractual liability insurance covering the insuring provisions
of this Lease and the performance by Tenant of the indemnity
agreements in Section 6c above.
(2 ) Workers' Compensation Insurance. Workers'
Compensation Insurance shall comply with the applicable law in
the county and state where the Premises are located.
(3) Policy Provisions. All of the policies
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required to be obtained by Tenant pursuant to the provisions of
. .
the this section shall be with companies and in pOlicies whose
form is satisfactory and acceptable to Landlord. Each policy
shall designate Landlord as an additional named insured.
Although named as an insured, Landlord shall be entitled to
recover under said policies for any loss occasioned to it, its
servants, agents and employees by reason of the negligence of
Tenant. Tenant shall provide Landlord with certificates of
insurance issued by each of the insurance companies issuing any
of the policies required pursuant to the provisions of this
section, and said certificates shall provide that the insurance
issued thereunder shall not be altered or cancelled until after
30 days written notice to Landlord. All public liability,
property damage and other casualty policies shall be written as
primary policies, not contributing with and not in excess of
coverage which Landlord may carry. Tenant may satisfy its
insurance obligations hereunder by carrying such insurance under
a "blanket" policy or policies of insurance.
b. Waiver of Subrogation Rights. Tenant agrees that
in the event of loss due to any of the perils for which it has
agreed to provide insurance, that Tenant shall look solely to
its insurance for recovery. Tenant hereby grants to Landlord on
behalf of any insurer providing insurance to either Tenant or
Landlord with respect to the Premises, a waiver of any right of
subrogation which any such insurer of said Tenant may acquire
against Landlord by virtue of the payment of any loss under such
insurance.
c. Failure to Secure. rf Tenant at any time during
the term hereof should fail to secure or maintain the foregoing
. .
insurance, Landlord shall be permitted to obtain such insurance
in the Tenant's name or as an agent of the Tenant and shall be
compensated by the Tenant for the costs of the insurance
premiums. Tenant shall pay Landlord interest on paid insurance
premiums at the maximum rate permitted by law computed from the
date written notice is received that the premiums have been
paid.
8. COMPLIANCE WITH APPLICABLE LAWS.
Tenant agrees to and shall comply promptly with all
federal, state and municipal statutes and ordinances and with
all regulations, orders and directives of appropriate
governmental agencies as such statutes, ordinances, regulations,
orders and directives now exist or may hereafter provide
concerning the use and safety of the Premises; and, at its sole
expense, make any repairs, changes, modifications in, on or to
the Premises required by any of the foregoing.
9. ASSIGNMENT PROCEDURES.
Tenant shall neither assign this Lease nor sublet the
Premises without first obtaining the written consent of Landlord
to do so; provided, however, that Landlord shall not arbitrarily
or unreasonably refuse to grant his consent to such assignment
or subletting, and provided further that a consent to one
assignment or subletting by Landlord shall not be deemed a
consent to any subsequent assignment or subletting. MY
assignment or subletting without the consent of Landlord shall
. .
be void and shall, at the option of Landlord, terminate this
Lease.
10. RIGHTS OF LANDLORD.
Landlord retains the right to enter the Premises at all
reasonable times for purposes of ( 1 ) for the posting of notices
required by law, ( 2 ) to perform any legally mandated duty, and
( 3 ) at any time for emergency entry.
11. REMEDIES.
a. Termination of Lease and Removal of Tenant. In
the event of Tenant's breach of or default under this Lease as
provided above, Landlord, at Landlord's option and without
limitation in the exercise of any right or remedy, may on
account of such default, and without any further demand or
notice, terminate this Lease.
b. Damages. If Landlord elects to terminate this
Lease as provided in Section a above, Landlord shall be entitled
to recover from Tenant the aggregate of:
( 1 ) Any other amount necessary to compensate
Landlord for the detriment proximately caused by Tenant's
failure to perform its obligations under this Lease which, in
the course of things, would be likely to result therefrom; and
( 2 ) Any other amount which Landlord may hereafter
be permitted to recover from Tenant to compensate Landlord'for
the detriment caused by Tenant's default.
c. No Effect on Indemnification. Nothing in this
section shall be deemed to affect Landlord's right to
. .
indemnification for liability or liabilities arising prior to
the termination of this Lease for personal injuries or property
damage under Section 6c above.
12. DEFAULT BY LANDLORD.
Landlord shall not be deemed to be in default in the
performance of any obligation required to be performed by it
hereunder unless and until it has failed to perform such
obligation within 30 days after receipt of written notice by
Tenant to Landlord specifying wherein Landlord has failed to
perform such obligation; provided, however, that if the nature
of Landlord's obligation is such that more than 30 days are
required for its performance, then Landlord shall not be deemed
to be in default if it commences such performance with such 30
days and thereafter diligently prosecutes the same to
completion. Notwithstanding the foregoing, neither this Lease
nor the obligations of Tenant hereunder shall be affected or
impaired because Landlord is unable to fulfill any of its
obligations hereunder or is delayed in doing so if such
inability or delay is caused by reason of the unavailability of
materials, srike or other labor troubles or any other cause
beyond the reasonable control of Landlord.
13. ATTORNEY'S FEES.
In the event of any litigation between Landlord and Tenant
to enforce any of the provisions of this Lease or any right of
either party hereto, the unsuccessful party to such litigation
agrees to pay to the successful party all costs and expenses,
. .
including reasonable attorneys' fees, incurred therein by the
successful party, all of which shall be included in and as a
part of the judgment rendered in such litigation. If Tenant
shall engage the services of an attorney for the purpose of
collecting any rent, additional rent or other sums due from
Tenant, having first given Tenant five days notice of its
intention to do so, Tenant shall pay the reasonable fees of such
attorney regardless of the fact that no legal proceedings or
action may have been filed or commenced.
14. NOTICES.
Any notice required or permitted to be given hereunder
shall be in writing and may be given by personal service or by
certified or registered mail; and if given by mail, shall be
deemed sufficiently given to Tenant at their office or to
Landlord through the City Manager's Office. Either party may by
notice to the other specify a different address for notice
purposes. Notwithstanding the foregoing, any notices which
Landlord is required or authorized to deliver to Tenant shall be
deemed to have been duly given or served upon Tenant by
delivering a copy of such notice to one of Tenant's managing
employees at the Premises and by mailing a copy of such notice
to Tenant by ordinary mail to their place of business.
16. GENERAL PROVISIONS.
a. Captions. The captions of the sections of this
Lease are for convenience only and are not intended and shall
not be deemed for any purpose whatever to modify, explain or
. .
place any construction upon any of the provisions of this
Lease.
b. Remedies Cumulative. The various rights, options,
elections, powers and remedies of Landlord contained in this
Lease shall be construed as cumulative and no one of them
exclusive of any others or of any other legal or equitable
remedy which Landlord might otherwise have in the event of
breach or default of the terms hereof, and the exercise of one
right or remedy by Landlord shall not in any way impair Landlord's
other rights or remedies until all obligations imposed upon
Tenant have been fully performed.
c. Interpretation. The language in all parts of this
Lease shall be in all cases construed simply according to its
fair meaning, and not strictly for or against Landlord or
Tenant. Any reference to any section herein shall be deemed to
include all subsections thereof unless otherwise specified or
reasonably required from context.
d. Landlord and Tenant Relationship. Nothing
contained in this Lease shall be deemed or construed to create
the relationship of principal and agent or of partnership or of
joint venture or of any association between Landlord and Tenant,
and neither the provisions contained in this Lease nor any acts
of the parties hereto shall be deemed to create any relationship
between Landlord and Tenant other than the relationship of
Landlord and Tenant.
e. Waiver and Default. No waiver by Landlord of any
provision of this Lease shall be deemed to be a waiver of any
other provision hereof or of any subsequent breach by Tenant of
. .
the same or any other provision. No delay on the part of
Landlord in exercising any of its rights hereunder shall operate
as a waiver of such rights or of any other right of Landlord,
nor shall any delay, omission or waiver on anyone occasion be
deemed a bar to or a waiver of the same or any other right on
any occasion.
Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent to or approval shall not be deemed to render
unnecessary the obtaining of Landlord's consent to or approval
of any subsequent act of Tenant whether or not similar to the
act so consented to or approved. No act or thing done by
Landlord or Landlord's agents during the term of this Lease
shall be deemed an acceptance or a surrender and shall not be
valid unless in writing and signed by Landlord.
f. Entire Agreement: Amendments. This Lease and the
Exhibits and any riders attached hereto constitute the entire
agreement between the parties hereto with respect to the subject
matter hereof, and no prior agreement or understanding
pertaining to any such matter shall be effective for any
purpose. No provision of this Lease may be amended or
supplemented except by an agreement in writing signed by ~he
party or parties to be bound thereby. Tenant warrants ani
represents that there have been no representations or sta ments
of fact with respect to the Premises, the surrounding or
otherwise, whether by Landlord, its agents or representat' es,
any lease broker or any other person, which representatio
statements have in any way induced Tenant to enter this se or
which have served as the basis in any way for Tenant's ae1iSion
I
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to execute this Lease, except as contained in this Lease.
Tenant agrees and acknowledges that no lease broker, agen , or
other person has had or does have the authority to bind L.ndlord
to any statement, covenant, warranty or representation ex as
contained in this Lease and that no person purporting to
such authority shall bind Landlord and that it is not rea
for Tenant to have assumed that any person has or had suc
authority. Further, neither Landlord's execution of this
nor any other of its acts shall be construed in any way t
indicate Landlord's ratification, consent to or approval any
act, statement or representation of any third person exce as
specifically set forth in this Lease.
g. provisions Severable. Any provision of thi Lease
which shall prove to be invalid, void or illegal shall in no way
affect, impair or invalidate any other provision hereof, nd the
remaining provisions hereof shall nevertheless remain in ull
force and effect.
h. Counterparts. This Lease may be executed i any
number of counterparts, each of which shall be an origina and
all of which together shall constitute and be construed a one
and the same instrument.
i. Applicable Law and Venue. This Lease shall~be
governed by and construed in accordance with the laws of he
State of California. Any action to declare or enforce an
rights or obligations under this Lease may be commenced b any
party in the Superior Court of the county in which the pr ises
is located. Tenant hereby consents to the jurisdiction 0 such
court for such purposes and agrees that any notice, compl int or
. .
other legal process delivered to Tenant in accordance wit the
provisions of Section 15 of this Lease shall constitute a equate
notice and service of process for all purposes and shall
Tenant to the jurisdiction of such court for purposes of
,
adjudicating any matter related to this Lease. The provi,ions
of this section shall also apply to all guarantors of thi
Lease.
j. Incorporation of Exhibits. All Exhibits or riders
referenced in this Lease (or which are executed concurren ly
herewith and attached hereto and refer to this Lease) are hereby
incorporated herein by reference as though fully set fort
herein.
k. Recordation of Lease. Neither this Lease n r any
Memorandum hereof shall be recorded without Landlord's ad ance
written consent.
1. Multiple Parties. If there is more than on
person, firm, corporation, partnership or other entity
comprising Lease, the (1) term "Tenant" as used herein sh 11
include all of the undersigned; ( 2) each and every provis on in
this Lease shall be binding on each and everyone of the
undersigned; ( 3 ) each of the undersigned shall be jointly' and
severally liable hereunder; ( 4 ) Landlord shall have the r ght to
join one or all of the undersigned in any proceeding or t
proceed against them in any order; and ( 5 ) Landlord shall have
the right to release anyone or more of the undersigned w thout
in any way projudicing its right to proceed against the 0' hers.
m. No Violation of Other Agreements. Tenant h reby
warrants and represents that neither its execution of or
. .
performance under this Lease shall cause Tenant to be in
violation of any agreement, instrument, contract, law, ru or
regulation by which Tenant is bound and Tenant agrees to
indemnify Landlord against any loss, cost, damage or liab~lity
arising out of Tenant's breach hereof.
r
IN WITNESS WHEREOF, Landlord and Tenant have duly e cuted
this Lease as of the date set forth above.
"LANDLORD" "TENANT" I
CITY OF SANTA MONICA,
a municipal corporation
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By: By:
Its Its
By: By:
Its Its
If Tenant is a corporation, Tenant must cause the
Corporate Resolutions attached at the back of this
Lease to be appropriately executed and attached
hereto and this Lease must be executed,by the
appropriate officer or officers so authorized there .
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THIS LEASE is entered into as of this day of
, 1981, by and between CITY OF SANTA MONICA, a chartered
~
municipa~ corporation of the State of California (hereinafter
....,. I
/ referred to as "Landlord") and both SEA COLONY HOMEOWNER'S
I-=) ,
i ASSOCIATION I and SEA COLONY HOMEOWNER1S ASSOCIATION II
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i (hereinafter referred to collectively as "Tenant"), is made with
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RECITALS
l. within the City of Santa Monica, a certain area has
been designated as the Ocean Park Redevelopme~t Pl:'oject. There
are two__~~~!~=unit develo~~en~~ in the project area known as Sea
Colony. The two developments are separated by property
owned by Landlord which Tenant seeks to lease from Landlord with
certain improvements as specified below.
2. It is the intent of Landlord and Tenant to have
constructed a concrete walkway and bikeway, along with lighting
! and landscaping, in a north to south configuration pursuant to
\
, "--
~--'; ) Contract Number 3703 (CCS) and Change Order Number 1, Item
,
, '. Number 2, over the property owned by Landlord.
'1..
3. The property to be leased is parallel to and between r
Nielson Way and Barnard Way, and perpendicular to the east/west
leg of the walkway/bikeway which runs from Main Street to
Barnard Way on the north and Kinney Street on the south. The
specific area is more particularly described (set off in red
1
I
. e
.
, ..-" '~.
~ ink) on the map attached hereto a~, Exhibit "A~nd is
hereinafter referred to as the preittisea.___
4. Both Landlord and Tenant desire construction of the
north/south accessway in the Ocean Park Redevelopment project in
~
a manner-which enhances the security in the project area.
Therefore both parties agree that from dusk to dawn the
accessway will be restricted through the use of a gate which
will be locked during those night hours.
5. Landlord and Tenant shall each contribute to the
construction cost of the north/south accessway, but all d
expenditures thereafter for maintenance, improvements, , I j :,\
-: \),
~
\,~' replacement or for any other purpose shall be the sole
\. 'i responsibility of Tenant so that public expense is minimized.
\ '. 6. Landlord desires to enter into this Lease for the
!v
\j rental of the north/south accessway upon the terms and
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing recitals
and other good and valuable consideration, the receipt and
sufficiency of which the parties hereto hereby acknowledge,
Landlord does hereby lease to Tenant and Tenant does hereby
lease from Landlord the Premises (as defined below) for the
covenants and considerations and upon the terms and conditions
hereinafter set forth, and Landlord and Tenant do hereby agree
as follows:
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, 1. TERM.
This Lease shall commence on October , 1981 and shall
end on october , 2036 (hereinafter referred to as "Lease
Term n) . This 55 year Lease Term is ~s~l:>jec::t~<:>,_~_e.J:"mi~C!t:.lon
during the Lease Term upon failure of Tenant~,t;Q_,J~omp!y___wit.h_,tb.e
.. .,"'.--..".-....---- -^--.~~.._---.....~-"'..-~_.. -
terms and C..QQQi.kiQns.,.-aL.:this.Le&se.
2. RENT. 0
wi thin 60 days of the effective date of this Lease, Tenant ; !,''1vi.- /
shall pay Landlord the sum of $35,000, which shall constitute ,~::
, /'./' Q v'
Tenant's portion of the constru9tionco_sts, of thePremij3es.
3. CONSTRUCTION.,
It shall be the responsibility of Landlord to construct
".,' .\
... the Premises for a total cost of~n5J?00. The Tenant's rental
,~ payment of $35,000 shall be used to offset part of the
\
U construction costs. Upon payment of the construction cost by
IJ~ Landlord, Landlord shall cease to have any further financial
v
obligation for the balance of the Lease Term.
4. USE OF PREMISES.
a. Tenant expressly agrees to use the Premises
continuously during the Lease Term for purposes of providing a
-"~..,,_.__..~-._-- ._...-.~..' -~~.......~_."..,.,.....,~,.,......--._.~_.....- ...._......'
north/south walkway and bikeway.
b. Tenant shall be permitted to lock the gate at the
north end of the Premises to restrict both bicycle and
pedestrian traffic from dusk to dawn for purposes of increasing
the security of the adjacent residential developments. From
dusk to dawn, the Premises can be restricted to residents of the
p
e .
.
adjacent residential developments, their guests and other
necessary personnel designated by Tenant for the proper
maintenance and security of the Premises and adjacent areas.
~
8 5. . MAINTENANCE AND REPAIR.
v/a. Tenant Repairs and Maintenance. Tenant shall, at
its own cost and expense, keep and maintain in good and usable
condition and repair the Premises and every part thereof,
including without limitation, the street, lighting, landscaping
and gate at the north end of the Premises.
,b. Landlord Repairs and Maintenance. The Landlord
(~ shall not at any time be required to make any improvements or
repairs whatsoever with respect to the Premises after completion
of the north/south walkway and bikeway.
c. Reconstruction. Tenant shall bear the sole (
financial responsibility for replacement of the Premises if for
any reason it becomes partially or totally destroyed.
6. LIABILITY - HOLD HARMLESS.
@ a. Landlord Not Liable. Landlord shall not be liable
C\ . to Tenant for any damage to Tenant or Tenant's property from any
cause, nor shall Landlord be liable for any latent or patent
defect in the Premises or adjoining areas.~nant shall give' ? ~r'
X
prompt notice to Landlord in case of fire or accident on the c \) ~
Premises which result in damage to the accessway or adjoining (';~!
improvements, but Landlord's receipt of such notice shall not
impose upon Landlord any duty, liability or obligation which i~'J
t.f
e .
, has not expressly assumed or which it has disclaimed in the
Lease.
) b. Waiver. Tenant, as a material part of Landlord's
consideration for this Lease, hereby assumes all risks of damage
--~~'~'----""""'---- . _... ...,--.-...- ..--.....--- ".>.~
~
,j/ to the P~emises or personal il1:jurY,()rge.~'t::11~~~se9J;l.XT~naQ,t, or
_i ts employee~.., agents, contractor, invitees, licensees or. anyone
else whomsoever, to persons in, upon or about the Premises, and
Tenant hereby waives all claims with respect thereto agCl..~!lst
Landlord.
~ c. Indemnity; Hold Harmless. Tenant agrees to, and
shall, indemnify and hold harmless Landlord against and from any
~~) loss, cost, damage, liability, penalties, liens, causes of
action or claims occurring, suffered or incurred in connection
with (1) any and all claims of damage or injury arising from
Tenant's use of the Premises or from any activity, work,
construction or things done, permitted or suffered by Tenant in
or about the Premises, (2 ) any and all claims arising fro~._~ny
breach or default in the performance of any obligation of Tenant
hereunder, including without limitation, Tenant's obligation to
procure certain insurance as hereinafter provided, (3 ) any and
all litigation related to the Premises where Landlord without
-,--------
fault has been joined as a party therein or (4) any other act or
omission of Tenant or any of its agents, employees, contractors,
invitees or licensees. This obligation of Tenant to indemnify
Landlord shall include the retention of legal counsel and
investigation costs and all other reasonable costs, expenses and
liabilities from the first notice that any claim or demand has
or may be made, including without limitation, any and all
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insurance, Landlord shall be permitted to obtain such insurance
in the Tenant's name or as an agent of the Tenant and shall be
compensated by the Tenant for the costs of the insurance
premiums. Tenant shall pay Landlord interest on paid insurance
premiums_at the maximum rate permitted by law computed from the
date written notice is received that the premiums have been
paid.
, ) 8. COMPLIANCE WITH APPLICABLE LAWS. ,
-< -<
..
Tenant agrees to and shall comply promptly with all \ rJ-"
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federal, state and municipal statutes and ordinances and with -"
all regulations, orders and directives of appropriate
governmental agencies as such statutes, ordinances, regulations,
orders and directives now exist or may hereafter provide
concerning the use and safety of the Premises; and, at its sole
expense, make any repairs, changes, modifications in, on or to
the Premises required by any of the foregoing.
9. ASSIGNMENT PROCEDURES.
@
~~ Tenant shall neither assign this Lease nor sublet the /Id-'\
Premises without first obtaining tbe written consent of Lsndlord <.>
to do so; provided, however, that Landlord shall not arbitrarily
)+5 \ 'if ;7)
or unreasonably refuse to grant~ consent to such assignment
or subletting, and provided further that a consent to one
/
assignment or subletting by Landlord shall not be deemed a
consent to any subsequent assignment or subletting. Any
assignment or subletting without the consent of Landlord shall
(()
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be void and shall, at the option of Landlord, terminate this
Lease.
~ 10. RIGHTS OF LANDLORD.
~
'~f0~ Landlord retains the right to enter the Premises at all
reasonable times for purposes of (1) for the posting of notices
required by law, (2) to perform any legally mandated duty, and
(3) at any time for emergency entry.
,\ '?- II. REMEDIES.
ii'
/ \
~i a. Termination of Lease and Removal of Tenant. In L/
the event of Tenant's breach of or default under this Lease as
provided above, Landlord, at Landlord's option and without
limitation in the exercise of any right or remedy, may on
account of such default, and without any further demand or
notice, terminate this Lease.
b. Damages. If Landlord elects to terminate this L-/
Lease as provided in Section a above, Landlord shall be entitled
to recover from Tenant the aggregate of:
(1) Any other amount necessary to compensate
Landlord for the detriment proximately caused by Tenant's
l/
failure to perform its obligations under this Lease which, in
the course of things, would be likely to result therefrom, and
(2) Any other amount which Landlord may hereafter
I
be permitted to recover from Tenant to compensate Landlord for
the detriment caused by Tenant's default.
c. No Effect on Indemnification. Nothing in ,this
section shall be deemed to affect Landlord's right to
Cj
. .
.
indemnification for liability or liabilities arising prior to
the termination of this Lease for personal injuries or property
damage under Section 6c above.
,
12.. DEFAULT BY LANDLORD.
/" I~\r'l Landlord shall not be deemed to be in default in the
~; performance of any obligation required to be performed by it
hereunder unless and until it has failed to perform such
obligation within 30 days after receipt of written notice by
Tenant to Landlord specifying wherein Landlord has failed to
perform such obligation~ provided, however, that if the nature
of Landlord's obligation is such that more than 30 days are
required for its performance, then Landlord shall not be deemed
to be in default if it commences such performance with such 30
days and thereafter diligently prosecutes the same to
completion. Notwithstanding the foregoing, neither this Lease
nor the obligations of Tenant hereunder shall be affected or
impaired because Landlord is unable to fulfill any of its
obligations hereunder or is delayed in doing so if such
inability or delay is caused by reason of the unavailability of
materials, srike or other labor troubles or any other cause
beyond the reasonable control of Landlord.
13. ATTORNEY'S FEES.
'l
In the event of any litigation between Landlord and Tenant
to enforce any of the provisions of this Lease or any right of
either party hereto, the unsuccessful party to such litigation
agrees to pay to the successful party all costs and expenses,
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including reasonable attorneys' fees, incurred therein by the
successful party, all of which shall be included in and as a
,----:-: !' ./ 1
part of the judgment rendered in such litigation. L If, Tenant lcv,dluY""'-.
shall engage the services of an attorney for the purpose of
collecting any rent, additional rent or other sums due from ?
Tenant, having first given Tenant five days notice of its Q
hJ 0+ In
intention to do so, Tenant shall pay the reasonable fees of SUCh)
ea~
attorney regardless of the fact that no legal proceedings or
action may have been filed or cornrnenced.~
~ \ 14. NOTICES.
I~':~)/ ' Any notice required or permitted to be given hereunder
\ .
"--/
shall be in writing and may be given by personal service or by
certified or registered mail; and if given by mail, shall be
deemed sufficiently given to Tenant at their office or to
Landlord through the City Manager's Office. Either party may by
notice to the other specify a different address for notice
purposes. Notwithstanding the foregoing, any notices which
Landlord is required or authorized to deliver to Tenant shall be
deemed to have been duly given or served upon Tenant by
delivering a copy of such notice to one of Tenant's managing
employees at the Premises and by mailing a copy of such notice
to Tenant by ordinary mail to their place of business.
16. GENERAL PROVISIONS.'
a. Captions. The captions of the sections of this
Lease are for convenience only and are not intended and shall
not be deemed for any purpose whatever to modify, explain or
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the same or any other provision. No delay on the part of
Landlord in exercising any of its rights hereunder shall operate
as a waiver of such rights or of any other right of Landlord,
nor shall any delay, omission or waiver on anyone occasion be
,
deemed a-bar to or a waiver of the same or any other right on
any occasion.
Landlord's consent to or approval of any act by Tenant requiring
Landlord's consent to or approval shall not be deemed to render
unnecessary the obtaining of Landlord's consent to or approval
of any subsequent act of Tenant whether or not similar to the
act so consented to or approved. No act or thing done by
Landlord or Landlord's agents during the term of this Lease
shall be deemed an acceptance or a surrender and shall not be
valid unless in writing and signed by Landlord.
\ f. Entire Agreement: Amendments. This Lease and the
~(
Exhibit~ and any riders attached hereto constitute the entire
agreement, between the parties hereto with respect to the subject
matter hereof, and no prior agreement or understanding
pertaining to any such matter shall be effective for any
purpose. No provision of this Lease may be amended or
supplemented except by an agreement in writing signed by the
party or parties to be bound thereby. Tenant warrants and
-
represents that there have been no representations or statements
of fact with respect to the Premises, the surrounding area or
otherwise, whether by Landlord, its agents or representatives,
any lease broker or any other person, which representations or
statements have in any way induced Tenant to enter this Lease or
which have served as the basis in any way for Tenant's decision
I . .
.
I .
. to execute this Lease, except as contained in this Lease.
I Tenant agrees and acknowledges that no lease broker, agent, or
I other person has had or does have the authority to bind Landlord
I
to any statement, covenant, warranty or representation except as
contained in this Lease and that no person purporting to hold
.
such authority shall bind Landlord and that it is not reasonable
for Tenant to have assumed that any person has or had such
authority. Further, neither Landlord's execution of this Lease
nor any other of its acts shall be construed in any way to
indicate Landlord's ratification, consent to or approval of any
act, statement or representation of any third person except as
specifically set forth in this Lease.
g. provisions Severable. Any provision of this Lease
which shall prove to be invalid, void or illegal shall in no way
affect, impair or invalidate any other provision hereof, and the
remaining provisions hereof shall nevertheless remain in full
force and effect.
h. Counterparts. This Lease may be executed in any
number of counterparts, each of which shall be an original and
all of which together shall constitute and be construed as one
and the same instrument.
-~,
~ ~ i. AEplicable Law and Venue. This Lease shall be
\ f,l~~) governed by and construed in accordance with the laws of the
State of California. Any action to declare or enforce any
rights or obligations under this Lease may be commenced by any
party in the Superior Court of the county in which the Premises
is located. Tenant hereby consents to the jurisdiction of such
court for such purposes and agrees that any notice, complaint or
ILf
. . .
.
.
..
other legal process delivered to Tenant in accordance with the
provisions of Section 15 of this Lease shall constitute adequate
notice and service of process for all purposes and shall subject
Tenant to the jurisdiction of such court for purposes of
,
adjudica~ing any matter related to this Lease. The provisions
of this section shall also apply to all guarantors of this
Lease.
j. Incorporation of Exhibits. All Exhibits or riders )
referenced in this Lease (or which are executed concurrently
herewith and attached hereto and refer to this Lease) are hereby
incorporated herein by reference as tho~gh fully set forth
herein.
. k. Recordation of Lease. Neither this Lease nor any
\ I .) ''')
-f d /
,_.Memorandum hereof shall be recorded without Landlord's advance
written consent.
~ 1. Multiple Parties. If there is more than one
~l\~ person, firm, corporation, partnership or other entity
comprising Lease, the (1) term "Tenant" as used herein shall
include all of the undersigned; (2) each and every provision in
this Lease shall be binding on each and everyone of the
undersigned; (3) each of the undersigned shall be jointly and
severally liable hereunder; (4) Landlord shall have the right to
join one or all of the undersigned in any proceeding or to
proceed against them in any order; and (5) Landlord shall have
the right to release anyone or more of the undersigned without
in any way pr~udicing its right to proceed against the others.
m. No Violation of Other Agreements. Tenant hereby
warrants and represents that neither its execution of or
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.
,
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performance under this Lease shall cause Tenant to be in
violation of any agreement, instrument, contract, law, rule or
regulation by which Tenant is bound and Tenant agrees to
indemnify Landlord against any loss, cost, damage or liability
,
arising Gut of Tenant's breach hereof.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed
this Lease as of the date set forth above.
"LANDLORD" "TENANT"
CITY OF SANTA MONICA,
a municipal corporation
A
By: By:
Its Its
By: By:
Its Its
If Tenant is a corporation, Tenant must cause the
Corporate Resolutions attached at the back of this
Lease to be appropriately executed and attached
hereto and this Lease must be executed_by the
appropriate officer or officers so authorized thereby.
Ifp