HomeMy WebLinkAboutC-26611000 -zo
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COMIIHNCEMENT CERTIFICATE
This Commencement Certificate is made this 10th day of November, 2011 by and between
Safeway Inc. ( "Lessor ") and the City of Arcadia ( "Lessee ").
Lessor and Lessee entered into a certain Office Building Lease dated September 7, 2011 (the
"Lease "), pursuant to which Lessee leases from Lessor certain premises located in the Von's Office
Building commonly known as 618 Michillinda Avenue, located in Arcadia, California (the "Premises ").
Pursuant to the Lease, Lessor and Lessee wish to clarify certain terms of the Lease. Lessor and
Lessee agree as follows:
1. Lessor delivered possession of the Premises to Lessee on November 1, 2011.
2. The Term Commencement Date of the Lease is November 1, 2011 .
3. The Term Expiration Date of the Lease is October 31, 2013.
4. The Fixed Minimum Rent of the Lease will commence on November 1, 2011.
5. The Fixed Minimum Rent of the Lease for the first Lease Year is $163,200.00.
6. Lessee has one (1) options to renew the Lease for two (2) years which may be exercised upon
Lessee giving Lessor written notice not less than one hundred eighty (180) days prior to the
expiration term of the Lease.
7. The Premises contains approximately 9,370 square feet of Gross Leaseable Area.
AGREED AND ACCEPTED:
LESSEE: LESSOR:
CITY OF ARCADIA,
A California municipal corporation
Donald Penman
Its: City Manager
COMMENCEMENT CERTIFICATE City of Arcadia.doc
11/11/11
SAFEWAY INC.,
a Delaware corporation
By: OiLv r, � 5B-,4�'O"
Assistant Vice President
By: Oe
Assistant Secretary
FORMAPPROVED : jut
-s
PDA Facility No. 29- 5556 -15 -02
Arcadia, CA
Writer's Direct Dial: 925-226-5441
December 29, 2011
Via Second Dav Delivery
Lisa Mussenden, CD City Clerk /Records Manager
City of Arcadia
240 W. Huntington Drive
Arcadia, CA 91o66
RE: Facility #5556 -02 / Arcadia, CA
Commencement Certificate
Please find enclosed for your records, one fully executed original Commencement Certificate.
Should there be any questions please contact Ann Elliott at 925-226-5353• Thank you for
your assistance in this matter.
Sincerely,
SAFEWAY INC.
Real Estate Law Department /PD DDivis��ion
4
Dannette E. Peters
Administrative Assistant
Encl.
Cc:
Ann Elliott (copy)
Yvette Valencia (scan)
Roger Snelling (scan)
Sandra Sandoval (original)
File (original)
September 8, 2011
City of Arcadia
240 W. Huntington Drive
Arcadia, CA 91066
AITN: Don Penman, City Manager
Writer's Direct Dial: 925-226-5441
RECEIVED
CITY OF ARCADIA
SEP 12 2011
CITY MANAGER
A
RE: Facility #5556 / Arcadia, CA
Lease (office building) between The Vons Companies. Inc and the
City ofArcadiat dated g/Z7 —goii
Please find enclosed for your records, one fully executed original Lease as referenced above.
Should there be any questions please contact Ann Elliott at 925-226-5353• Thank you for
your assistance in this matter.
Sincerely,
SAFEWAY INC.
Real Estate Law Department /PDA Division
AV-X-�� �, ��
Dannette E. Peters
Administrative Assistant
Encl.
Cc:
Ann Elliott (copy)
Kevin Wing (original)
Kevin Thompson (copy)
File (original)
LEASE
* * * * * * * * * * * * * * * * * * **
Between
CITY OF ARCADIA
(Tenant)
and
THE VONS COMPANIES, INC.
(Landlord)
FULL SERVICE
LEASE
l ,
THIS LEASE (the "Lease ") is dated as of the day of 2011 (for reference
purposes only) between THE VONS COMPANIES, INC., a Michigan corporation ( "Landlord "), and the
Tenant as named in the Schedule below. The term "Project" means the building of approximately
240,000 square feet ( "Building "), and the land appurtenant thereto ( "Land "), and other improvements
located thereon commonly known as 618 Michillinda Avenue, located in Arcadia, California. The
"Premises" means that portion of the Building leased to Tenant and described in the Schedule and
outlined on Exhibit A. The following schedule (the "Schedule ") is an integral part of this Lease. Terms
defined in this Schedule shall have the same meaning throughout the Lease.
SCHEDULE
1. Tenant: CITY OF ARCADIA, a California municipal corporation
2. Premises: A portion of the northern lower level (first floor) of the Building consisting of
approximately nine thousand three hundred seventy (9,370) square feet (also, the
"Rentable Square Footage" of the Premises), as shown on Exhibit A, attached hereto
3. Building: Von's Office Building at 618 Michillinda Avenue, Arcadia, CA 91007
4. Tenant's Proportionate Share: 3% (based upon a total of 240,000 rentable square feet
in the Building)
5. Lease (or Security) Deposit: None
6. Permitted Use: general office use for multi- agency task force
7. Tenant's Real Estate Broker: Charles Dunn
8. Landlord's Real Estate Broker: NAI Capital Commercial
9. Tenant Work, if any: See Section VI. E
10. Term Commencement Date : Date of delivery of Premises to Tenant from Landlord
(Landlord's Work is estimated to be complete five (5) weeks from approval of Tenant
Plans and receipt of all necessary permits from the City of Arcadia (receipt of permits
and start of Landlord's Work is referred to here as the "Work Date "). It is further
estimated that Landlord may be able to deliver possession three (3) weeks from the Work
Date.)
11. Rent Commencement Date: Forty -two (42) days following the date this Lease is fully
executed by both parties hereto
12. Term /Termination Date: Two (2) Years /Last day of the twenty -fourth (24`h) month
following the Term Commencement Date
13. Parking Stalls: 32 unassigned stalls at no cost to Tenant
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14. Base Rent:
Period
1 st Lease Year
2 °d Lease Year
Option Period
3`d Lease Year
4`h Lease Year
Monthly Base Rent
$13,600.00
$14,000.00
Monthly Base Rent
$15,929.00
$16,397.00
Annual Base Rent
$163,200.00
$168,000.00
Annual Base Rent
$191,148.00
$196,764.00
15. Base Year: Calendar Year 2012 (for the purpose of calculating Operating Cost Share
Rent and Tax Share Rent)
16. Renewal Option(s): One (1) two (2) year option
Exhibit A – SITE PLAN OF THE PREMISES
Exhibit B - RULES AND REGULATIONS
Exhibit C – SCOPE OF WORK
Exhibit D - TRAINING ROOM SCHEDULES & RATES
Exhibit E— POLICIES, RULES, AND PROCEDURES FOR CONSTRUCTION PROJECTS
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AGREEMENT
III
1. LEASE AGREEMENT. On the terms stated in this Lease, Landlord leases the Premises to Tenant,
and Tenant leases the Premises from Landlord, for the Term beginning on the Commencement Date and
ending on the Termination Date unless extended or sooner terminated pursuant to this Lease.
A. Commencement Dates. The term and rent commencement dates for this Lease are as set
forth in the Schedule, provided if Landlord is unable to provide Tenant with access to the Premises on or
before any applicable scheduled commencement date for any reason, then (i) this Lease shall not be void
or voidable by either party, (ii) Landlord shall not be liable to Tenant for any loss or damage resulting
therefrom, and (iii) the applicable date shall be revised to mean the date on which Landlord can provide
Tenant with access to the Premises and the Termination Date shall be revised accordingly so that the
Term (as defined in the Schedule) is unaffected by such delay.
B. Termination Date. The termination date ( "Termination Date ") of this Lease is the date set
forth in the Schedule.
II. RENT.
A. Types of Rent. Tenant shall pay the following Rent in the form of a check to Landlord at the
following address:
Safeway Inc./PDA Facility # 5556
Bank of America Lockbox Services
4834 Collections Center Drive
Chicago, IL 60693
or in such other manner as Landlord may notify Tenant.
1. Base Rent to be paid, at Tenant's option, either (a) in monthly installments in
advance, with the first monthly installment payable concurrently with the execution of this Lease and
thereafter on or before the first day of each month of the Term in the amount set forth on the Schedule; or
(b) in annual installments in advance, on or before the first day of the upcoming calendar year. If the
Term Commencement Date is not January 1, the partial year's Rent for the year in which the Term
Commencement Date falls shall be paid within thirty (30) days of the execution of this Lease.
2. Operating Cost Share Rent equal to Tenant's Proportionate Share (as set forth in the
Schedule) of the amount by which Operating Costs for the applicable Fiscal Year (as defined in Section
II.C(5) below) of this Lease exceed the Operating Costs for the Base Year (as defined in the Schedule)
( "Excess Costs "), paid commencing after the Base Year in accordance with Section II.B. The definition
of Operating Costs and the method for billing and payment of Operating Cost Share Rent are set forth in
Sections II.B, C and D.
3. Tax Share Rent equal to Tenant's Proportionate Share of the amount by which Taxes
for the applicable Fiscal Year of this Lease exceed the Taxes for the Base Year ( "Excess Taxes "),
commencing after the Base Year in accordance with Section II.B. A definition of Taxes and the method
for billing and payment of Tax Share Rent are set forth in Sections II.B, C and D.
As used in this Lease, the term "Rent" means Base Rent, Operating Cost Share Rent, Tax Share
Rent and all other costs, expenses, liabilities, and amounts that Tenant is required to pay under this Lease
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( "Additional Rent "), including any interest or penalty for late payment. Tenant's agreement to pay Rent is
an independent covenant, with no right of setoff, deduction or counterclaim of any kind.
B. Payment of Operating Cost and Tax Share Rent.
1. Payment of Estimated Operating Cost and Tax Share Rent.
a) By April l of each succeeding Fiscal Year (after the Base Year), or as soon
as reasonably possible thereafter, Landlord shall give Tenant notice of its estimate of
the payments to be made pursuant to Sections II.A(2) through II.A(3) above for the
then applicable Fiscal Year. Landlord may revise these estimates by written notice to
Tenant whenever it obtains more accurate information, such as the final real estate
tax assessment or tax rate for the Project, in which event subsequent payments by
Tenant for such Fiscal Year shall be based upon such revised estimate.
b) Within ten (10) days after receiving Landlord's notice regarding the original
or revised estimate of the payments to be made pursuant to Sections II.A(2) through
II.A(3) above for a particular Fiscal Year, Tenant shall pay Landlord an amount equal
to the product of such estimated monthly payments (as set forth in Landlord's notice),
multiplied by the number of months that have elapsed in the applicable Fiscal Year to
the date of such payment including the current month, minus any payments on
account thereof previously made by Tenant for the months elapsed. On the first day
of each month thereafter, Tenant shall pay Landlord the estimated monthly payments
as set forth in Landlord's most recent notice, until a new estimate becomes
applicable. Reference to monthly installment payments with regard to Operating
Cost or Tax Share Rent can be treated similarly to regular Rent payments at Tenant's
option. In other words, such excess costs can be paid in one annual payment in
arrears within thirty (30) days of receiving a statement for same from Landlord.
2. Correction of Operating Cost and Tax Share Rent. Within one hundred fifty (150)
days after the close of each Fiscal Year or as soon after such 150 -day period as practicable, Landlord shall
deliver to Tenant a statement of (a) the actual Excess Costs and Excess Taxes for such Fiscal Year, and
(b) the payments made by Tenant under Section II.B(l) above for such Fiscal Year (the "Annual Expense
Statement "). If, on the basis of such Annual Expense Statements, Tenant owes an amount that is less than
the estimated payments for such Fiscal Year previously made by Tenant, Landlord, at its election, shall
either promptly refund the amount of the overpayment to Tenant or, if this Lease is still in effect, credit
such excess against Tenant's subsequent obligations to pay Operating Costs and Taxes. If, based on such
Annual Expense Statements, Tenant owes an amount that is more than the estimated payments for such
Fiscal Year previously made by Tenant, Tenant shall pay the deficiency to Landlord within twenty (20)
days after Landlord's delivery of such Annual Expense Statements to Tenant.
C. Definitions.
1. Included Operating Costs.
a) "Operating Costs" means any expenses, costs and disbursements of any kind
other than Taxes, paid or incurred by Landlord in connection with the
management, maintenance, operation, insurance (including the related
deductibles), repair and other related activities in connection with any part of the
Project and of the personal property, fixtures, machinery, equipment, systems and
apparatus used in connection therewith, including, without limitation, all
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electricity, water, gas, sewers, oil and other utilities (collectively, "Utilities "),
including any surcharges imposed, serving the Project or any part thereof (but
excluding the cost of any utility directly billed to Tenant or other tenants in the
Project), the cost of providing those services required to be furnished by
Landlord under this Lease, and a management fee equal to four percent (4 %) of
the gross rents received from the Project. Operating Costs shall also include the
costs of any capital improvements made after the Base Year which are intended
to reduce Operating Costs or improve safety, and those made after the Base Year
to keep the Project in compliance with Governmental Requirements (as defined
in Section VLA(3)(c) below) applicable from time to time or to replace existing
capital improvements, facilities and equipment within the Project, such as the
roof membrane and resurfacing of the parking areas (collectively, "Included
Capital Items "); provided, that the costs of any Included Capital Item shall be
amortized by Landlord, together with an amount equal to interest at ten percent
(10 %) per annum, over the estimated useful life of such item and such amortized
costs are only included in Operating Costs for that portion of the useful life of the
Included Capital Item which falls within the Term, unless the cost of the Included
Capital Item is less than Ten Thousand Dollars ($10,000) in which case it shall
be expensed in the year in which it was incurred.
b) If the Project is not fully occupied during any portion of any Fiscal Year,
Landlord may adjust (an "Equitable Adjustment ") Operating Costs to equal what
would have been incurred by Landlord had the Project been fully occupied
(based upon 95% occupancy rate). This Equitable Adjustment shall apply only
to Operating Costs that are variable and therefore increase as occupancy of the
Project increases. Landlord may incorporate the Equitable Adjustment in its
estimates of Operating Costs.
2. Excluded Operating Cam. Operating Costs shall not include:
(a) costs of alterations of tenant premises;
(b) costs of capital improvements other than Included Capital Items;
(c) interest and principal payments on mortgages or any other debt costs
(except as provided in Section II.C(1) above with regard to Included Capital
Items), or rental payments on any ground lease of the Project;
(d) real estate brokers' leasing commissions;
(e) legal fees, space planner fees and advertising expenses incurred with
regard to leasing the Project or portions thereof,
(f) any cost or expenditure for which Landlord is reimbursed, by insurance
proceeds or otherwise, except by Operating Cost Share Rent;
(g) the cost of any service furnished to any office tenant of the Project which
Landlord does not make available to Tenant;
(h) depreciation (except on any Included Capital Items);
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(i) franchise or income taxes imposed upon Landlord, except to the extent
imposed in lieu of all or any part of Taxes;
0) costs of correcting defects in construction of the Project (as opposed to
the cost of normal repair, maintenance and replacement expected with the
construction materials and equipment installed in the Project in light of their
specifications);
(k) legal and auditing fees incurred for the benefit of Landlord such as
collecting delinquent rents, preparing tax returns and other financial statements,
and audits other than those incurred in connection with the preparation of reports
required pursuant to Section II.B above;
(1) the wages of any employee for services not related directly to the
management, maintenance, operation and repair of the Project;
(m) fines, penalties and interest incurred by Landlord for late payment by
Landlord or violations of law; and
(n) for the Base Year only, market -wide labor -rate increases due to
extraordinary circumstances, such as boycotts or strikes, and utility rate increases
due to extraordinary circumstances, including, but not limited to, conservation
surcharges, boycotts, embargoes or other shortages.
3. Taxes.
a) "Taxes" means any and all taxes, assessments and charges of any kind,
general or special, ordinary or extraordinary, levied against the Project, which
Landlord shall pay or become obligated to pay in connection with the ownership,
leasing, renting, management, use, occupancy, control or operation of the Project
or of the personal property, fixtures, machinery, equipment, systems and
apparatus used in connection therewith. Taxes shall include real estate taxes,
personal property taxes, sewer rents, water rents, special or general assessments,
transit taxes, ad valorem taxes, and any tax levied on the rents hereunder or the
interest of Landlord under this Lease (the "Rent Tax "). Taxes shall also include
all fees and other costs and expenses paid by Landlord in reviewing any tax and
in seeking a refund or reduction of any Taxes, whether or not the Landlord is
ultimately successful. Taxes shall also include any installments of principal and
interest required to pay any existing or future general or special assessments for
public improvements, services or benefits, and any increases resulting from
reassessments imposed in connection with any change in ownership or new
construction.
b) For any year, the amount to be included in Taxes (i) from taxes or
assessments payable in installments, shall be the amount of the installments (with
any interest) due and payable during such year, and (ii) from all other Taxes,
shall at Landlord's election be the amount accrued, assessed, or otherwise
imposed for such year or the amount due and payable in such year. Any refund
or other adjustment to any Taxes by the taxing authority, shall apply during the
year in which the adjustment is made. Taxes shall not include any net income
(except Rent Tax), capital, stock, succession, transfer, franchise, gift, estate or
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inheritance tax, except to the extent that such tax shall be imposed in lieu of any
portion of Taxes.
4. Lease Year. "Lease Year" means each consecutive twelve month period beginning
with the Term Commencement Date, except that if the Term Commencement Date is not the first day of a
calendar month, then the first Lease Year shall be the period from the Term Commencement Date through
the final day of the calendar month during which the first anniversary of the Term Commencement Date
occurs, and subsequent Lease Years shall be each succeeding twelve month period during the Term
following the first Lease Year.
5. Fiscal Year. "Fiscal Year" means each calendar year during which any portion of the
Term occurs (e.g., the first Fiscal Year shall be the calendar year during which the Commencement Date
occurs).
D. Computation of Base Rent and Rent Adjustments.
1. Prorations. If (a) the Rent Commencement Date is a date other than January 1, (b)
the Termination Date is a date other than December 31, or (c) this Lease terminates early, then in each
such event, the Base Rent, the Operating Cost Share Rent and Tax Share Rent shall be equitably adjusted
to reflect such event on a basis determined by Landlord to be consistent with the principles underlying the
provisions of this Section.
2. Interest Rate. Any sum due from Tenant to Landlord not paid when due shall bear
interest from the date due until paid at the lesser of eighteen percent (18 %) per annum or the maximum
rate permitted by law (the "Interest Rate ").
3. Rent Adjustments. The square footage of the Premises and the Building set forth in
the Schedule are conclusively deemed to be the actual square footage thereof, without regard to any
subsequent remeasurement of the Premises or the Building. If any Operating Cost paid in one Fiscal Year
relates to more than one Fiscal Year, Landlord may proportionately allocate such Operating Cost among
the related Fiscal Years.
4. Books and Records. Landlord shall maintain books and records reflecting the
Operating Costs and Taxes in accordance with generally accepted accounting principles and management
practices. Tenant and its certified public accountant shall have the right to inspect Landlord's records at
Landlord's applicable local office or other location designated by Landlord upon at least seventy -two (72)
hours' prior notice during normal business hours during the sixty (60) days following Landlord's delivery
of the Annual Expense Statement to Tenant. The results of any such inspection shall be kept strictly
confidential by Tenant and its agents, and Tenant and its certified public accountant must agree, in their
contract for such services, to such confidentiality restrictions and shall specifically agree that the results
shall not be made available to any other tenant of the Project. Unless Tenant sends to Landlord any
written exception to an Annual Expense Statement within said sixty (60) day period, such Annual
Expense Statement shall be deemed final and accepted by Tenant. Tenant shall pay the amount shown on
any Annual Expense Statement in the manner prescribed in this Lease, whether or not Tenant takes any
such written exception, without any prejudice to such exception. If Tenant makes a timely exception,
Landlord shall cause its independent certified public accountant to issue a final and conclusive resolution
of Tenant's exception. Tenant shall pay the cost of such certification unless Landlord's original
determination of annual Operating Costs and Taxes overstated the amounts thereof, in the aggregate, by
more than five percent (5 %).
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5. Miscellaneous. So long as Tenant is in default of any obligation under this Lease,
Tenant shall not be entitled to any refund of any amount from Landlord. If this Lease is terminated for
any reason prior to the annual determination of Operating Cost or Tax Share Rent, either party shall pay
the full amount due to the other within fifteen (15) days after Landlord's notice to Tenant of the amount
when it is determined. Landlord may commingle any payments made with respect to Operating Cost
Share Rent and Tax Share Rent, without payment of interest.
III. OPTION TO EXTEND. Subject to the terms and conditions set forth below, Tenant may at its
option ( "Renewal Option ") extend the Term of this Lease for one (1) additional two (2) year period (the
"Renewal Term ") The Renewal Term shall be upon the same terms contained in this Lease, except that
(i) the Base Rent payable by Tenant during the Renewal Term shall be as shown in the rent table in item
14 of the Schedule above, (ii) Tenant shall continue to possess and occupy the Premises in their existing
condition, "as is" as of the commencement of the Renewal Term, and Landlord shall have no obligation to
repair, remodel, improve or alter the Premises, to perform any other construction or other work of
improvement upon the Premises, or to provide Tenant with any construction or refurbishing allowance
whatsoever, and (iii) Tenant shall have no further rights to extend the Term of this Lease after the
expiration of the Renewal Term.
A. To exercise the Renewal Option, Tenant must deliver an unconditional binding notice to
Landlord via certified mail or hand delivery not later than one hundred eighty (180) days prior to the
expiration of the initial Term of this Lease. If Tenant fails to timely give its notice of exercise, Tenant
will be deemed to have waived its Renewal Option.
B. Tenant's right to exercise the Renewal Option is personal to, and may be exercised only by,
the original named Tenant under this Lease. If Tenant shall assign this Lease or sublet all or any portion
of the Premises under a sublease which is effective at any time during the final twelve (12) months of the
initial Term, then immediately upon such assignment or subletting, Tenant's right to exercise the Renewal
Option shall simultaneously terminate and be of no further force or effect. No assignee or subtenant shall
have any right to exercise the Renewal Option granted herein. In addition, if Tenant is in default under
this Lease (after any applicable notice and beyond any applicable cure periods) at the time it exercises the
Renewal Option or at any time thereafter until the commencement of the Renewal Term or if Tenant has
been in default under this Lease (after any applicable notice and beyond any applicable cure periods) at
any time prior to its exercise of the Renewal Option, Landlord shall have, in addition to all of its other
rights and remedies under this Lease, the right (but not the obligation) to terminate the Renewal Option
and to unilaterally revoke Tenant's exercise of the Renewal Option, in which case this Lease shall expire
on the Termination Date, unless earlier terminated pursuant to the terms hereof, and Tenant shall have no
further rights under this Lease to renew or extend the Term.
IV. PREPARATION AND CONDITION OF PREMISES; TENANT'S POSSESSION; REPAIRS
AND MAINTENANCE.
A. Condition of Premises. Landlord is leasing the Premises to Tenant "as is ", without any
obligation to alter, remodel, improve, repair or decorate any part of the Premises and without any express
or implied representations or warranties of any kind, except for the performance of Landlord's Work as
set forth in Exhibit C ( "Landlord's Work "). Tenant agrees and acknowledges that the Rent
Commencement Date shall not be delayed as a result of any delays that may occur in the completion of
Landlord's Work.
B. Tenant's Possession. Tenant's taking possession of any portion of the Premises shall be
conclusive evidence that the Premises was in good order, repair and condition.
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C. Tenant's Work. Prior to the Term Commencement Date, Tenant shall prepare, furnish to
Landlord and obtain Landlord's approval of all necessary plans and specifications for Tenant's proposed
improvements to the Premises ( "Tenant's Work ") pursuant to the provisions under "Tenant's Plans" on
Exhibit C and shall thereafter construct such improvements pursuant to the provisions under "Tenant's
Work" in Exhibits C and E. Landlord shall notify Tenant in writing when Landlord's Work is
substantially complete pursuant to Exhibit C. Provided that Tenant has obtained the insurance required
by Article IX below and Exhibits C and E, Tenant shall, upon receipt of Landlord's notice, have the
right to enter the Premises to construct and complete Tenant's Work and the installation of all Tenant's
fixtures, sign faces, and equipment at the Premises. Tenant shall obtain, at its expense, a certificate of
occupancy for the Premises upon completion of Tenant's Work. Tenant's entry into the Premises
hereunder shall be at Tenant's own risk and without interference with any remaining work which must be
performed by Landlord in the Premises.
D. Repairs and Maintenance During the Term.
1. Tenant's Obligations. Except to the extent of Landlord's obligations under Article V
below, Tenant shall, throughout the Term at its expense, make all repairs necessary to keep the Premises,
Tenant's fixtures and personal property, in good order, condition and repair and in compliance with all
applicable Governmental Requirements; and to the extent Tenant fails to do so, Landlord may make such
repairs itself at Tenant's expense. At the expiration or earlier termination of this Lease, or Tenant's right to
possession, Tenant shall return the Premises to Landlord in the condition required under Article XV
below.
2. Landlord's Obligations. _ Except as otherwise provided in Article X below, Landlord
agrees to make all necessary repairs to the structure and the exterior of the Building, the common areas of
the Project and the Building Systems (as defined in Section VI.B below), and to maintain the same in
reasonably good order and condition, subject to inclusion of the costs thereof in Operating Costs;
provided, however, that any damage arising from the acts of Tenant or any Tenant Parties ( "Tenant
Parties" include Tenant and Tenant's employees, agents, contractors, and invitees) shall be repaired by
Landlord at Tenant's sole expense, and Tenant shall pay Landlord, on demand, the cost of any such repair.
Landlord may also at any time make repairs or alterations which Landlord deems necessary for the safety
or protection of the Project, or which Landlord is required to make by any court or pursuant to any
Governmental Requirements. The cost of any repairs made by Landlord on account of Tenant's default,
or on account of the misuse or neglect by Tenant or any Tenant Parties anywhere in the Project, shall
become Additional Rent payable by Tenant on demand. As a condition precedent to all of Landlord's
repair and maintenance obligations under this Lease, Tenant must have notified Landlord of the need of
such repairs or maintenance. Tenant waives the provisions of Sections 1941 and 1942 of the California
Civil Code and any similar or successor law regarding Tenant's right to make repairs and deduct the cost
of such repairs from the Rent due under this Lease.
V. PROJECT SERVICES.
A. Heating and Air Conditionin>;.
1. During the normal business hours of 6:00 a.m. to 6:00 p.m., Monday through Friday
(except legal holidays) (the "Normal Business Hours "), Landlord shall furnish heating and air
conditioning to provide a comfortable temperature, in Landlord's judgment, for normal business
operations, except to the extent Tenant fails to take reasonable steps to ensure the efficient heating and
cooling of the Premises (e.g., keeping all exterior doors, windows and blinds closed) or uses or installs
equipment which adversely affects the temperature maintained by the air conditioning system. If Tenant
uses or installs such equipment, Landlord may install supplementary air conditioning units in the
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Premises, and Tenant shall pay to Landlord upon demand as Additional Rent the cost of installation,
operation and maintenance thereof. Tenant acknowledges that the temperatures within the Premises may
be slightly higher than usual if the outside temperature exceeds 95 degrees F dry bulb.
2. Landlord shall furnish heating and air conditioning after Normal Business Hours if
Tenant provides Landlord reasonable prior notice (at least twelve hours in advance), and pays Landlord as
Additional Rent $150.00 per hour for such additional heating or air conditioning, including insurance,
maintenance, depreciation, and labor costs incurred by Landlord as a result of providing such service after
Normal Business Hours.
B. Elevators. If the Building is equipped with one or more elevators, Landlord shall provide
passenger elevator service during Normal Business Hours to Tenant in common with Landlord and all
other tenants. Landlord shall provide limited passenger service at other times, except in case of an
emergency. If the Building is equipped with a freight elevator, Landlord shall provide freight elevator
service at reasonable hours at Tenant's request.
C. Electricity. During Normal Business Hours, Landlord shall provide sufficient electricity to
operate normal office lighting and a reasonable amount of office equipment and machinery. Tenant shall
not install or operate in the Premises any electrically operated equipment or other machinery, without
obtaining Landlord's prior written consent; provided that Landlord's prior written consent shall not be
required if (i) Tenant uses only such equipment or machinery that is normally employed for general office
use and which does not require high electricity consumption for operation, and (ii) Tenant uses only usual
and customary quantities of such general office equipment or machinery. If any of Tenant's equipment or
machinery requires electricity consumption in excess of that which is necessary to operate normal general
office equipment or machinery (e.g., computer rooms, telephone rooms and special HVAC equipment), if
Tenant uses more than the usual and customary quantities of such normal general office equipment or
machinery, or if Landlord determines that Tenant is using a disproportionate share of the electrical
capacity available for the Building or Project (i.e., electrical usage in excess of that which would typically
be used for general office purposes), then Landlord, at its election, may, in addition to Landlord's right to
withhold consent to Tenant's installation or operation of equipment or other machinery in the Premises as
provided above, (1) periodically charge Tenant, as Additional Rent, a sum equal to Landlord's reasonable
estimate of the cost of Tenant's excess electricity use, (2) install, at Tenant's expense, a separate meter to
measure the electricity supplied to the Premises, and /or (3) install, at Tenant's expense, additional
equipment to increase the electrical capacity for the Building or Project to offset such excess usage by
Tenant. Tenant shall reimburse Landlord as Additional Rent for the cost of its submetered consumption
based upon Landlord's reasonable estimate of the cost of such electricity. Tenant shall not permit
electricity to be wasted.
D. Water. Landlord shall furnish hot and cold tap water for drinking and toilet purposes. Tenant
shall pay Landlord for water furnished for any other purpose as Additional Rent at rates fixed by
Landlord. Tenant shall not permit water to be wasted.
E. Janitorial Service. Landlord shall furnish janitorial service Monday through Friday as
generally provided to other tenants in the Project, but never after Tenant's normal hours of operation.
Tenant shall make its hours of operation clear to Landlord.
F. Interruption of Services. If any of the Building equipment or machinery ceases to function
properly for any cause Landlord shall use reasonable diligence to repair the same promptly. Landlord's
inability to furnish, to any extent, the Project services set forth in this Article V, or any cessation thereof
resulting from any causes, including any entry for repairs pursuant to this Lease, and any renovation,
redecoration or rehabilitation of any area of the Project, shall not render Landlord liable for damages to
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either person or property or for interruption or loss to Tenant's business, nor be construed as an eviction of
Tenant, nor work an abatement of any portion of Rent, nor relieve Tenant from fulfillment of any
covenant or agreement hereof.
G. Access, Lobby. Tenant shall have access to the Premises and the parking facilities
serving the Project 24 hours a day, every day of the Term. Tenant shall have the right to locate a
receptionist and a sign in the general lobby and reception area of the Building at a location to be identified
and specified by Landlord.
H. Security. Landlord shall provide security for the Building 24 hours a day, every day of
the Term. Tenant shall have the right to install its own security systems at the Premises if Tenant has
obtained prior written consent from Landlord, which approval shall not be unreasonably withheld,
conditioned or delayed. Tenant acknowledges that Building security problems may occur which may
require the employment of certain measures by Landlord in the day -to -day operation of the Project,
provided that Tenant shall have no liability for any action taken by Landlord in connection therewith,
unless additional measures are required due to Tenant's operation of its business within the Premises, and
Tenant agrees that:
1. Landlord may, at any time, or from time to time, or for regularly
scheduled time periods, as deemed advisable by Landlord and /or its agents, in their sole discretion,
require that persons entering or leaving the Building or the Project identify themselves to watchmen or
other employees designated by Landlord, by registration, identification or otherwise.
2. Tenant and its employees will cooperate with Landlord's employees in
the implementation of any and all security procedures.
Such security measures shall be the sole responsibility of Landlord.
4. Landlord will issue to Tenant, free of charge, employee and guest
identification badges, which must be worn by employees and guests at all times. Tenant will be charged
for all replacement or substitute identification badges.
VI. ALTERATIONS AND REPAIRS.
A. Landlord's Consent and Conditions.
1. Tenant shall not make any improvements or alterations to the Premises (the "Work ")
without in each instance submitting plans and specifications for the Work to Landlord and obtaining
Landlord's prior written consent. Tenant shall pay Landlord's standard charge (or, if Landlord does not
have a standard charge, then Landlord's actual costs incurred, if any) for review of all of the plans and all
other items submitted by Tenant. Landlord will be deemed to be acting reasonably in withholding its
consent for any Work which (a) impacts the base structural components or the Building Systems, (b)
impacts any other tenant's premises, (c) is visible from outside the Premises, or (d) would utilize building
materials or equipment which are inconsistent with Landlord's standard building materials and equipment
for the Building.
2. Tenant shall pay for the cost of all Work, including the cost of any and all approvals,
permits, fees and other charges which may be required as a condition of performing such Work.
3. The following requirements shall apply to all Work (including Tenant's Work for
initial preparation of the Premises, as well as any Work performed during the Term):
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a) Prior to commencement, Tenant shall furnish to Landlord building permits,
certificates of insurance satisfactory to Landlord, and, at Landlord's request,
security for payment of all costs.
b) Tenant shall perform all Work so as to maintain peace and harmony among
other contractors serving the Project and shall avoid interference with other work
to be performed or services to be rendered in the Project.
c) The Work shall be performed in a good and workmanlike manner, meeting
the standard for construction and quality of materials in the Building, and shall
comply with all insurance requirements and all applicable governmental laws,
ordinances and regulations ( "Governmental Requirements ").
d) Tenant shall perform all Work so as to minimize or prevent disruption to
other tenants, and Tenant shall comply with all reasonable requests of Landlord
in response to complaints from other tenants.
e) Tenant shall perform all Work in compliance with any "Policies, Rules and
Procedures for Construction Projects" which may be in effect at the time the
Work is performed. See current policies attached hereto as Exhibit E.
fl All Work shall be performed only by contractors or mechanics approved by
Landlord, which approval shall not be unreasonably withheld, conditioned or
delayed; provided, however, that (i) Landlord may, in its sole discretion, specify
engineers, general contractors, subcontractors, and architects to perform work
affecting the Building Systems; and (ii) if Landlord consents to any Work that
requires work to be performed outside the Premises, Landlord may elect to
perform such work at Tenant's expense.
g) Tenant shall permit Landlord to supervise all Work, including, without
limitation, the right (but not an obligation) to inspect the construction work
during the progress thereof, and to require corrections of faulty construction or
any material deviation from the plans for such Work as approved by Landlord;
provided, however, that no such inspection shall be deemed to create any liability
on the part of Landlord, or constitute a representation by Landlord or any person
hired to perform such inspection that the work so inspected conforms with such
plans or complies with any Governmental Requirements, and no such inspection
shall give rise to a waiver of, or estoppel with respect to, Landlord's continuing
right at any time or from time to time to require the correction of any faulty work
or any material deviation from such plans.
h) Upon completion, Tenant shall furnish Landlord with contractor's affidavits
and full and final statutory waivers of liens, as -built plans and specifications, and
receipted bills covering all labor and materials, and all other close -out
documentation related to the Work, including any other information required
under any "Policies, Rules and Procedures for Construction Projects" which may
be in effect at the time.
B. Repairs. If any part of the mechanical, electrical or other systems (e.g., HVAC, life safety or
automatic fire extinguisher /sprinkler system) (collectively, the "Building Systems ") in the Premises shall
be damaged during the performance of Work, Tenant shall promptly notify Landlord, and Landlord may
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elect to repair such damage at Tenant's expense. Alternatively, Landlord may require Tenant to repair
such damage at Tenant's sole expense using contractors approved by Landlord.
C. No Liens. Tenant has no authority to cause or permit any lien or encumbrance of any kind to
affect Landlord's interest in the Project; any such lien or encumbrance shall attach to Tenant's interest
only. If any mechanic's lien shall be filed or claim of lien made for work or materials furnished to
Tenant, then Tenant shall at its expense within ten (10) days thereafter either discharge or contest the lien
or claim. If Tenant contests the lien or claim, then Tenant shall (i) within such ten (10) day period,
provide Landlord adequate security for the lien or claim, (ii) contest the lien or claim in good faith by
appropriate proceedings that operate to stay its enforcement, and (iii) pay promptly any final adverse
judgment entered in any such proceeding. If Tenant does not comply with these requirements, Landlord
may discharge the lien or claim, and the amount paid, as well as attorney's fees and other expenses
incurred by Landlord, shall become Additional Rent payable by Tenant on demand.
D. Removal Upon Termination. Upon the termination of this Lease or Tenant's right of
possession, Tenant shall remove from the Premises and Project its trade fixtures, furniture, moveable
equipment and other personal property. Tenant shall repair all damage caused by the installation or
removal of any of the foregoing items. If Tenant does not timely remove such property, then Tenant shall
be conclusively presumed to have, at Landlord's election (i) conveyed such property to Landlord without
compensation or (ii) abandoned such property, and Landlord may dispose of or store any part thereof in
any manner at Tenant's sole cost, without waiving Landlord's right to claim from Tenant all expenses
arising out of Tenant's failure to remove the property, and without liability to Tenant or any other person.
Landlord shall have no duty to be a bailee of any such personal property. If Landlord elects
abandonment, Tenant shall pay to Landlord, upon demand, any expenses incurred for disposition.
VII. USE OF PREMISES.
A. Limitation on Use. Tenant shall use the Premises only for the Permitted Use stated in the
Schedule. Tenant shall not allow any use of the Premises which will negatively affect the cost of
coverage of Landlord's insurance on the Project. Tenant shall not allow any inflammable or explosive
liquids or materials to be kept on the Premises. Tenant shall not allow any use of the Premises which
would cause the value or utility of any part of the Premises to diminish or would interfere with any other
tenant or with the operation of the Project by Landlord. Tenant shall not permit any nuisance or waste to
occur in, on, or about the Project, or allow any offensive noise or odor in or around the Project. At the end
of each business day, or more frequently if necessary, Tenant shall deposit all garbage and other trash
(excluding any inflammable, explosive and /or hazardous materials) in trash bins or containers approved
by Landlord in locations designated by Landlord from time to time. If any governmental authority shall
deem the Premises to be a "place of public accommodation" under the Americans with Disabilities Act
( "ADA ") or any other comparable law as a result of Tenant's use, Tenant shall either modify its use to
cause such authority to rescind its designation or be responsible for any alterations, structural or
otherwise, required to be made to the Building or the Premises under such laws.
B. Signs. Tenant shall not place on any portion of the Premises any sign, placard, lettering,
banner, displays, graphic, decor or other advertising or communicative material which is visible from the
exterior of the Premises without Landlord's prior written approval. Any approved signs shall strictly
conform to all Governmental Requirements, any relevant documents (by way of example only, covenants
or restrictions) recorded against the Project, and Landlord's Signage Standards in effect at the time, and
shall be installed and removed at Tenant's expense. Tenant, at its sole expense, shall maintain such signs
in good condition and repair during the Term. Prior to the expiration or earlier termination of this Lease,
Tenant at its sole cost shall remove all of its exterior signage and repair any and all damage caused to the
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Building and /or Project (including and fading or discoloration) by such signs and /or the removal of such
signs from the Building and /or Project.
C. Parking. Tenant shall have the non - exclusive right to park in the Project's parking facilities in
common with other tenants of the Project upon terms and conditions, as may from time to time be
established by Landlord. Tenant agrees not to overburden the parking facilities (i.e., use more than the
number of unassigned parking stalls indicated on the Schedule) and agrees to cooperate with Landlord
and other tenants in the Project in the use of the parking facilities. Landlord reserves the right in its
discretion to determine whether the parking facilities are becoming crowded and to allocate and assign
parking spaces among Tenant and the other tenants in the Project. Landlord shall have the right to charge
Tenant the portion that Landlord deems allocable to Tenant of any charges (e.g_, fees or taxes) imposed
by the Regional Air Quality Control Board or other governmental or quasi - governmental agency in
connection with the parking facilities (e v_ in connection with operation or use of the parking facilities).
Landlord shall not be liable to Tenant, nor shall this Lease be affected, if any parking is impaired by (or if
any parking charges are imposed as a result of) any moratorium, initiative, referendum, law, ordinance,
regulation or order passed, issued or made by any governmental or quasi - governmental body.
D. Prohibition Against Use of Roof and Structure of Building. Tenant shall be prohibited from
using all or any portion of the roof of the Building or any portion of the structure of the Building during
the Term of this Lease (or any extensions thereof) for any purposes (including without limitation for the
installation, maintenance and repair of a satellite dish and /or other telecommunications equipment),
without Landlord's prior written consent, which Landlord may withhold in its sole and absolute
discretion. Nothing herein shall limit or restrict Landlord's rights under Section XII. J.
E. Cafeteria. At no additional cost to Tenant, other than the purchase of items therein, Tenant
shall have full access to the Project's cafeteria. Neither Tenant nor any of its employees shall be entitled
to subsidized pricing with respect to purchases in the cafeteria. Landlord shall operate and maintain the
cafeteria at Landlord's sole cost and expense, subject to the exceptions stated herein; provided however,
that Landlord shall have the right to cease operation of the cafeteria at any time and from time to time.
F. Other Amenities at No Additional Cost to Tenant. Tenant shall have full access to the ATM
facilities (but not the credit union) serving the Project. Tenant shall not have access to the fitness center
located in the Building.
VIII. GOVERNMENTAL REQUIREMENTS AND BUILDING RULES.
A. Compliance in Premises. Tenant shall, at its sole cost and expense, (1) comply with all
Governmental Requirements; with any occupancy certificate issued for the Premises; and with the
provisions of all recorded documents affecting the Premises, insofar as any thereof relates to or affects the
condition, use or occupancy of the Premises; and (2) take all proper and necessary action to cause the
Premises, including any repairs, replacements, alterations and improvements thereto, to be maintained,
constructed, used and occupied in compliance with applicable Governmental Requirements, including any
applicable ADA requirements, whether or not such requirements are based on Tenant's use of the
Premises, and further to assume all responsibility to ensure the Premises' continued compliance with all
Governmental Requirements, including applicable ADA requirements, throughout the Term.
B. Comlliance in Common Areas. Landlord shall perform any work required under any
applicable Governmental Requirements, including the ADA, to be performed in the common areas of the
Project, except that, as provided below, Tenant shall be solely responsible for all such compliance work
which is required as a result of Tenant's particular use or activities (e.g., the initial Tenant Work or
Tenant's proposed alterations or repairs). With respect to any compliance work required outside the
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Premises for which Tenant is responsible hereunder, Landlord shall have the right to perform such work, or
require that Tenant perform such work with contractors, subcontractors, engineers and architects approved
by Landlord; and if Landlord elects to perform such work outside the Premises, Tenant shall reimburse
Landlord for the cost of such work within ten (10) days following receipt of invoices therefor. Landlord
makes no representations or warranties regarding the Project's or the Premises' compliance with
applicable Governmental Requirements as of the date of this Lease.
C. Rules and Regulations. Tenant shall also comply with all reasonable rules for the Project
which may be established and amended from time to time by Landlord. The present rules and regulations
are contained in Exhibit B. Failure by another tenant to comply with the rules or failure by Landlord to
enforce them shall not relieve Tenant of its obligation to comply with the rules or make Landlord
responsible to Tenant in any way. Landlord shall use reasonable efforts to apply the rules and regulations
uniformly with respect to Tenant and any other tenants in the Project under leases containing rules and
regulations similar to this Lease. If Tenant performs alterations or repairs, Tenant shall comply with the
provisions of Article VI of this Lease.
IX. WAIVER OF CLAIMS; INDEMNIFICATION; INSURANCE.
A. Waiver of Claims. Landlord shall not be liable to Tenant, or to any other person or entity,
from or for any event, occurrence, act, neglect, omission, loss, damage, injury or death, howsoever caused
or whenever occurring, including damages occasioned by falling plaster, electricity, plumbing, gas, water,
steam, sprinkler or other pipe and sewage system or by the bursting, running or leaking of any tank,
washstand, closet or waste or other pipes in or about the Premises or the the Building, damages
occasioned by water being upon or coming through the roof, skylight, vent, trapdoor or otherwise of any
portion of the Building, damages arising from any act or neglect of tenants, owners or other occupants of
adjacent property, or of their employees, agents, contractors, licensees or invitees, or the public, or
damages for any failure to furnish, or interruption of, service of any water, gas, electricity and /or
telephone, or caused by fire, accident, riot, strike, labor disputes, acts of God, or the making of or failure
to make any repairs or improvements, or damages arising from the loss of technology, rights or services.
B. Indemnification. Tenant shall indemnify, defend, protect and hold Landlord harmless from
and against any and all claims, proceedings, damages, causes of action, liability, costs or expense
(including attorneys' fees) arising from or in connection with or caused by: (i) any act or omission of
Tenant or any subtenant, licensee or concessionaire of Tenant, or their respective contractors, invitees,
agents, servants or employees, wheresoever the same may occur; (ii) any injury, death or damage to any
person or property occurring in, on or about the Premises, or any part thereof, the sidewalks adjoining the
same and any service delivery facilities used by Tenant, unless such injury, death or damage is due to the
sole negligence or willful misconduct of Landlord or its agents, contractors or employees; or (iii) any
breach or default by Tenant in the performance of its obligations hereunder
C. Tenant's Insurance /Self - Insurance. Tenant Tenant is a public agency and is self - insured
through participation in a joint powers insurance authority known as California Insurance Pool Authority
( "CIPA "). Any other occupants regularly utilizing the Premises will be public entities that also are self -
insured. Tenant will provide the following insurance with respect to the Premises:
1. Coverage.
a) Commercial General Liability Insurance, including contractor's liability
coverage, contractual liability coverage, completed operations coverage, broad
form property damage endorsement, and contractor's protective liability
coverage, to afford protection with limits, for each occurrence, of not less than
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One Million Dollars ($1,000,000) with respect to personal injury, death or
property damage..
b) Property Insurance covering the improvements, fixtures and personal
property;
c) Workers Compensation Insurance as statutorily required.
2. Tenant Contractors. Tenant shall cause any contractor of Tenant performing
work on the Premises to maintain insurance as follows, with such other terms, coverages and insurers, as
Landlord shall reasonably require from time to time:
a) Commercial General Liability Insurance, including contractor's
liability coverage, contractual liability coverage, completed operations
coverage, broad form property damage endorsement, and contractor's
protective liability coverage, to afford protection with limits, for each
occurrence, of not less than One Million Dollars ($1,000,000) with respect
to personal injury, death or property damage.
b) Workers' compensation or similar insurance in form and amounts required by
law, and Employer's Liability with not less than the following limits:
Each Accident: $500,000
Disease -- Policy Limit: $500,000
Disease - -Each Employee: $500,000
Such insurance shall contain a waiver of subrogation provision in favor of Landlord and
its agents. Tenant's contractor's insurance shall be primary and not contributory to that carried by Tenant,
Landlord, their agents or mortgagees. Tenant and Landlord, and if any, Landlord's building manager or
agent, mortgagee or ground lessor shall be named as additional insured on Tenant's contractor's insurance
policies.
D. Landlord's Insurance. Subject to reimbursement as an Operating Cost in accordance with the
provisions of Article II hereof, Landlord shall procure and maintain in effect throughout the Term of this
Lease commercial general liability insurance, property insurance and /or such other types of insurance as
Landlord reasonably deems necessary or advisable to carry. Such coverages shall be in such amounts,
from such companies and on such other terms and conditions as Landlord may from time to time
reasonably determine, and Landlord shall have the right, but not the obligation, to change, cancel,
decrease or increase any insurance coverages in respect of the Building, add additional forms of insurance
as Landlord shall deem reasonably necessary, and /or obtain umbrella or other policies covering both the
Building and other assets owned by or associated with Landlord or its affiliates, in which event the cost
thereof shall be equitably allocated.
X. FIRE AND OTHER CASUALTY.
A. Termination. If a fire or other casualty causes damage to the Building or the Premises, and
sufficient insurance proceeds will be available to Landlord to cover the cost of any restoration to the
Building and Premises, Landlord shall engage a registered architect to estimate, within one (1) month of
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the casualty, to both Landlord and Tenant the amount of time needed to restore the Building and the
Premises to tenantability, using standard working methods without the payment of overtime and other
premiums. If the time needed exceeds twelve (12) months from the beginning of the restoration, or two
(2) months therefrom if the restoration would begin during the last twelve (12) months of the Lease, then
in the case of the Premises, either Landlord or Tenant may terminate this Lease, and in the case of the
Building, Landlord may terminate this Lease, by notice to the other party within ten (10) days after the
notifying party's receipt of the architect's estimate. If sufficient insurance proceeds will not be available
to Landlord to cover the cost of any restoration to the Building or the Premises, Landlord may terminate
this Lease by written notice to Tenant. Any termination pursuant to this Section X.A shall be effective
thirty (30) days from the date of such termination notice and Rent shall be paid by Tenant to that date,
with an abatement for any portion of the Premises which has been untenantable after the casualty.
B. Restoration. If a casualty causes damage to the Building or the Premises but this Lease is not
terminated for any reason, then Landlord shall obtain the applicable insurance proceeds and diligently
restore the Building and the Premises subject to current Governmental Requirements. Landlord's
obligation, should it elect or be obligated to repair or rebuild, shall be limited to the basic Premises,
building- standard tenant improvements, or the basic Building, as the case may be, and Tenant shall, at
Tenant's expense, replace or fully repair damaged improvements made pursuant to Section IV C and
Article VI hereof, any tenant improvements in excess of the building standard, personal property and
fixtures. Rent shall be abated on a per diem basis during the restoration for any portion of the Premises
which is untenantable, except to the extent that the casualty was caused by the negligence or intentional
misconduct of Tenant, its agents, employees, contractors, subtenants or assignees. Tenant shall not be
entitled to any compensation or damages from Landlord for loss of the use of the Premises, damage to
Tenant's personal property and trade fixtures or any inconvenience occasioned by such damage, repair or
restoration. Tenant hereby waives the provisions of Section 1932, Subdivision 2, and Section 1933,
Subdivision 4, of the California Civil Code, and the provisions of any similar law hereinafter enacted.
XI. EMINENT DOMAIN. If a part of the Project is taken by eminent domain or deed in lieu thereof
which is so substantial that the Premises cannot reasonably be used by Tenant for the operation of its
business, then either party may terminate this Lease effective as of the date of the taking. If any
substantial portion of the Project is taken without affecting the Premises, then Landlord may terminate
this Lease as of the date of such taking. Rent shall abate from the date of the taking in proportion to any
part of the Premises taken. The entire award for a taking of any kind shall be paid to Landlord, and
Tenant shall have no right to share in the award. All obligations accrued to the date of the taking shall be
performed by the party liable to perform said obligations, as set forth herein.
XII. RIGHTS RESERVED TO LANDLORD. Landlord may exercise at any time any of the
following rights respecting the operation of the Project without liability to Tenant of any kind:
A. Sig_s. To install, modify and /or maintain any signs on the exterior and in the interior of the
Building or on the Project, and to approve at its sole discretion, prior to installation, any of Tenant's signs
in the Premises visible from the common areas or the exterior of the Building.
B. Keys. To retain and use at any time passkeys to enter the Premises or any door within the
Premises. Tenant shall not alter or add any lock or bolt without Landlord's consent.
C. Access. To have access to the Premises with twenty -four hours' prior notice (except in the
case of an emergency, in which case Landlord shall have the right to immediate access) to inspect the
Premises, to post notices of non - responsibility in connection with any Work, to make repairs, alterations,
additions or improvements to the Premises or Building, and to perform any other obligations of Landlord
hereunder, all without abatement of Rent.
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D. Preparation for Reoccupancy. To decorate, remodel, repair, alter or otherwise prepare the
Premises for reoccupancy at any time after Tenant abandons the Premises, without relieving Tenant of
any obligation to pay Rent.
E. Heavy Articles. To approve the weight, size, placement and time and manner of movement
within the Building of any safe, central filing system or other heavy article of Tenant's property. Tenant
shall move its property entirely at its own risk.
F. Show Premises. To show the Premises to prospective purchasers, tenants, brokers, lenders,
mortgagees, investors, rating agencies or others at any reasonable time, provided that Landlord gives prior
notice to Tenant and does not materially interfere with Tenant's use of the Premises.
G. Use of Lockbox. To designate a lockbox collection agent for collections of amounts due
Landlord. In that case, the date of payment of Rent or other sums shall be the date of the agent's receipt
of such payment or the date of actual collection if payment is made in the form of a negotiable instrument
thereafter dishonored upon presentment. However, Landlord may reject any payment for all purposes as
of the date of receipt or actual collection by mailing to Tenant within a reasonable time after such receipt
or collection a check equal to the amount sent by Tenant.
H. Repairs and Alterations. To make repairs or alterations to the Project and in doing so
transport any required material through the Premises, to close entrances, doors, corridors, elevators and
other facilities in the Project, to open any ceiling in the Premises, or to temporarily suspend services or
use of common areas in the Building. Landlord may perform any such repairs or alterations during
ordinary business hours, except that Tenant may require any work in the Premises to be done after
business hours if Tenant pays Landlord for overtime and any other expenses incurred. Landlord may do
or permit any work on any nearby building, land, street, alley or way.
I. Buildina Services. To install, use and maintain through the Premises, pipes, conduits, wires
and ducts serving the Building, provided that such installation, use and maintenance does not
unreasonably interfere with Tenant's use of the Premises.
J. Use of Roof. To permit Landlord (or any entity selected by Landlord) to install, operate,
maintain and repair any satellite dish, antennae, equipment, or other facility on the roof of the Building or
to use the roof of the Building in any other manner, provided that such installation, operation,
maintenance, repair or use does not unreasonably interfere with Tenant's use of the Premises.
K. Other Actions. To take any other action which Landlord deems reasonable in connection
with the operation, maintenance or preservation of the Building and the Project.
XIII. DEFAULTS.
A. Tenant's Default. Any of the following shall constitute a default by Tenant:
1. Rent Default. Tenant fails to pay any Rent when due (if paying in monthly
installments) within five (5) days after Landlord's notice, unless Tenant has failed more than two (2)
times during a given Lease Year timely to pay any Rent so that Landlord has been required to give notice
hereunder, in which event no written notice or cure period shall thereafter be required or applicable
during such Lease Year. In the event that Tenant is making annual Rent payments, Tenant fails to pay
any Rent when due within thirty (30) days of the date the payment is due regardless of Landlord's notice
to Tenant;
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2. Assianment/Sublease or Hazardous Substances Default. Tenant defaults in its
obligations under Article XVIII (Assignment and Sublease) or Article XXV (Hazardous Substances) and
does not cure in accordance with the cure requirements set forth in this Lease;
3. Other Performance Default. Tenant fails to perform any other obligation to Landlord
under this Lease, and this failure continues for ten (10) days after written notice from Landlord or
Landlord's agent, except that if Tenant begins to cure its failure within the ten (10) day period but cannot
reasonably complete its cure within such period, then, so long as Tenant continues to diligently attempt to
cure its failure, the ten (10) day period shall be extended to sixty (60) days, or such lesser period as is
reasonably necessary to complete the cure;
4. Credit Default. One of the following credit defaults occurs:
a) Tenant (or any guarantor of Tenant's obligations hereunder) commences any
proceeding under any law relating to bankruptcy, insolvency, reorganization or
relief of debts, or seeks appointment of a receiver, trustee, custodian or other
similar official for the Tenant (or the guarantor) or for any substantial part of its
property, or any such proceeding is commenced against Tenant (or the guarantor)
and either remains undismissed for a period of thirty (30) days or results in the
entry of an order for relief against Tenant (or the guarantor) which is not fully
stayed within seven (7) days after entry;
b) Tenant (or any guarantor of Tenant's obligations hereunder) becomes
insolvent or bankrupt, does not generally pay its debts as they become due, or
admits in writing its inability to pay its debts, or makes a general assignment for
the benefit of creditors;
c) Any third party obtains a levy or attachment under process of law against
Tenant's leasehold interest.
5. Vacation or Abandonment Default. Tenant vacates or abandons the Premises.
Tenant acknowledges and agrees that, notwithstanding the foregoing provisions of this
Article XIII, Tenant shall be in default for purposes of Section 1161 of the California Code of Civil
Procedure immediately following Tenant's failure to perform or comply with any covenants, agreements,
terms or conditions of this Agreement to be performed or observed by Tenant, including, without
limitation, Tenant's failure to pay Rent when due, and that any notices required to be given by Landlord
under this Article XIII shall, in each case, be in lieu of, and not in addition to, any notice required under
Section 1161 of the California Code of Civil Procedure, and shall be deemed to satisfy the requirement, if
any, that notice be given pursuant to such section.
B. Landlord Defaults. Landlord shall be in default hereunder if Landlord has not begun and
pursued with reasonable diligence the cure of any failure of Landlord to meet its obligations hereunder
within thirty (30) days after the receipt by Landlord of written notice from Tenant of the alleged failure to
perform. In no event shall Tenant have the right to terminate or rescind this Lease as a result of
Landlord's default as to any covenant or agreement contained in this Lease. Tenant hereby waives such
remedies of termination and rescission and hereby agrees that Tenant's remedies for default hereunder and
for breach of any promise or inducement shall be limited to a suit for damages and /or injunction. In
addition, Tenant hereby covenants that, prior to the exercise of any such remedies, Tenant will give notice
and a reasonable time to cure any default by Landlord to any holder of a mortgage or deed of trust
encumbering Landlord's interest in the Property of which Tenant has been given notice. Notwithstanding
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anything contained herein to the contrary, Landlord shall not be in default under this Lease to the extent
Landlord is unable to perform any of its obligations on account of any prevention, delay, stoppage due to
strikes, lockouts, inclement weather, labor disputes, inability to obtain labor, materials, fuels, energy or
reasonable substitutes therefor, governmental restrictions, regulations, controls, actions or inaction, civil
commotion, fire or other acts of god, national emergency, or any other cause of any kind beyond the
reasonable control of Landlord (except financial inability).
XIV. LANDLORD REMEDIES. UPON A DEFAULT, LANDLORD SHALL HAVE THE
FOLLOWING REMEDIES, IN ADDITION TO ALL OTHER RIGHTS AND REMEDIES PROVIDED
BY LAW OR OTHERWISE PROVIDED IN THIS LEASE, TO WHICH LANDLORD MAY RESORT
CUMULATIVELY OR IN THE ALTERNATIVE:
A. Termination of Lease. Landlord may elect by notice to Tenant to terminate this Lease, in
which event, Tenant shall immediately vacate the Premises and deliver possession to Landlord.
B. Civil Code Section 1951.4 Remedy. Even though Tenant has breached this Lease, this Lease
shall continue in effect for so long as Landlord does not terminate Tenant's right to possession, and
Landlord shall have all of its rights and remedies, including the right, pursuant to California Civil Code
Section 1951.4, to recover all rent as it becomes due under this Lease, if Tenant has the right to sublet or
assign, subject only to reasonable limitations. Acts of maintenance or preservation or efforts to relet the
Premises or the appointment of a receiver upon initiative of Landlord to protect Landlord's interest under
this Lease shall not constitute a termination of Tenant's right to possession unless written notice of
termination is given by Landlord to Tenant.
C. Lease Termination Damages. If Landlord elects to terminate this Lease, then this Lease shall
terminate on the date for termination set forth in such notice. Tenant shall immediately vacate the
Premises and deliver possession to Landlord, and Landlord may repossess the Premises and may, at
Tenant's sole cost, remove any of Tenant's signs and any of its other property, without relinquishing its
right to receive Rent or any other right against Tenant. On termination, Landlord has the right to recover
from Tenant as damages:
1. The worth at the time of award of unpaid Rent and other sums due and payable which
had been earned at the time of termination; plus
2. The worth at the time of award of the amount by which the unpaid Rent and other
sums due and payable which after termination until the time of award exceeds the amount of such Rent
loss that Tenant proves could have been reasonably avoided; plus
3. The worth at the time of award of the amount by which the unpaid Rent and other
sums due and payable for the balance of the Term after the time of award exceeds the amount of such
Rent loss that Tenant proves could be reasonably avoided; plus
4. Any other amount necessary to compensate Landlord for all the detriment
proximately caused by Tenant's failure to perform Tenant's obligations under this Lease, or which, in the
ordinary course of things, would be likely to result therefrom, including, without limitation, any costs or
expenses incurred by Landlord: (i) in retaking possession of the Premises; (ii) in maintaining, repairing,
preserving, restoring, replacing, cleaning, altering or rehabilitating the Premises or any portion thereof,
including such acts for reletting to a new tenant or tenants; (iii) for leasing commissions; or (iv) for any
other costs necessary or appropriate to relet the Premises; plus
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5. At Landlord's election, such other amounts in addition to or in lieu of the foregoing
as may be permitted from time to time by the laws of the State of California.
The "worth at the time of award" of the amounts referred to in Sections XIV.C(1) and
XIV.C(2) is computed by allowing interest at the Interest Rate on the unpaid rent and other sums due and
payable from the termination date through the date of award. The "worth at the time of award" of the
amount referred to in Section XIV.C(3) is computed by discounting such amount at the discount rate of
the Federal Reserve Bank of San Francisco at the time of award plus one percent (1 %). Tenant waives
redemption or relief from forfeiture under California Code of Civil Procedure Sections 1174 and 1179, or
under any other present or future law, if Tenant is evicted or Landlord takes possession of the Premises by
reason of any default of Tenant hereunder.
D. Landlord's Remedies Cumulative. All of Landlord's remedies under this Lease shall be in
addition to all other remedies Landlord may have at law or in equity, including, without limitation, the
remedy described in California Civil Code Section 1951.4 (pursuant to which Landlord may continue the
Lease in effect after Tenant's breach and abandonment and recover as rent as it becomes due if Tenant has
the right to sublet or assign the Lease, subject to reasonable limitations). Waiver by Landlord of any
breach of any obligation by Tenant shall be effective only if it is in writing, and shall not be deemed a
waiver of any other breach, or any subsequent breach of the same obligation. The possession of Tenant's
funds, negotiation of Tenant's negotiable instruments, or acceptance of Tenant's payment by Landlord or
its agents shall not constitute a waiver of any breach by Tenant, and if such possession, negotiation or
acceptance occurs after Landlord's notice to Tenant, or termination of the Lease or of Tenant's right to
possession, such possession, negotiation or acceptance shall not affect such notice or termination.
Acceptance of payment by Landlord after commencement of a legal proceeding or final judgment shall
not affect such proceeding or judgment. Landlord may advance such monies and take such other actions
for Tenant's account as reasonably may be required to cure or mitigate any default by Tenant. Tenant
shall immediately reimburse Landlord for any such advance, and such sums shall bear interest at the
Interest Rate until paid.
E. WAIVER OF TRIAL BY JURY. EACH PARTY WAIVES TRIAL BY JURY IF ANY
LEGAL PROCEEDING IS BROUGHT BY THE OTHER IN CONNECTION WITH THIS
LEASE. EACH PARTY SHALL BRING ANY ACTION AGAINST THE OTHER IN
CONNECTION WITH THIS LEASE IN A FEDERAL OR STATE COURT LOCATED IN
CALIFORNIA, CONSENTS TO THE JURISDICTION OF SUCH COURTS, AND WAIVES ANY
RIGHT TO HAVE ANY PROCEEDING TRANSFERRED FROM SUCH COURTS ON THE
GROUND OF IMPROPER VENUE OR INCONVENIENT FORUM. THE PROVISIONS OF
THIS SECTION XIII.E SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION
OF THIS LEASE.
XV. SURRENDER. Upon the expiration or earlier termination of this Lease for any reason, Tenant
shall surrender the Premises to Landlord in its condition existing as of the date Landlord delivers
possession of the Premises to Tenant, normal wear and tear and damage by fire or other casualty
excepted, with all interior walls repaired and repainted if marked or damaged, all carpets clean, all
broken, marred or nonconforming acoustical ceiling tiles replaced, the plumbing and electrical systems
and lighting in good order and repair, including replacement of any burned out or broken light bulb or
ballasts, all to the reasonable satisfaction of Landlord. Tenant shall remove from the Premises all
Tenant's personal property. If Tenant fails to remove Tenant's personal property, and such failure
continues after the termination of this Lease, Landlord may retain or dispose of such property and all
rights of Tenant with respect to it shall cease, or Landlord may place all or any portion of such property in
public storage for Tenant's account. Tenant shall be liable to Landlord for costs of removal of Tenant's
personal property and storage and transportation costs of same, together with interest at the Interest Rate
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from the date of expenditure by Landlord. If the Premises are not so surrendered at the termination of this
Lease, Tenant shall indemnify Landlord against all loss or liability, including attorneys' fees and costs,
resulting from delay by Tenant in so surrendering the Premises.
XVI. HOLDOVER. Tenant shall have no right to holdover possession of the Premises after the
expiration or termination of this Lease without Landlord's prior written consent which Landlord may
withhold in its sole and absolute discretion. If, however, Tenant retains possession of any part of the
Premises after the Term, Tenant shall become a tenant at sufferance only, for the entire Premises upon all
of the terms of this Lease as might be applicable to such tenancy, except that Tenant shall pay all of the
Base Rent, Operating Cost and Tax Share Rent at double the rate in effect immediately prior to such
holdover, computed on a monthly basis for each full or partial month Tenant remains in possession.
Tenant shall also pay Landlord all of Landlord's direct and consequential damages resulting from Tenant's
holdover. No acceptance of Rent or other payments by Landlord under these holdover provisions shall
operate as a waiver of Landlord's right to regain possession or any other of Landlord's remedies.
XVII. SUBORDINATION TO GROUND LEASES AND MORTGAGES.
A. Subordination. This Lease shall be subordinate to any present or future ground lease or
mortgage respecting the Project, and any amendments to such ground lease or mortgage, at the election of
the ground lessor or mortgagee as the case may be, effected by notice to Tenant in the manner provided in
this Lease. The subordination shall be effective upon such notice, but at the request of Landlord or
ground lessor or mortgagee, Tenant shall within ten (10) days of the request, execute and deliver to the
requesting party any reasonable documents provided to evidence the subordination, provided that the
mortgagee recognizes this Lease in the form of a non - disturbance agreement. Any mortgagee has the
right, at its sole option, to subordinate its mortgage to the terms of this Lease, without notice to, nor the
consent of, Tenant.
B. Termination of Ground Lease or Foreclosure of Mortgage. If any ground lease is terminated
or mortgage foreclosed or deed in lieu of foreclosure given and the ground lessor, mortgagee, or
purchaser at a foreclosure sale shall thereby become the owner of the Project, Tenant shall attorn to such
ground lessor or mortgagee or purchaser without any deduction or setoff by Tenant, and this Lease shall
continue in effect as a direct lease between Tenant and such ground lessor, mortgagee or purchaser. The
ground lessor or mortgagee or purchaser shall be liable as Landlord only during the time such ground
lessor or mortgagee or purchaser is the owner of the Project. At the request of Landlord, ground lessor or
mortgagee, Tenant shall execute and deliver within ten (10) days of the request any document furnished
by the requesting party to evidence Tenant's agreement to attorn.
C. Notice and Right to Cure. Tenant agrees to send by registered or certified mail to any ground
lessor or mortgagee, identified in any notice from Landlord to Tenant, a copy of any notice of default sent
by Tenant to Landlord. If Landlord fails to cure such default within the required time period under this
Lease, but ground lessor or mortgagee begins to cure within ten (10) days after such period and proceeds
diligently to complete such cure, then ground lessor or mortgagee shall have such additional time as is
necessary to complete such cure, including any time necessary to obtain possession if possession is
necessary to cure, and Tenant shall not begin to enforce its remedies so long as the cure is being diligently
pursued.
D. Definitions. As used in this Article XVII, "mortgage" shall include "trust deed" and "deed of
trust "; "mortgagee" shall include "trustee ", "beneficiary" and the mortgagee of any ground lessee; and
"ground lessor ", "mortgagee ", and "purchaser at a foreclosure sale" shall include, in each case, all of its
successors and assigns, however remote.
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XVIII. ASSIGNMENT AND SUBLEASE.
A. In General. Tenant shall not, without Landlord's prior written consent, in each case: (i) make
or allow any assignment or transfer, by operation of law or otherwise, of any part of Tenant's interest in
this Lease or (ii) sublet any part of the Premises (all of the foregoing are hereinafter sometimes referred to
individually as a "Transfer ", and collectively as "Transfers ", and any person to whom any Transfer is
made or sought to be made is hereinafter sometimes referred to as a "Transferee ", and any person by
whom any Transfer is made or sought to be made is hereinafter sometimes referred to as a "Transferor ").
Tenant shall remain primarily liable for all of its obligations under this Lease, notwithstanding any
Transfer. No consent granted by Landlord shall be deemed to be a consent to any subsequent Transfer.
Tenant shall pay all of Landlord's attorneys' fees and other expenses incurred in connection with any
consent requested by Tenant or in considering any proposed Transfer. Any Transfer without Landlord's
prior written consent shall be void. If Tenant shall assign this Lease or sublet or otherwise Transfer the
Premises in its entirety, any rights of Tenant to renew this Lease, to extend the Term or to lease additional
space in the Project shall be extinguished thereby and will not be transferred to the Transferee, all such
rights being personal to the Tenant named herein. In addition, Tenant shall not, without Landlord's prior
written consent, which Landlord may withhold in its sole discretion, mortgage, pledge or encumber this
Lease, the term or estate hereby granted or any interest hereunder.
B. Landlord's Consent. Landlord will not unreasonably withhold its consent to any proposed
Transfer. It shall be reasonable for Landlord to withhold its consent to any Transfer if (i) Tenant is in
default under this Lease, (ii) the proposed Transferee is a tenant in the Project or an affiliate of such a
tenant or a party that Landlord has identified as a prospective tenant in the Project, (iii) the financial
responsibility, nature of business, and character of the proposed Transferee are not all reasonably
satisfactory to Landlord, (iv) in the reasonable judgment of Landlord the purpose for which the Transferee
intends to use the Premises (or a portion thereof) is not in keeping with Landlord's standards for the
Building or are in violation of the terms of this Lease or any other leases in the Project, (v) the proposed
Transferee is a government entity, (vi) the proposed Transfer is between a Transferee of Tenant and a
third party, or (vii) the proposed effective rent under the sublease or other Transfer is less than the
effective rent then being quoted by Landlord for comparable space in the Building for a comparable term,
calculated using a present value analysis; or if no comparable space in the Building is available for lease
for a comparable term at the time of the proposed Transfer, then it shall be reasonable for Landlord to
withhold its consent to such Transfer if the effective rent charged to such proposed Transferee is less than
the fair market rental value of the proposed Transfer Premises (as defined in Section 17.0 below) as of
the date of the proposed Transfer, as determined by Landlord. The foregoing shall not exclude any other
reasonable basis for Landlord to withhold its consent.
C. Procedure. Tenant shall notify Landlord of any proposed Transfer at least thirty (30) days
prior to its proposed effective date. The notice shall include the name and address of the proposed
Transferee, its corporate affiliates in the case of a corporation and its partners in the case of a partnership,
a description of the portion of the Premises that is subject to the Transfer (the "Transfer Premises "), a
calculation of the Transfer Premium (as defined in Section WILE below) payable in connection with the
Transfer, an executed copy of the proposed Transfer agreement, and sufficient information to permit
Landlord to determine the financial responsibility and character of the proposed Transferee (including,
without limitation, the most recent financial statements for the proposed Transferee). As a condition to
the effectiveness of any assignment of this Lease, the assignee shall execute and deliver to Landlord, at
least fifteen (15) days prior to the effective date of the assignment, Landlord's standard form of Consent
to Assignment, providing for, among other things, an assumption of all of the obligations of Tenant under
this Lease. As a condition to the effectiveness of any other Transfer, Transferee shall execute and deliver
to Landlord, at least fifteen (15) days prior to the effective date of such Transfer, Landlord's standard
consent form, providing, among other things, (1) an assumption of all of the obligations of Tenant under
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this Lease to the extent applicable to the Transfer Premises (excluding the payment of Rent), (2) the
Transferee's obligation to indemnify Landlord and the other Indemnitees consistent with Tenant's
indemnification obligations in Section IX.B above, and (3) the Transferee's agreement that any such
Transfer shall be subordinate and subject to the provisions of this Lease, and if this Lease shall be
terminated during the term of any such Transfer, Landlord shall have the right to: (a) treat such Transfer
as cancelled and repossess the Transfer Premises by any lawful means, or (b) require that the Transferee
attorn to and recognize Landlord as its landlord under any such Transfer. If Tenant shall default and fail
to cure within the time permitted for cure under Article XIII above, Landlord is hereby irrevocably
authorized, as Tenant's agent and attorney -in -fact, to direct any Transferee to make all payments under or
in connection with the Transfer directly to Landlord (which Landlord shall apply towards Tenant's
obligations under this Lease) until such default is cured.
D. Change of Management or Ownership. Any transfer of the direct or indirect power to affect
the management or policies of Tenant or direct or indirect change in 25% or more of the ownership
interest in Tenant shall constitute an assignment of this Lease.
E. Transfer Premium.
1. If Landlord consents to a Transfer, as a condition thereto which the parties hereby
agree is reasonable, Landlord shall be entitled to receive, as Additional Rent hereunder, any Transfer
Premium derived from such Transfer. As used herein, the term "Transfer Premium" means (a) in the case
of an assignment, any consideration (including, without limitation, payment for leasehold improvements)
paid by the assignee on account of such assignment, and (b) in the case of any other Transfer, all rent,
additional rent or other consideration paid by the Transferee to the Transferor pursuant to such Transfer in
excess of the base rent and additional rent payable by such Transferor during the term of the Transfer on a
per rentable square foot basis. Payment of the Transfer Premium due Landlord hereunder shall be a joint
and several obligation of Tenant and the Transferee, and shall be made to Landlord as follows: (i) in the
case of an assignment, the Transferor shall pay the Transfer Premium to Landlord within ten (10) days
after the Transferor receives the Transfer Premium; and (ii) in the case of any other Transfer, on the first
day of each month during the term of the Transfer, the Transferee shall pay directly to Landlord the
amount by which the rent, additional rent or other consideration due from the Transferee for such month
exceeds the base rent and additional rent payable by the applicable Transferor for said month which is
allocable to the Transfer Premises.
2. Upon Landlord's request, Tenant shall provide Landlord with reasonable
documentation of Tenant's calculation of the Transfer Premium. Landlord or its authorized representatives
shall have the right at all reasonable times to audit the books, records and papers of Tenant relating to any
Transfer, and shall have the right to make copies thereof. If the Transfer Premium respecting any
Transfer shall be found to be understated, Tenant shall within ten (10) days after demand pay the
deficiency, and if understated by more than two percent (2 %), Tenant shall pay Landlord's costs of such
audit.
F. Recapture. In the case of a proposed assignment, sublease or other Transfer, Landlord may
terminate this Lease as to the Transfer Premises by giving Tenant written notice (the "Recapture Notice ")
within thirty (30) days after Landlord's receipt of the proposed fully executed Transfer agreement
submitted by Tenant for Landlord's consent. Such termination shall be effective as of the termination date
set forth in Landlord's Recapture Notice, and all obligations of Landlord and Tenant under this Lease as
to such terminated space shall expire as of such termination date, except those that expressly survive any
termination of this Lease.
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XIX. CONVEYANCE BY LANDLORD. If Landlord shall at any time transfer its interest in the
Project or this Lease, Landlord shall be released of any obligations occurring after such transfer, except
the obligation to return to Tenant any security deposit not delivered to its transferee, and Tenant shall look
solely to Landlord's successors for performance of such obligations. This Lease shall not be affected by
any such transfer.
XX. ESTOPPEL CERTIFICATE. Each party shall, within ten (10) days of receiving a request from
the other party, execute, acknowledge in recordable form, and deliver to the other party or its designee a
certificate stating, subject to a specific statement of any applicable exceptions, that the Lease as amended
to date is in full force and effect, that the Tenant is paying Rent and other charges on a current basis, and
that to the best of the knowledge of the certifying party, the other party has committed no uncured
defaults and has no offsets or claims. The certifying party may also be required to state the date of
commencement of payment of Rent, the Commencement Date, the Termination Date, the Base Rent, the
current Operating Cost and Tax Share Rent estimates, the status of any improvements required to be
completed by Landlord, the amount of any security deposit, and such other matters as may be reasonably
requested. Tenant's failure to execute or deliver an estoppel certificate in the required time period shall
constitute an acknowledgment by Tenant that the statements included in the estoppel certificate are true
and correct, without exception. Tenant's failure to execute or deliver an estoppel certificate or other
document or instrument required under this Article XX in a timely manner shall be a material breach of
this Lease.
XXI. NOTICES. All notices, consents, approvals and similar communications to be given by one
party to the other under this Lease, shall be given in writing, mailed or personally delivered as follows:
A. Landlord. To Landlord as follows:
The Voris Companies, Inc. c/o Safeway Inc.
Attn: Regional VP, PDA Facility 45556
618 Michillinda Avenue
Arcadia, CA 91007
With a copy to:
Safeway Inc.
Attn: Real Estate Law
PDA Facility #5556
5918 Stoneridge Mall Road
Pleasanton, CA 94588 -3229
AND:
Safeway Inc.
Attn: Office Facilities Management
PDA Facility #5556
5918 Stoneridge Mall Road
Pleasanton, CA 94588 -3229
or to such other person at such other address as Landlord may designate by notice to Tenant.
B. Tenant. To Tenant as follows:
City of Arcadia
240 W. Huntington Drive
Arcadia, CA 91066
Attn: Don Penman, City Manager
or to such other person at such other address as Tenant may designate by notice to Landlord.
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Mailed notices shall be sent by United States certified or registered mail, or by a reputable
national overnight courier service, postage prepaid. Mailed notices shall be deemed to have been given
on the earlier of actual delivery or three (3) business days after posting in the United States mail in the
case of registered or certified mail, and one (1) business day in the case of overnight courier.
XXII. REAL ESTATE BROKERS. Tenant represents to Landlord that Tenant has not dealt with any
real estate broker with respect to this Lease except for any broker(s) listed in the Schedule, and no other
broker is in any way entitled to any broker's fee or other payment in connection with this Lease. Tenant
shall indemnify and defend Landlord against any Claims by any other broker or third party for any
payment of any kind in connection with this Lease.
XXIII. MISCELLANEOUS.
A. Successors and Assigns. Subject to the limits on Tenant's assignment contained in Article
XVIII, the provisions of this Lease shall be binding upon and inure to the benefit of all successors and
assigns of Landlord and Tenant.
B. Date Payments Are Due. Except for payments to be made by Tenant under this Lease which
are due upon demand or are due in advance (such as Base Rent), Tenant shall pay to Landlord any amount
for which Landlord renders a statement of account within ten (10) days of Tenant's receipt of Landlord's
statement, unless otherwise specifically provided herein.
C. Meaning of "Landlord ", "Re- Entry ", "including" and "Affiliate ". The term "Landlord" means
only the owner of the Project and the lessor's interest in this Lease from time to time. The words "re-
entry" and "re- enter" are not restricted to their technical legal meaning. The words "including" and
similar words shall mean "without limitation." The word "affiliate" shall mean a person or entity
controlling, controlled by or under common control with the applicable entity. "Control" shall mean the
power directly or indirectly, by contract or otherwise, to direct the management and policies of the
applicable entity.
D. Time of the Essence. Time is of the essence of each provision of this Lease.
E. No Option. The submission of this Lease to Tenant for review or execution does not create
an option or constitute an offer to Tenant to lease the Premises on the terms and conditions contained
herein, and this Lease shall not become effective unless and until it has been executed and delivered by
both Landlord and Tenant.
F. Severability. If any provision of this Lease is determined to be invalid, illegal or
unenforceable, then such provision will be enforced to the maximum extent possible and the other
provisions will remain fully effective and enforceable.
G. Governing Law. This Lease shall be governed in all respects by the laws of the state in which
the Project is located, without regard to the principles of conflicts of laws.
H. Lease Modification. Tenant agrees to modify this Lease in any way requested by a
mortgagee which does not cause increased expense to Tenant or otherwise materially adversely affect
Tenant's interests under this Lease.
1. No Oral Modification. No modification of this Lease shall be effective unless it is a written
modification signed by both parties.
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J. Landlord's Right to Cure. Landlord may cure any default by Tenant; any expenses incurred
shall become Additional Rent due from Tenant on demand by Landlord.
K. Captions. The captions used in this Lease shall have no effect on the construction of this
Lease.
L. Authori1y. Landlord and Tenant each represents to the other that it has full power and
authority to execute and perform this Lease.
M. Landlord's Enforcement of Remedies. Landlord may enforce any of its remedies under this
Lease either in its own name or through an agent.
N. Entire Agreement. This Lease, together with all Exhibits and Appendices, constitutes the
entire agreement between the parties. No representations or agreements of any kind have been made by
either party which are not contained in this Lease.
O. Landlord's Title. Landlord's title shall always be paramount to the interest of the Tenant, and
nothing in this Lease shall empower Tenant to do anything which might in any way impair Landlord's
title.
P. Light and Air Rights. Landlord does not grant in this Lease any rights to light and air in
connection with Project. Landlord reserves to itself, the Project, the Building below the improved floor of
each floor of the Premises, the Building above the ceiling of each floor of the Premises, the exterior of the
Premises and the areas on the same floor outside the Premises, along with the areas within the Premises
required for the installation and repair of utility lines and other items required to serve other tenants of the
Building.
Q. Singular and Plural. Wherever appropriate in this Lease, a singular term shall be construed to
mean the plural where necessary, and a plural term the singular. For example, if at any time two parties
shall constitute Landlord or Tenant, then the relevant term shall refer to both parties together.
R. No Recording by Tenant. Tenant shall not record in any public records any memorandum or
any portion of this Lease.
S. Exclusivity. Landlord does not grant to Tenant in this Lease any exclusive right except the
right to occupy its Premises.
T. No Construction Against Drafting Party. The rule of construction that ambiguities are
resolved against the drafting party shall not apply to this Lease.
U. Survival. The waivers of claims or rights, the releases and the obligations of Tenant under
this Lease to indemnify, protect, defend and hold harmless Landlord and other Indemnitees shall survive
the expiration or earlier termination of this Lease, and so shall all other obligations or agreements of
Landlord or Tenant hereunder which by their terms survive the expiration or earlier termination of this
Lease.
V. Rent Not Based on Income. No Rent or other payment in respect of the Premises shall be
based in any way upon net income or profits from the Premises. Tenant may not enter into or permit any
sublease or license or other agreement in connection with the Premises which provides for a rental or
other payment based on net income or profit.
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W. Building Manager and Service Providers. Landlord may perform any of its obligations under
this Lease through its employees or third parties hired by the Landlord.
X. Late Charge and Interest on Late Payments. Without limiting the provisions of Article XIII,
if Tenant fails to pay any installment of Rent or other charge to be paid by Tenant pursuant to this Lease
within five (5) business days after the same becomes due and payable, then Tenant shall pay a late charge
equal to the greater of five percent (5 %) of the amount of such payment or $250. In addition, interest
shall be paid by Tenant to Landlord on any late payments of Rent from the date due until paid at the rate
provided in Section II.D(2). Such late charge and interest shall constitute Additional Rent due and
payable by Tenant to Landlord upon the date of payment of the delinquent payment referenced above.
Y. Attorneys' Fees. In any arbitration, quasi-judicial or administrative proceedings or any action
in any court of competent jurisdiction, brought by either party to enforce any covenant or any of such
party's rights or remedies under this Lease, including any action for declaratory relief, or any action to
collect any payments required under this Lease or to quiet title against the other party, the prevailing party
shall be entitled to reasonable attorneys' fees and all costs, expenses and disbursements in connection with
such action, including the costs of reasonable investigation, preparation and professional or expert
consultation, which sums may be included in any judgment or decree entered in such action in favor of
the prevailing party. In addition, Tenant shall pay the attorneys' fees and other costs Landlord incurs in
enforcing this Lease where an action or proceeding is not brought.
XXIV. UNRELATED BUSINESS INCOME. If Landlord is advised by its counsel at any time that any
part of the payments by Tenant to Landlord under this Lease may be characterized as unrelated business
income under the United States Internal Revenue Code and its regulations, then Tenant shall enter into
any amendment proposed by Landlord to avoid such income, so long as the amendment does not require
Tenant to make more payments or accept fewer services from Landlord, than this Lease provides.
XXV. HAZARDOUS SUBSTANCES.
A. Prohibition Against Hazardous Substances. Tenant shall not cause or permit any Hazardous
Substances to be brought upon, produced, stored, used, discharged or disposed of in or near the Project
unless Landlord has consented to such storage or use in its sole discretion. Any handling, transportation,
storage, treatment, disposal or use of any Hazardous Substances in or about the Project by Tenant, its
agents, employees, contractors or invitees shall strictly comply with all applicable Governmental
Requirements. Tenant shall indemnify, defend and hold Landlord harmless from and against any Claims
which result from or arise out of the use, storage, treatment, transportation, release, or disposal of any
Hazardous Substances on or about the Project by Tenant or any Tenant Parties. If any lender or
governmental agency shall require testing for Hazardous Substances in the Premises, Tenant shall pay for
such testing. Tenant's obligations under this Section shall survive the expiration or earlier termination of
this Lease until all Claims within the scope of this Section XXV.A are fully, finally, and absolutely barred
by the applicable statutes of limitations.
B. Definition of "Hazardous Substances ". "Hazardous Substances" means any hazardous or
toxic substances, materials or waste which are or become regulated by any local government authority,
the state in which the Project is located or the United States government, including those substances
described in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Section 9601 et sec , the Resource Conservation and Recovery Act, as amended, 42
U.S.C. Section 6901 et sec.., any other applicable federal, state or local law, and the regulations adopted
under these laws.
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XXVI. EXCULPATION. Landlord shall have no personal liability under this Lease; its liability shall be
limited to its interest in the Building, and shall not extend to any other property or assets of the Landlord.
In no event shall any officer, director, employee, agent, shareholder, partner, member or beneficiary of
Landlord be personally liable for any of Landlord's obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Lease.
LANDLORD:
THE VONS COMPANIES, INC.,
a Michi a corpo ti
By:
ssistant Vice President
By: " 6= np �.
Assi ant Secretary
Date of Execution:
Form Approved: Ste_
TENANT:
CITY OF ARCADIA,
a California municipal corporation
By:
Name: Don Penman
Title: City Manager
Date of Execution: 1 161
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EXHIBIT A
DESCRIPTION OF PREMISES /SITE PLAN
BOMA BUILDING AREA CALCULATIONS
PONS HEADOUARTERS BUILDING
19JUL2011
LEVEL 1 (LOWER LEVEL)
fr
OCCUPANT AREA
MAJOR VERTICAL PENETRATIONS
BASE BUILDING CIRCULATION
SERVICE + AMENITY AREAS
VMS ONLY AMENITY
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EXHIBIT B
RULES AND REGULATIONS
(1) Tenant shall not place anything, or allow anything to be placed near the glass of any
window, door, partition or wall which may, in Landlord's judgment, appear unsightly from outside of the
Project.
(2) The Project directory shall be available to Tenant solely to display names and their
location in the Project, which display shall be as directed by Landlord.
(3) The sidewalks, halls, passages, exits, entrances, elevators and stairways shall not be
obstructed by Tenant or used by Tenant for any purposes other than for ingress to and egress from the
Premises. Tenant shall lend its full cooperation to keep such areas free from all obstruction and in a clean
and sightly condition and shall move all supplies, furniture and equipment as soon as received directly to
the Premises and move all such items and waste being taken from the Premises (other than waste
customarily removed by employees of the Building) directly to the shipping platform at or about the time
arranged for removal therefrom. The halls, passages, exits, entrances, elevators, stairways, balconies and
roof are not for the use of the general public and Landlord shall, in all cases, retain the right to control and
prevent access thereto by all persons whose presence in the judgment of Landlord, reasonably exercised,
shall be prejudicial to the safety, character, reputation and interests of the Project. Neither Tenant nor any
employee or invitee of Tenant shall go upon the roof of the Project.
(4) The toilet rooms, urinals, wash bowls and other apparatuses shall not be used for any
purposes other than that for which they were constructed, and no foreign substance of any kind
whatsoever shall be thrown therein, and to the extent caused by Tenant or its employees or invitees, the
expense of any breakage, stoppage or damage resulting from the violation of this rule shall be borne by
Tenant.
(5) Tenant shall not cause any unnecessary janitorial labor or services by reason of Tenant's
carelessness or indifference in the preservation of good order and cleanliness.
(6) Tenant shall not install or operate any refrigerating, heating or air conditioning apparatus,
or carry on any mechanical business without Landlord's prior written consent; use the Premises for
housing, lodging or sleeping purposes; or permit preparation or warming of food in the Premises
(warming of coffee and individual meals with employees and guests excepted). Tenant shall not occupy
or use the Premises or permit the Premises to be occupied or used for any purpose, act or thing which is in
violation of any Governmental Requirement or which may be dangerous to persons or property.
(7) Tenant shall not bring upon, use or keep in the Premises or the Project any kerosene,
gasoline or inflammable or combustible fluid or material, or any other articles deemed hazardous to
persons or property, or use any method of heating or air conditioning other than that supplied by
Landlord.
(8) Landlord shall have sole power to direct electricians as to where and how telephone and
other wires are to be introduced. No boring or cutting for wires is to be allowed without Landlord's prior
written consent. The location of telephones, call boxes and other office equipment affixed to the Premises
shall be subject to Landlord's prior approval.
(9) Private offices within the Premises shall have traditional locks and keys. Tenant shall
have a card key access control system for ingress into Premises and Landlord shall have a card key access
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control system for ingress into the Building. Tenant agrees, at its sole cost and expense, to coordinate its
control system with Landlord so that a single card key controls access to the Building and the Premises.
If cardkeys furnished to Tenant by Landlord are lost, Tenant shall pay Landlord $5.00 per replacement
card key (this shall also apply to traditional keys furnished to Tenant by Landlord). No additional locks
shall be placed upon any doors, windows or transoms in or to the Premises. Tenant shall not change
existing locks or the mechanism thereof. Upon termination of the Lease, Tenant shall deliver to Landlord
all keys and passes for offices, rooms, parking lot and toilet rooms which shall have been furnished
Tenant. Tenant shall not make, or cause to be made, any such keys and shall order all such keys solely
from Landlord and shall pay Landlord for any keys in addition to the two sets of keys originally furnished
by Landlord for each lock.
(10) Tenant shall not install linoleum, tile, carpet or other floor covering so that the same shall
be affixed to the floor of the Premises in any manner except as approved by Landlord.
(11) No furniture, packages, supplies, equipment or merchandise will be received in the
Project or carried up or down in the freight elevator, except between such hours and in such freight
elevator as shall be designated by Landlord. Tenant shall not take or permit to be taken in or out of other
entrances of the Building, or take or permit on other elevators, any item normally taken in or out through
the trucking concourse or service doors or in or on freight elevators.
(12) Tenant shall cause all doors to the Premises to be closed and securely locked and shall
turn off all utilities, lights and machines before leaving the Project at the end of the day.
(13) Tenant shall cooperate fully with Landlord to assure the most effective operation of the
Premises' or the Project's heating and air conditioning, and shall refrain from attempting to adjust any
controls, other than room thermostats installed for Tenant's use. Tenant shall keep all corridor and
exterior doors and windows closed, and during periods which the outside temperatures exceed 90 degrees
F dry bulb Tenant shall close all blinds and turn off any unnecessary equipment.
(14) Tenant assumes full responsibility for protecting the Premises from theft, robbery and
pilferage, which may arise from a cause other than Landlord's negligence, which includes keeping doors
locked and other means of entry to the Premises closed and secured.
(15) Peddlers, solicitors and beggars shall be reported to the office of the Project or as
Landlord otherwise requests.
(16) No bicycle or other vehicle and no animals or pets shall be allowed in the Premises, halls,
freight docks, or any other parts of the Building except that blind persons may be accompanied by "seeing
eye" dogs. Tenant shall not make or permit any noise, vibration or odor to emanate from the Premises, or
do anything therein tending to create, or maintain, a nuisance, or do any act tending to injure the
reputation of the Building.
(17) Tenant acknowledges that Building security problems may occur which may require the
employment of extreme security measures in the day -to -day operation of the Project.
Accordingly:
(a) Landlord may, at any time, or from time to time, or for regularly scheduled time periods,
as deemed advisable by Landlord and /or its agents, in their sole discretion, require that persons entering
or leaving the Building or the Project identify themselves to watchmen or other employees designated by
Landlord, by registration, identification or otherwise.
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(b) Tenant agrees that it and its employees will cooperate fully with Project employees in the
implementation of any and all security procedures.
(c) Such security measures shall be the sole responsibility of Landlord, and Tenant shall have
no liability for any action taken by Landlord in connection therewith, it being understood that Landlord is
not required to provide any security procedures and shall have no liability for such security procedures or
the lack thereof.
(18) Tenant shall not do or permit the manufacture, sale, purchase, use or gift of any
fermented, intoxicating or alcoholic beverages without obtaining Landlord's prior written consent.
(19) Tenant shall not disturb the quiet enjoyment of any other tenant.
(20) Tenant shall not provide any janitorial services or cleaning without Landlord's written
consent and then only subject to supervision of Landlord and at Tenant's sole responsibility and by janitor
or cleaning contractor or employees at all times satisfactory to Landlord.
(21) Landlord may retain a pass key to the Premises and be allowed admittance thereto at all
times to enable its representatives to examine the Premises from time to time and to exhibit the same and
Landlord may place and keep on the windows and doors of the Premises at any time signs advertising the
Premises for Rent.
(22) No equipment, mechanical ventilators, awnings, special shades or other forms of window
covering shall be permitted either inside or outside the windows of the Premises without Landlord's prior
written consent, and then only at the expense and risk of Tenant, and they shall be of such shape, color,
material, quality, design and make as may be approved by Landlord.
(23) Tenant shall not during the term of this Lease canvas or solicit other tenants of the
Building for any purpose.
(24) Tenant shall not install or operate any phonograph, musical or sound- producing
instrument or device, radio receiver or transmitter, TV receiver or transmitter, or similar device in the
Building, nor install or operate any antenna, aerial, wires or other equipment inside or outside the
Building, nor operate any electrical device from which may emanate electrical waves which may interfere
with or impair radio or television broadcasting or reception from or in the Building or elsewhere, without
in each instance Landlord's prior written approval. The use thereof, if permitted, shall be subject to
control by Landlord to the end that others shall not be disturbed.
(25) Tenant shall promptly remove all rubbish and waste from the Premises.
(26) Tenant shall list all furniture, equipment and similar articles Tenant desires to remove
from the Premises or the Building and deliver a copy of such list to Landlord and procure a removal
permit from the Office of the Building authorizing Building employees to permit such articles to be
removed.
(27) Tenant shall not overload any floors in the Premises or any public corridors or elevators
in the Building.
(28) Tenant shall not do any painting in the Premises, or mark, paint, cut or drill into, drive
nails or screws into, or in any way deface any part of the Premises or the Building, outside or inside,
without Landlord's prior written consent.
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(29) Whenever Landlord's consent, approval or satisfaction is required under these Rules, then
unless otherwise stated, any such consent, approval or satisfaction must be obtained in advance, such
consent or approval may be granted or withheld in Landlord's sole discretion, and Landlord's satisfaction
shall be determined in its sole judgment.
(30) Tenant and its employees shall cooperate in all fire and earthquake drills conducted by
Landlord in the Building.
(31) Tenant's employee parking is limited to the two lower levels and the northeast upper
level of parking structure. The northwest upper level is "visitor only" parking.
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EXHIBIT C
SCOPE OF WORK
This Exhibit C describes the obligations of the Landlord and the Tenant in the design and construction of the
Premises. Each term used in this Exhibit which is defined in the main body of the Lease to which this Exhibit is
attached shall have the same meaning when used herein.
PART
LANDLORD'S WORK
The Landlord shall, prior to the Term Commencement Date, at Landlord's sole cost and expense, construct the
improvement listed below (item 1, "Landlord's Work ") within the Premises in accordance with such design,
construction criteria and methods as Landlord may, in its sole discretion, determine as necessary or appropriate.
(1) Install demising wall, including a wall for Tenant's data closet
(2) Interior painting
(3) Existing cubicles to be left in the Premises
All work other than Landlord's Work will be at Tenant's expense and subject to Landlord's obligations with respect
to the Tenant Improvement Allowance and Landlord's prior approval under the terms of the Lease. Other than
Landlord's Work, Landlord will neither supply nor install: trade fixtures; additional lighting fixtures and built -in
lighting; special finishes; acoustic treatment; plastering; signs; lockers; curtains walls and interior partitions ; special
ceilings ; special toilet rooms; electrical, plumbing and ventilation connections to trade fixtures, or required for
special uses and trade processes; bullet proof glass, bank vaults, remote tellers, or any such custom installations.
PART II
TENANT'S WORK
Tenant understands that Tenant's Work includes installation of an HVAC split system, setting up Tenant's telephone
connections with stand alone phone lines from mailroom to Tenant's data closet. The parties have agreed that
Landlord will complete the HVAC split on Tenant's behalf and will bill Tenant for such work.
A. Plan Approval Process:
(1) Within ten (10) days after receipt of Landlord's plans as aforesaid, Tenant shall submit to
Landlord three (3) sets of design plans and specifications including the following:
(a) Floor layout plan at a minimum 1/4" scale;
(b) Interior elevations at minimum 1/4" scale;
(c) Finish and color schedule with samples of wall and floor finishes;
(d) Details of any special conditions at 3/4" scale; and
(e) detail of all mechanical, architectural, plumbing, electrical, furniture, fixture, and
equipment features installed.
(3) Within seven (7) days of receipt by Landlord of Tenant's design plans as aforesaid, Landlord will
deliver to Tenant notice of whether or not Landlord has approved the same, and if Landlord does not unconditionally
approve such plans, Landlord's notice shall contain a detailed explanation of why such approval was withheld. If
any of said design plans are returned to Tenant without unconditional approval of Landlord, said design plans shall
be revised by Tenant in accordance with Landlord's comments and resubmitted to Landlord for approval within ten
(10) days thereafter. Landlord will review and comment upon any revised design plans within five days of receipt by
Landlord and the above procedure will be followed until Tenant's design plans are unconditionally approved by
Landlord (as so approved, the "Approved Plans" and the work to be performed under such Approved Plans
"Tenant's Work ").
(4) Tenant shall commence construction of Tenant's Work in the Premises not later than five (5) days
after whichever of the following shall be the later to occur:
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(a) Delivery of the Premises to Tenant for commencement of Tenant's Work; or
(b) Approval by Landlord of Tenant's interior design plans and specifications and receipt of
any necessary permits relating thereto.
B. General Procedures:
(1) Tenant's Work shall comply with all Governmental Requirements.
(2) Landlord's written approval shall be obtained by Tenant prior to the undertaking of any
construction work which deviates from the Approved Plans. Landlord's approval of the Approved Plans shall not
constitute the assumption of any responsibility by Landlord for the accuracy or sufficiency thereof, and Tenant shall
be solely responsible thereof.
(3) All contractors engaged by Tenant shall be bondable, licensed contractors, possessing good labor
relations, capable of performing quality workmanship and working in harmony with Landlord's general contractor
and other contractors on the job.
(4) All Tenant's work shall be performed in good and workmanlike manner and shall be prosecuted to
completion with all due diligence.
(5) Tenant may use no space except the Premises for storage without approval of Landlord. Any
material found in other areas will be subject to disposal by Landlord at Tenant's expense. Landlord shall have no
responsibility or liability whatsoever for any loss of, or damage to, any materials, fixtures, equipment, merchandise
or other property belonging to Tenant installed or left in the Premises or anywhere else at the Project.
(6) Construction equipment and materials are to be located in confined areas as approved by Landlord
and truck traffic is to be routed in and from the site as directed by Landlord so as not to burden the construction
and /or operation of the Project.
(7) Upon concurrent written notice to Tenant, Landlord shall have the right to order any Tenant or
Tenant's contractor or employee who willfully violates any of the requirements contained herein to cease work, and
to remove himself, his equipment and his employees from the Project.
(8) Each Tenant contractor shall be required to maintain continuous protection of adjacent premises in
such manner as to prevent any damage to such adjacent property and the improvements thereon or therein by reason
of the performance of the Tenant's Work, and promptly to repair any such property or improvements so damaged to
the condition prior thereto. Each Tenant contractor shall be required to properly protect its work with lights, guard
rails, and barricades and secure all parts of the work against storm and accident.
(9) No approval for Tenant's Work by the Landlord is valid unless in writing, signed by the Landlord.
(10) Tenant shall furnish Landlord with lien waivers and sworn statements, in such form as may be
required by Landlord, from all persons performing labor and /or supplying materials in connection with the Tenant's
Work showing that all of said persons have been compensated in full.
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EXHIBIT D
TRAINING ROOM SCHEDULING AND RATES
BASE AVAILABILITY:
A training room at the Project will be available at least one (1) business day per month to Tenant free of
charge. Reservations of such a room must be made by Tenant in advance.
ADDITIONAL AVAILABILITY:
Beyond the base availability listed above, a training room at the Project may be available for Tenant's use
subject to (a) availability as determined by advance reservation and (b) a daily use fee of $175.00 for the
32 person training room and $300.00 for the 56 person training room.
RESERVATION PROCEDURE:
Call Ricki at 626 - 821 -7800 (on site facility coordinator)
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EXHIBIT E
GENERAL BUILDING RULES AND REGULATIONS FOR CONSTRUCTION
SEE ATTACHED.
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0
EXHIBIT By
40
General Building Rules & Regulations
For Construction
Revised 3115107
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Table of Contents
Construction Approval Process .............2
General.................... ............................... 3
General Contractors ............................... 6
Security................... ............................... 8
Elevators ................. ............................... 9
LifeSafety ................. .............................10
Building Systems ....... .............................11
Painting...................... .............................12
Cabling.................... ............................... 13
Local Property Management Contacts .... 14
Acknowledgment Receipt .....................15
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CONSTRUCTION APPROVAL PROCESS
Tenant provides construction drawings for the proposed project to
Landlord. In the case of subleases, Subtenant can submit drawings and
scope to Master Tenant and Landlord concurrently. Landlord will log
plans received and begin review process.
2. Landlord will review the proposal and communicate any concerns or
requests for additional information back to the Tenant. Landlord may
request a project meeting to review the proposal for clarification.
3. Approval, conditional approval, or denial of the proposal project will be
provided by Landlord in writing within 5 -7 business days of the receipt of
the complete proposal by Landlord. Any additional information requested
and received that affects the decision making process will cause the time
frame to be adjusted.
4. Tenant agrees to follow Safeway's Construction Rules & Regulations, and
will require their contractors to follow same.
5. Tenant will provide final as -built drawings to Landlord after the completion
of the project.
General
i
1. A complete set of Engineered Electrical, Mechanical, and Plumbing
drawings, stamped by a registered Professional Engineer, along with
Architectural drawings shall be delivered to the Property Management
Office, 5 -7 business days in advance of the start of any construction
project for review and comment. Landlord shall provide Tenant with (i) the
names of the members of its Property Management Office, (ii) phone
numbers and email addresses for the primary point of contact in the
Property Management Office, with one backup contact person identified
for all access and project - related issues, and (iii) one 24 -hour emergency
contact phone number. Tenant shall provide Landlord with (i) the names
of the members of Tenant's team responsible for Tenant's work (including
contractors and subcontractors) (ii) phone numbers and email addresses
for the primary point of contact for Tenant's work, with one backup contact
person identified for all access and Project- related issues, and (iii) one 24-
hour emergency contact phone number.
2. All work shall comply with the rules and regulations of the standard
specifications of the building, city, state and federal government agencies
having jurisdiction. General Contractors will file drawings and secure all
permits prior to any construction.
3. Safeway's structural engineer shall review all weights and or structural
modification with the contractor bearing all cost for this review.
4. All work to be performed by licensed contractor, who must be approved by
Safeway.
5. So long as Tenant occupies the entirety of the Building, the work may be
performed during such hours as Tenant determines appropriate to meet
Tenant's schedule. The Contractor shall notify the local Pro e
Management Office at least three (3) business days in advance of any
interruption of building services in the affected area.
If Tenant does not occupy the entirety of the Building, then the remainder
of this paragraph 5 shall apply: All work shall be performed during regular
business hours beginning at 6 :00 a.m., except as listed below, with all
building services being maintained during construction. The Contractor
shall notify the local Property Management Office at least three (3)
business days in advance of any interruption of building services in the
affected area. The following work shall be done on an after hours basis
(unless Tenant occupies the entirety of the Building): core drilling,
• 0
painting, chipping, drilling, shooting studs, welding and any other work that
may create inconvenience to other building occupants. Any other work
required after regular business hours must be approved and authorized by
the local Property Management Office.
6. At the start of construction, contractor shall provide walk -off mats at the
entrance to construction areas from freight elevator and stairwells as well
as all elevators. Contractor shall provide protection to all walls and flooring
in the areas adjacent to the work to prevent damage to surfaces.
7. Contractor shall provide construction lighting throughout affected area to
supplement the existing lighting, as needed.
8. The contractor shall contact the local Property Management Office prior to
the start of construction for instructions on all building standard and
system requirements.
9. all permanent keying to be provided by the local Property Management
Office with the General Contractor agreeing to pay the cost for this work at
no more than prevailing market rates.
10. General contractor must have supervisory personnel onsite at all times
while sub contractors are performing construction.
11. The contractor shall always comply with local OSHA/building safety
requirements when using any powder actuated guns, welding, grinders, or
any equipment which could affect fire life safety system operations, and
will contact the local Property Management Office, one (1) business day in
advance for permission to perform this work.
12. The contractor shall notify the local Property Management Office of all
Permit inspections and afford a representative of such office a reasonable
opportunity to be present at time of inspection.
13. The Contractor shall notify the local Property Management Office at least
ten (10) business days in advance of completion of construction. A walk -
through and punch -list shall be made on each job. It is the Tenant's
responsibility to provide to the local Property Management Office proof to
Landlord's satisfaction that the punch list has been completed by the
General Contractor. Landlord shall accept as satisfactory proof a letter
from Tenant representing that the punch list has been completed by the
General Contractor.
14. Upon completion of construction, two (2) sets of as -built prints will be
forwarded to local Property Management for distribution.
4
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15. Contractor(s) shall not pour any foreign matter down any plumbing
fixtures, floor or roof drains. The General Contractor agrees to pay for any
needed repairs to correct this condition if foreign matter is poured into
plumbing fixtures.
16. Loading Dock/Service Entrance: Access to the Loading Dock for large
shipments of materials will be made available by reservation only through
the local Property Management Office with not less than one (1) business
day notice. Shipment deliveries over one (1) hour (with one -half (1/2) hour
intervals for Landlord's use) or requiring dedicated use of freight elevator
for more than one (1) hour (with one -half (112) hour intervals for Landlord's
use) must be done after 5 p.m. or on weekends, unless Tenant occupies
the entirety of the Building above the ground floor or unless otherwise
agreed to in writing by Landlord. Reservations must be through the local
Property Management Office with not less than one (1) business day
notice.
17. All unused door frames and doors shall be returned to the local Property
Management Office unless otherwise specified by the local Property
Management Office, with the return of the foregoing coordinated in
advance with the Property Management Office. However, Tenant may
choose to keep and store excess materials, but for security purposes, any
excess lock cores need to be returned to the local Property Management
Office.
18. Final clean up of the project shall be done by the General Contractor.
This includes interior window cleaning, removal of all construction trash &
janitorial cleaning to be ready for final occupancy.
19. The construction space shall be maintained in an orderly and safe fashion
at all times.
1) Keep aisles clear.
2) Provide trash cans for daily debris.
3) Stock material in a neat arrangement out of the way of work.
4) Cover electrical trench when work is not being performed in it.
5) Sweep job site daily.
6) Cover return air intakes with filter. Keep clean and remove when job is
complete.
7) Provide fire extinguishers every 75 feet through out the duration of the
project.
8) Stairwell will be kept clear of any obstructions at all times.
20. Local Property Management Office and Tenant will agree upon an
appropriate space for construction debris bins, with the Property
Management Office providing at least one (1) dock location to store
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construction debris bins for the duration of the project. General Contractor
will be responsible for hauling, ordering and all costs. The bins will be for
the exclusive use of Tenant.
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General Contractors
All contractors must receive approval from local Property Management Office
prior to start of work. Contractors that have been approved for access at Safeway
facilities will be required to comply with all rules and /or restrictions set by the
local Property Management Office. In addition, it is the responsibility of the
General Contractor to assure that all sub - contractors are aware of and adhere to
the rules and /or restrictions at Safeway's facilities.
1. Foreman(s) must attend "Planning Meetings" whenever scheduled. If the
foreman is unable to attend a representative should be in attendance.
2. Contractors and sub - contractors must supply all tools and equipment
necessary to perform designated functions, no metal or wood ladders are
allowed. Fiberglass ladders only are allowed.
3. Contractors and sub - contractors are not permitted to roam the building.
They are restricted to their work areas.
4. Work areas must be kept safe at all times. The local Pro e
Management Office reserves the right to stop any works that it deems to
be unsafe.
5. Work areas must be kept clean during and at the conclusion of work shifts.
6. This is a non - smoking building. Smoking is permitted outside only at least
25' from any building entrance or air intake.
7. Transportation of tools and equipment must be done through the freight
elevator. NO EXCEPTIONS,
8. All contractors are responsible for providing a list of all personnel
employed on this site to the local Property Management Office.
9. Contractors must provide to local Property Management copies of Material
Safety Data Sheets (MSOS) for ALL chemicals /compounds brought on
site.
10. Contractors shall notify the local Property Management Office at least
three (3) business days in advance to schedule any roof top activity: Lifts,
rigging, cranes, etc.
11. At locations where no freight elevator exists, prior to commencement of
any construction, the local Property Management Office must identify and
i
approve alternate means to transport large construction materials,
supplies and /or furniture.
12. The following activities require the approval of, and scheduling through the
local Property Management Office at leasWplte three (3) business days in
advance (except as indicated below). "0
1) Any on site welding.
2) Shut down of any life safety system.
3) Core drilling.
4) Minor electrical and/or mechanical shut downs minimum of 24 hours
notice required or as appropriate per the local Property Management
Office.
5) Major electrical and /or mechanical shut downs (two (2) weeks notice
required), and provided that the foregoing may only be done after 6:00
p.m. Monday through Friday, and on Saturdays and Sundays.
6) Cardkey or key access to locked or restricted areas.
Security
0
1. After hours authorized work must arrange for access through the local
Property Management Office. General Contractor will furnish project
schedule at least three (3) business days in advance for access and
security purposes.
2. Contractor shall be responsible for the security of their tools and material
during construction. Landlord accepts no liability.
3. General Contractor will furnish the local Property Management Office with
advance notice of the company name and number of construction
employees who require access to the building at times other than normal
business hours. Such notice shall include location within the building
where work is to be performed.
(See item 2, General).
4. There is never any parking provided in the Loading Dock area. This area
is used only for deliveries. NO EXCEPTIONS. Parking in designated
parking stalls only, as determined by the local Property Management
Office. Tenant will be provided with clear access to the freight elevator,
provided such access shall not unreasonably interfere with Landlord's use
of the freight elevator.
5. Unless Tenant occupies the entire Building, access to
electrical /telecommunications closets is restricted to authorized personnel
only. Authorization shall be given by the local Property Management
Office, and can be withdrawn at any time.
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Elevators
All material delivery / removal will be made as expeditiously as possible
though the loading dock and freight elevator. Unless Tenant occupies the
entire Building, use of the freight elevator must be scheduled ahead of
time for after -hours use. Reservations only through the local Property
Management Office upon not less than 24 hours notice.
2. Roof hatches in freight elevators will not be opened without release of Lien
Notice and shall be accomplished by using the proper elevator
representative.
3. Passenger elevators shall not be used to move materials, tools or
personnel. Construction crews are to use the freight elevator only.
4. Freight elevators cannot be dedicated during normal business hours
7:00 a.m. to 5:00 p.m., unless Tenant occupies the entirety of the Building
above the ground floor.
5. If no elevator is available, prior to commencement of any construction the
contractor and the local Property Management Office will determine an
alternative means of vertical access.
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0
Life Safety
0
1. Fire doors shall not be propped open or detach door closer on any fire rated
doors.
2. The Life Safety System and its components shall remain intact and working
during construction. Contractor shall contact the local Property Management
Office each day as they enter and leave the building for status of the Life
Safety System.
I All work requiring an open flame must have a permit from the local Fire
Department and comply with all Fire Department regulations.
4. The local Property Management Office must be notified each day in order to
set up the life safety system to accommodate the work as required, and the
General Contractor agrees to pay for this service.
5. Life Safety System, Strobe Lights, Emergency Power and electrical which
may affect operation of these systems must be coordinated and scheduled,
one (1) business day prior, through the local Property Management Office.
6. The Contractor is to provide approved flammable liquid storage cabinets for
all flammables on site or remove them each day from the premises. This
must be approved by the local Property Management Office.
7. Contractor shall patch all penetrations in floors /walls /ceilings to maintain the
fire rating in an approved manner, using approved products; provided,
however, that Landlord shall be responsible for patching all penetrations that
are mutually identified as "pre- existing" by Tenant (or Tenant's contractor)
and Landlord. The contractor shall provide MSDS of products used to the
local Property Management Office.
8. Omitted.
9. The local Property Management Office staff only shall do the draining and
refilling of the fire sprinkler system. The General Contractor agrees to pay for
this service. One (1) business day advanced notice is required.
10. The Building Fire Alarm contractor shall be used for review and all fire alarm
work to be performed. Contact the local Property Management Office.
E
Building Systems
0
The contractor shall notify the local Property Management Office at least
two (2) weeks in advance of any interruption of building services, i.e.
electrical, plumbing or HVAC, and any such interruption shall only occur
after 6:00 p.m. Monday through Friday, and on Saturdays and Sundays.
2. Contractor shall not store material in electrical, mechanical or
telecommunication rooms. Maintain cleanliness throughout. Do not
clutter or block hallways, exits, freight elevator lobby, electrical closets or
loading dock.
I All heating, ventilation and air conditioning controls are to be Building
Standard. Contact the local Prorerty Management Office. The General
Contractor shall pay for any HVAC control services provided by the local
Property Management Office.
4. All electrical panel labeling to be performed in accordance with the NEC
and Building Specifications. All outlet plates to include circuit numbers.
5. All fluorescent light fixtures must conform to building standards or to the
standard set forth in the approved plans. Contact the local Property
Management Office,
6. An independent AABC third party contractor approved by the local
Property Management Office shall perform all air balance work. Upon
completion of construction, Contractor shall completely rebalance heating,
ventilation and air conditioning systems as appropriate. Verify proper
operation of all DDC & pneumatic controls, including zoning. Provide
written balancing reports to the local Property Management Office.
7. Doors to equipment and electrical rooms shall NOT be left open at any
time.
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i •
Paintin
1. All painting shall be performed after hours or on weekends, unless Tenant
occupies entirety of Building. 48 hours prior notice shall be given to the
local Property Management Office, unless Tenant occupies entirety of
Building, in which event 24 hours notice is required.
2. An approved flammable liquid storage lockable locker shall be provided by
the contractor to store all flammables left on site, outside. (Prior approval
required by the local Property Management Office).
3. Paints and thinners should be brought to site as needed and not stock
piled on the floor.
4. Spray painting may not be applied during the day and must be performed
after hours. Permits shall be secured from the local Fire Department for
any spray application and must comply with all Fire Department
regulations.
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•
Cablin
All outlets for any items that must be installed in a new or existing wall
shall be provided with a code conforming outlet box (not plastic), a conduit
run above the finished ceiling line and a finished cover or trim plate.
Conduit shall be a minimum of one half inch inside trade size.
2. Wiring that has emerged from the wall outlet shall be neatly bundled or
wrapped but shall not be fastened to building surfaces in any way unless
approved by the local Property Management Office. Wiring may not be
run in the open on a finished ceiling or wall surface or an occupied area
unless installed in a communication room, phone closet or electrical
closet.
3. Wiring Type: All cable of any type referred to in this guide must meet all
local codes. Any cable that is run in the ceiling or under floor area may be
run without conduit as long as it meets the smoke fire requirements of the
local fire department and all local codes. Red wire will be used for Fire
Life Safety system only. Wall outlets are still required with a box and
conduit to ceiling with this method. All cables must be fastened to ceiling
wire in an approved fashion, or supported by their own hangers to the slab
above. No cabling, HVAC ductwork, control wiring, etc. to be laid across T
bar grid or ceiling tiles.
4. All work must be performed in a neat and workmanship like manner. If
any questions arise as to conditions that may arise that are not covered in
this guide, contractors must contact the local Property Management Office
for instruction.
5. All wire and low voltage cable run in the ceiling must be independently
supported according to the UBC. The building standard method of
support is by wire rack or trapeze. Wire racks may exist on some floors.
Where racks do not exist, they must be installed at tenant expense.
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Local Property Management Contacts
Name
Division
Office Phone:
Cell Phone:
Kevin Thompson Safeway Inc. (California)
Office Phone: 925.467.3547
Cell Phone: 925.383.4371
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9
E
SAFEWAY INC.
5918 Stoneridge Mall Road
Pleasanton, Ca. 94588
General Building
Rules & Regulations
For Construction
Acknowledgment Receipt
I , representing
PRINT NAME PRINT COMPANY NAME
acknowledge that I have received a copy of the General Building Rules &
Regulations for Construction from the local Property Management Office and
agree to abide by the Rules and regulations set forth there in. I further
acknowledge that I will provide copies to all sub - contractors and that they will
abide by these rules.
Signed:
Date:
16