Desert Oasis Industrial Lofts LLC_Poway StowayFIFTH AMENDMENT TO LEASE AGREEMENT
This FIFTH AMENDMENT TO LEASE AGREEMENT ("Fifth Amendment"), by and
between the City of Poway, solely in its capacity as successor agency to the Poway Redevelopment
Agency ("Successor Agency") and Desert Oasis Industrial Lofts, LLC, a California Limited Liability
Company (" Tenant"), is entered into effective this 1 a day of October, 2016.
RECITALS
1. The Poway Redevelopment Agency (the "Redevelopment Agency") and Tenant's predecessors
in interest, Avalon Property Development, a California corporation ("Avalon") and Chris LaFomara
LaFomara") (collectively, Avalon and LaFomara, the "Original Tenants") entered into that certain
Lease with a term beginning May 1, 2009, by which Redevelopment Agency and the Original Tenants
established the terms and conditions for use of the Redevelopment Agency -owned real property located
at 13033 Poway Road, Poway, California ("Leased Premises"); and
2. Section 5 of the Lease allows for the Tenant to assign the Lease to a corporation with which
Tenant may merge or consolidate, to any subsidiary of Tenant, to any corporation under common
control with Tenant, or to a purchaser of substantially all of Tenant's assets; and
3. Subsequent to execution of the Lease, Avalon dissolved and ownership of Avalon's business
operations and the Lease was sold and assigned by the Original Tenants to Desert Oasis Industrial
Lofts, LLC, of which LaFomara is included as a member; and
4. On February 1, 2012, the Redevelopment Agency was dissolved by operation of law, and,
pursuant to California Health and Safety Code section 37173 the City became the Successor Agency
to the former Redevelopment Agency; and
5. Section 20 of the Lease allows for the Redevelopment Agency to assign the Lease to the City
of Poway; and
6. As a result of action taken prior to the dissolution of the Redevelopment Agency on February
1, 2012, and in accordance with Health and Safety Code section 37173, the Leased Premises and the
Lease have been assigned to the Successor Agency; and
7. Section 1 of the Lease provides for a three-year lease term, with two one-year extension options
to be exercised at the sole discretion of the Successor Agency; and
8. On May 1, 2012, the First Amendment to the Lease Agreement ("First Amendment") was
executed by Tenant and Successor Agency in order to extend the term of the Lease for a period of one
1) year; and
9. On May 1, 2013, the Second Amendment to the Lease Agreement ("Second Amendment") was
executed by Tenant and Successor Agency in order to extend the term of the Lease for a period of one
1) year; and
10. Section 1 of the Lease additionally provides that beginning May 1, 2014, the Successor Agency
may extend the Lease at its sole discretion for a period of up to five years; and
IL On May 1, 2014, the Third Amendment to the Lease Agreement ("Third Amendment') was
executed by Tenant and Successor Agency in order to extend the term of the Lease for a period of one
1) year; and
12. On May 1, 2015, the Fourth Amendment to the lease Agreement ("Fourth Amendment') was
executed by Tenant and Successor Agency in order to extend the term of the Lease for a period of one
1) year; and
13. Beginning May 1, 2016, the Lease has continued on a month-to-month basis; and
14. The Successor Agency and Tenant now wish to amend Section 1 of the Lease to extend its
term by an additional nine (9) months; and
15. This Fifth Amendment is necessary to extend the term of the lease for a nine (9) month period
commencing October 1, 2016.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
Section 1. Section 1 of the Lease is hereby amended to read as follows:
1. Lease Term. Successor Agency hereby leases to Tenant the property commonly known
as 13033 Poway Road, Poway, California ("Leased Premises"), and Tenant hereby leases the same
from Successor Agency, for an eight-year and two-month term commencing on May 1, 2009
Commencement Date"). At any time after May 1, 2012, the Successor Agency may terminate the
lease by providing Tenant with six months written notice. Beginning May 1, 2017, the Successor
Agency may extend the lease at its sole discretion for a period of up to two years.
Section 2. Except as otherwise amended by this Fifth Amendment, all other terms and conditions
of the Lease, First Amendment, Second Amendment, Third Amendment, and Fourth Amendment
shall remain in full force and effect.
IN WITNESS WHEREOF, the Parties have caused this Fifth Amendment to be
signed and executed the day and year first above written.
CITY OF POWAY AS SUCCESSOR AGENCY
By: DATED:
Tina White, Executive Director
DESERTO r INDUSTRIAL LOFTS, LLC
By. ,
ti
Paul Goltifirb, Member
1y'/S. /CD
DATED: I aI L // '
By: DATED: k
MichelleaPnse, Member /
I
By: - DATED: / 3)
Chris LaForna4 Member
APPROVED AS TO FORM:
FOURTH AMENDMENT TO LEASE AGREEMENT
This FOURTH AMENDMENT TO LEASE AGREEMENT ("Fourth Amendment"), by and
between the City of Poway, solely in its capacity as successor agency to the Poway Redevelopment
Agency ("Successor Agency") and Desert Oasis Industrial Lofts, LLC, a California Limited
Liability Company (" Tenant"), is entered into effective this I' day of May, 2015.
RECITALS
1. The Poway Redevelopment Agency (the "Redevelopment Agency") and Tenant's
predecessors in interest, Avalon Property Development, a California corporation ("Avalon') and
Chris LaFomara (" LaFomara") (collectively, Avalon and LaFomara, the "Original Tenants")
entered into that certain Lease with a term beginning May 1, 2009, by which Redevelopment
Agency and the Original Tenants established the terns and conditions for use of the Redevelopment
Agency -owned real property located at 13033 Poway Road, Poway, California ("Leased Premises");
and
2. Section 5 of the Lease allows for the Tenant to assign the Lease to a corporation with which
Tenant may merge or consolidate, to any subsidiary of Tenant, to any corporation under common
control with Tenant, or to a purchaser of substantially all of Tenant's assets; and
3. Subsequent to execution of the Lease, Avalon dissolved and ownership of Avalon's business
operations and the Lease was sold and assigned by the Original Tenants to Desert Oasis Industrial
Lofts, LLC, of which LaFornara is included as a member; and
4. On February 1, 2012, the Redevelopment Agency was dissolved by operation of law, and,
pursuant to California Health and Safety Code section 37173 the City became the Successor Agency
to the former Redevelopment Agency; and
5. Section 20 of the Lease allows for the Redevelopment Agency to assign the Lease to the City
of Poway; and
6. As a result of action taken prior to the dissolution of the Redevelopment Agency on
February 1, 2012, and in accordance with Health and Safety Code section 37173, the Leased
Premises and the Lease have been assigned to the Successor Agency; and
7. Section 1 of the Lease provides for a three-year lease tern, with two one-year extension
options to be exercised at the sole discretion of the Successor Agency; and
8. On May 1, 2012, the First Amendment to the Lease Agreement ("First Amendment") was
executed by Tenant and Successor Agency in order to extend the term of the Lease for a period of
one (1) year; and
9. On May 1, 2013, the Second Amendment to the Lease Agreement ("Second Amendment')
was executed by Tenant and Successor Agency in order to extend the term of the Lease for a period
of one (1) year, and
10. Section 1 of the Lease additionally provides that beginning May 1, 2014, the Successor
Agency may extend the Lease at its sole discretion for a period of up to five years; and
11. On May 1, 2014, the Third Amendment to the Lease Agreement ("Third Amendment") was
executed by Tenant and Successor Agency in order to extend the term of the Lease for a period of
one (1) year, and
12. Successor Agency and Tenant now wish to amend Section 1 of the Lease to extend its tern
by an additional one (1) year; and
13. This Fourth Amendment is necessary to extend the term of the lease for a one (1) year period
commencing May 1, 2015.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
Section 1. Section 1 of the Lease is hereby amended to read as follows:
1. Lease Term. Successor Agency hereby leases to Tenant the property commonly
known as 13033 Poway Road, Poway, California ("Leased Premises"), and Tenant hereby leases
the same from Successor Agency, for a seven-year tern commencing on May 1, 2009
Commencement Date"). At any time after May 1, 2012, the Successor Agency may terminate
the lease by providing Tenant with six months written notice. Beginning May 1, 2016, the
Successor Agency may extend the lease at its sole discretion for a period of up to three years.
Section 2. Except as otherwise amended by this Fourth Amendment, all other terms and
conditions of the Lease, First Amendment, Second Amendment, and Third Amendment shall
remain in full force and effect.
IN WITNESS WHEREOF, the Parties have caused this Fourth Amendment to be
signed and executed the day and year first above written.
CITY OF POWAY AS SUCCESSOR AGENCY
By. DATED:
Daniel Singer, Executive Dir r
DESERT O S
INVr/-)
L S, LLC
B DATED:
Paul Gol arb
Michelle LaPrise,
By: \, 4^
ChrisLaFornara, Member
AS TO FORM:
L.
DATED: 3 1
DATED: a y
THIRD AMENDMENT TO LEASE AGREEMENT
This THIRD AMENDMENT TO LEASE AGREEMENT ("Third Amendment"), by and
between the City of Poway, solely in its capacity as successor agency to the Poway Redevelopment
Agency ("Successor Agency") and Desert Oasis Industrial Lofts, LLC, a California Limited Liability
Company ("Tenant"), is entered into effective this I" day of May, 2014.
RECITALS
1. The Poway Redevelopment Agency (the "Redevelopment Agency") and Tenant's
predecessors in interest, Avalon Property Development, a California corporation ("Avalon") and
Chris LaFomara ("LaFomara") (collectively, Avalon and LaFomara, the "Original Tenants") entered
into that certain Lease with a term beginning May 1, 2009, by which Redevelopment Agency and the
Original Tenants established the terms and conditions for use of the Redevelopment Agency -owned
real property located at 13033 Poway Road, Poway, California ("Leased Premises'); and
2. Section 5 of the Lease allows for the Tenant to assign the Lease to a corporation with which
Tenant may merge or consolidate, to any subsidiary of Tenant, to any corporation under common
control with Tenant, or to a purchaser of substantially all of Tenant's assets; and
3. Subsequent to execution of the Lease, Avalon dissolved and ownership of the Avalon's
business operations and the Lease were sold and assigned by the Original Tenants to Desert Oasis
Industrial Lofts, LLC, of which LaFomara is included as a member, and
4. On February 1, 2012, the Redevelopment Agency was dissolved by operation of law, and,
pursuant to California Health and Safety Code section 37173 the City became the Successor Agency
to the former Redevelopment Agency; and
5. Section 20 of the Lease allows for the Redevelopment Agency to assign the Lease to the City
of Poway; and
6. As a result of action taken prior to the dissolution of the Redevelopment Agency on February
1, 2012, and in accordance with Health and Safety Code section 37173, the Leased Premises and the
Lease have been assigned to the Successor Agency, and
7. Section 1 of the Lease provides for a three-year lease term, with two one-year extension
options to be exercised at the sole discretion of the Successor Agency, and
On May 1, 2012, the First Amendment to the Lease Agreement ("First Amendment") was
executed by Tenant and Successor Agency in order to extend the term of the lease for a period of one
1) year, and
9. On May 1, 2013, the Second Amendment to the Lease Agreement ("Second Amendment")
was executed by Tenant and Successor Agency in order to extend the term of the lease for a period of
one (1) year, and
10. Section 1 of the Lease additionally provides that beginning May 1, 2014, the Successor
Agency may extend the lease at its sole discretion for a period of up to five years; and
11. Successor Agency and Tenant now wish to amend Section 1 of the Lease to extend its term
by an additional one (1) year; and
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12. This Third Amendment is necessary to extend the term of the lease for a one-year period
commencing May 1, 2014.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
Section 1. Section 1 of the Lease is hereby amended to read as follows:
1. Lease Term. Successor Agency hereby leases to Tenant the property commonly
known as 13033 Poway Road, Poway, California ("Leased Premises'), and Tenant hereby leases
the same from Successor Agency, for a six-year term commencing on May 1. 2009
Commencement Date"). At any time after May 1, 2012, the Successor Agency may terminate
the lease by providing Tenant with six months written notice. Beginning May 1, 2015, the
Successor Agency may extend the lease at its sole discretion for a period of up to four years.
Section 2. Except as otherwise amended by this Third Amendment, all other terms and
conditions of the Lease, First Amendment, and Second Amendment shall remain in full force and
effect.
IN WITNESS WHEREOF, the Parties have caused this Third Amendment to be
signed and executed the day and year first above written.
CITY OF PO/
Wp
AY AS SUCCESSOR AGENCY
r/
By: J`"'''AYr 66_ DATED: / /
Tina M. White, Interim City Manager
DESERT OASIS INDUSTRIAL LOFTS, LLC
By:
I '
DATED:
Paul ltdfarr ,, mbe
By: *W DATED:
Michelle LaPrise.AWer
DATED: I
Member
APPROVED AS TO FORM:
MorgL. F ley, City omey
n
u
SECOND AMENDMENT TO COMMERCIAL LEASE BETWEEN POWAY
REDEVELOPMENT AGENCY AND POWAY STOWAY
This Second Amendment to the Poway Stoway Commercial Lease
Lease") is entered into this -AA day of :5c `atm , 2007 by and
between the POWAY REDEVELOPMENT AGENCY ("Landlord") and 13033
Poway Road LLC, a California limited liability corporation ("Tenant').
WHEREAS, Landlord and Tenant have entered into a Lease agreement
for the real property commonly known as 13033 Poway Road, Poway, California,
as shown on Exhibit "B" attached to the original Lease, together with all buildings
and improvements situated thereon; and
WHEREAS, the current Lease between the parties is for a one-year term
from September 27, 2006 to September 27, 2007; and
WHEREAS, the parties wish to amend the term of the Lease for one
additional year, with a one-year option to renew.
NOW, THEREFORE, the parties agree to amend the Poway Stoway
Commercial Lease as follows:
1. Section 2, entitled 'Term" is amended to read as follows:
a. The term of this Lease shall be for one (1) year commencing on
September 27, 2007 and terminating one (1) year thereafter.
Except as provided in Section 2( b) below, this one year term
shall constitute the final twelve (12) month period for purposes
of Section 3.e, Section 3.e, and Section 39.a of this Lease.
b. On condition that Tenant is not in default under the terms of
this Lease, Tenant shall have the option to extend the term of
this Lease for one (1) additional period of one (1) year on the
same terms and conditions, including rent, set forth in this
Lease. Tenant shall exercise such option by delivery of a
written notice by certified or registered mail not less than ninety
90) days prior to the expiration of the term of this Lease. If
Tenant exercises the option to renew the Lease for an
additional year, the additional year constitutes the fourth year
of a four-year lease term, and it is the final twelve (12) -month
period for purposes of Section 3.d, Section 3.e, and Section
39.a of this Lease. Any further extensions of the term of this
Lease shall only be by further written agreement signed by
both parties.
c. Tenant shall be a trespasser if it has not vacated the Premises
and delivered possession of the Premises to Landlord free and
clear of all use or occupancy of its customers upon expiration
9 0
of the Lease, and shall be liable to Landlord for all costs of
removing, moving, and relocating Tenant's customers.
d. Section 2 of Exhibit "A" is deleted.
2. All other terms and conditions in the original Lease remain in full
force and effect.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be
signed and executed the day and year first above written.
Poway Redevelopment Agency
M
Rod Gould
Executive Director
APPROVED AS TO FORM:
By:
Lisa A. Foster
Agency General Counsel
13033 Poway Road LLC
By:
Chris La ornara
Managing Member
By.,
Michelle M. LaPrise
Member
By:
Paul Goldfar
Member
FIRST AMENDMENT TO COMMERCIAL LEASE BETWEEN POWAY
REDEVELOPMENT AGENCY AND POWAY STOWAY
This First Amendment to the Poway Stoway Commercial Lease ("Lease")
is entered into this <V' day of r,,5r''etA, 2006 by and between the
POWAY REDEVELOPMENT AGENCY ("Landlord") and 13033 Poway Road
LLC, a California limited liability corporation ("Tenant").
WHEREAS, Landlord and Tenant have entered into a Lease agreement
for the real property commonly known as 13033 Poway Road, Poway, California,
as shown on Exhibit "B" attached to the original Lease, together with all buildings
and improvements situated thereon; and
WHEREAS, the current Lease between the parties is for a two-year term
from September 27, 2004 to September 27, 2006; and
WHEREAS, the parties wish to amend the term of the Lease for one
additional year, with a one-year option to renew.
NOW, THEREFORE, the parties agree to amend the Poway Stoway
Commercial Lease as follows:
1. Section 2, entitled `Term" is amended to read as follows:
a. The term of this Lease shall be for one (1) year commencing on
September 27, 2006 and terminating one (1) year thereafter.
Except as provided in Section 2( b) below, this one year term
shall constitute the final twelve (12) month period for purposes
of Section 3.e, Section 3. e, and Section 39.a of this Lease.
b. On condition that Tenant is not in default under the terms of
this Lease, Tenant shall have the option to extend the term of
this Lease for one (1) additional period of one (1) year on the
same terms and conditions, including rent, set forth in this
Lease. Tenant shall exercise such option by delivery of a
written notice by certified or registered mail not less than ninety
90) days prior to the expiration of the term of this Lease. If
Tenant exercises the option to renew the Lease for an
additional year, the additional year constitutes the fourth year
of a four-year lease term, and it is the final twelve (12) -month
period for purposes of Section 3.d, Section 3. e, and Section
39.a of this Lease. Any further extensions of the term of this
Lease shall only be by further written agreement signed by
both parties.
c. Tenant shall be a trespasser if it has not vacated the Premises
and delivered possession of the Premises to Landlord free and
clear of all use or occupancy of its customers upon expiration
of the Lease, and shall be liable to Landlord for all costs of
removing, moving, and relocating Tenant's customers.
d. Section 2 of Exhibit "A" is deleted.
2. All other terms and conditions in the original Lease remain in full
force and effect.
IN WITNESS WHEREOF, the Parties have caused this Amendment to be
signed and executed the day and year first above written.
Poway Redevelopment Agency
fay:
Rod Gould
Executive Director
APPROVED AS TO FORM:
By.
Lisa A. Foster
Agency General Counsel
13033 Poway Road LLC
B
y
C7
Chris LaFomara
Managing Member
By:
Michelle M. LaPrise
Member
By.
Paul GoldfaPb i
Member
CITY OF tWAY DOCUMENT
LEASE AGREEMENT
This LEASE AGREEMENT ("Lease") is entered into as of 2l 2009,
by and between the POWAY REDEVELOPMENT AGENCY, a publi body, corporate and
politic ("Agency") and Avalon Property Development, a California corporation, and Chris
LaFornara, an individual ("Tenant").
RECITALS
The following recitals are a substantive part of this Agreement:
A. In furtherance of the objectives of the Community Redevelopment Law of the
State of California, Health and Safety Code Section 33000, et seq., Agency and Tenant have
entered into that certain Purchase Agreement dated August 3, 2004, pursuant to which Tenant
conveyed to Agency certain real property generally located at 13033 Poway Road, Poway,
California ("Leased Premises"), and Agency agreed to lease -back the Leased Premises to
Tenant. The original lease dated September 27, 2004 was for a two-year term, and was
amended twice to extend the term for two additional years. The terms of this Lease are
intended to replace and supersede the terms of the prior leases and lease amendments
between Agency and Tenant.
B. The Tenant operates, and operated prior to the purchase of the Leased
Premises by Agency, a self -storage business ("Business") on the Leased Premises. The
Tenant is fully aware that the Leased Premises was acquired by the Agency to be utilized in
whole or in part for future redevelopment purposes and that this Lease is only for a temporary
term due to future redevelopment of the Parcel.
C. By this Lease, the Agency desires to lease the Leased Premises to the Tenant,
and the Tenant desires to lease the Leased Premises from the Agency, upon the terms and
conditions set forth herein.
D. The parties understand and agree that this Lease is what is commonly known
as a "triple net" or "net -net -net" lease, except as otherwise provided herein, and Tenant
acknowledges and agrees that Agency shall not be obligated by the terms of this Lease or
otherwise to perform any maintenance or construct or repair any improvements at the Leased
Premises. Additionally, Tenant acknowledges and agrees that (i) Agency has made no
representation or warranty regarding the fitness of the Leased Premises for Tenant's intended
use thereof, (ii) Tenant has occupied the Leased Premises and operated the Business thereon
for numerous years prior to the acquisition of the Leased Premises by Agency, and
iii) Tenant is familiar with the condition of the Leased Premises and the appropriateness of
the Leased Premises for Tenant's operation of the Business thereon.
E. The foregoing recitals constitute a substantive part of this Lease.
NOW, THEREFORE, Agency and Tenant hereby agree as follows:
1. Lease Term. Agency hereby leases to Tenant the property commonly known
as 13033 Poway Road, Poway, California ("Leased Premises"), and Tenant hereby leases the
same from Agency, for a three-year term commencing on May 1, 2009 ("Commencement
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Date"), with two one-year extension options to be exercised at the Agency's sole discretion.
At any time after May 1, 2012, the Agency may terminate the lease by providing Tenant with
six months written notice. Beginning May 1, 2014, the Agency may extend the lease at its
sole discretion for a period of up to five years.
2. Relocation Assistance. Tenant hereby acknowledges and agrees that Tenant
shall not incur any right, interest, or claim in or to any additional benefits or assistance
arising under Government Code Section 7260, et seq. or any other federal, state or local law,
rule, or regulation relating to or arising from Tenant's relocation from the Leased Premises or
the termination of this Lease other than the relocation assistance provided to Tenant pursuant
to the Purchase Agreement.
3. Rent.
a) Net Lease. It is the intent of the parties that the rent provided herein
shall be absolutely net to Agency and that Tenant shall pay all costs, taxes, assessments,
charges, and expenses of every kind and nature imposed on or against the Leased Premises
which may arise or become due during the Lease Term, and which, except for execution
hereof, would or could have been payable by Agency.
b) Rent and Deposit. Tenant shall pay to the Agency during the
Lease Term the amount of Twelve Thousand Dollars ($12,000.00) per month ("Rent").
Agency shall also retain the security deposit provided pursuant to the original lease dated
September 27, 2004 in the amount of Ten Thousand Dollars ($10,000.00), to guarantee
Tenant's obligations to the Agency under this Lease. Tenant shall not be entitled to earn
interest on the amount of the deposit. Tenant's deposit shall be refunded to Tenant within
thirty (30) days of the date that Tenant vacates the Leased Premises, minus any
appropriate deductions. Tenant shall not use the security deposit in lieu of payment of the
last month's rent. In the event that the Lease Term is extended past May 1, 2014, the Rent
shall be increased annually, beginning on May 1, 2014, by a percentage amount equal to
the percentage change in the U.S. Department of Labor, Bureau of Labor Statistics
Consumer Price Index (All Items, All Consumers, 1982-1984=100) which occurred
during the previous one-year period for the San Diego Consolidated Metropolitan
Statistical Area for the period ending March 31. If the index is discontinued or revised,
such other government index or computation with which it is replaced shall be used in
order to obtain substantially the same result as would be obtained if the index had not
been discontinued or revised.
c) Additional Charge for NSF Checks. Tenant shall pay to the Agency
the sum of $50 as a late payment charge for any check returned for non -sufficient funds.
d) Tenant's rent obligations to Landlord for the last six (6) months of the
final year of this Lease may be adjusted by Landlord to compensate Tenant for a significant
loss of occupany as a result of the six (6) month notice requirement contained in this Lease
under Section 3.b. A "significant loss of occupancy" will be demonstrated within the final
six (6) months of the final year of the lease term by the voluntary termination of at least 15%
of the total number of storage agreements between the Tenant and its customers, and their
vacation of the Premises. The "total number of storage agreements" is demonstrated by the
01
number of active storage agreements held by and between Tenant and its customers on the
date on which the notice is mailed to the Tenant from the Agency. If such terminations occur
within the final six (6) months of the final year term of this Lease in an amount equal to or
greater than 15% of the total number of storage agreements (as specified), the Tenant's
monthly rent payment may be decreased commensurate with the percentage of storage
terminations. At no time will the commensurate reduction in Tenant's rent obligation to
Landlord be greater than the percentage of terminated storage agreements as compared to the
total number of agreements held by and between the Tenant and its customers.
4. Use of Leased Premises.
a) Use. Tenant shall use the Leased Premises solely for the operation of
the Business and for no other purposes without the prior approval of the Agency, which may
be given or withheld in Agency's sole discretion.
b) Compliance with Law. All uses of the Leased Premises hereunder
shall be made in accordance with all ordinances, resolutions, statutes, rules, regulations and
laws of the City of Poway, and any Federal, State or local governmental agency of competent
jurisdiction.
c) Title to Improvements; Personal Property of Tenant; Removal of
Property Upon Termination of Lease. Title in and to all fixtures and improvements to the
Leased Premises ("Improvements"), excepting any trade fixtures, equipment or other
property installed by Tenant, shall be vested in Agency. Upon the expiration of the Term or
any earlier termination of this Lease, Tenant shall surrender to Agency possession of the
Leased Premises and the Improvements then located thereon, subject to ordinary wear and
tear and damage. Upon termination of the Lease, Tenant shall remove all of Tenant's
personal property, trade fixtures, equipment, personal property left in storage units, and any
rubbish or debris on the premises. Tenant shall be permitted to park or place in or upon the
Leased Premises automobiles, trade fixtures, equipment and other personal property, to claim
depreciation on such automobiles, trade fixtures, equipment, and other personal property, to
place liens on such automobiles, trade fixtures, equipment, and other personal property, and
to grant security interests in such automobiles, trade fixtures, equipment, and other personal
property. Agency shall execute, at the request of Tenant, from time to time, an instrument in
favor of any party which has an ownership or security interest in any of such personal
property for the purpose of waiving any landlord's lien or right to levy thereon or for the
purpose of acknowledging that such personal property remains personal property
notwithstanding installation thereof on the Leased Premises. Thirty days following the
expiration of the Term, or following any earlier termination thereof, the Agency may remove
from the Leased Premises all personal property, fixtures and equipment remaining on the
Leased Premises that belongs to Tenant or any person or entity claiming by, through, or
under Tenant, including, without limitation, all trade fixtures; provided, however, that upon
the request of Agency, Tenant shall repair damage to the Leased Premises caused by such
removal. Should Tenant fail to make such repairs following reasonable notice, Agency may
perform same and the cost thereof shall be immediately due from Tenant to Agency with
interest thereon at the maximum rate permitted by law.
d) Hazardous Materials. The parties acknowledge that the Agency has
accepted the condition of the Leased Premises as conveyed by Tenant pursuant to the terms
3
of the Purchase Agreement. The provisions of this Paragraph 4(d) apply to Tenant's use of
the Leased Premises during the Lease Term, as it may be extended, and any period during
which Tenant holds over following the expiration of the Lease Term.
Tenant, at its sole cost and expense, shall comply with all laws relating to the
storage, use, handling and disposal of hazardous, toxic or radioactive matter including,
without limitation, those materials identified in Chapter 11, Division 4.5 of Title 22 of the
California Code of Regulations ("Title 22"), as amended from time to time (collectively,
Hazardous Materials"). In the event Tenant intends to store, use, handle or dispose of any
Hazardous Materials (except for normal quantities of cleaning and office supplies) at the
Leased Premises (collectively "Tenant's Use"), Tenant shall so notify Agency in writing at
least ten (10) days prior to the Tenant's Use and Tenant's failure to do so shall constitute a
default under the Lease. Tenant shall comply with all of Agency's rules and regulations
concerning Tenant's Use. Such notification shall include identification (type and common
name) and quantities of all Hazardous Materials, or any combination thereof, which are
intended for Tenant's Use. Agency may require Tenant to pay for environmental testing if
contamination by hazardous materials has occurred to the property due to the Tenants actions
or negligence. Such environmental monitoring and/or evaluation activity may include,
without limitation, soil testing, air testing, production waste stream analysis, and groundwater
testing.
During the Lease Term and after the termination thereof, each party shall
promptly notify and provide the other party with any notices which may be filed or prepared
by or on behalf of, or delivered to or served upon that party, including, but not limited to
reports filed pursuant to any self -reporting requirements, reports filed pursuant to any
applicable laws or this Lease, all permit applications, permits, monitoring reports, workplace
exposure and community exposure warnings or notices and all correspondence and other
documents associated with actual or threatened investigation or enforcement action by any
governmental entity or third party relating to the Leased Premises. In addition, Tenant shall
promptly notify Agency of, and shall promptly provide Agency with, true, correct, complete
and legible copies of all environmental reports, notices, or other items relating to the Leased
Premises that may be filed or prepared by or on behalf of, or delivered to or served upon,
Tenant. In the event of a release or threatened release of any Hazardous Material on the
Leased Premises or to the environment from the Leased Premises, Tenant shall promptly
notify Agency and provide Agency with copies of all reports and correspondence with or
from all governmental agencies, authorities or any other persons relating to such release or
threatened release.
Tenant shall be solely responsible for, shall pay for, defend (with an attorney
approved by Agency), indemnify and hold Agency, its officers, employees and agents, and
the City of Poway, and its officers, employees and agents, harmless against and from all
claims, judgments, liabilities, losses, liens, costs and expenses, including the removal, clean-
up and/or restoration work and materials necessary to return the Leased Premises, and any
other property of whatever nature, to their condition existing prior to the appearance of
Hazardous Materials on the Leased Premises, arising out of or connected with Tenant's Use.
Tenant's and Agency's obligations under this section shall survive the
termination of this Lease. Tenant's obligations under this section shall survive the sale by
Agency of any property interest in the Leased Premises, and, in such an instance, Tenant's
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obligations shall vest in and run to both the former owner(s) of the property interest and the
successor owner(s) of the property interest. Agency, and any former or subsequent Agency
under the Lease, may fully or partially assign its rights under this section.
5. Sublease and Assignment. Tenant shall have the right without Agency's consent, to
assign this Lease to a corporation with which Tenant may merge or consolidate, to any
subsidiary of Tenant, to any corporation under common control with Tenant, or to a
purchaser of substantially all of Tenant's assets. Except as set forth above, Tenant shall not
sublease all or any part of the Leased Premises, or assign this Lease in whole or in part
without Agency's consent, which consent shall not be unreasonably withheld or delayed.6.
6. Alterations and Improvements.
a) Maintenance and Repairs. During the Lease Term, Tenant shall make
all necessary repairs and maintenance to the Leased Premises at Tenant's own expense,
including such things as routine repairs of floors, walls, plumbing, ceilings, and other parts of
the Leased Premises damaged or worn through normal occupancy. Tenant shall also make
any and all repairs relating to the Tenant's specific use of the Leased Premises at Tenant's
expense. Tenant shall maintain all exterior portions of the Leased Premises that are visible to
the public in good condition, including the fencing, landscaping, building exteriors and paint.
Graffiti on the Leased Premises shall be removed by Tenant within seventy-two (72) hours.
In no event shall this Lease be interpreted to require Agency to expend funds for the purpose
of conducting repairs or maintenance of the Leased Premises. Tenant acknowledges and
agrees that Tenant is familiar with the condition of the Leased Premises and is aware of the
adequacy and fitness of the Leased Premises for Tenant's intended use thereof for the
operation of the Business. Agency expressly disclaims any warranty of habitability, warranty
of fitness for a particular purpose, or any covenant of quiet enjoyment with respect to the
Leased Premises and/or Tenant's use thereof pursuant to this Lease.
In addition to maintaining the Leased Premises in the condition required by
all applicable laws, rules, and regulations as set forth above, Tenant shall also be responsible
for maintaining any alarm system, fire system, smoke detectors, and backflow prevention
devices as may exist on the Leased Premises, and for providing pest control as needed on the
Leased Premises.
b) Alterations and Improvements. Tenant, at Tenant's expense, shall
have the right, following Agency's reasonable consent, to remodel, redecorate, and make
additions, improvements and replacements of and to all or any pan of the Leased Premises
from time to time as Tenant may deem desirable, provided the same are made in a
workmanlike manner, utilizing good quality materials, and in compliance with all applicable
federal, state, and local statutes, rules, and regulations. Tenant shall have the right to place
and install personal property, trade fixtures, equipment and other temporary installations in
and upon the Leased Premises, and fasten the same to the Leased Premises. All personal
property, equipment, machinery, trade fixtures and temporary installations, whether acquired
by Tenant at the commencement of the Lease term or placed or installed on the Leased
Premises by Tenant thereafter, shall remain Tenant's property free and clear of any claim by
Agency. Tenant shall have the right to remove the same at any time during the term of this
Lease; provided that Tenant shall be responsible for the repair of any damage caused by such
removal.
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7. Liens. Tenant agrees that it will pay or cause to be paid all costs for work
done by it or caused to be done by it on the Leased Premises of a character which will or may
result in liens on Agency's reversionary estate therein, and Tenant shall keep the Leased
Premises free and clear of all mechanics' liens and other liens on account of work done for
Tenant or persons claiming under it. If any such lien shall at any time be filed against the
Leased Premises, Tenant shall either cause the same to be discharged within thirty (30) days
after the recording thereof, or if Tenant, in Tenant's discretion and in good faith, determines
that such lien should be contested, shall furnish such security as may be reasonably required
by Agency. If Tenant shall fail to furnish such security, then, in addition to any other right or
remedy of Agency resulting from Tenant's said default, Agency may, but shall not be
obligated to, discharge the same either by paying the amount claimed to be due or by
procuring the discharge of such lien by giving security or in such other manner as is, or may
be, prescribed by law. Tenant shall repay to Agency, as "Additional Rent," on demand, all
sums disbursed or deposited by Agency pursuant to the provisions of this Paragraph 7,
including all costs, expenses and attorneys' fees incurred by Agency in connection therewith.
Nothing contained herein shall imply any consent or agreement on the part of Agency to
assume any liability under any mechanics' lien or other lien law.
Should any claims of lien be filed against the Leased Premises or any action
affecting the title to the Leased Premises be commenced, the party receiving notice of such
lien or action shall forthwith use its commercially reasonable efforts to give the other party
written notice thereof within five (5) days after receipt. Agency or its representative(s) shall
have the right to post and keep posted upon the Leased Premises notices of nonresponsibility
or such other notices that Agency may deem to be proper for the protection of Agency's
interest in the Leased Premises. Tenant shall, before the commencement of any work that
might result in any such lien, give to Agency written notice of its intention to do so in
sufficient time to enable the posting of such notices.
8. Insurance.
a) Property Insurance Coverage. Tenant shall, at its own cost and
expense, maintain in full force and effect property insurance, including fire and, extended
coverage insurance, covering Tenant's personal property, including removable trade fixtures,
located in the Leased Premises, in such amounts as Agency shall deem appropriate.
b) General Liability Insurance. Tenant shall, at its own cost and
expense, maintain a policy or policies of comprehensive general liability insurance with
respect to the Leased Premises with the premiums thereon fully paid on or before the due
date, which insurance shall afford minimum protection in the aggregate of not less than One
Million Dollars ($1,000,000) combined single limit coverage of bodily injury, property
damage or combination thereof.
c) Worker's Compensation Insurance. Tenant shall provide workers
compensation insurance as required by law.
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d) Additional Insurance Requirements. All liability insurance shall
include, but not be limited to, personal injury, cross liability, and severability of interest
clauses, products/completed operations, broad form property damage, independent
contractors, and owned, nonowned and hired vehicles. All insurance policies shall name
Agency as an additional insured, shall provide for notice to Agency no later than thirty (30)
days prior to any cancellation or modification of such policies, and shall be provided by Class
A -VII rated insurance carriers reasonably acceptable to the Agency! Tenant shall provide
Agency with current Certificates of Insurance evidencing Tenant's compliance with this
Paragraph no later than the Commencement Date and upon any subsequent request by
Agency.
9. Indemnitv.
a) Tenant Indemnification. Tenant shall defend, indemnify and hold
Agency, its officers, employees and agents, and the City of Poway and its officers, employees
and agents, harmless from all liability whatsoever on account of any real or alleged damage,
injury or liability of any kind or for any injury to or death of persons or damage to property
of Tenant or any other person occurring from and after the Commencement Date of this
Lease from any cause whatsoever related to (i) the use, occupancy or enjoyment of the
Leased Premises or operation of Tenant's Business thereon, including, but not limited to, the
sidewalks and landscaped areas immediately adjacent to the Leased Premises and Tenant's
parking lot area, if any, by Tenant or Tenant's customers, employees, invitees, permittees,
assignees and transferees, or (ii) Tenant's performance or failure to perform its obligations
pursuant to this Lease, or (iii) liens, claims and demands related to the use of the Leased
Premises and its facilities, or (iv) any repairs, alterations or improvements which Tenant may
make or cause to be made with respect to the Leased Premises, and any loss or interruption of
business or loss of rental income resulting therefrom. Tenant shall in all cases accept any
tender of the defense of any action or proceeding arising out of the foregoing in which
Agency is named or made a party and shall, notwithstanding any allegations of negligence or
misconduct on the part of Agency, defend Agency as provided herein. Tenant shall not be
liable for such damage or injury to the extent and in the proportion that the same is ultimately
determined to be attributable to the negligence or misconduct of Agency or its officers,
employees, agents or representatives, or Agency's failure to perform its obligations pursuant
to this Lease. This obligation to indemnify shall include reasonable attorney's fees and
investigation costs and all other reasonable costs, expenses and liabilities incurred by
Agency. This indemnity provision shall apply to all claims alleged to have accrued, or
injuries that are alleged to have occurred, prior to Tenant vacating the premises, regardless of
when such claims or injuries were discovered. This indemnity provision shall not apply to
claims or liability related to the area of the access easement shared by the Agency and
Tenant, as depicted on the map attached as Exhibit A.
b) Agency Indemnification. Agency shall indemnify and hold Tenant
harmless from all liability whatsoever on account of any real or alleged damage, injury or
liability of any kind or for any injury to or death of persons or damage to property of Tenant
or any other person occurring from and after the commencement date of this Lease from any
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cause whatsoever related to Agency's performance or failure to perform its obligations
pursuant to this Lease. Agency shall not be liable for such damage or injury to the extent and
in the proportion that the same is ultimately determined to be attributable to the negligence or
misconduct of Tenant or its officers, employees, agents or representatives, or Tenant's failure
to perform its obligations pursuant to this Lease, including but not limited to Tenant's failure
to timely make any repairs required to be made by Tenant pursuant to this Lease. This
obligation to indemnify shall include reasonable attorney's fees and investigation costs and
all other reasonable costs, expenses and liabilities incurred by Tenant.
10. Utilities. Tenant shall pay any and all charges for water, sewer, gas,
electricity, telephone, and/or any other services and utilities used by Tenant on the Leased
Premises during the term of this Lease unless otherwise expressly agreed in writing by
Agency. Tenant shall indemnify and hold Agency harmless from and against any liability or
damages resulting from, arising out of, or connected with, the provision of, or failure to
provide or pay any charges assessed against the Leased Premises for such utility services;
provided, however that Tenant shall not indemnify the Agency for damages resulting from
the loss of any utility service which results from the Agency's conduct or the conduct of any
contractors, engineers or third parties acting on behalf of the Agency that are in the Agency's
control.
11. Signs. Tenant shall have the right to maintain all current signs on the Leased
Premises during the term of the Lease. Tenant shall have the right to place additional signs
on the Leased Premises, however any additional signs placed on the Leased Premises shall
require the prior written consent of the Agency, as well as compliance with all City zoning
and sign permit requirements. Tenant shall have the right, prior to the end of the Lease Term,
to remove or otherwise dispose of its signs located on the Leased Premises. All of Tenant's
signs remaining on the Leased Premises after the expiration of the Term of this Lease shall
become the property of Agency and Agency may dispose of such signs without liability as
Agency alone sees fit, and Agency shall not be liable for any loss of or damage to the signs
remaining on the Leased Premises upon expiration of the Lease Term.
12. Lection. Agency shall have the right to enter upon the Leased Premises at
all reasonable hours to inspect the same upon twenty four (24) hours' notice to the Tenant,
provided Agency shall not thereby unreasonably interfere with Tenant's business on the
Leased Premises.
13. Damage and Destruction. If the Leased Premises or any part thereof or any
appurtenance thereto is so damaged by fire, casualty or structural defects that the same
cannot be used for Tenant's purposes, or if the Leased Premises cannot be used for Tenant's
purposes for any other reason, then Tenant shall have the right within ninety (90) days
following such damage to elect to terminate this Lease as of the date of such damage by
providing written notice to Agency. In the event of minor damage to any part of the Leased
Premises, and if such damage does not render the Leased Premises unusable for Tenant's
purposes and subject to Paragraph 6(a) above, Tenant shall promptly repair such damage at
Tenant's sole cost and expense. In making the repairs called for in this paragraph, Tenant
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shall not be liable for any delays resulting from strikes, governmental restrictions, inability to
obtain necessary materials or labor or other matters which are beyond the reasonable control
of Tenant.
14. Quiet Possession. Agency covenants and warrants that upon performance by
Tenant of its obligations hereunder, Agency will keep and maintain Tenant in exclusive,
quiet, peaceable, undisturbed and uninterrupted possession of the Leased Premises during the
term of this Lease; provided that Agency shall have no obligation to expend funds to repair or
maintain the Leased Premises to maintain compliance with applicable laws or to maintain the
Leased Premises in the condition required for Tenant's intended use and quiet enjoyment
thereof.
15. Consent. Agency shall not unreasonably withhold or delay its consent with
respect to any matter for which Agency's consent is required or desirable under this Lease.
16. Material Breach. In addition to any other remedies available at law or in
equity, any party not in default hereunder may immediately terminate this Lease upon the
breach of a material obligation under this Lease by the other party that is not cured within
thirty (30) days after written notice of the breach, by providing written notice of intent to
terminate to all other parties hereto.
17. Compliance with Law. Tenant shall comply with all federal, state, and local
laws, orders, ordinances and other public requirements now or hereafter pertaining to
Tenant's operation of the Business and its use of the Leased Premises. Agency shall comply
with all federal, state, and local laws, orders, ordinances and other public requirements now
or hereafter affecting the Leased Premises.
18. Mutual Representations. Each party hereby represents and warrants (i) he or
she is an individual or a duly organized entity, validly existing and in good standing under
the laws of California; (ii) that the party has the legal right and authority to enter into and
perform its obligations under this Lease; and (iii) that the execution and performance of this
Lease will not conflict with or violate any provision of any law having applicability to such
party; and (iv) that this Lease, when executed and delivered, will constitute a valid and
binding obligation of such party and will be enforceable against such party in accordance
with its terms.
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19. Waiver. No express waiver shall affect any default other than the default
specified in the express waiver and any waiver shall be effective only for the time and to the
extent therein stated. No waiver by Agency or Tenant shall be construed as a waiver of a
subsequent breach of the same covenant, term or condition.
20. Assignment and Dele agtion. Except as expressly permitted by the terms and
provisions herein, no party shall assign any of its rights or delegate any of its duties
hereunder without the prior written consent of the other parties, provided that,
notwithstanding the foregoing, each party may assign this Lease pursuant to a merger or a
sale of all or substantially all of its assets or capital stock and the Agency may assign this
Lease to the City of Poway. Except as permitted by the foregoing, any attempted assignment
or delegation shall be null, void and of no effect.
21. Notices. All notices required by or relating to this Lease shall be in writing
and shall be sent via certified mail, postage prepaid, return receipt requested, to each and
every party to this Lease and addressed as follows:
To Tenant: Avalon Property Development
13033 Poway Road
Poway, California, 92064
Attn: Michelle LaPrise
To Agency: Poway Redevelopment Agency
P.O. Box 789
Poway, California 92074-0789
Attention: Redevelopment Services Director
22. Counterparts. This Lease may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
23. Headings. The article, section, and paragraph titles and headings contained in
this Lease are inserted as a matter of convenience and for ease of reference only and shall be
disregarded for all other purposes, including the construction or enforcement of this Lease or
any of its provisions.
24. Definitions. Capitalized terms not defined herein shall have the meaning set
forth in the Purchase Agreement.
25. Pronouns. Whenever used in this Lease, the singular shall include the plural,
the plural shall include the singular, and the neuter gender shall include the male and female
as well as a trust, firm, company, or corporation, all as the context and meaning of this Lease
may require.
26. Amendments. This Lease may be altered, amended, or repealed only by a
writing signed by all of the parties.
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27. Additional Documents and Acts. The parties to this Lease shall promptly
execute and deliver any and all additional documents, instruments, notices, and other
assurances, and shall do any and all other acts and things, reasonably necessary in connection
with the performance of their respective obligations under this Lease and to carry out the
intent of the parties.
28. Severability. If any provision of this Lease is determined by any court of
competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable to any extent, that
provision shall, if possible, be construed as though more narrowly drawn, if a narrower
construction would avoid such invalidity, illegality, or unenforceability or, if that is not
possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability,
be severed, and the remaining provisions of this Lease shall remain in effect.
29. Successors and Assigns. This Lease shall be binding on and inure to the
benefit of the parties and their heirs, personal representatives, and permitted successors and
assigns.
30. Governing Law and Forum Selection. This Lease shall be governed by, and
construed in accordance with, the laws of the State of California. The federal or state courts
located in San Diego County, California shall have exclusive jurisdiction to hear any dispute
arising under this Lease. Each party hereto consents to personal jurisdiction in San Diego
County, California, and hereby authorizes and accepts service of process sufficient for
personal jurisdiction by first class mail, registered or certified, postage prepaid, to its address
for giving notice as set forth herein.
31. Attorney's Fees. In the event Agency or Tenant commences any action or
proceeding, including but not limited to the filing of a lawsuit, in connection with the
enforcement of this Lease, then as between Agency and Tenant, the prevailing party shall be
entitled to recover from the losing party all of its costs and expenses, including court costs,
arbitration costs, expert witness fees, and reasonable attorneys' fees incurred in connection
with such action, and all fees, costs and expenses incurred on any appeal or in collection of
any judgment.
32. Entire Agreement. This Lease constitutes the whole and entire agreement of
the parties with respect to the subject matter of this Lease, and it shall not be modified or
amended in any respect except by a written instrument executed by all the parties. This Lease
replaces and supersedes all prior written and oral agreements by and among the parties or any
of them.
continued on next page)
LI
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and
year first above written.
AGENCY:
POWAY REDEVELOPMENT AGENCY
By:
R Gould, Executive Director
APPROVED AS TO FORM:
Com, a aw-
Lisa A. Foster
Agency General Counsel
TENANT:
Ava
By:
By:
Christears
By:
Chns omara, anin - - ual
Iz
OWAY STOWAY COMMERCIAL LtASE
This POWAY STOWAY COMMERCIAL LEASE (the "Lease") is executed in duplicate at Poway, California, on- peY AZ , 2004, between the Poway Redevelopment Agency, a publicbody corporate and politic (hereinafter called Landlord), and 13033 Poway Road LLC, a Californialimited liability company (hereinafter called Tenant). The Lease consists of this document and theCalifornia Association of Realtors " Commercial Lease Agreement" form CL -11 revised 10/01 of
six pages in length attached hereto as Exhibit "A," and incorporated by this reference herein,
unless expressly provided otherwise by the terms of this document, without separate signaturethereof. In the event of inconsistency or conflict between this document and Exhibit "A," the
terms of this document shall prevail. The section numbers of this document are coordinated withthoseofExhibit "A." The parties agree as follows:
1. Premises.
a. Landlord leases to the Tenant and Tenant leases from the Landlord the real
property commonly known as 13033 Poway Road, Poway, California, as shown on Exhibit "B"
attached hereto, together with all buildings and improvements situated thereon (hereinafter thePremises").
b. Section 1 of Exhibit "A" is deleted.
C. Tenant shall not commit or suffer to be committed any waste upon the
Premises, any public or private nuisance, or other act or thing which may disturb the quiet
enjoyment of any occupant of the Premises or any owner or occupant of adjoining property, nor, without limiting the generality of the foregoing, shall Tenant allow the Premises to be used for anyimmoral, improper, unlawful, or objectionable purpose. Tenant agrees not to deface or damage
the building in any manner. At the expiration of the Lease, Tenant shall deliver possession of thePremisesto Landlord free and clear of all use or occupancy of its customers
2. Term.
a. The term of this Lease shall be for two (2) years commencing on the date oftransferoftitle of the Premises to Landlord and terminating two (2) years thereafter. The date of
transfer of title shall be the date the Grant Deed to Landlord records. Except as provided in
Section 2.b. below, the second year of this two (2) -year lease term constitutes the final twelve
12) month period for purposes of Section 3.d., Section 3.e., and Section 39.a. of this Lease. b. On condition that Tenant is not in default under the terms of this Lease,
Tenant shall have the option to extend the term of this Lease for one (1) additional period of one
1) year on the same terms and conditions, including rent, set forth in this Lease. Tenant shall
exercise such option by delivery of a written notice by certified or registered mail not less than
ninety (90) days prior to the expiration of the term of this Lease. If the option is exercised byTenant, the additional year constitutes the third year of a three (3) -year lease term, and it is the
final twelve (12) -month period for purposes of Section 3. d., Section 3.e., and Section 39.a. of this
Lease. Any further extensions of the term of this Lease shall only be by further written agreement
signed by both parties.
C. Tenant shall be a trespasser if it has not vacated the Premises and delivered
possession of the Premises to Landlord free and clear of all use or occupancy of its customers
upon expiration of the Lease, and shall be liable to Landlord for all costs of removing, moving, and relocating Tenant's customers.
d. Section 2 of Exhibit "A" is deleted.
3. Rent.
a. Tenant shall pay rent to the Poway Redevelopment Agency at such place as
may be designated in writing from time -to -time by Landlord, without deduction or offset, in
monthly installments in advance on thefirst dayof each calendar month in the mount of Ten
Thousand Dollars ($10,000) and is delinquent five (5) days thereafter. Tenant shall pay the first
monthly installment of Ten Thousand Dollars ($10,000) on the date the Lease term commences.
If the Lease term commences on any day other than the first day of a calendar month, a pro rata
fraction of a full month's rental shall be paid at the time the first full monthly rental is paid (in
addition to the first full month's rent) and a corresponding pro rata fraction shall be paid for the
partial month at the end of the Lease term at the time the last full monthly rental is paid. Pro rata
payment shall be calculated on the basis of a thirty (30) -day month.
b. As additional rent, Tenant shall pay to the provider as each becomes due the
charges for all utilities and services provided to the Premises including, without limitation, sewer,
water, gas, electricity, telecommunications, and trash collection.
C. As additional rent, Tenant shall pay, without deduction or offset, to the
County of San Diego all possessory interest taxes assessed against the Premises by reason of
Tenant's use, or, if Land0rd has paid such taxes, shall reirfmurse Landlord the full amount
thereof, without deduction or offset, in accordance with subsection 4C hereof.
d. Tenant's rent obligations to Landlord for the first six (6) months of the final
year of this Lease may be adjusted by Landlord to compensate Tenant for a significant loss of
occupancy as a result of the twelve (12)-month notice requirement contained in this Lease under
Section 39.a. and the Purchase Agreement executed on the day of usi , 2004. A
significant loss of occupancy" is demonstrated within the first six (6) months of the final year of
the lease term by the voluntary termination of at least 15% of the "total number of storage
agreements" between the Tenant and its customers, and their vacation of the Premises within
sixty (60) days of the Tenant providing the twelve (12)-month notice to its customers to vacate the
Premises. The "total number of storage agreements" is demonstrated by the number of active
storage agreements held by and between Tenant and its customers on the date of the close of
escrow. If such terminations do not occur in an amount equal to or greater than 15% of total
storage agreements (as specified) within the sixty (60)-day period, the Tenant is obligated to paythefull monthly rent payment as defined in Section 3.a., Section 3. b., and Section 3.c. of this
Lease. If such terminations do occur within the sixty (60)-day period in an amount equal to or
greater than 15% of the total number of storage agreements (as specified), the Tenant's monthly
rent payment may be decreased commensurate with the percentage of storage terminations. At
no time will the commensurate reduction in Tenant's rent obligation to Landlord be greater than
the percentage of terminated storage agreements as compared to the total number of
agreements held by and between the Tenant and its customers.
e. Tenant's rent obligations to Landlord for the last six (6) months of the final
year of this Lease may be adjusted by Landlord to compensate Tenant for a significant loss of
occupancy as a result of the twelve (12)-month notice requireme t contained in this Lease under
Section 39.a. and the Purchase Agreement executed on the day of LA-S , 2004. A
significant loss of occupancy" will be demonstrated within the final six (6) montho-f the final year
of the lease term by the voluntary termination of at least 15% of the total number of storage
agreements between the Tenant and its customers, and their vacation of the Premises. The
total number of storage agreements" is demonstrated by the number of active storage
agreements held by and between Tenant and its customers on the date of the close of escrow. If
such terminations occur within the final six (6) months of the final year term of this Lease in an
amount equal to or greater than 15% of the total number of storage agreements (as specified),
the Tenant's monthly rent payment may be decreased commensurate with the percentage of
storage terminations. At no time will the commensurate reduction in Tenant's rent obligation to
Landlord be greater than the percentage of terminated storage agreements as compared to the
total number of agreements held by and between the Tenant and its customers.
f. Tenant must demonstrate the requirements of Section 3.d. and Section 3.e.
are met by providing Landlord copies of terminated storage agreements and written verification of
customer's intent to vacate no less than seven (7) working days before the last day of the month,
subject to verification by Landlord.
g. If the requirements of Section 3.d., Section 3. e., Section 3.f., and Section 39
are met, Landlord will notify Tenant in writing of the percentage to reduce Tenant's future rent
obligations to Landlord, and Landlord will specify the future monthly rent amount and the date it
will take effect. Such reductions will not be retroactive to prior months, will only apply to future
rent obligations, and will not be cumulative.
h. Section 3 and subsection 4B of Exhibit "A" are deleted.
7. Payments.
Section 7 of Exhibit "A" is deleted.
8. Parking.
Section 8 of Exhibit "A' is deieted.
9. Additional Storage.
Section 9 of Exhibit "A" is deleted.
13. Tenant Operating Expenses.
Section 13 of Exhibit "A" is deleted.
14. Property Operating Expenses.
Section 14 of Exhibit "A" is deleted.
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17. Maintenance of Premises.
a. No representations, except as herein contained, have been made to Tenant
respecting the condition of the Premises. By its continuing possession of the Premises followingthecloseofescrowofsaleofthePremisestoLandlord, Tenant accepts the Premises as beingfreefromdefects, patent or latent, and in good, clean and sanitary order, condition and repair.
Excepting only as in this Lease expressly provided, Landlord shall have no duty, obligation orliabilitywhatsoevertocareforormaintainthe Premises. If by any express provision of this
Lease, Landlord agrees to care for or maintain the Premises or any part thereof, such agreement
of on the part of Landlord shall constitute a covenant only, and no obligation or liability
whatsoever shall exist on the part of Landlord unto Tenant by reason thereof unless Tenant shall
first serve upon Landlord a notice in writing specifying with particularity the provisions of this
Lease whereunder such duty is claimed to exist on the part of Landlord, and the facts existingthat require the performance of such duty, and the failure or omission on the part of landlord to
commence the performance or observance thereof with reasonable diligence after actual receipt
of said notice. Tenant hereby waives all right to make repairs at Landlord's expense, under the
provisions of Section 1942 of the Civil Code of Califomia or to make repairs at the cost of
Landlord, which Tenant may have under the provisions of any law, statute, ordinance or
regulation, and further waives all rights under the provisions of Section 1941 of said Civil Code. If
at any time during the term hereof Tenant fails, refuses or neglects to keep the Premises or anypartthereofingoodconditionandrepair, then Landlord, at its option, may enter the Premises and
cause such repairs to be made as necessary at the sole cost and for the account of Tenant, and
any amount paid or incurred therefor shall be payable by Tenant to Landlord upon demand.
Tenant, at its sole cost, shall replace all glass broken by Tenant, its customers, agents,
employees, guests or invitees, with glass of the same quality. Tenant further agrees on the last
day of the term hereby created or of any extension or renewal thereof or of the sooner termination
of this Lease to surrender unto Landlord the Premises in good condition, ordinary wear and tearanddamageby the elements, Act of God or fire excepted.
b. Notwithstanding the provisions of Section 17a, above, Tenant shall repair
and maintain the structural portions of the building, including the foundations, walls, roof,
plumbing, air conditioning, heating and electrical systems. Landlord shall not be liable for anyfailureto make any such repairs or maintenance. There shall be no abatement of rent and no
liability of Landlord by reason of injury to or interference with Tenant's business arising from the
making of any repairs, alterations or improvements in or to any portion of the Premises. Tenant
waives the right to make repairs at Landlord's expense under any law, statute or ordinance noworhereafterineffect.
C. Section 17 of Exhibit "A" is deleted.
21. Signs.
a. Tenant shall place or erect only those signs on the Premises permitted by theordinancesoftheCityofPoway.
b. Section 21 of Exhibit "A" is deleted.
22. Subletting/Assignment.
Section 22 of Exhibit "A" is hereby amended to provide that Landlord shall have no
obligation whatsoever to approve any assignment or sublease requested by Tenant, except
Landlord shall not unreasonably withhold approval of assignment of Tenant's interest to another
entity in which at least fifty percent (50%) of the ownership is retained by the principals of Tenant.
No assignment shall release Tenant from its obligations hereunder.
23. Possession.
Section 23 of Exhibit "A" is deleted.
27. Hazardous Materials.
Section 27 of Exhibit "A" is hereby amended to add the following: Tenant shall not
allow any of its customers to use, store, generate, release or dispose of any hazardous materials
as that term is defined in State law) on the Premises. Tenant shall be liable to Landlord for the
cost of removal, remediation, and clean-up of any and all contamination of the Premises caused
by any of Tenant's customers.
29. Insurance.
Section 29 of Exhibit "A" is hereby amended to add the following: Landlord maysatisfyitsinsurance requirements by maintaining coverage through a joint powers insurance
authority. Tenant's insurance shall include both fire and general liability coverage, both namingLandlordasadditionalinsured.
30. Tenancy Statement (Estoppel Certificate).
Section 30 of Exhibit "A" is hereby deleted.
33. Tenant Representations; Credit.
Section 33 of Exhibit "A" is hereby deleted.
38. Indemnification.
a. Tenant shall indemnify, defend (with counsel approved by Landlord), andholdharmlessLandlord from any and all liability, claims, disputes, litigation, judgments, and
attomeys' fees arising out of or in connection with Tenant's use of the Premises, the operation of
its business, its customers' storage of personalty on the Premises, the loss or damage of anypersonaltyofitscustomers' personalty, the termination of its customers' use of the Premises, the
cost of relocating its customers (except for moving expenses set forth in the Agreement ofSettlement Waiver and Release of Relocation Assistance and Goodwill between the parties), and
notification of its customers as set forth in Section 39. Tenant further agrees that if it dissolves or
otherwise distributes the proceeds of the sale of the Premises to its members, it will do sopursuanttoanagreementwithitsmembers that the receipt of those proceeds is subject to theindemnification obligations of this Section 38.
b. Section 38 of Exhibit "A" is hereby deleted.
39. Other Terms and Conditions/Supplements.
a. Notices to Customers. Tenant shall give written notice to its customers atleast twelve (12) months prior to the expiration of Tenant's tenancy of the date upon which thetenancywillendandthat they must remove their stored items from the Premises to anotherfacility or location of their choice by that date. Copy of each such notice shall be provided toLandlord. The notice shall also advise Tenant's customers of Tenant's desire and intention to
cooperate with its customers in the moving of their stored items, and of the availability ofreimbursementofmoving expenses from Landlord (not to exceed $500 per customer) to
customers who have continuously been customers from the date of close of escrow (of the sale ofthePremisestoLandlord) to the date of their move pursuant to the notice. In addition to the
twelve (12) -month notice given by Tenant, Landlord may notify Tenant's customers of its
acquisition of the Premises, the Lease to Tenant, and its agreement to pay moving expenses to
qualifying customers who do not move until after they receive the twelve (12) -month notice. If
Landlord elects to provide such notice, Tenant shall provide Landlord with a then -current list of
the names and addresses of all of its customers. Landlord and Tenant shall work together on the
wording of such notice in order to minimize loss of customers to Tenant.
b. Tenant shall not renew a storage agreement with an existing customer, or
enter into a storage agreement with a potential new customer, during the final twelve (12) monthsofthisLease.
42. Brokerage.
a. Landlord and Tenant each represent to the other that if either has a
brokerage relationship with a real estate agent or broker in connection with this Lease, the other
has no financial obligation whatsoever to such broker. Landlord has had no broker or agent in
connection with either the purchase or lease -back of the Premises and has no liability to Tenant's
broker who has exclusively represented Tenant as Tenant and Seller. Tenant shall indemnify, defend, and hold harmless Landlord from any claim by Tenant's broker that it is entitled to anycompensationfromLandlordforitsservicesinconnectionwiththesaleorleaseofthePremises.
b. Section 42 of Exhibit "A" is hereby deleted.
43. Agency Confirmation.
Section 43 of Exhibit "A" is hereby deleted.
r
T7he parties hereto have executed this Lease at Poway, CalifOThla, on this 9 d2004. ay of
LANDLORD
Poway Redevelopment Agency,
A Public Body Corporate and Politic
W 1—
ve Director
APPROVED AS TO FORM:
By:
Stephen M. Eckis, Agency General Counsel
TENANT
13033
A Calif
0
M
LLC,
Company
Chris Larornara
aing Member^
v/
Michelle M. LaPrise, Member
SBpr20-04 03:34pm From-KINKOS "
a 4808330872 0 T-303 P.001/001 F-732
rillThearhereto have n cuted this Lease at Poway, California, on this day of2004.
LANDLORD
Poway Redevelopmanl Agency.
A Public Body Corporate and Politic
By:
c
APPROVED S T F/RLM:
By:
5teph n . Eckls, Agency Qenerel Counaei
TENANT
13033 P y d, LLC,
A Call ml Im d LI Company
By:
Chris La omer
18 ring Mom6er
ay:
Michelle M. LaPrise, Member
Avalon P!D?J1e5Y Development, Inc,
Dy.
Paul Gol r , Me er
EXHIBIT A
CALIFORNIA COMMERCIAL LEASEAG..8EMENT
ASSOCIATION (C.A.R.Form CL,Revlsed10/01)
OF REALTORS®
r
dale (pot reference only): / 2004
The PowayRede elo n ("
Landlordand
Tenant') agree as follows:
1. PROPERTY: Landlord rents to Tenant and Tenant rents from Landlord, the real property and improvementspremisesribetlwhic:
comprise approximately O/, of he elal square fooage of tenable space In the en8re property. See exhibit for a further
description of the Premises.
2. TERM: The term shall be for years and months, beginning on (date) ("Commencement Date"),
Check A or B): at AM El Pm.
A. Lease: and shall terminate on (date) Any holding over after the term of his agreement expires, with Landlord's consent, shall create a month-to-mmonth tenancy that either partymay terminate as specified in paragraph 2B. Rent shall be at a rale equal to the rent for the Immediately preceding month, payable inadvance. All other terms and conditions of this agreement shall remain in full force and effect.
B Month-to-month:
days prior to thea tended termination dale,
ntinues as a nth
subject to
tenancy.
nylther
applicableartymay laws. Such notice may
bevinggivenoitten
n any date.
ce
C]
the other at
C. RENEWAL OR EXTENSION TERMS: See attached addendum
3. BASE RENT: A. Tenant agrees to pay Base Rent at the rate of (CHECK ONE ONLY:)
1) $ per month, for the term of he agreement.
2) $ per month, for the first 12 months of the agreement. Commencing with the 13th month, and upon expiration ofeach12monthshereafter, rent shall be adjusted according to any increase in the U.S. Consumer Price Index of he Bureau of Labor
Statistics of the Department of Labor for All Urban Consumers ("CPI') forthecitynearestthe location of the Premises), based on the following formula: Base Rent will be multiplied by the most current CPIprecedingthefirstcalendarmonth during which the adjustment Is to lake effect, and divided by the most recent CPI preceding theCommencementDate. In no event shall any adjusted Base Rent be less than the Base Rent for the month immediately preceding theadjustment. If the CPI Is no longer published, then the adjustment to Base Rent shall be based on an alternate Index that most closely
reflects the CPI.and endingand
3) $ per month for he period commencingand
per month for the period commencing and ending
per month for he period commencing and ending
B(4) In accordance with the attached rent schedule.
5) Other.
B. Base Rent Is payable in advance on he 1st (or ) day of each calendar month, end is delinquent on the next day.
4 C. If Commencement Dale falls on any day other than the first day of the month, Base Rent for he fust calendar month shall be prorated based on a30 -day period. If Tenant has paid one full month's Base Rent in advance of Commencement Date, Base Rent for the second calendar month shall
be prorated based on a 30 -day period.
4. RENT: A. Definition: (' Rent') shall mean all monetary obligations of Tenant to Landlord under the terms of this agreement, except security deposit (address]
B. Payment: Rent shall be paid to (Name) , or at any other
location speclfM CI by Landlord In writing to Tenant. C. Timing: Base Rent shall be paid as specified In paragraph 3. All other Rent shall be paid within 30 days after Tenant Is billed by Landlord.
5. EARLY POSSESSION: Tenant Is entitled to possession of the Premises onIfTenantIsinpossession prior to the Commencement Date, during this time (1) Tenant is not obligated to pay Base Rent, and (II) Tenant is
is not obligated to pay Rent other than Base Rent. Whether or not Tenant is obligated to pay Rent prior to Commencement Date, Tenant is
obligated to comply with all other terms of this agreement.
6, SECURITY DEPOSIT: ay Landlord $ A. Tenant agrees tog10 000.00 as a security deposit. Tenant agrees not to hold Broker responsible for Its return.
IF CHECKED:) .ALJ If Base Rent Increases during the term of his agreement, Tenant agrees to Increase security deposit by the same proportion
as the Increase in Base Rent. B. All or any portion of he security deposit may be used, as reasonably necessary, to: (1) cure Tenant's default in payment of, Rent, late arges, non -sufficient funds ("NSF") fees, or other sums due; (0) repair damage, excluding ordinary wear and tear, caused by Tenant or by a guest orlicenseeofTenant; (III) broom clean the Premises, if necessary, upon termination of tenancy; and (lv) cover any other unfulfilled obligation ofTenantSECURITYDEPOSITSHALLNOTBEUSEDBYTENANTINLIEUOFPAYMENTOFLASTMONTH'S RENT. If all or any potion of thesecurity deposit Is used during tenancy, Tenant agrees to reinstate the total security deposit within 5 days after written notice Is delivered toTenant. Within 30 days after Landlord receives possession of he Premises, Landlord shall: (I) furnish Tenant an itemized statement Indicating theamountofany security deposit received and the basis for Its disposition, and (11) return any remaining portion of security deposit to Tenant.
However, if
aft
the Landlord's
shall beclaim
ret coed wi hin 14 days
deposit
rr theLandlord
ls for preceiRent, remaining portion of the security deposit, after
deduction of unpaid
C. No Interest will be paid on security deposit, unless required by local ordinance.
The copyright laws of the United States (Title 17 U.S. Code) forbid the Landlord and Tenant ackn ere ILandlordandTenantacknereitacopyofthisthis
unauthorized reproduction of this form, or any portion hereof, by photocopy page. Initialsmachineoranyothermeans, including facsimile or computerized formats. Tenant's Initials G ( ONOCopyright ® 1998-2001, CALIFORNIA ASSOCIATION OF REALTORS®, (
INC. ALL RIGHTS RESERVED. Reviewed by
CL -11 REVISED 10101 (PAGE 1 of 6)
Brokeror0eslgnee Date
COMMERCIAL LEASE AGREEMENT (CL -11 PAGE 1 OF 6)
One Source Realty/GMAC 15703 Bemardo Heights "San Diego, CA 92128
Phone: (858) 592-2124 Pax: (858)592.2120
E. Total: • • • • • • • • • • • • • • • -- • • . * ............. reserved vehicle parking spaces. The fight
8. PARKING: Tenant Is entitled to
unreserved and
to parking Is 0 is not Included In the Base Rent charged pursuant to paragraph 3. If not Included In the Base Rent, the parking rental fee shall
be an additional $ per month. Parking space(s) are to be used for parking operable motor vehicles, except for trailers, boats,
campers, buses or trucks (other than pick- up trucks). Tenant shall park in assigned space(s) only. Parking space(s) are to be kept clean. Vehiclesleaking oil, gas or other motor vehicle fluids shall not be parked In parking spaces or on the Premises. Mechanical work or storage of InoperablevehiclesIsnot allowed In parking space(s) or elsewhere on the Premises. No overnight parking Is permitted.
9. ADDITIONAL STORAGE: Storage Is permitted as follows:
The right to additional storage space is is not Included in the Base Rent charged pursuant to paragraph 3. If rat included in Base Rent,
storage space shall be an additional $ per month. Tenant shall store only personal property that Tenant owns, and shall not
store property that is claimed by another, or In which another has any right, title, or Interest. Tenant shall not store any Improperly packaged food orperishablegoods, Flammable materials, explosives, or other dangerous or hazardous material. Tenant shall pay for, and be responsiblefor, the
clean-up of any contamination caused by Tenant's use of the storage area. 10. LATE CHARGE; INTEREST; NSF CHECKS: Tenant acknowledges that either late payment of Rent or Issuance of a NSF check may cause Landlordto Incur costs and expenses, the exact amount of which are extremely difficult and impractical to determine. These costs may Include, but are notlimitedto, processing, enforcement and accounting expenses, and late charges Imposed on Landlord. If any Installment of Rent due from Tenant isnotreceivedbyLandlord within 5 calendar days after date due, of If a check Is returned NSF, Tenant shall pay to Landlord, respectively,
500. 00 as late charge, plus 10% interest par annum on the delinquent amount and $ 25. 00 as a NSF fee, any of which shall bedeemedadditionalRent. Landlord and Tenant agree that these charges represent a fair and reasonable estimate of the costs Landlord may Incur byreasonofTenant's late or NSF payment. Any late charge, delinquent interest, or NSF fee due shall be paid with the current Installment of Rent. Landlord's acceptance of any late charge or NSF fee shall not constitute a waiver as to any default of Tenant. Landlord's right to collect a Late ChargeorNSF fee shall not be deemed an extension of the date Rent is due under paragraph 4, or prevent Landlord from exercising any other rights and
remedies under this agreement, and as provided by law. 11. CONDITION OF PREMISES: Tenant has examined the Premises and acknowledges that Premise is clean and In operative condition, with the
following exceptions: None
Items listed as exceptions shall be dealt with In the following manner:
12. ZONING AND LAND USE: Tenant accepts the Premises subject to all local, state and federal laws, regulations and ordinances CLaws"). Landlordmakesno representations or warranty that Premises are now or In the future will be suitable for Tenant's use. Tenant has made its own Investigation
regarding all applicable Laws. 13. TENANT OPERATING EXPENSES: Tenant agrees to pay for all utilities and services directly billed to Tenant.
14, PROPERTY OPERATING EXPENSES: not
A Tenant agrees lishare llestimated monthly llexpenses, u tmseeea maitenan , conoldatd til ty andservie bills, insuran, andreaestate axs, ba ed on the rato of the sqefotage of the Premises
to the total square footage of the rentable space in the entire property.
OR B. (If checked) Paragraph 14 does not apply.
15. USE: The Premises are for the sole use as a self—stora,e LiQiNootheruseIspermittedwithout Landlord's prior written consent. If any use by Tenant causes an Increase In the premium on Landlord's existingpropertyInsurance, Tenant shall pay for the Increased cost. Tenant will comply with all Laws affecting Its use of the Premises. 16. RULES/REGULATIONS: Tenant agrees to comply with all rules and regulations of Landlord (and, if applicable, Owner's Association) that are at anytimepostedon the Premises or delivered to Tenant. Tenant shall not, and shall ensure that guests and licensees of Tenant do not, disturb, annoy,
endanger, or Interfere with other ts of the or or use the
using. manufacturing, selling, storing, nor transporting gicit drugs borsother ontraband,
lorsunlawful
violate any law
Including,
o ordinance, orommitting
alimited
wasetor
nuisance on or about the Premises.
17. MAINTENANCE:
A. Tenant OR (If checked, Landlord) shall professionally maintain the Premises Including heating, air conditioning, electrical, plumbing anwatersystems, if any, and keep glass, windows and doors In operable and safe condition. Unless Landlord Is checked, if Tenant falls to maintainthe Premises, Landlord may contract for or perform such maintenance, and charge Tenant for Landlord's cost.
B. Landlord ORO (If checked, Tenant) shall maintain the roof, foundation, exterior walls, common areas and
The copyright laws of the United Slates (Title 17 U.S. Code) forbid the
unauthorized reproduction of this forth, or any potion thereof, by photocopy
machine or any other means, Including facsimile or computerized formats.
Copyright 0 1998. 2001, CALIFORNIA ASSOCIATION OF REALTORS®,
INC, ALL RIGHTS RESERVED.
CL -11 REVISED 10101 (PAGE 2 of 6)
Landlord and Tenant a(k race t f copy of this
page andlord's InlUals ) (
Tenant's Initials (
G )
o rro'rrr
Broker or Designee Dole
COMMERCIAL LEASE AGREEMENT (CL -11 PAGE 2 OF 8)
Date
Preml4es:
T. PAYMENTS: PAYMENT
TOTAL DUE RECEIVED BALANCE DUE DUE DATE
Rent: From To
Date Dale
B. Security Deposit ..........................
C. Other.$
Gategory
D. Other.$
Category
E. Total: • • • • • • • • • • • • • • • -- • • . * ............. reserved vehicle parking spaces. The fight
8. PARKING: Tenant Is entitled to
unreserved and
to parking Is 0 is not Included In the Base Rent charged pursuant to paragraph 3. If not Included In the Base Rent, the parking rental fee shall
be an additional $ per month. Parking space(s) are to be used for parking operable motor vehicles, except for trailers, boats,
campers, buses or trucks (other than pick- up trucks). Tenant shall park in assigned space(s) only. Parking space(s) are to be kept clean. Vehiclesleaking oil, gas or other motor vehicle fluids shall not be parked In parking spaces or on the Premises. Mechanical work or storage of InoperablevehiclesIsnot allowed In parking space(s) or elsewhere on the Premises. No overnight parking Is permitted.
9. ADDITIONAL STORAGE: Storage Is permitted as follows:
The right to additional storage space is is not Included in the Base Rent charged pursuant to paragraph 3. If rat included in Base Rent,
storage space shall be an additional $ per month. Tenant shall store only personal property that Tenant owns, and shall not
store property that is claimed by another, or In which another has any right, title, or Interest. Tenant shall not store any Improperly packaged food orperishablegoods, Flammable materials, explosives, or other dangerous or hazardous material. Tenant shall pay for, and be responsiblefor, the
clean-up of any contamination caused by Tenant's use of the storage area. 10. LATE CHARGE; INTEREST; NSF CHECKS: Tenant acknowledges that either late payment of Rent or Issuance of a NSF check may cause Landlordto Incur costs and expenses, the exact amount of which are extremely difficult and impractical to determine. These costs may Include, but are notlimitedto, processing, enforcement and accounting expenses, and late charges Imposed on Landlord. If any Installment of Rent due from Tenant isnotreceivedbyLandlord within 5 calendar days after date due, of If a check Is returned NSF, Tenant shall pay to Landlord, respectively,
500. 00 as late charge, plus 10% interest par annum on the delinquent amount and $ 25. 00 as a NSF fee, any of which shall bedeemedadditional Rent. Landlord and Tenant agree that these charges represent a fair and reasonable estimate of the costs Landlord may Incur byreasonofTenant's late or NSF payment. Any late charge, delinquent interest, or NSF fee due shall be paid with the current Installment of Rent. Landlord's acceptance of any late charge or NSF fee shall not constitute a waiver as to any default of Tenant. Landlord's right to collect a Late ChargeorNSF fee shall not be deemed an extension of the date Rent is due under paragraph 4, or prevent Landlord from exercising any other rights and
remedies under this agreement, and as provided by law. 11. CONDITION OF PREMISES: Tenant has examined the Premises and acknowledges that Premise is clean and In operative condition, with the
following exceptions: None
Items listed as exceptions shall be dealt with In the following manner:
12. ZONING AND LAND USE: Tenant accepts the Premises subject to all local, state and federal laws, regulations and ordinances CLaws"). Landlordmakesnorepresentationsor warranty that Premises are now or In the future will be suitable for Tenant's use. Tenant has made its own Investigation
regarding all applicable Laws. 13. TENANT OPERATING EXPENSES: Tenant agrees to pay for all utilities and services directly billed to Tenant.
14, PROPERTY OPERATING EXPENSES: not
A Tenant agrees lishare llestimated monthly llexpenses, u tmseeea maitenan , conoldatd til ty andservie bills, insuran, andreaestate axs, ba ed on the rato of the sqefotage of the Premises
to the total square footage of the rentable space in the entire property.
OR B. (If checked) Paragraph 14 does not apply.
15. USE: The Premises are for the sole use as a self—stora,e LiQiNootheruseIspermittedwithout Landlord's prior written consent. If any use by Tenant causes an Increase In the premium on Landlord's existingpropertyInsurance, Tenant shall pay for the Increased cost. Tenant will comply with all Laws affecting Its use of the Premises. 16. RULES/REGULATIONS: Tenant agrees to comply with all rules and regulations of Landlord (and, if applicable, Owner's Association) that are at anytimepostedon the Premises or delivered to Tenant. Tenant shall not, and shall ensure that guests and licensees of Tenant do not, disturb, annoy,
endanger, or Interfere with other ts of the or or use the
using. manufacturing, selling, storing, nor transporting gicit drugs borsother ontraband,
lorsunlawful
violate any law
Including,
o ordinance, orommitting
alimited
wasetor
nuisance on or about the Premises.
17. MAINTENANCE:
A. Tenant OR (If checked, Landlord) shall professionally maintain the Premises Including heating, air conditioning, electrical, plumbing anwatersystems, if any, and keep glass, windows and doors In operable and safe condition. Unless Landlord Is checked, if Tenant falls to maintainthePremises, Landlord may contract for or perform such maintenance, and charge Tenant for Landlord's cost.
B. Landlord ORO (If checked, Tenant) shall maintain the roof, foundation, exterior walls, common areas and
The copyright laws of the United Slates (Title 17 U.S. Code) forbid the
unauthorized reproduction of this forth, or any potion thereof, by photocopy
machine or any other means, Including facsimile or computerized formats.
Copyright 0 1998. 2001, CALIFORNIA ASSOCIATION OF REALTORS®,
INC, ALL RIGHTS RESERVED.
CL -11 REVISED 10101 (PAGE 2 of 6)
Landlord and Tenant a(k race t f copy of this
page andlord's InlUals ) (
Tenant's Initials (
G )
o rro'rrr
Broker or Designee Dole
COMMERCIAL LEASE AGREEMENT (CL -11 PAGE 2 OF 8)
Premises:
Date
18. ALTERATIONS: Tenant shall not make any alterations In or about the Premises, Including Insta.._Jon of trade fixtures and signs, without Landlord'spriorwrittenconsent, which shall not be unreasonably withheld. Any alterations to the Premises shall be done according to Law and with requiredpermits. Tenant shall give Landlord advance notice of the commencement date of any planned alteration, so that Landlord, at Its option, may post aNoticeofNon -Responsibility to prevent potential liens against Landlord's Interest In the Premises. Landlord may also require Tenant to provide
Landlord with lien releases from any contractor performing work on the Premises. 1). GOVERNMENT IMPOSED ALTERATIONS: Any alterations required by Law as a result of Tenant's use shall be Tenant's responsibility. Landlord
shall be responsible for any other alterations required by Law.
20. ENTRY: Tenant shall make Premises available to Landlord or Landlord's agent for the purpose of entering to make Inspections, necessary or agreedrepairs, alterations, or Improvements, or to supply necessary or agreed services, or to show Premises to prospective or actual purchasers, tenants, mortgagees, lenders, appraisers, or contractors. Landlord and Tenant agree that 24 hours notice (oral or written) shall be reasonable and sufficient
notice. In an emergency, Landlord or Landlord's representative may enter Premises at any time without prior notice. 21. SIGNS: Tenant authorizes Landlord to place a FOR SALE sign on the Premises at any time, and a FOR LEASE sign on the Premises within the 90
or - ) day period preceding the termination Of the agreement.
22. SUBLETTING/ASSIGN Tenant shall not sublet or encumber all or any part of Premises, or assign or transfer this agreement or any interest In
it, without the prior written consent of Landlord, which shall not be unreasonably withheld. Unless such onsenl Is obtained, any subletting, assignment, transfer, or encumbrance of the Premises, agreement, or tenancy, by voluntary aclof Tenant, operation of law, or otherwise, shall be nullandvoid, and, at the option of Landlord, terminate this agreement. Any proposed sublessee, assignee, or transferee shall submit to Landlord anapplication and credit Information for Landlord's approval, and, If approved, sign a separate written agreement with Landlord and Tenant. Landlord's
consent to any one sublease, assignment, or transfer, shall not be construed as consent to any subsequent sublease, assignment, or transfer, and
does not release Tenant of Tenanl's obligation under this agreement. 23. POSSESSION: If Landlord Is unable to deliver possession of Premises on Commencement Date, such date shall be extended to the date on whichpossessionismadeavailabletoTenant. However, the expiration date shall remain the same as specified in paragraph 2. If Landlord is unable to
deliver possession within 60 (or ) calendar days after agreed Commencement Date, Tenant may terminate this agreement by
giving written notice to Landlord, and shall be refunded all Rent and security deposit paid. 24. TENANT'S OBLIGATIONS UPON VACATING PREMISES: Upon termination of agreement, Tenant shall: (1) give Landlord all copies of all keys or
opening devices
at
Premises, including any common areas;
v)
delivl)
vacate
er Premises
tolses
and
Landlord
inrender
the
sait
to
me
ondditlord
ion as
referencedempty
of
Insons
and
paragrph 1r1; (v)
onal
properly; (iii) vacate all parking and storage spaces; ( )
clean Premises; (vi) give written notice to Landlord of Tenant's forwarding address; and, (vii)
All improvements Installed by Tel with or without Landlord's consent, become the property of Landlord upon termination. Landlord mayneverthelessrequireTenanttoremove any such Improvement that did not exist at the time possession was made available to Tenant.
25. BREACH OF CONTRACTIEARLY TERMINATION: In event Tenant, prior to expiration of this agreement, breaches any obligation in this agreement, abandons the premises, or gives notice of tenant's Intent to terminate this tenancy prior to Its expiration, in addition to any obligations established byparagraph24, Tenant shall also be responsible for lost rent, rental commissions, advertising expenses, and painting osis necessaryto readyPremises for re -rental. Landlord may also recover from Tenant: (1) the worth, at the time of award, of the unpaid Rent that had been earned at the timeoftermination; (it.) the worth, at the time of award, of the amount by whichtheunpaid Rent that would have been earned after expiration until the timeofawardexceedstheamountof such rental loss the Tenant proves could have been reasonably avoided; and (ill) the worth, at the time of award, oftheamountby which the unpaid Rent for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant provescouldbereasonably avoided. Landlord may elect to continue the tenancy in effect for so long as Landlord does not terminate Tenant's right topossession, by either written notice of termination of possession or by reletting the Premises to another who takes possession, and Landlord mayenforceallLandlord's rights and remedies under this agreement, including the right to recover the Rent as it becomes due.
26. DAMAGE TO PREMISES: If, by no fault of Tenant, Premises are totally or partially damaged or destroyed by fire, earthquake, accident or othercasualty. Landlord shall have the right to restore the Premises by repair or rebuilding. If Landlord elects to repair or rebuild, and is able to completesuchrestorationwithin90daysfromthedateofdamage, subject to terms of this paragraph, this agreement shall remain In full force and effect. IfLandlordIsunabletorestorethePremiseswithinthistime, or if Landlord elects not to restore, then either Landlord or Tenant may terminale thisagreementbygivingtheother written notice. Rent shall be abated as of the date of damage. The abated amount shall be the current monthly BaseRentproratedona30 -day basis. If this agreement Is not terminated, and the damage is not repaired, then Rent shall be reduced based on the extenttowhichthedamageInterfereswithTenant's reasonable use of Premises. If damage occurs as a result of an act of Tenant or Tenant's guests, only
Landlord shall have the right of termination, and no reduction in Rent shall be made. 27. HAZARDOUS MATERIALS: Tenant shall not use, store, generate, release or dispose of any hazardous material on the Premises or the property ofwhichthePremisesarepart. However, Tenant Is permitted to make use of such materials that are required to be used in the normal course ofTenant's business provided that Tenant complies with all applicable Laws related to the hazardous materials. Tenant Is responsible for the cost of
removal and remedlation, or any clean-up of any contamination caused by Tenant. 28. CONDEMNATION: If all or part of the Premises is condemned for public use, either party may terminate this agreement as of the date possession isgiventothecondemner. All condemnation proceeds, exclusive of those allocated by the condemner to Tenant's relocation costs and trade fixtures,
belong to Landlord. 29, INSURANCE: Tenant's personal property, fixtures, equipment, Inventory and vehicles are not insured by Landlord against loss or damage due
oto
fire,
theft, vandalism, rain, water, criminal or negligent acts of others, or any other cause. Tenant Is to carry TgnaOnt'a owrLgroReM insurance ot's
Ilrotect
abllityTenantfromanysuchloss. In addition, Tenant shall carry liability Insurance In an amount of not less than $1 OU V U UO - Insurance shall name Landlord and Landlord's agent as additional Insured. Tenant, upon Landlord's request, shall provide Landlord with a certificateofinsurance establishing Tenant's compliance. Landlord shall maintain liability insurance Insuring Landlord, but not Tenant, In an amount of at least
1,000,000,90 , plus property insurance in an amount sufficient to cover the replacement cost of the property. Tenant Is advised to carrybusiness interruption insurance In an amount at least sufficlenl to cover Tenant's complete rental obligation to Landlord. Landlord Is advised to obtainapolicyofrentallossInsurance. Both Landlord and Tenant release each other, and waive their respective rights to subrogation against each other, for
loss or damage covered by Insurance.
The copyright laws of the United Slates (Title 17 U.S. Code) forbid the Landlord and Tenant i
unauthorized reproduction of this form, or any portion thereof, by photocopy page.
machine or any other means, Including facsimile or computerized formals. Landlord's Initials
Copyright C 1988.2001, CALIFORNIA ASSOCIATION OF REALTORSS, Tenant's Initials
INC. ALL RIGHTS RESERVED. Reviewed by —
CL -11 REVISED 10101 (PAGE 3 of 6) Broker or Designee .
COMMERCIAL LEASE AGREEMENT (CL -11 PAGE 3 OF 6)
Dale
of this
Premises:
Date
30. TENANCY STATEMENT ( ESTOPPEL CERTIFICATE): Tenant shall execute and return a tenancy statement (estoppel certificate), delivered toTenantby Landlord or Landlord's agent, within 3 days after Its recelpl. The tenancy statement shall acknowledge that this agreement is unmodifiedandinfullforce, or in full force as modified, and stale the modifications. Failure to comply with this requirement: (1) shall be deemed Tenant'sacknowledgmentthatthetenancystatementistrueandcorrect, and may be relied upon by a prospective lender or purchaser; and (II) may be treatedbyLandlordasamaterialbreachofThisagreement. Tenant shall also prepare, execute, and deliver to Landlord any financial statement (which will beheldinconfidence) reasonably requested by a prospective lender or buyer. 31. LANDLORD'S TRANSFER: Tenant agrees that the transferee of Landlord's Interest shall be substituted as Landlord under this agreement. Landlordwill be released of any further obligation to Tenant regarding the security deposit, only if the security deposit is returned to Tenant upon such transfer, or if the security deposit Is actually transferred to the transferee. For all other obligations under this agreement, Landlord is released of any further
liability to Tenant, upon Landlord's transfer. 32. SUBORDINATION: This agreement shall be subordinate to all existing liens and, at Landlord's option, the lien of any first deed of trust or firstmortgagesubsequently placed upon the real property of which the Premises are a part, and to any advances made on the security of the Premises, and to all renewals, modifications, consolidations, replacements, and extensions. However, as to the lien of any deed of trust or mortgage entered Intoafterexecutionofthisagreement, Tenant's right to quiet possession of the Premises shall not be disturbed If Tenant is not In default and so long asTenantpaystheRentandobservesandperformsallof the provisions of this agreement, unless this agreement is otherwise terminated pursuant to itsentplacedina
trust, rfgrou d lease,
andrustee,
or
gives writtern
noticound
eto
Tenasor
nt, this agreementstohave this rsha I be deemed
priortosecuritythatposition
mortgage,
deedthe
of trust, ofr ground lease,
deed
the
date of recording. 33. TENANT REPRESENTATIONS; CREDIT: Tenant warrants that all statements in Tenant's financial documents and rental application are accurate. Tenant authorizes Landlord and Broker(s) to obtain Tenant's credit report at time of application and periodically during tenancy in connection withapproval, modification, or enforcement of this agreement Landlord may cancel this agreement: (1) before occupancy begins, upon disapproval of thecreditreport(s); or (11) at any time, upon discovering that Information in Tenants application is false. A negative credit report reflecting on Tenant'srecordmaybesubmittedtoacreditreportingagency, if Tenant fails to pay Rent or comply with any other obligation under this agreement.
34. DISPUTE RESOLUTION: A. MEDIATION: Tenant and Landlord agree to mediate any dispute or claim arising between them out of this agreement, or any resulting transaction, before resorting to arbitration or court action, subject to paragraph 34B(2) below. Paragraphs 34B(2) and (3) apply whether or not the arbitrationprovisionisInitialed. Mediation fees, if any, shall be divided equally among the parties Involved. If for any dispute or claim to which this paragraphapplies, any party commences an action without first attempting to resolve the matter through mediation, or refuses to mediate after a request hasbeenmade, then that party shall not be entitled to recover attorney fees, even if they would otherwise be available to that party in any such action. THIS MEDIATION PROVISION APPLIES WHETHER OR NOT THE ARBITRATION PROVISION IS INITIALED. S. ARBITRATION OF DISPUTES: (1) Tenant and Landlord agree that any dispute or claim in Law or equityrialnnhwtwaanthemoutofthisagreement or any resulting transaction, which Is not settled through1 _...-,__• •.- 14AR191 and
or justice, or an art,
mutually agree to a
award In accordance wan suosiantive a anrvrma--r----. - - -
In accordance with Part III, Title 9 of the California Code of Civil Procedure. Judgment upon the away o e
arbitrator(s) may be entered in any court having urisdiction. The parties shall have the right to discovery inaccordancewithCodeofCivil Procedure §1283.0.
2) EXCLUSIONS FROM MEDIATION AND ARBITRATION: The following matters are excluded from Mediation and Arbitration hereunder: (i) judicial or non -judicial foreclosure or other action or proceeding to enforce a deed of trust, mortgage, or installment land sale contract as defined inCivilCode §2985; (ii) an unlawful detainer action; (iii) the filing or enforcement of a mechanic's lien; (iv) any matter that is within the jurisdiction ofaprobate, small claims, or bankruptcy court; and (v) an action for bodily injury or wrongful death, or for latent or patent defects to which Code ofCivilProcedure §337.1 or §337. 15 applies. The filing of a court action to enable the recording of a notice of pending action, for order of attachment,
receivership, injunction, or other provisional remedies, shall not constitute a violation of the mediation and arbitration provisions. 3) BROKERS: Tenant and Landlord agree to mediate and arbitrate disputes or claims involving either or both Brokers, provided either or bothBrokers shall have agreed to such mediation or arbitration, prior to, or within a reasonable time after the dispute or claim is presented to Brokers. Any election by either or both Brokers to participate in mediation or arbitration shall not result in Brokers being deemed parties to the agreement. NOTICE: BY INITIALING IN THE SPACE BELOW YOU ARE AGREEING TO HAVE ANY DISPUTE ARISINGOUT OF THE MATTERS INCLUDED IN THE'ARBITRATION OF DISPUTES' PROVISION DECIDED BY NEUTRALARBITRATION AS PROVIDED BY CALIFORNIA LAW AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHTPOSSESSTOHAVE THE DISPUTE LITIGATED IN A COURT OR JURY TRIAL. BY INITIALING IN THE SPACEBELOWYOUAREGIVINGUPYOURJUDICIALRIGHTSTODISCOVERYANDAPPEAL, UNLESS THOSERIGHTS ARE SPECIFICALLY INCLUDED IN THE 'ARBITRATION OF DISPUTES' PROVISION. IF YOU REFUSETOSUBMITTOARBITRATION AFTER AGREEING TO THIS PROVISION, YOU MAY BE COMPELLED TOARBITRATEUNDERTHE AUTHORITY OF THE CALIFORNIA CODE OF CIVIL PROCEDURE. YOUR
AGREEMENT TO THIS ARBITRATION PROVISION IS VOLUNTARY."
WE HAVE READ AND UNDERSTAND THE FOREGOING AND AGREE TO SUBMIT DISPUTES ARISING
OUT OF THE MATTERS INCLUDED IN THE 'ARBITRATIO OF DISPUTES' PROVISION ET L
ARBITRATION." Landlord's Initials 1 Tenant's Initials 1
The copyright laws of the United States (Title 17 U.S. Code) forbid the Landlord and Tenant ackno re I a copy of this
e. unauthorized reproduction of this form, or any portion thereof, by photocopy peg Landlord's Initials ( ) machine or any other means, Including facsimile or computerized formats.
Copyright ® 1998-2001, CALIFORNIA ASSOCIATION OF REALTORS®, Tenants Initials ( ) ) roav waxovrormertr
INC. ALL RIGHTS RESERVED.
Reviewed by
CL -11 REVISED 10101 (PAGE 4 of 6)
BrokerorDeslgnee Date
COMMERCIAL LEASE AGREEMENT (CL -11 PAGE 4 OF 6)
Premises: •
Date
35. JOINT AND INDIVIDUAL OBLIGATIONS: If there is more than one Tenant, each one shall be Individually and completely responsible for theperformanceofallobllgaflonsofTenant under this agreement, Jointly with every other Tenant, and Individually, whether or not in possession. 36. NOTICE: Notices may be served by mall, facsimile, or couder at the following address or location, or at any other location subsequently designated:
Landlord: Poway Redevelopment Agency Tenant: 13033 ,Poway Road 7Tc
13325 Civic Center Drive 2561 First Avenue, #C
Poway, CA 92064
San Diego CA 92103
Attention: Deborah Johnson
Notice is deemed effective upon the earliest of the following: (1) personal receipt by either party or their agent; (11) written acknowledgement of notice;
or (III) 5 days after malling notice to such location by first class mail, postage pre -paid. 37. WAIVER: The waiver of any breach shall not be construed as a continuing waiver of the same breach or a waiver of any subsequent breach. 38. INDEMNIFICATION: Tenant shall indemnity, defend and hold Landlord harmless from all claims, disputes, litigation, Judgments and attorney fees
arising out of Tenant's use of the Premises.
39. OTHER TERMS AND CONDITIONS/SUPPLEMENTS:
The following ATTACHED supplements/exhibits are Incorporated in this agreement:
40. ATTORNEY FEES: In any action or proceeding arising out of this agreement, the prevailing party between Landlord and Tenant shall be entitled toreasonableattorneyfeesandcostsfromthenon -prevailing Landlord or Tenant, except as provided In paragraph 34A. 41. ENTIRE CONTRACT: Time is of the essence. All prior agreements between Landlord and Tenant are incorporated In this agreement,'whichconstitutestheentirecontract. It Is Intended as a final expression of the parties' agreement, and may not be contradicted by evidence of any prioragreementor contemporaneous oral agreement. The parties further Intend that this agreement constitutes the complete and exclusive statement of itsterms, and that no extrinsic evidence whatsoever may be Introduced in any Judicial or other proceeding, if any, involving this agreement. Any provisionofthisagreementthatisheldtobe Invalid shall not affect the validity or enforceability of any other provision in this agreement. This agreement shall
be binding upon, and Inure to the benefit of, the heirs, assignees and successors to the parties. 42. BROKERAGE: Landlord and Tenant shall each pay to Broker(s) the fee agreed to, If any, in a separate written agreement. Neither Tenant norLandlordhas utilized the services of, or for any other reason owes compensation to, a licensed real estate broker (individualor corporate), agent, Mder, or other entity, other than as named In this agreement, In connection with any act relating to the Premises, Including, but not limited to, inquiries, Introductions, consultations, and negotiations leading to this agreement. Tenant and Landlord each agree to indemnify, defend and toldharmlesstheother, and the Brokers specified herein, and their agents, from and against any costs, expenses, or liability for compensation claimed
inconsistent with the warranty and representation In this paragraph 42.
43. AGENCY CONFIRMATION: The following agency relationships are Freireby confirmedntFinnName) Is the
this transaction:
agent of (check one):
Listing Agent:
the Landlord exclusively; or both Bre Tenant and Landlord. Print Firm Name) (If not same as Listing Agent) Is the agent of (check one):
Selling Agent
the Tenant exclusively; or the Landlord exclusively; or both the Tenant and Landlord.
Real Estate Brokers are not parties to the agreement between Tenant and Landlord.
The copyright laws of the United Slates (Title 17 U.S. Code) forbid the Landlord and Tenant ackn wl a receipt of a copy of this
unauthorized reproduction of this form, or any portion thereof, by photocopy page. andlord'smachineoranyothermeans, Including facsimile or computerized formats.------yyy--------. . ''
Copyright ® 1998-2001, CALIFORNIA ASSOCIATION OF REALTORS®, Tenant's Initials ( ) ( 10MORIUMTY
INC. ALL RIGHTS RESERVED.
Reviewed by
CL -11 REVISED 10101 (PAGE 5 of 6)
Broker or Designee Date
COMMERCIAL LEASE AGREEMENT (CL•11 PAGE 5 OF 6)
Premises: .
61— Date
Landlord and Tenant acknowledge and agree that Brokers: (1) do not guarantee the condition of the Premises; (II) cannot
verity representations made by others; (III) will not verify zoning and land use restrictions; (iv) cannot provide legal or taxadvice; ( v) will not provide other advice or Information that exceeds the knowledge, education or experience required toobtainarealestatelicense. Furthermore, If Brokers are not also acting as Landlord In this agreement, Brokers: (vi) do notdecidewhatrentalrateaTenantshouldpayorLandlordshouldaccept; and (vil) do not decide upon the length or othertermsoftenancy. Landjwd and Tenant agree that they will seek legal, tax, Insurance, and other desired assistance from
appropriate proxssl als.) kl_ 4 Z
Dale
Pdntname)
i
Sbi , f.-
State J
Address City So%s 1/1'
r 0),1Zip Ai
Z Tenant
Dale
A L OL
Print name) /
Z b Pve. City S40 State Zip ) o2
Address 7
II
Landlord
o er o e t wit thonty to enter into is agr nt)
Date 2A`Yo
POWAa( State CA zip 4 ZO(A
Address 1.3 2 S CIV I city
Landlord owner or agent with authority to enter into this agreement)
Date
Address City State Zip
Agency relationships are confirmed as above. Real estate brokers who are not also Landlord in this agreement are not a party to the agreement between
Landlord and Tenant.
S —heal Estate Broker (Leasing Firm)
By (Agent)
Date
Address City State Zip
Telephone Fax E-mail
Real Estate Broker (Listing Firm)
Date
By (Agent)
Address City Slate Zip
Telephone Fax E-mail
THIS FORM HAS BEEN APPROVED BY THE CALIFORNIA ASSOCIATION OF REALTORS® (CAR.). NO REPRESENTATION IS MADE AS TO THE LEGAL VALIDITY OR
ADEQUACY ONS.I YOU DESIRE L INAANY ESPECIFIC T NSACTIION. APPROPRIATEREALESTATE
PROFESBROKER
IS THE PERSON QUALIFIED TO ADVISE ON REAL ESTATE
TRANThis fomn Is
TNS y be ails lle for use by thehnentirethe NATIONtALASSOCIATION OF REAL ORS®who subscribe
as
tRs CodeO.
of
REAL TOR® Is a registered wllective membership mark
ly of
IPubibhed sM T* "d by:
REAL ESTATE BUSINESS SERVICES, INC. Reviewed byUesubsrdleryofMeCALIFORNIAASSOCIATIONOFREALTORS®
626 South Veg6 Avenue, Los Angeles, Cellromts e0020 Broker or Designee Date
CIL-1111 REVISED 10101 (PAGE 6 OF 6)," COMMERCIAL LEASE AGREEMENT (CL -ii PAGE 6 OF 6)
J
PURCHASE AGREEMENT
By and Between
13033 POWAY ROAD LLC
Seller")
EW
POWAY REDEVELOPMENT AGENCY
Buyer")
13033 Poway Road)
APN 317-472-18)
0 0
TABLE OF CONTENTS
1. Purchase Price and Terms ....................................................... 1
2. Deposits...................................................................1
3. Buyer's Feasibility Review ...................................................... 1
4. Buyer's Entry Onto Property ..................................................... 2
5. Escrow........................._..........................................2
6. Condition Of Title............................................................3
7. Title Policv................................................................4
8. Conditions to Close of Escrow .................................................... 4
9. Deposits by Seller............................................................6
10. Deposits by Buyer...........................................................6
11. Costs and Expenses......................................................... 6
12. Prorations................................................................7
13. Disbursements and Other Actions by Escrow Holder .................................... 7
14. Seller's Representations and Warranties ............................................ 8
15. Buyer's Covenants, Representations and Warranties ..................................... 9
16. Seller's Remedies..................................................... 11
17. Damage or Condemnation Prior to Closing ......................................... 12
18. Notices................................................................12
19. Brokers................................................................ 13
20. Leeal Fees.............................................................. 13
21. Assignment By Buyer.......................................................13
22. Other Fees And Assessments................................................... 13
23. Miscellaneous.............................................................13
24. Indemnification of Escrow Holder ............................................... 15
EXHIBITS
EXHIBIT A - Legal Description of Property
EXHIBIT B — Grant Deed
EXHIBIT C — Relocation Waiver Agreement
i
0 0
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement") is made and entered into as of the
th day of August, 2004, and constitutes an agreement by which 13033 Poway Road LLC, a
California Limited Liability Company, ("Seller") agrees to sell to POWAY REDEVELOPMENT
AGENCY, a public body, corporate and politic ("Buyer"), that certain real property consisting of
approximately 1.83 acres, located in the City of Poway, County of San Diego, State of California,
at 13033 Poway Road, identified as APN 317-472-18, commonly known as "Poway Stoway," all
described in Exhibit A attached hereto (the "Property").
I . Purchase Price and Terms. Subject to the terms of this Agreement, Buyer agrees
to buy, and Seller agrees to sell, the Property for a total price payable upon Close of Escrow of
FOUR MILLION SIX HUNDRED THOUSAND DOLLARS ($4,600,000.00) for all parcels of
the Property, subject to adjustment as set forth hereinbelow.
2. Deposit. Upon signing this Agreement, Buyer has delivered to Seller a warrant or
wire payable to Escrow Holder in the amount of TWENTY-FIVE THOUSAND DOLLARS
25,000.00) ("Deposit"). Such initial deposit shall be deposited into Escrow, refundable subject
to the terms and conditions of this Agreement, and credited against the Purchase Price at Close of
Escrow. In the event that the Feasibility Review Period expires without Buyer issuing a timely
written disapproval, an addition to the Deposit of TWENTY-FIVE THOUSAND DOLLARS
25,000.00) shall be made by Buyer to Escrow which shall also be credited against the Purchase
Price.
3. Buyer's Feasibility Review. Buyer shall have up to and including 5:00 p.m. (San
Diego time) on the Thirtieth (30"') day after the Feasibility Commencement Date (the "Feasibility
Review Period") to study and review the Property for the purpose of determining the feasibility
of Buyer's purchase, based on Buyer's good faith discretion. The Feasibility Commencement
Date shall be the Execution Date of this Agreement. Buyer shall, at its expense, obtain such
environmental assessments, Phase I and Phase II reports, land use and zoning studies, affordable
housing studies, soils reports, appraisals, and other tests and reports as Buyer deems necessary to
fully evaluate the Property. Seller shall, within five (5) days after the opening of Escrow, provide
to Buyer copies of such reports, tests, studies and documents, including contamination cleanup
and monitoring reports and tests, as Seller may have concerning the Property (but Seller makes
no warranty as to the adequacy, content or accuracy thereof) and a Natural Hazards Disclosure
Statement. Seller shall not be required to deliver to Buyer copies of correspondence or
agreements with other buyers, real estate agents or lenders or Seller's internal records such as tax
returns and intra -company agreements and correspondence or other confidential information.
If Buyer submits written disapproval of the feasibility review to Escrow Holder on or
before the expiration of the Feasibility Review Period, this Agreement shall be terminated
without liability to either party on the eleventh (11`h) day thereafter, and Buyer's Initial Deposit
shall, after the expiration of the ten (10) day renegotiation period hereinafter described, be
refunded to Buyer, less Buyer's share of any escrow and title cancellation fees. In the event that
Lafomara Purchase Agreement final_I.doc
1
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such notice is given, Buyer and Seller agree to negotiate for a period of ten (10) days following
the date such disapproval is received by Escrow Holder regarding a revised purchase at an
adjusted purchase price or an allocation of contamination cleanup costs. If the parties do not
reach and deliver to Escrow Holder a revised Purchase Agreement within said ten (10) day
period, Escrow Holder shall process cancellation without further instruction. If Buyer does not
submit timely written disapproval of the feasibility review, Buyer shall be conclusively deemed
to have approved the feasibility review (including the Natural Hazards Disclosure Statement),
shall accept the property in "AS/IS" condition at close of escrow as set forth in Sections 14 and
15 hereof, and shall release Seller from liability at close of escrow as set forth in Section 15
hereof. Buyer and Seller hereby agree to indemnify and defend Escrow Holder from any liability
for so releasing the Deposit.
4. Buyer's Entry Onto Property. While this Agreement is in effect, Buyer, its agents,
contractors and subcontractors shall have the right to enter upon the Property, at reasonable times
during ordinary business hours and upon prior notice to Seller, to make any and all inspections
and tests as Buyer reasonably deems desirable and which may be accomplished without causing
any material alteration or damage to the Property. Buyer agrees to indemnify, defend and hold
Seller and the Property harmless from any and all costs, loss, liability, damages or expenses, of
any kind or nature, arising out of or resulting from such entry. Notwithstanding anything in this
Agreement to the contrary, the foregoing indemnity and defense obligation of Buyer shall survive
the termination of this Agreement. Buyer shall have no right to terminate this Agreement based
on the results of such inspections and tests except during the Feasibility Review Period.
5. Escrow.
a) Opening Of Escrow. The "Escrow Holder" shall be Chicago Title
Company in San Diego, California. For purposes of this Agreement, the Escrow shall be deemed
opened on the date Escrow Holder shall have received a fully executed copy of this Agreement
or signed duplicate counterparts) from both Buyer and Seller. Buyer and Seller agree to deposit
this Agreement with Escrow Holder within one (1) day after this Agreement has been signed by
both parties ("Execution Date"). Escrow Holder shall confirm to Buyer and Seller, in writing, the
date Escrow is opened, the expiration date of the Feasibility Review Period, and the Closing
Date. In addition, Buyer and Seller agree to execute, deliver and be bound by any reasonable or
customary supplemental escrow instructions of Escrow Holder or other instruments as may
reasonably be required by Escrow Holder in order to consummate the transaction contemplated
by this Agreement; Buyer and Seller agree to sign and deliver such supplemental escrow
instructions to Escrow Holder within five (5) days after receipt thereof. If there is any
inconsistency between such supplemental instructions and this Agreement, this Agreement shall
control as between Buyer and Seller unless such supplemental instructions expressly state that
they supersede or modify this Agreement.
b) Close Of Escrow. For purposes of this Agreement, the "Close of Escrow"
shall be defined as the date that the grant deed conveying the Property to Buyer is recorded in the
Official Records of San Diego County, California. Escrow shall close within forty-five (45) days
after the Execution Date (the "Closing Date") or as soon thereafter as possible.
Lafomara Purchase Agreement final_Ldoc
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0
6. Condition Of Title. It shall be a condition to the Close of Escrow that title to the
Property be conveyed to Buyer by Seller by Grant Deed subject only to the following approved
condition of title ("Approved Condition of Title"):
a) A lien to secure payment of real estate taxes and assessments, not
delinquent.
b) The lien of supplemental taxes assessed pursuant to Chapter 3. 5
commencing with section 75 of the California Revenue and Taxation Code.
c) Building, building line, use or occupancy restrictions and zoning
and building laws and ordinances of the Federal, state, municipal, city and other governmental
authorities having jurisdiction over the Property.
d) All matters which would be disclosed by an inspection or survey of
the Property.
e) Exceptions which are disclosed by a current preliminary title report
the "Report") with respect to the Property issued by Chicago Title Company ("Title Company")
and which are approved or deemed approved by Buyer in accordance with this subparagraph.
Within five (5) days following the Execution Date, Seller shall, at Seller's expense, cause the
Title Company to deliver to Buyer and Seller the Report, together with copies of the documents
underlying any exceptions referred to in said Report. The failure of Buyer to disapprove any
such exceptions by a writing delivered to Escrow Holder within twenty (20) days following
Buyer's receipt of the Report and copies of the documents referred to in the Report, which
writing shall specifically delineate the items of disapproval and the reasons therefor, shall be
conclusively deemed to be an approval thereof by Buyer. Buyer shall not unreasonably
disapprove any title exception. If Buyer timely disapproves any such exceptions, Seller shall
thereafter have the right, but not the obligation, to agree to eliminate such exceptions as Buyer
shall have so disapproved before the Closing by giving notice of Seller's agreement to Buyer on
or before five (5) days following receipt of Buyer's disapproval notice. If, within said five (5)
day period, Seller does not notify Buyer of Seller's agreement to eliminate said disapproved
exceptions, Buyer shall have the right, by a writing delivered to Seller and Escrow Holder on or
before five (5) days following the expiration of said five (5) day period, to: (i) waive its prior
disapproval, in which event said disapproved exceptions shall be deemed approved, or (ii)
terminate this Agreement, in which event Buyer's Initial Deposit, Second Deposit (if any), and
any extension fee(s) shall be refunded to Buyer and thereafter the rights and obligations of the
parties hereunder shall terminate.
Should a supplemental report be issued disclosing additional title
exceptions that significantly affect the operation of the Property or involve a material surface
encroachment or impairment of access, then (i) the foregoing procedures shall apply to the new
exceptions disclosed by the supplemental report, except that the above -referenced 20 -day and 5 -
day periods shall be reduced to five (5) days and two (2) days, respectively, and (ii) if necessary,
Lafornara Purchase Ageement final_I.doc
3
the Close of Escrow shall be extended to the extent necessary to accommodate the foregoing
procedures.
Seller agrees to pay and discharge upon Close of Escrow all deeds of trust,
mortgages, mechanics' liens, judgments and attachment liens and other encumbrances securing
an obligation to pay money which exist as of the date hereof or are created or suffered by Seller
other than non -delinquent taxes, special assessments, and other fees and assessments which are
to be prorated as provided herein, and liens and encumbrances created or suffered by Buyer).
7. Title Policv. Title shall be evidenced by the willingness of the Title Company to
issue its standard coverage CLTA Owner's Form Policy of Title Insurance ("Title Policy") in the
amount of the Purchase Price showing title to the Property vested in Buyer. Buyer may elect to
request that Title Company issue an extended coverage title. policy provided the issuance thereof
does not delay the Close of Escrow.
8. Conditions to Close of Escrow.
a) Conditions to Buyer's Obligations. Buyer's obligation to consummate the
transaction contemplated by this Agreement is subject to the satisfaction of the following
conditions for Buyer's benefit on or prior to the dates designated below for the satisfaction of
such conditions (or Buyer's waiver thereof, it being agreed that Buyer may waive any or all of
such conditions by written waiver):
i) Seller's Obligations. As of the Close of Escrow, Seller shall have
performed all of the obligations required to be performed by Seller under this Agreement,
including but not limited to the deposits to be made pursuant to Section 9.
ii) Seller's Representations. All representations and warranties made by
Seller to Buyer in this Agreement shall be true and correct as of the Closing Date.
iii) CEOA and Phase I and lI Analysis. As of Close of Escrow, the City
of Poway shall have found that the purchase is categorically exempt from CEQA or shall have
issued a negative declaration, and Buyer shall have approved a Phase I, Phase II, and any
additional contamination analyses.
iv) Appraisal and Expenditure of Funds. As of the Close of Escrow,
the governing board of the Poway Redevelopment Agency shall have approved the appraisal of
the Property and the expenditure of funds necessary to fund the purchase of the Property and all
associated costs.
v) Relocation Waiver Agreement. Buyer and Seller shall have executed
and deposited with escrow a mutually acceptable Relocation Waiver Agreement and Release in
the form attached as Exhibit C hereto by the terms of which Seller (1) knowingly and voluntarily
waives and releases, in exchange for the Purchase Price of the Property and no additional
consideration or compensation of any kind, all relocation assistance and/or benefits that Seller as
Lafomara Purchase Agreement final_Ldoc
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the owner of the business known as Poway Stoway may be eligible for, may claim to be eligible
for, or may have under the California Relocation Assistance Law, Government Code Section
7260, et seq. and the implementing regulations thereto in the California. Code of Regulations,
Title 24, Section 6000, et seq. and the federal Uniform Relocation Law (URL) and Code of
Federal Regulations (CFR) (together, "Relocation Law"); (2) agrees that the customers of, and
all persons under contract to use or otherwise with occupancy rights at, Poway Stoway are and
shall remain post -acquisition occupants of the Property to whom Seller agrees it shall and will
give at least twelve months' written notice prior to the expiration of its tenancy provided in
Subsection (vi) hereof (notwithstanding any contract provision(s) with such customers/users that
provide for a shorter notice period) that each and all occupants must remove their stored items
from the Property either to a new storage facility to be operated by Seller or to any other facility
or location of their choice (at no cost to Buyer except as provided in subsection (3) following);
and (3) indemnifies, holds harmless and defends Buyer (with counsel reasonably acceptable to
Buyer) from any and all claims for relocation assistance and/or benefits asserted by Seller's
customers under the Relocation Law, except for reasonable moving expenses (not to exceed $500
per customer) incurred by those customers (who were continuous customers from the Close of
Escrow to the date of their move pursuant to the notice) in moving their stored items to a
different location.
vi) Lease -back. Buyer and Seller shall have executed and deposited
with escrow a mutually acceptable Lease Agreement by the terms of which Seller shall lease the
Property from Buyer for a period of twenty-four (24) months, with an option for an additional
twelve (12) months on the same terms and conditions, and further extension upon renegotiated
terms acceptable to both parties, in a form and with additional provisions mutually acceptable to
the parties, including but not limited to the following: (1) rent shall be $10,000 per month
payable on or before the first day of the calendar month; (2) in addition to rent Seller shall pay all
utilities provided to the Property, shall provide fire and general liability insurance coverage for
the Property naming Buyer as additional insured, and shall pay all taxes assessed against the
Property (including possessory interest taxes assessed against the Property after Buyer takes
title); (3) Seller shall use the Property only as a "mini -storage" facility and for no other purpose
and shall maintain at its sole cost and expense the entire Property including all buildings and
other improvements thereon in an operational, neat, clean, and orderly condition; (4) Seller shall
indemnify and hold harmless Buyer from any and all liability in connection with its use of the
Property, the operation of its business on the Property, the notification of its customers to remove
their stored items from the Property, and the costs of moving such items, except that Buyer shall
agree to pay the reasonable moving expenses (not to exceed $500 per customer) incurred by
those customers (who were continuous customers from Close of Escrow to the date of their move
pursuant to the notice) in moving their stored items to a different location; (5) Seller shall give to
its customers at least twelve months' notice prior to the expiration of its tenancy that they must
remove their stored items from the Property either to a new storage facility to be operated by
Seller or to any other facility or location of their choice; (6) Seller shall cooperate with its
customers in the moving of their stored items and shall facilitate such move; (7) Seller shall
vacate the Property upon the termination or expiration of the Lease and shall leave the Property
in neat, broom -clean, and orderly condition, free of use or occupancy by any customer or other
person whatsoever. Buyer shall prepare a draft of the Lease Agreement within ten (10) days of
Laromara Purchase Agreement final I.dac
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the Execution Date hereof and present it to Buyer for review and revision. If the Lease
Agreement is not signed by Buyer and Seller within five (5) days prior to the scheduled Close of
Escrow, this Agreement shall be terminated without liability to either party except for the
payment of costs as provided in Section 11 hereof.
b) Conditions to Seller's Obligations. For the benefit of Seller, the Close of
Escrow shall be conditioned upon the occurrence and/or satisfaction of each of the following
conditions (or Seller's waiver thereof, it being agreed that Seller may waive any or all of such
conditions by written waiver):
i) Buyer's Obligations. Buyer shall have timely performed all of the
obligations required by the terms of this Agreement to be performed by Buyer.
ii) Buyer's Representations. All representations and warranties made
by Buyer to Seller in this Agreement shall be true and correct as of the Close of Escrow.
9. Deposits by Seller. At least one (1) day prior to the Close of Escrow, Seller shall
deposit or cause to be deposited with Escrow Holder the following documents and instruments:
a) Grant Deed. The Grant Deed in the form attached as Exhibit B conveying
the Property to Buyer duly executed by Seller, acknowledged and in recordable form.
b) Seller's Certificate - Federal. A federal certificate of non -foreign status
Federal Certificate"), duly executed by Seller, in the form normally used by the Escrow Holder.
c) Seller's Certificate - State. A California Franchise Tax Board Form 597W,
duly executed by Seller ("State Certificate").
10. Deposits by Buyer. At least one (1) day prior to the Close of Escrow, Buyer shall
deposit or cause to be deposited with Escrow Holder in cash or cash equivalent the balance of the
Purchase Price, plus Escrow Holder's estimate of Buyer's share of closing costs and proration
charges payable pursuant to this Agreement.
11. Costs and Expenses. The cost and expense of the current preliminary title report
shall be paid by Seller. The cost and expense of the Title Policy shall be paid by Seller, unless
Buyer elects to obtain any endorsements or extended coverage, in which event the premium and
any additional cost for endorsements or extended coverage in excess of the premium for standard
coverage as will as the cost of any survey necessary for the issuance of such policy shall be paid
by Buyer. Escrow Holder's fee shall be shared equally by Seller and Buyer. Seller shall pay all
documentary transfer taxes payable in connection with the recordation of the Grant Deed. Buyer
and Seller shall pay, respectively, the Escrow Holder's customary charges to buyers and sellers
for document drafting, recording and miscellaneous charges. If, as a result of no fault of Buyer
or Seller, Escrow fails to close, Buyer and Seller shall share equally all of Escrow Holder's fees
and charges.
Laromara Purchase Agreement linat_I.doc
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12. Prorations. Real and personal property taxes, special assessments, and any
owners' 'association and .landscape maintenance district assessments on the Property (as
appropriate),:("Taxes"):,shall be, prorated on the basis that;Seller is responsible for (i) all Taxes for
the fiscal year of the applicable taxing authorities occurring, prior to the "Current Tax.Period",
and (ii) that portion of Taxes for the Current Tax Period determined on the basis of the number
of days which have elapsed from the first day of the Current Tax Period to the Close of Escrow,
inclusive, whether or not the same shall be payable prior to the Close of Escrow. The phrase
Current Tax Period" refers to the fiscal year of the applicable taxing authority in which the
Close of Escrow occurs. In the event that as of the Close of Escrow the actual Tax bills for the
year or years in question are not available and the amount of Taxes to be prorated as aforesaid
cannot be ascertained, then rates ' and assessed valuation of the previous year, with known
changes; shall be used, andwhen the actual amount of Taxes for the year or years in question
shall be determinable, then Taxes will be re -prorated between the parties to reflect the actual
amount of Taxes, provided ;that a party makes written demand on the one from whom it is
entitled to such adjustment wrtHin one (1) year after the Close of Escrow. Any corrected
adjustment or proration shall be paid in -cash to the party entitled thereto.
Seller agrees to pay all taxes and assessments with respect'to the Property which, are
allocable to the period before the Close of Escrow and to indemnify, defendand hold harmless
Buyer from all loss, liability and expense arising from Seller's failure to pay such taxes and
assessments.
13. Disbursements and Other Actions by Escrow Holder-. Upon the Close of Escrow,
the Escrow Holder shall promptly undertake all of the following in the manner indicated:
a) Prorations. Prorate all matters referenced above based upon the statement
delivered into Escrow signed by the parties.
b) Recording.. Cause the Grant Deed in the form, of Exhibit B attached
hereto, and any other documents which the parties hereto may mutually direct, to be recorded in
the Official Records of San Diego County, California.
c) Funds. Disburse from funds deposited by 'Buyer with Escrow Holder
towards payment of all items chargeable to the account of Buyer pursuant hereto in paymenVof
such costs, including, without limitation, the payment of the Purchase Price to Seller, and
disburse the balance of such funds, if any, to Buyer.
d) Documents to Buyer. Deliver the Federal Certificate and the State
Certificate to Buyer.
e) Title ;Policv. Direct the Title Company to issue the Title Policy to Buyer.
Iafomara Purchase Agreement imal_I.doc
14. Seller's Representations and Warranties.
a) Seller warrants,and represents that it is thesole fee simple owner of the
Property and has all necessary authority to sell the Property; there are no other contracts for sale
or options involving the Property; no other party has any rightj title or interest in the Property
except with respect to the leases listed below (if leftblank, Seller represents that there are no
tenants or others entitled to possession). Seller expressly warrants and represents that its storage
customers are not listed below and that they are not entitled to possession of any part of the
Property upon the termination or expiration of the Lease Agreement referenced on Section
8(a)(vi).
Month -to -Month Residential Rental Agreement:
i) Name of the tenant:
ii) Designation of the:demised premises:
iii) Date of the Lease and all amendments thereto:
iv) Expiration date of the current term:
v) Fixed rent applicable to the current term:
vi) Security deposit held by landlord or agent:
vii) Renewal options:.
viii) Tenant's "proportionate share" of taxes, common area.operating.expenses, etc.:
b) If there are tenants, Seller represents the following:
i) All of the tenants under the leases presently occupy their demised premises, and
no tenant has, to Seller's best knowledge, subleased or licensed its demised
premises or assigned its lease.
ii) All of the leases are in full force and effect, and no lease or renewals or other
instrument in writing gives any tenant the right to renew or extend its existing
lease. No tenant is'in default or breach of any term of its respective Lease.
iii) There are no brokerages or other leasing commissions payable with respect to any
existing leases or renewals of same or increases or,other changes in space:
iv) No tenant has asserted any claim of which ',Seller -has notice which would
adversely affect the'right of the landlord to collect rent from such tenant;:no notice
of default or breach on.the part of the landlord under any of the leases has been
received by Seller; and there is no pending or threatened litigation. involving a
lease,of the Property.
v) Seller has no knowledge or notice of (1) any right'of'abatement or offset against
rent claimed by any tenant, or (2) any assertion by any tenant. of rights to
improvements not made or options not disclosed in this Agreement.
vi) There are no concessions, bonuses, free rent, rebates, or other credits due to
tenants.
vii) At Close of Escrow, all security deposits relating to the leases shall be paid over
and assigned,to Buyer.
lammara Purchase Agreement final_l.doc
Seller represents and.warrants4hat there are no leases, writtenor oral, nor are there any
tenants other than those listed:aboye. Seller agrees to reimburse; indemnify, defend, and hold
harmlessBuyer from any claims,. losses, or damages which may result from any claim or
assertion by any person who claims to be a tenant on the Property and requires relocation
assistance or benefits under the Relocation Law (as herein defined.) Any such claims (including
without limitation all costs incurred in defense thereof) made prior to Close of Escrow shall be
treated as a lien and paid via escrow proceeds prior to Close of Escrow.
Between the date Seller executes this Agreement and Close of Escrow, Seller shall not
subject the Property to or consent to any leases, right(s) of entry, right(s) to use or occupy; liens,
encumbrances, covenants, .conditions, restrictions, easements; rights of way, or agreements, or
take any other action affecting or modifying the status of title or otherwise affecting the'P.roperty,
without the writtenconsent of Buyer.
c) BUYER ACKNOWLEDGES AND AGREES T14AT EXCEPT AS SET
FORTH HEREIN SELLER HAS MADE ABSOLUTELY NO REPRESENTATIONS OR
WARRANTIES REGARDING THE PROPERTY, INCLUDING, WITHOUT LIMITATION,
ITS CONDITION, ITS PAST USE, OR ITS. SUITABILITY FOR BUYER'S INTENDED USE,
AND THAT BUYER IS PURCHASING THE PROPERTY ON AN "AS -IS" BASIS AS TO
SELLER. Notwithstanding the foregoing, Seller makes the following; representations to Buyer:
Seller, acting alone; has the legal right, power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby; the execution, delivery and performance of
this Agreement have been duly authorized and no other action by Seller is requisite°to the valid
and binding execution, delivery and performance of this Agreement; Seller has no actual
knowledge of any Hazardous Materials on or under the Property or any underground tanks on the
Property or of any claims,. easements, leases or other liens or. encumbrances affecting the
Property which are not disclosed by the public records. Seller represents that there are he tenants
or other persons having any right to possession of any portion of the'.Property
15. Buyer's Covenants, Representations and Warranties. In consideration of Seller
entering into this Agreement and as an inducement to Seller to sell the Property to Buyer, Buyer
makes the following covenants; representations and warranties:
a) Authority. Buyer has the legal right,, power and authority to enter into this
Agreement and to consummate the transactions contemplated hereby, and the execution, delivery
and performance of this Agreement, have been duly authorized and no other^action by Buyer is
requisite to the`valid and binding execution, delivery and performance:of this Agreement, except
as otherwise expressly set forth herein.
b) Physical Condition. Buyer shall inspect the Property to the extent Buyer
deems necessary or desirable during the Feasibility Review Period. It shall further be Buyer's
responsibility and right to inspect the Property the day that if deposits with Escrow Holder the
final sum constituting the, full purchase price in order to determine that the condition at Close of
Escrow is substantially the same as the condition approved by Buyer during the Feasibility
Review Period. Buyer's closing of Escrow shall constitute Buyer's representation to Seller that,
Lafomara Purchase Agreement fina.1—Ldoc
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subject to Subparagraph (c)'below, Buyer is satisfied in all respects with the Property, including,
without limitation, size, the physical condition and condition of any and all improvements and all
tenants thereon.
c) "AS=IS" Nature Of Sale. Buyer acknowledges and agrees that except as set
forth herein; Seller has not, made; does not make and specifically negates, and disclaims any
representations, warranties, or guarantees of any kind or character, whatsoever; whether express
or implied, oral or written, past, present or future, of, as to, concemingsor with respect'to (a) the
value, nature, quality of condition of the Property, including, without limitation, the water, soil
and geology; (b) the income to be derived from the Property; (c), the suitability of the Property for
any and all activities and uses which Buyer may conduct thereon; (d) the compliance of or by the
Property or its operation with any laws, rules, ordinances or regulations of any applicable
governmental authority or body; (e) the habitability, merchantability, marketability; profitability
or fitness for a particular purpose of the Property; (f) the manner orqualityof the construction or
materials, if any, incorporated'into the Property; (g) the manner; quality, state of repair or lack of
repair of the Property; or (h) any other matter with respect `to the Property, and specifically
except as set forth herein) that Seller has not made, does not make, and specificallydisclaims
any representations regarding compliance with any environmental protection, pollution or land
use laws, rules, regulations, orders or requirements, including solid waste, as defined by the U.S.
Environmental Protection Agency regulations at 40 C.F.R., Part 261, or the disposal or existence;
in or on the Property, of any hazardous substance, as defined by the Comprehensive
Environmental Response Compensation And Liability Act of 1980; as amended, and regulations
promulgated thereunder. (The substances, wastes and materials. which are regulated by the
foregoing laws or any other state and/or federal laws are herein referred to as "Hazardous
Materials.") Buyer further acknowledges and agrees that any information provided or to be
provided by or on behalf of Seller with respect to the Property was -obtained from a variety -of
sources and that Seller has not made any independent investigation or verification of such
information and makes no representations as to the accuracy or completeness of such
information. Seller is not liable or bound in any manner by any oral or written statements,
representations or information pertaining to the Property, or the operation thereof, furnished by
any real estate broker, agent, employee; servant or other person. Buyer further acknowledges and
agrees that the sale of the Property as provided for herein is: made on an "AS -IS" condition and
basis with all faults. NOTHING PROVIDED IN ANY "AS -IS PROVISION OF THIS
AGREEMENT, HOWEVER, SHALL LIMIT THE RIGHTS' OF BUYER AGAINST ANY
PRIOR OWNER OF THE PROPERTY, OR ANY OTHER PERSON OR, ENTITY (OTHER
THAN SELLER) WHO CONTRIBUTED IN ANY WAY TO CONTAMINATION OF THE
PROPERTY.
d) Buyer and anyone claiming by, through or under Buyer hereby fully and
irrevocably releases Seller, its partners, employees, officers, directors, shareholders,
representatives, agents, successors and assigns from any and all claims that it may now have or
hereafter•'acquire against such persons and entities for any cost, loss; liability, damage, expense,
demand, action or cause of action arising from or related to any construction defects, errors,
omissions or other conditions, including, but not limited to,. Hazardous Materials and
environmental matters, affecting the Property, or any portion thereof. This release includes
Lafomara Purchase Agreement iinal_l.doc
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claims of which Buyer is presently unaware or which Buyer does not,presently suspect to exist in
its favor which; if known by Buyer; would materially affect Buyer's release of Seller. Buyer
specifically waives the provision of California Civil Code '§ 1542; Which provides as follows:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his favor at the ,time of
executing the release; which if known by him must have materially
affected his settlement with the debtor."
e) Buyer makes no representation or warranty whatsoever regarding whether
or not Seller has the legal right to transfer his property tax base to a new property Seller is
purchasing. Seller understands that it is Seller's obligation to obtain such information.and make
such application with the San Diego. County Tax Assessor's Office. Seller shall fully satisfy
himself in this regard prior to Close of Escrow
The representations and warranties of Buyer and Seller.set forth in this Agreement
shall be true on and as of the Close of Escrow and shall survivethe closing.
16. Remedies.
THE PARTIES AGREE THAT IT WOULD BE EXTREMELY IMPRACTICABLE AND
DIFFICULT TO DETERMINE THE DAMAGES WHICH ONE' WOULD SUFFER IN THE
EVENT THE OTHER FAILS TO COMPLY WITH THE TERMS OF THIS AGREEMENT.
ACCORDINGLY, IF ESCROW FAILS TO CLOSE DUE TO ONE PARTY'S BREACH OR
DEFAULT, THEN THE OTHER PARTY SHALL BE RELEASED FROM ANY FURTHER
OBLIGATIONS HEREUNDER, AND THE PARTIES AGREE THAT PARTY IN BREACH
SHALL PAY TO THE OTHER AS LIQUIDATED DAMAGES THE;SUM OF THE DEPOSITS
THEN HELD BY ESCROW; BUT IN NO EVENT LESS THAN $25,000, PLUS ALLCOSTS
AND CHARGES INCURRED BY OR PAYABLE TO ESCROWHOLDER: THE PARTIES
ACKNOWLEDGE THAT THEY HAVE NEGOTIATED INGOOD FAITH REGARDING
THE AMOUNT OF LIQUIDATED DAMAGES AND THAT THE SUMS SET FORTH
HEREIN ARE REASONABLE UNDER ALL THE CIRCUMSTANCES. SUCH
LIQUIDATED DAMAGES SHALL ONLY LIMIT DAMAGES FROM THE BREACHING
PARTY'S FAILURE TO COMPLETE THIS TRANSACTION AS SPECIFIED HEREIN;
THEY -SHALL NOT LIMIT THE BREACHING PARTY'S OBLIGATIONS OF INDEMNITY,
HOLD HARMLESS AND DEFENSE PROVIDED IN THIS AGREEMENT, NOR LIMIT THE
DAMAGED PARTY'S ATTORNEYS' FEES" AND COSTS OF SUIT IF NECESSARY TO
RECOVER OR RETAIN THE LIQUIDATED DAMAGES OR TO ENFORCE OBLIGATIONS
OFINDEMNITY, HOLD HARMLESS AND DEFENSE PROVIDED IN THIS AGREEMENT.
CONDITIONED ON BOTH PARTIES' COMPLIANCE WITH' THIS PARAGRAPH, EACH
PARTY WAIVES ANY RIGHT TO SPECIFICALLY ENFOR/'_ THE AGREEMENT.
B e 's Initials
Cl-
Seller's[ials
Lafomara Purchase Agreement final_l.doc
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17. Damage or Condemnation Prior to Closing. Seller: shall promptly notify Buyer of
any casualty to the Property or any condemnation,proceeding commenced prior to the Close of
Escrow of which Seller obtains actual knowledge. If any such damage or proceeding relates to or
may result in the loss of any material portion of the Property Buyer may, at its option, elect
either to: (i) terminate this Agreement, in which event neither partyshall, have any further rights
or obligations hereunder and Buyer's Deposit and ariy extension-fee(s) shall be refunded to
Buyer, or (ii) continue this Agreement in effect, in which event.upowthe Close of Escrow, Buyer
shall be entitled to any compensation, awards, or other payments or relief resulting:from such
casualty or condemnation proceeding.
18. Notices. All notices or other communications required or permitted hereunder
shall be in writing, and shall be personally delivered, delivered by reputable 'overnight carrier,
sent by certified mail, postage prepaid, return receipt requested, or sent by telecopy, and shall be
deemed received upon the earlier of (i) if personally delivered or; delivered by overnight courier,
the date of delivery to the':addiess of the person to receive such notice, (ii) if mailed, two (2)
business days after the date of posting by the United States post office, (iii) if given by telecopy,
when sent. Any notice, request, demand, direction or other communication sent by telecopy must
be confirmed within forty -eight -(48) hours by letter mailed or delivered in accordance .with the
foregoing.
To Buyer: Poway Redevelopment Agency
13325 Civic Center Drive
Poway, CA 92064-5755
Attention: Deborah Johnson, Redevelopment
Services Director
with -a copy to: Stephen M. Eckis, Esq.
McDougal.Love Eckis Smith & Boehmer
460 North Magnolia, Drawer 1466
El Cajon, CA 92022 /
To Seller: 13033 Poway Road.LLC
9,x /
l .
C /
6111 \71 rc (
p 00
National City,.0 Q Qi9Sn_72tn01
With a copy to: William.Fabean
One Source Realty
15703 Bernardo Heights. Parkway
San Diego, CA. 92128
To Escrow Holder: Chicago Title Company
3703 Camino del RioSouth, 9100
San Diego, CA 92108
Attention: Teresa Miller/Teresa McElaney
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d) Counterparts. This Agreement (and, any amendments and escrow
instructions) may be executed in, multiple counterparts, each of which shall be deemed an
original, but all of which, together, shall constitute one and the same. instrument. Documents
delivered by telephonic facsimile transmission shall be valid and binding.
e) Captions. Any captions to, or headings of, ,the paragraphs or
subparagraphs of this Agreement are solely for the convenience of'ihe parties hereto, are not a
part of this Agreement, and shall not be used for the interpretation or determination of the
validity of this Agreement or any provision hereof. This Agreement shall be interpreted in
accordance with its reasonable meaning, and not strictly for or against either party:
f) No Obligations`to Third Parties. Except as otherwise expresslyprovided
herein, the execution and delivery of this Agreement shall -not be deemed to confer any rights
upon, nor obligate any of the parties thereto, to any person or entity other than the,parties hereto.
g) Exhibits. The Exhibits attached hereto are hereby incorporated herein.by
this reference.
h) Amendment to this Agreement. This Agreement contains the entire
understanding of the parties regarding the subject matter and may not be modified or amended
except by an instrument in writing executed by each of the parties; hereto.
i) Waiver. The waiver or failure to enforce any provision of this Agreement
shall not operate as a waiver of any future breach of any such provision or any other,provision
hereof.
0) Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of California.
k) Fees and Other.Expenses. Except as otherwise provided herein, each of
the parties shall pay its own fees and expenses in connection with this, Agreement.
1) Agreement. No agreement, representation, or promise made by either
party hereto, or'by or to an employee, officer, agent or representative of either party, shall be of
any effect: unless it is in writing and executed by the party be bound thereby.
m) Successors and Assigns. Subject to Paragraph,21, this Agreement shall be
binding upon and shall inure to the benefit of the successors; and assigns of the parties hereto.
n) Confidentiality. To the full extent permitted by.law, Buyer shall keep all
information and reports obtained from Seller or relating to the Property or the proposed
transaction confidential and will not disclose any such confidential information to any other
person or entity without obtaining the prior written consent of Seller.
lafomara Purchase Agreement fnal_l.doc
14
o) Authori . Each individual who signs this Agreement on behalf of an
entity represents and warrants.that,he/she is authorized to do so and to bind such entity.
p) Snecial Tax. There are no special taxes levied against the Property.
q) 1033 Exchange. Buyer will accommodate -an IRC Section 1033 exchange
as desired by Seller, to the full extent permitted by law.
24. Indemnification of Escrow Holder. If this Agreement or any matter relating
hereto shall become the subject of any litigation or controversy, Buyer and Seller agree, jointly
and severally, to hold Escrow Holder free and harmless from any loss or expense, including
attorneys' fees, that may be suffered by it by reason thereof except for losses or expenses as may
arise from Escrow Holder's mcgligent or willful misconduct. If conflicting demands are made or
notices served upon Escrow Holder with respect to this Agreement, the parties expressly agree
that Escrow Holder shall be entitled to file a suit in interpleader and obtain an order from the
court requiring the parties to interplead and litigate their several claims and rights among
themselves. Upon the filing of the action in interpleader, Escrow Holder shall be fully released
and discharged from any obligations imposed upon it by this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this.Agreement at
Poway, California as of the day and year first -above written.
BUYER" "SELLER"
THE POWAY REDEVELOPMENT AGENCY, 13033 POWAY ROAD LLC, a California
a public body, corporate and politic in lity C ny
3
By l JC
V Bowersox, Executive Director Chris L ornara
Its Managin&Member
ATTEST:
BN* 12 YJ By
Sherrie D. Worrell, Assistant
Agency Secretary
APPROVED AS TO LEGALITY AND FORM:
10
Stephen V. FAs, Agency General
15
Wornara Purchase Agreement Final_l.doc
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ACCEPTANCE BY ESCROW HOLDER:
Chicago Title Company hereby acknowledges that it has received a fully executed
counterpart of the foregoing Purchase Agreement and agrees to act as Escrow Holder thereunder
and to be bound by and perform the terms thereof as such terms apply to Escrow Holder.
Dated: , 2004 CHICAGO TITLE COMPANY
By:
Name:
Title:
16
Lafomam Purchase Agreement final_Ldoc
EXHIBIT A
Legal Description of Property)
LEGALLY DESCRIBE ALL PARCELS]
ASSESSOR PARCEL NUMBERS: 317-472-18
0
Womara Purchase Ageement final_Ldoc
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EXHIBIT B
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
SPACE ABOVE THIS LINE FOR RECORDER'S USE
DOCUMENTARY TRANSFER TAX $
Computed on the consideration or value of property conveyed; OR
Computed on the consideration or value less liens or
encumbrances remaining attime of sale.
Signature of Declarant or Agent determining tax - firm Name
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,
hereby GRANT(S) to THE POWAY REDEVELOPMENT AGENCY, the real property in the City of Poway,
County of San Diego, State of Califomia, described as:
DESCRIBE]
This conveyance is made subject to easements, restrictions and other matters of record.
Dated:
STATE OF CALIFORNIA )
ss.
COUNTY OF SAN DIEGO )
On
and State, personally appeared
By:
before me, the undersigned Notary Public in and for said County
personally known to me
or
proved to me on the basis of satisfactory evidence to be
the person(s) whose, ame(s) is/are subscribed to the within instrumentand acknowledged tomethat he/she/they
executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s),on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
Witness my hand and official seal.
Signature of Notary
lafomara Purchase Agreement final_I.doc