EXHIBIT 10.34
Published on October 13, 2000
Exhibit 10.34
INDUSTRIAL NET LEASE
FOR
SORRENTO VISTA INDUSTRIAL PARK
SAN DIEGO, CALIFORNIA
BY AND BETWEEN
SPIEKER PROPERTIES, L.P.
A CALIFORNIA LIMITED PARTNERSHIP
AS LANDLORD
AND
INTUIT INC.,
A DELAWARE CORPORATION
AS TENANT
BASIC LEASE INFORMATION
THE FOREGOING BASIC LEASE INFORMATION IS INCORPORATED INTO AND MADE A PART OF
THIS LEASE. EACH REFERENCE IN THIS LEASE TO ANY OF THE BASIC LEASE INFORMATION
SHALL MEAN THE RESPECTIVE INFORMATION ABOVE AND SHALL BE CONSTRUED TO
INCORPORATE ALL OF THE TERMS PROVIDED UNDER THE PARTICULAR LEASE PARAGRAPH
PERTAINING TO SUCH INFORMATION. IN THE EVENT OF ANY CONFLICT BETWEEN THE BASIC
LEASE INFORMATION AND THE LEASE, THE LATTER SHALL CONTROL.
TABLE OF CONTENTS
LEASE
This Lease is made as of JULY 2, 1997, between SPIEKER
PROPERTIES, L.P., A CALIFORNIA LIMITED PARTNERSHIP (hereinafter
called "LANDLORD") and INTUIT INC., A DELAWARE CORPORATION
(hereinafter called "TENANT").
PREMISES 1. Landlord leases to Tenant and Tenant leases from Landlord,
upon the terms and conditions hereafter set forth, those
premises (the "Premises") as shown on Exhibit "B" and
described in the Basic Lease Information. The Premises may be
all or part of the building (the "Building") or of the project
(the "Project") which may consist of more than one building.
The Building and Project are shown on Exhibit "B".
POSSESSION
AND LEASE
COMMENCEMENT 2.
B. In the event this Lease pertains to a Building to be
constructed or improvements to be constructed within a
Building, the provisions of this subparagraph 2.B. shall apply
in lieu of the provisions of subparagraph 2.A. above and the
Term Commencement Date shall be the earlier of the date on
which (1) Tenant takes possession of some or all of the
Premises, or (2) the improvements constructed or to be
constructed in the Premises shall have been substantially
completed in accordance with the plans and specifications
described on Exhibit "C" attached hereto and incorporated
herein by reference, AND DOCUMENTED BY A COPY OF THE
CERTIFICATE OF OCCUPANCY, TEMPORARY OR PERMANENT, FROM THE
CITY OF SAN DIEGO, whether or not substantial completion of
the Building itself shall have occurred. In the event of any
dispute as to substantial completion of work performed or
required to be performed by Landlord, the certificate of
Landlord's architect or general contractor shall be
conclusive. Substantial completion shall have occurred
notwithstanding a requirement for Landlord to complete punch
list items or similar corrective work. LANDLORD SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO COMPLETE PUNCH LIST ITEMS
WITHIN SIXTY (60) DAYS OF TENANT SUBMITTING SUCH LIST IN
WRITING TO LANDLORD. Tenant shall, upon demand, within thirty
(30) days of receipt, execute and deliver to Landlord a letter
of acceptance of delivery of the Premises which WILL SPECIFY
THE ACTUAL TERM COMMENCEMENT DATE.
TERM 3. The Term of this Lease shall commence on the Term Commencement
Date and continue in full force and effect for the number of
months specified as the Length and Term in the Basic Lease
Information or until this Lease is terminated as otherwise
provided herein. If the Term Commencement Date is a date other
than the first day of the calendar month, the Term shall be
the number of months of the Length of Term in addition to the
remainder of the calendar month following the Term
Commencement Date.
USE 4. A. Tenant shall use the Premises for the Permitted Use and
for no other use or purpose without prior written consent of
Landlord. No MATERIAL increase in the occupant density of the
Premises shall be made without the prior written consent of
Landlord. Tenant and its employees, customers, visitors, and
licensees shall have the non-exclusive right to use, in common
with other parties occupying the Buildings or Project, the
parking areas and driveways of the Project, subject to such
reasonable rules and regulations as Landlord may from time to
time prescribe.
B. Tenant shall not permit any odors, smoke, dust, gas,
substances, noise or vibrations to emanate from the Premises,
nor take any action which would constitute a nuisance or would
disturb, obstruct or endanger any other tenants of the
Building or Project in which the Premises are situated or
unreasonably interfere with their use of their respective
premises. Tenant shall not receive, store or otherwise handle
any product, material or merchandise which is toxic, harmful,
explosive, highly inflammable or combustible, OTHER THAN
NORMAL AND REASONABLE AMOUNTS OF CLEANING AND PEST CONTROL
SUPPLIES REASONABLY NECESSARY FOR MAINTENANCE OF THE PREMISES
SO LONG AS SUCH MATERIALS ARE PROPERLY, SAFELY AND LAWFULLY
STORED AND USED BY TENANT. Storage outside the Premises of
materials, vehicles or any other items Landlord deems
objectionable is prohibited without Landlord's prior written
consent. Tenant shall not use or allow the Premises to be used
for any improper, immoral, unlawful or objectionable purpose,
nor shall Tenant cause or maintain or permit any nuisance in,
on or about the Premises. Tenant shall not commit or suffer
the commission of any waste in, on or about the Premises.
Tenant shall not allow any sale by auction upon the Premises,
or place any loads upon the floors, walls or ceilings which
endanger the structure, or place any harmful liquids in the
drainage system of the Building or Project. No waste,
materials or refuse shall be dumped upon or permitted to
remain outside the Premises except in trash containers placed
inside exterior enclosures designated for that purpose by
Landlord.
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C. Tenant shall not use the Premises or permit anything to
be done in or about the Premises which will in any way
conflict with any law, statute, ordinance or governmental rule
or regulation now in force or which may hereafter be enacted
or promulgated. Tenant shall at its sole cost and expense
obtain any and all licenses or permits necessary for Tenant's
use of the Premises. Tenant shall promptly comply with the
requirements of any board of fire underwriters or other
similar body now or hereafter constituted relating to or
affecting the condition, use or occupancy of the Premises. The
judgment of any court of competent jurisdiction or the
admission of Tenant in any actions against Tenant, whether
Landlord be a party thereto or not, that Tenant has so
violated any such law, statute, ordinance, rule, regulation or
requirement, shall be conclusive of such violation as between
Landlord and Tenant. Tenant shall not do or permit anything to
be done in, on or about the Premises or bring or keep anything
which will in any way increase the rate of any insurance upon
the Premises, Building or Project, or upon any contents
therein or cause a cancellation of said insurance or otherwise
affect said insurance in any manner. Tenant shall indemnify
Landlord and hold Landlord harmless against any loss, expense,
damage, attorneys' fees or liability arising out of the
failure of Tenant to comply with any applicable law or comply
with the requirements as set forth herein. THE PROJECT HAS
BEEN BUILT IN COMPLIANCE WITH ALL CURRENT BUILDING CODES,
INCLUDING ADA CONFORMANCE. TO THE BEST OF LANDLORD'S
KNOWLEDGE, THERE ARE CURRENTLY NO HAZARDOUS MATERIALS
VIOLATIONS ON OR ABOUT THE PREMISES
RULES AND
REGULATIONS 5. Tenant and Tenant's agents, employees, and invitees shall
faithfully observe and comply with any rules and regulations
Landlord may from time to time reasonably prescribe in writing
for the purpose of maintaining the proper care, cleanliness,
safety, traffic flow and general order of the Premises or
Project. Landlord shall not be responsible to Tenant for the
non-compliance by any other tenant or occupant of the Building
or Project with any of the rules and regulations.
RENT 6. Tenant shall pay to Landlord, without demand throughout the
term, Rent as specified in the Basic Lease Information, payable
in monthly installments in advance on or before the first day of
each calendar month, in lawful money of the United States,
without deduction or offset whatsoever to Landlord at the address
specified in the Basic Lease Information or to such other firm or
to such other place as Landlord may from time to time designate
in writing. Rent for the first full month of the Term shall be
paid by Tenant upon Tenant's execution of this Lease. If the
obligation for payment of Rent commences on other than the first
day of a month, then Rent shall be prorated and the prorated
installment shall be paid on the first day of the calendar month
next succeeding the Term Commencement Date.
BASIC
OPERATING
COSTS 7. A. BASIC OPERATING COST. In addition to the Base Rent
required to be paid hereunder, Tenant shall pay as additional
Rent, Tenant's Proportionate Share, as defined in the Basic
Lease Information, of Basic Operating Cost in the manner set
forth below. Basic Operating Cost shall mean all expenses and
costs of every kind and nature which Landlord shall pay or
become obligated to pay, or would be required to pay if the
Project were fully occupied, because of or in connection with
the management, maintenance, preservation and operation of the
Project and its supporting facilities servicing the Project
(determined in accordance with generally accepted accounting
principles, consistently applied) including, but not limited
to, the following:
(1) All real estate taxes, possessory interest taxes,
business or license taxes or fees, service payment in lieu of
such taxes or fees, annual or periodic license or use fees,
excises, transit charges, housing fund assessments, open space
charge, assessments, levies, fees or charges, general and
special, ordinary and extraordinary, unforeseen as well as
foreseen, of any kind (including fees "in-lieu" of any such
tax or assessment) which are assessed, levied, charged,
confirmed, or imposed by any public authority upon the
Project, its operations or the rent (or any portion or
component thereof), except (a) inheritance or estate taxes
imposed upon or assessed against the Project, or any part
thereof or interest therein, and (b) taxes computed on the
basis of the net income of Landlord or the owner of any
interest therein.
(2) All REASONABLE insurance premiums and costs,
including, but not limited to, any deductible amounts,
premiums and cost of fire, casualty and liability coverage,
rental abatement and special hazard insurance applicable to
the Project and Landlord's personal property used in
connection therewith; provided, however, that Landlord may,
but shall not be obligated to, carry special hazard insurance
covering losses caused by casualty not insured under standard
fire and extended coverage insurance.
(3) Repairs, replacements (BUT NOT INCLUDING CAPITAL
ITEMS) and general maintenance for the Premises, Building and
Project (except for those repairs expressly the responsibility
of Landlord, those repairs paid for by proceeds of insurance
or by Tenant or other third parties and alterations
attributable solely to tenants of the Project other than
Tenant).
(4) All REASONABLE maintenance, janitorial and service
agreements and costs of supplies and equipment used in
maintaining the Premises, Building and Project and the
equipment therein and the adjacent sidewalks, driveways,
parking and service areas, including, without limitation,
alarm service, window cleaning, elevator maintenance, Building
exterior maintenance and landscaping.
(5) Utilities which benefit all or a portion of the
Premises.
(6) A management and accounting cost recovery equal to
ten percent (10%) of Basic Operating Costs.
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In the event that the Project is not fully occupied during any
fiscal year of the Term as determined by Landlord, an
adjustment shall be made in computing the Basic Operating Cost
for such year so that Basic Operating Cost shall be computed
as though the building had been one hundred percent (100%)
occupied; provided, however, that in no event shall Landlord
be entitled to collect in excess of one hundred percent (100%)
of the total Basic Operating Cost from all of the tenants in
the Project including Tenant.
All costs and expenses shall be determined in accordance with
generally accepted accounting principles which shall be
consistently applied. Basic Operating Cost shall not include
specific costs incurred for the account of, separately billed
to and paid by specific tenants. Notwithstanding anything
herein to the contrary, any instance wherein Landlord, at
Landlord's sole discretion, deems Tenant to be responsible for
any amounts greater than its Proportionate Share, Landlord
shall WITH WRITTEN NOTICE GIVEN TO TENANT, have the right to
allocate costs in any manner Landlord deems appropriate.
B. PAYMENT OF ESTIMATED BASIC OPERATING COST. "Estimated
Basic Operating Cost" for any particular year shall mean
Landlord's estimate of the Basic Operating Cost for such
fiscal year made prior to commencement of such fiscal year as
hereinafter provided. Landlord shall have the right from time
to time to revise its fiscal year and interim accounting
periods so long as the periods as so revised are reconciled
with prior periods in accordance with generally accepted
accounting principles applied in a consistent manner. During
the last month of each fiscal year during the Term, or as soon
thereafter as practicable, Landlord shall give Tenant written
notice of the Estimated Basic Operating Cost for the ensuing
fiscal year. Tenant shall pay Tenant's Proportionate Share of
the Estimated Basic Operating Costs with installments of Base
Rent for the fiscal year to which the Estimated Basic
Operating Costs applies in monthly installments on the first
day of each calendar month during such year, in advance. If at
any time during the course of the fiscal year, Landlord
determines that Basic Operating Cost will apparently vary from
the then Estimated Basic Operating Cost by more than ten
percent (10%), Landlord may, by written notice to Tenant,
revise the Estimated Basic Operating Cost for the balance of
such fiscal year and Tenant shall pay Tenant's Proportionate
Share of the Estimated Basic Operating Cost as so revised for
the balance of the then current fiscal year on the first of
each calendar month thereafter.
C. COMPUTATION OF BASIC OPERATING COST ADJUSTMENT. "Basic
Operating Cost Adjustment" shall mean the difference between
Estimated Basic Operating Cost and Basic Operating Cost for
any fiscal year determined as hereinafter provided. Within one
hundred twenty (120) days after the end of each fiscal year,
as determined by Landlord, or as soon thereafter as
practicable, Landlord shall deliver to Tenant a REASONABLY
DETAILED statement of Basic Operating Cost for the fiscal year
just ended accompanied by a computation of Basic Operating
Cost Adjustment. If such statement shows that Tenant's payment
based upon Estimated Basic Operating Cost is less than
Tenant's Proportionate Share (as defined in the Basic Lease
Information) of Basic Operating Cost, then Tenant shall pay to
Landlord the difference within twenty (20) days after receipt
of such statement. If such statement shows that Tenant's
payments of Estimated Basic Operating Cost exceed Tenant's
Proportionate Share of Basic Operating Costs, then (provided
that Tenant is not in default under this Lease), Landlord
shall pay to Tenant the difference within twenty (20) days of
such statement. If this Lease has been terminated or the Term
hereof has expired prior to the date of such statement, then
the Basic Operating Cost Adjustment shall be paid by the
appropriate party within twenty (20) days after the date of
delivery of the statement. Should this Lease commence or
terminate at any time other than the first day of the fiscal
year, Tenant's Proportionate Share of the Basic Operating Cost
adjustment shall be prorated by reference to the exact number
of calendar days during such fiscal year for which Tenant is
obligated to pay Base Rent.
D. NET LEASE. This shall be a net Lease and Base Rent shall
be paid to Landlord absolutely net of all costs and expenses
except as herein provided. The provisions for payment of Basic
Operating Cost and the Basic Operating Cost Adjustment are
intended to pass on to Tenant and reimburse Landlord for all
costs and expenses of the nature described in Paragraph 7.A.
incurred in connection with ownership and operation of the
Building or Project and such additional facilities now and in
subsequent years as may be REASONABLY determined by Landlord
to be necessary to the Building or Project.
E. TENANT AUDIT. Tenant shall have the right, at Tenant's
expense and upon not less than five (5) days prior written
notice to Landlord, to review at reasonable times, in
Landlord's office, Landlord's books and records applicable to
Tenant's Lease for purposes of verifying Landlord's
calculation of the Basic Operating Cost and Basic Operating
Cost Adjustment.
In the event that Tenant shall dispute the amount set forth in
any statement provided by Landlord under Paragraph 7.B. or
7.C. above, Tenant shall have the right, not later than twenty
(20) days following the receipt of such statement and upon
condition that Tenant shall first deposit with Landlord the
full amount in dispute, to cause Landlord's books and records
with respect to such fiscal year to be audited by certified
public accountants selected by Tenant and subject to
Landlord's reasonable right of approval. The Basic Operating
Cost Adjustment shall be appropriately adjusted on the basis
of such audit. If such audit discloses a liability for a
refund in excess of ten percent (10%) of Tenant's
Proportionate Share of the Basic Operating Cost Adjustment
previously reported, the cost of such audit shall be borne by
Landlord; otherwise, [the cost of such audit shall be paid by
Tenant. If Tenant shall not request an audit in accordance
with the provisions of this Paragraph 7.E. within twenty (20)
days of receipt of Landlord's statement provided pursuant to
Paragraph 7.B. or 7.C., such statement shall be final and
binding for all purposes hereof.
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F. EXCLUSIONS TO OPERATING EXPENSES. OPERATING COSTS
SPECIFICALLY DO NOT INCLUDE THE FOLLOWING: a) PRINCIPAL AND
INTEREST PAYMENTS OF DEBT; b) GROUND LEASE PAYMENTS; c)
DEPRECIATION; d) COSTS PROPERLY CHARGEABLE TO THE CAPITAL
ACCOUNT, EXCEPT FOR CAPITAL EXPENDITURES TO THE EXTENT TO
WHICH THEY REDUCE OPERATING EXPENSES; e) LANDLORD'S COSTS OF
ANY SERVICE SOLD TO ANY TENANT OR OCCUPANT OF THE BUILDING
FOR WHICH LANDLORD IS REIMBURSED AS AN ADDITIONAL CHARGE OVER
AND ABOVE THE RENT PAYABLE WITH ANY TENANT, OTHER THAN BY
VIRTUE OF THE PASS THROUGH OF BASIC OPERATING COSTS TO
TENANTS OF THE BUILDING; f) ATTORNEY FEES, COSTS AND
DISBURSEMENTS INCURRED IN CONNECTION WITH NEGOTIATIONS OR
DISPUTES WITH OTHER TENANTS IN THE BUILDING; g) COST OF ANY
ITEM FOR WHICH LANDLORD IS PAID OR REIMBURSED BY INSURANCE,
WARRANTIES OR CONDEMNATION PROCEEDS; h) EXECUTIVE PARTNER OR
BOARD MEMBER SALARIES; i) MARKETING AND ADVERTISING EXPENSES;
j) REAL ESTATE BROKERS COMMISSIONS; k) THE COST OF INITIAL
CONSTRUCTION OF THE BUILDING, AND ALL BASE BUILDING SYSTEMS,
INCLUDING THE INITIAL PAVING, STRIPING THE PARKING AREA,
LANDSCAPING, SIDEWALKS, CURBS, GUTTERS AND WALKWAYS.
In the event that Tenant shall dispute the amount set forth
in any statement provided by Landlord under Paragraph 7.13.
or 7.C. above, Tenant shall have the right, not later than
ONE HUNDRED AND EIGHTY (180) days following the receipt of
such statement and upon condition that Tenant shall first
deposit with Landlord the full amount in dispute, to cause
Landlord's books and records with respect to such fiscal year
to be audited by certified public accountants selected by
Tenant and subject to Landlord's reasonable right of
approval. The Basic Operating Cost Adjustment shall be
appropriately adjusted on the basis of such audit. If such
audit discloses a liability for a refund in excess of ten
percent (10%) of Tenant's Proportionate Share of the Basic
Operating Cost Adjustment previously reported, the cost of
such audit shall be borne by Landlord; otherwise, the cost of
such audit shall be paid by Tenant. If Tenant shall not
request AND COMPLETE an audit in accordance with the
provisions of this Paragraph 7.E. within ONE HUNDRED AND
EIGHTY (180) days of receipt of Landlord's statement provided
pursuant to Paragraph 7.B. or 7.C., such statement shall be
final and binding for all purposes hereof.
INSURANCE AND
INDEMNIFICATION 8. A. CASUALTY INSURANCE. Landlord agrees to maintain
insurance insuring the Buildings of the Project of which the
Premises are a part, against fire, lightning, extended
coverage, vandalism and malicious mischief in an amount not
less than eighty percent (80%) of the replacement cost
thereof. Such insurance shall be for the sole benefit of
Landlord and under its sole control. Landlord shall not be
obligated to insure any furniture, equipment, machinery,
goods or supplies not covered by this Lease which Tenant may
keep or maintain in the Premises or any leasehold
improvements, additions or alternations which Tenant may make
upon the Premises.
B. LIABILITY INSURANCE. Tenant shall purchase at its own
expense and keep in force during this Lease a policy or
policies of comprehensive liability insurance, including
personal injury and property damage, in the amount of not
less than Five Hundred Thousand Dollars ($500,000.00) for
property damage and Two Million Dollars ($2,000,000.00) per
occurrence for personal injuries or deaths of persons
occurring in or about the Premises and Project. Said policies
shall (1) name Landlord and, if applicable, its agent, and
any party holding an interest to which this Lease may be
subordinated as additional insureds, (2) be issued by an
insurance company acceptable to Landlord and licensed to do
business in the State of California, and (3) provide that
said insurance shall not be canceled unless thirty (30) days
prior written notice shall have been given to Landlord. Said
policy or policies or certificates thereof shall be delivered
to Landlord by Tenant upon commencement of the Lease and upon
each renewal of said insurance.
C. INDEMNIFICATION.
LANDLORD SHALL INDEMNIFY, DEFEND BY COUNSEL REASONABLY
ACCEPTABLE TO TENANT, PROTECT AND HOLD TENANT HARMLESS FROM
AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, LOSSES, COSTS,
DAMAGES, INJURIES OR EXPENSES, INCLUDING REASONABLE
ATTORNEYS' FEES AND COURT COSTS, ARISING OUT OF OR RELATED TO
THE ACTIVE NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD.
NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY
CONTAINER) IN THIS LEASE, LANDLORD SHALL IN NO EVENT BE
LIABLE AND TENANT HEREBY WAIVES ALL CLAIMS AGAINST LANDLORD
FOR ANY LOSS, DAMAGE, INJURY OR DEATH TO OR OF ANY PERSON OR
PROPERLY (INCLUDING WITHOUT LIMITATION PERSONAL PROPERTY)
CAUSED BY THEFT, FIRE, RAIN OR WATER LEAKAGE, OR FROM THE
BREAKAGE, LEAKAGE, OBSTRUCTION OR OTHER DEFECTS OF PIPES,
FIRE SPRINKLERS, WIRES, APPLIANCES, PLUMBING, HVAC OR
LIGHTING FIXTURES, ELECTRICAL OR OTHER SYSTEMS, OR BY ACTS OF
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GOD (INCLUDING WITHOUT LIMITATION FLOOD OR EARTHQUAKE), ACTS
OF A PUBLIC ENEMY, RIOT, STRIKE, INSURRECTION, WAR, COURT
ORDER, REQUISITION OR ORDER OF GOVERNMENTAL BODY OR AUTHORITY
OR FOR ANY DAMAGE OR INCONVENIENCE WHICH MAY ARISE THROUGH
REPAIR, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN PARAGRAPH
10. IN ADDITION, LANDLORD SHALL IN NO EVENT BE LIABLE FOR
INJURY TO TENANT'S BUSINESS OR ANY LOSS OF INCOME OR PROFIT
THEREFROM OR FOR CONSEQUENTIAL DAMAGES. TENANT SHALL
INDEMNIFY, DEFEND BY COUNSEL REASONABLY ACCEPTABLE TO
LANDLORD, PROTECT AND HOLD LANDLORD HARMLESS FROM AND AGAINST
ANY AND ALL CLAIMS, LIABILITIES, LOSSES, COSTS, LOSS OF RENTS,
LIENS, DAMAGES, INJURIES OR EXPENSES, INCLUDING REASONABLE
ATTORNEYS' FEES AND COURT COSTS, ARISING OUT OF OR RELATED TO:
(1) CLAIMS OF INJURY TO OR DEATH OF PERSONS OR DAMAGE TO
PROPERTY OCCURRING OR RESULTING DIRECTLY OR INDIRECTLY FROM
THE USE OR OCCUPANCY OF THE PREMISES BY TENANT OR TENANT'S
PARTIES, OR FROM ACTIVITIES OF TENANT OR TENANT'S PARTIES; (2)
CLAIMS ARISING FROM WORK OR LABOR PERFORMED, OR FOR MATERIALS
OR SUPPLIES FURNISHED TO OR AT THE REQUEST OF TENANT IN
CONNECTION WITH PERFORMANCE OF ANY WORK DONE FOR THE ACCOUNT
OF TENANT WITHIN THE PREMISES OR PROJECT; (3) CLAIMS ARISING
FROM ANY BREACH OR DEFAULT ON THE PART OF TENANT IN THE
PERFORMANCE OF ANY COVENANT CONTAINED IN THIS LEASE; AND (4)
CLAIMS ARISING FROM THE NEGLIGENCE OR INTENTIONAL ACTS OR
OMISSIONS OF TENANT OR TENANT'S PARTIES. THE FOREGOING
INDEMNITY BY TENANT SHALL NOT BE APPLICABLE TO CLAIMS TO THE
EXTENT ARISING FROM THE SOLE NEGLIGENCE OR WILLFUL MISCONDUCT
OF LANDLORD THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE
EXPIRATION OR EARLIER TERMINATION OF THIS LEASE.
D. BOTH LANDLORD AND TENANT MAY CARRY THE INSURANCE
REQUIRED TO BE CARRIED BY EACH PARTY HEREUNDER UNDER A BLANKET
POLICY OF INSURANCE THAT COVERS OTHER LOCATIONS WHERE THE
PARTY AND ITS AFFILIATES CONDUCT BUSINESS, PROVIDED THAT SUCH
BLANKET POLICY SHALL BE ENDORSED TO SPECIFICALLY COVER THE
PREMISES AND SHALL PROVIDE THE SAME AMOUNT AND TYPES OF
COVERAGE FOR THE PREMISES AND TENANT'S ACTIVITIES IN THE
BUILDING THAT WOULD BE PROVIDED BY A SEPARATE POLICY MEETING
THE REQUIREMENTS OF THIS PARAGRAPH 8B.
WAIVER OF
SUBROGATION 9. To the extent permitted by law and without affecting the
coverage provided by insurance required to be maintained
hereunder, Landlord and Tenant each waive any right to recover
against the other (a) damages for injury to or death of
persons, (b) damages to property, (c) damages to the Premises
or any part thereof, or (d) claims arising by reason of the
foregoing. This provision is intended to waive fully, and for
the benefit of each party, any rights and/or claims which
might give rise to a right of subrogation on any insurance
carrier. The coverage obtained by each party pursuant to this
Lease shall include, without limitation, a waiver of
subrogation by the carrier which conforms to the revisions of
this paragraph.
LANDLORD'S
REPAIRS AND
SERVICES 10. Landlord shall at Landlord's expense maintain the structural
soundness of the roof, foundations and exterior walls of the
Building in good repair, reasonable wear and tear excepted.
The term "walls" as used herein shall not include windows,
glass or plate glass, doors, special store fronts or office
entries. The term "roof" as used herein shall not include
skylights, smoke hatches or roof vents. Landlord shall perform
on behalf of Tenant and other tenants of the Project the
maintenance of the public and common areas of the Project
including, but not limited to, the landscaped areas, parking
areas, driveways, the truck staging areas, fire sprinkler
systems, sanitary and storm sewer lines, utility services,
electric and telephone equipment servicing the Building(s),
exterior lighting, and anything which affects the operation
and exterior appearance of the Project, which determination
shall be at Landlord's sole discretion. Tenant shall reimburse
Landlord for all such costs in accordance with Paragraph 7.
Any damage caused by or repairs necessitated by any act of
Tenant may be repaired by Landlord at Landlord's option and at
Tenant's expense. Tenant shall immediately give Landlord
written notice of any defect or need of repairs after which
Landlord shall have reasonable opportunity to repair same.
Landlord's liability with respect to any defects, repairs, or
maintenance for which Landlord is responsible under any of the
provisions of this Lease shall be limited to the cost of such
repairs or maintenance.
TENANT'S
REPAIRS 11. Tenant shall, at Tenant's expense, maintain all parts of the
Premises in a good clean and secure condition promptly making
all necessary repairs and replacements including, but not
limited to, all windows, glass, doors and any special office
entries, walls and wall finishes, floor covering, heating,
ventilating and air conditioning systems, truck doors, dock
bumpers, dock plates and levelers, roofing, plumbing work and
fixtures, down spouts, skylights, smoke hatches and roof
vents. Tenant shall at Tenant's expense also perform necessary
pest extermination and regular removal of trash and debris.
Tenant shall, at its own expense, enter into a regularly
scheduled preventive maintenance/service contract with a
maintenance contractor for servicing all hot water, heating
and air conditioning systems and equipment within or serving
the Premises. The maintenance contractor and the contract must
be approved by Landlord. The service contract must include all
services suggested by the equipment manufacturer within the
operation/maintenance manual, including maintaining the system
and ducts in a weatherproof condition, and must become
effective and a copy thereof delivered to Landlord within
thirty (30) days of the Term Commencement Date. Tenant shall
not damage any demising wall or disturb the integrity and
support provided by any demising wall and shall, at its sole
expense, immediately repair any damage to any demising wall
caused by Tenant or its employees, agents or invitees.
ALTERATIONS 12. Tenant shall not make, or allow to be made, any alterations or
physical additions in, about or to the Premises without
obtaining the prior written consent of Landlord, which consent
shall not be unreasonably withheld with respect to proposed
alterations and additions which (a) comply with all applicable
laws, ordinances, rules and regulations, (b) are in Landlord's
opinion compatible with the Project and its mechanical,
plumbing, electrical, and heating/ventilation/air conditioning
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systems, and (c) in Landlord's opinion will not interfere with
the use and occupancy of any other portion of the Building or
Project by any other tenant or its invitees. NONSTRUCTURAL
ALTERATIONS TOTALLING UNDER $10,000 PER YEAR REQUIRE WRITTEN
NOTIFICATION TO LANDLORD, BUT NOT LANDLORD APPROVAL, SUBJECT
TO REMOVAL UPON TERMINATION AS OUTLINED IN THIS PARAGRAPH 12.
Specifically, but without limiting the generality of the
foregoing, Landlord shall have the right of consent for all
plans and specifications for the proposed alterations or
additions, construction means and methods, any contractor or
subcontractor to be employed on the work of alterations or
additions, and the time for performance of such work. Tenant
shall also supply to Landlord any documents and information
reasonably requested by Landlord in connection with its
consideration of a request for approval hereunder. Tenant must
have Landlord's written approval and all appropriate permits
and licenses prior to the commencement of said alterations and
additions. All alterations and additions permitted hereunder
shall be made and performed by Tenant without cost or expense
to Landlord including any REASONABLE costs or expenses which
Landlord may incur in electing to have an outside agency
review said plans and specifications. Landlord shall have the
right to require Tenant to remove any or all alterations,
additions, improvements and partitions made by Tenant and
restore the Premises to their original condition by the
termination of this Lease, by lapse of time or otherwise, all
at Tenant's expense. All such removals and restoration shall
be accomplished in a good and workmanlike manner so as not to
cause any damage to the Premises or Project whatsoever. If
Landlord so elects, such alterations, physical additions or
improvements shall become the property of Landlord and
surrendered to Landlord upon the termination of this Lease by
lapse of time or otherwise; provided, however, that this
clause shall not apply to trade fixtures or furniture owned by
Tenant. In addition to and wholly apart from its obligation to
pay Tenant's Proportionate Share of Basic Operating Costs,
Tenant shall be responsible for and shall pay prior to
delinquency any taxes or governmental service fees, possessory
interest taxes, fees or charges in lieu of any such taxes,
capital levies, or other charges imposed upon, levied with
respect to or assessed against its personal property, on the
value of its alterations, additions or improvements and on its
interest pursuant to this Lease. To the extent that any such
taxes are not separately assessed or billed to Tenant, Tenant
shall pay the amount thereof as invoiced to Tenant by
Landlord.
SIGNS 13. All signs, notices and graphics of every kind or character,
visible in or from public view or corridors, the common areas
or the exterior of the Premises, shall be subject to
Landlord's prior written approval, which Landlord shall have
the right to withhold in its absolute and sole discretion.
Tenant shall not place or maintain any banners whatsoever or
any window decor in or on any exterior window or window
fronting upon any common areas or service area or upon any
truck doors or man doors without Landlord's prior written
approval which Landlord shall have the right to grant or
withhold in its absolute and sole discretion. Any installation
of signs or graphics on or about the Premises and Project
shall be subject to any applicable governmental laws,
ordinances, regulations and to any other requirements imposed
by Landlord. Tenant shall remove all such signs and graphics
by the termination of this Lease. Such installations and
removals shall be made in such manner as to avoid injury to or
defacement of the Premises, Building or Project and any other
improvements contained therein, and Tenant shall repair any
injury or defacement including, without limitation,
discoloration caused by such installation or removal.
INSPECTION/
POSTING
NOTICES 14. After reasonable notice, except in emergencies where no such
notice shall be required, Landlord, its agents and
representatives, shall have the right to enter the Premises to
inspect the same, to clean, to perform such work as may be
permitted or required hereunder, to make repairs or
alterations to the Premises or Project or to other tenant
spaces therein, to deal with emergencies, to post such notices
as may be permitted or required by law to prevent the
perfection of liens against Landlord's interest in the Project
or to exhibit the Premises to prospective tenants, purchasers,
encumbrances or others, or for any other purpose as Landlord
may deem necessary or desirable; provided, however, that
Landlord shall not unreasonably interfere with Tenant's
business operations. Tenant shall not be entitled to any
abatement of Rent by reason of the exercise of any such right
of entry. Six months prior to the end of the Lease, Landlord
shall have the right to erect on the Premises and/or Project a
suitable sign indicating that the Premises are available for
lease. Tenant shall give written notice to Landlord at least
thirty (30) days prior to vacating the premises and shall meet
with Landlord for a joint inspection of the Premises at the
time of vacating. In the event of Tenant's failure to give
such notice or participate in such joint inspection,
Landlord's inspection at or after Tenant's vacating the
Premises shall conclusively be deemed correct for purposes of
determining Tenant's responsibility for repairs and
restoration.
UTILITIES 15. Tenant shall pay for all water, gas, heat, air conditioning,
light, power, telephone, sewer, sprinkler charges and other
utilities and services used on or from the Premises, together
with any taxes, penalties, surcharges or the like pertaining
thereto, and maintenance charges for utilities and shall
furnish all electric light bulbs, ballasts and tubes. If any
such services are not separately metered to Tenant, Tenant
shall pay a reasonable proportion, as determined by Landlord,
of all charges jointly serving other premises. Landlord shall
not be liable for any damages directly or indirectly resulting
from nor shall the Rent or any monies owed Landlord under this
Lease herein reserved be abated by reason of (a) the
installation, use or interruption of use of any equipment used
in connection with the furnishing of any of the foregoing
utilities and services, (b) failure to furnish or delay in
furnishing any such utilities or services when such failure or
delay is caused by acts of God or the elements, labor
disturbances of any character, any other accidents or other
conditions beyond the reasonable control of Landlord, or (c)
the limitation, curtailment, rationing or restriction on use
of water, electricity, gas or any other form of energy or any
other service or utility whatsoever serving the Premises or
Project. Landlord shall be entitled to cooperate voluntarily
and in a reasonable manner in the efforts of national, state
or local governmental agencies or utility suppliers in
reducing energy or other resource consumption. The obligation
to
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make services available hereunder shall be subject to the
limitations of any such voluntary, reasonable program. SHOULD
AN INTERRUPTION OF SERVICES OR UTILITIES THAT HAS BEEN CAUSED
BY LANDLORD'S NEGLIGENCE OR WILLFUL MISCONDUCT RENDER THE
PREMISES UNTENANTABLE FOR A PERIOD LONGER THAN FORTY EIGHT
(48) HOURS, LANDLORD WILL ABATE BASE RENT FOR EACH 24 HOUR
PERIOD THEREAFTER UNTIL PREMISES CAN, IN LANDLORD'S OPINION,
BE OCCUPIED AGAIN, REDUCED BY TENANT'S PROCEEDS FROM ANY
BUSINESS INTERRUPTION OR OTHER INSURANCE.
SUBORDINATION 16.
TENANT SHALL, UPON LANDLORD'S REQUEST, SUBORDINATE THIS LEASE
TO ANY FIRST LIEN OR GROUND LEASE HEREAFTER PLACED BY LANDLORD
UPON TIRE PREMISES, PROVIDED THE LENDER OR GROUND LESSOR
EXECUTED A NON-DISTURBANCE AGREEMENT ASSURING TENANT THAT,
NOTWITHSTANDING ANY DEFAULT BY LANDLORD TO THE LENDER OR
GROUND LESSOR, OR ANY FORECLOSURE OR DEED IN LIEU THEREOF OR
ANY TERMINATION OF THE GROUND LEASE, TENANT'S RIGHTS UNDER
THIS LEASE SHALL CONTINUE IN FULL FORCE AND EFFECT AND ITS
POSSESSION OF THE DEMISED PREMISES SHALL REMAIN UNDISTURBED
EXCEPT IN ACCORDANCE WITH THE PROVISIONS OF THIS LEASE, IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO TENANT AND ITS
COUNSEL.
FINANCIAL
STATEMENTS 17. At the request of Landlord, Tenant shall provide to Landlord
its current financial statements or other information
discussing financial worth which Landlord shall use solely for
purposes of this Lease and in connection with the ownership,
management and disposition of the property subject hereto.
ESTOPPEL
CERTIFICATES 18. Tenant agrees from time to time within ten (10) days after
request of Landlord, to deliver to Landlord, or Landlord's
designee, an estoppel certificate stating that this Lease is
in full force and effect, the date to which Rent has been
paid, the unexpired portion of this Lease and such other
matters pertaining to this Lease as may be reasonably
requested by Landlord. Failure by Tenant to execute and
deliver such certificate shall constitute an acceptance of the
Premises and acknowledgment by Tenant that the statements
included are true and correct without exception. Landlord and
Tenant intend that any statement delivered pursuant to this
paragraph may be relied upon by any mortgagee, beneficiary,
purchaser or prospective purchaser of the Project or any
interest therein. The parties agree that Tenant's obligation
to furnish such estoppel certificates in a timely fashion is a
material inducement for Landlord's execution of the Lease.
SECURITY
DEPOSIT 19. Tenant agrees to deposit with Landlord upon execution of this
Lease, a Security Deposit as stated in the Basic Lease
Information which sum shall be held by Landlord, without
obligation for interest, as security for the performance of
Tenant's covenants and obligations under this Lease, it being
expressly understood and agreed that such deposit is not an
advance rental deposit or a measure of damages incurred by
Landlord in case of Tenant's default. Upon the occurrence of
any event of default by Tenant, Landlord may, from time to
time, without prejudice to any other remedy provided herein or
provided by law, use such fund to the extent necessary to make
good any arrears of Rent or other payments due to Landlord
hereunder, and any other damage, injury, expense or liability
caused by such event of default, and Tenant shall pay to
Landlord, on demand, the amount so applied in order to restore
the Security Deposit to its original amount. Although the
Security Deposit shall be deemed the property of Landlord, any
remaining balance of such deposit shall be returned by
Landlord to Tenant at such time after termination of this
Lease that all of the Tenant's obligations under this Lease
have been fulfilled.
TENANT'S
REMEDIES 20. Tenant shall look solely to Landlord's interest in the Project
for recovery of any judgment from Landlord. Landlord, or if
Landlord is a partnership, its partners whether general or
limited, or if it is a corporation, its directors, officers or
shareholders, shall never be personally liable for any such
judgment. Any lien obtained to enforce any such judgment and
any levy of execution thereon shall be subject and subordinate
to any lien, mortgage or deed of trust on the Project.
10
ASSIGNMENT
AND
SUBLETTING 21. A. Tenant shall not assign or sublet the Premises or any
part thereof without Landlord's prior written approval, except
as provided herein. If Tenant desires to assign this Lease or
sublet any or all of the Premises, AND PROVIDED TENANT IS NOT
AND HAS NOT BEEN IN MATERIAL DEFAULT DURING THE TERM OF THIS
LEASE, FOR WHICH TENANT HAS RECEIVED WRITTEN NOTICE OF THE
DEFAULT AND TENANT HAS FAILED TO CURE AS PROVIDED IN THIS
LEASE, Tenant shall give Landlord written notice SIXTY (60)
days prior to the anticipated effective date of the assignment
or sublease. Landlord shall then have a period of FIFTEEN
(15) days following receipt of such notice to notify Tenant in
writing that Landlord elects to permit Tenant to assign this
Lease or sublet such space, subject, however, to Landlord's
prior written approval of the proposed assignee or subtenant
and of any related documents or agreements associated with the
assignment or sublease, such consent not to be unreasonably
withheld so long as the use of the Premises by such proposed
assignee or subtenant would be a Permitted Use and would not
in Landlord's opinion MATERIALLY increase occupant density of
the Project, the proposed assignee or subtenant is of sound
financial condition. Written approval by Landlord of the
proposed assignee or subtenant shall be required. Failure by
Landlord to approve a proposed assignee or subtenant shall not
cause a termination of this Lease. LANDLORD SHALL APPROVE,
DISAPPROVE AS DEFINED ABOVE WITHIN FORTY-FIVE (45) DAYS OF
RECEIPT OF TENANT'S FIRST NOTICE OF DESIRE TO ASSIGN OR
SUBLEASE.
B. Any Rent or other consideration realized by Tenant under
any such sublease or assignment in excess of the Rent payable
hereunder, after amortization of (1) the reasonable cost of
any improvements which Tenant has made for the purpose of
assigning or subletting all or part of the Premises and (2)
reasonable subletting and assignment costs, shall be divided
and paid, ten percent (10%) to Tenant, ninety percent (90%) to
Landlord.
C. In any subletting or assignment undertaken by Tenant,
Tenant shall diligently seek to obtain the maximum rental
amount available in the marketplace for such subletting or
assignment.
D. If Tenant is a corporation, a transfer of corporate
shares by sale, assignment, bequest, inheritance, operation of
law or other disposition (including such a transfer to or by a
receiver or trustee in federal or state bankruptcy, insolvency
or other proceedings), so as to result in a change in the
present control of such corporation or any of its parent
corporations by the person or persons owning a majority of
said corporate shares, shall constitute an assignment for
purposes of this paragraph.
E. If Tenant is a partnership, joint venture or other
unincorporated business form, a transfer of the interest of
persons, firms or entities responsible for managerial control
of Tenant by sale, assignment, bequest, inheritance, or
operation of law or other disposition, so as to result in a
change in the present control of said entity and/or a change
in the identity of the persons responsible for the general
credit obligations of said entity shall constitute an
assignment for all purposes of this paragraph.
F. No assignment or subletting by Tenant shall relieve
Tenant of any obligations under this Lease. Any assignment or
subletting which conflicts with the provisions hereof shall be
void.
G. ANY PROVISION IN THIS LEASE TO THE CONTRARY
NOTWITHSTANDING, LANDLORD'S CONSENT SHALL NOT BE REQUIRED FOR
A TRANSFER: (a) TO ANY PERSON OR ENTITY WHO CONTROLS, IS
CONTROLLED BY OR IS UNDER COMMON CONTROL WITH TENANT; (b) TO
ANY CORPORATION RESULTING FROM THE MERGER OR CONSOLIDATION
WITH TENANT (PROVIDED THAT TENANT'S ABILITY TO PERFORM ALL OF
ITS OBLIGATIONS UNDER THIS LEASE ARE IN NO WAY REDUCED, AND
THE OCCUPANCY DENSITY OF THE PREMISES IS NOT MATERIALLY
INCREASED, AS A RESULT OF SUCH MERGER OR CONSOLIDATION); OR
(c) TO ANY PERSON OR LEGAL ENTITY HAVING A CONSOLIDATED NET
WORTH WITH TENANT OF AT LEAST $30,000,000, WHICH ACQUIRES ALL
THE ASSETS OF TENANT AS A GOING CONCERN OF THE BUSINESS BEING
CONDUCTED ON THE PREMISES (EACH OF THE FOREGOING IS
HEREINAFTER REFERRED TO AS A "TENANT AFFILIATE"); PROVIDED
THAT BEFORE SUCH ASSIGNMENT SHALL BE EFFECTIVE, (a) SAID
TENANT AFFILIATE SHALL ASSUME, IN FULL, THE OBLIGATIONS OF
TENANT UNDER THIS LEASE, (b) LANDLORD SHALL BE GIVEN WRITTEN
NOTICE OF SUCH ASSIGNMENT AND ASSUMPTION AND (c) THE USE OF
THE PREMISES BY THE TENANT AFFILIATE SHALL BE AS SET FORTH IN
PARAGRAPH 4. FOR THE PURPOSES OF THIS PARAGRAPH, THE TERM
"CONTROL" MEANS POSSESSION, DIRECTLY OR INDIRECTLY, OF THE
POWER TO DIRECT OR CAUSE THE DIRECTION OF THE MANAGEMENT,
AFFAIRS AND POLICIES OF ANYONE, WHETHER THROUGH THE OWNERSHIP
OF VOTING SECURITIES, BY CONTRACT OR OTHERWISE.
QUIET
ENJOYMENT 22. Landlord represents that it has full right and authority to
enter into this Lease and that Tenant, upon paying the Rent
and performing its other covenants and agreements herein set
forth, shall peaceably and quietly have, hold and enjoy the
Premises for the Term hereof without hindrance or molestation
from Landlord, subject to the terms and provisions of this
Lease.
CONDEMNATION 23. A. If the whole, or any substantial portion of the Project
of which the Premises are a part, should be taken or condemned
for any public use under governmental law, ordinance, or
regulation, or by right of eminent domain, or by private
purchase in lieu thereof, and the taking would prevent or
materially interfere with the Permitted Use of the Premises,
this Lease shall terminate and the Rent shall be abated during
the unexpired portion of this lease, effective when the
physical taking of said Premises shall have occurred.
11
B. If a portion of the Project of which the Premises are a
part should be taken or condemned for any public use under any
governmental law, ordinance, or regulation, or by right of
eminent domain, or by private purchase in lieu thereof, and
this Lease is not terminated as provided in subparagraph 23.A.
above, this Lease shall not terminate, but the Rent payable
hereunder during the unexpired portion of the Lease shall be
reduced to such extent as may be fair and reasonable under all
of the circumstances.
C. Landlord shall be entitled to any and all payment,
income, rent, award, or any interest therein whatsoever which
may be paid or made in connection with such taking or
conveyance and Tenant shall have no claim against Landlord or
otherwise for the value of any unexpired portion of this
Lease. Notwithstanding the foregoing paragraph, any
compensation specifically awarded Tenant for loss of business,
Tenant's personal property, moving cost or loss of goodwill,
shall be and remain the property of Tenant.
CASUALTY
DAMAGE 24. A. If the Premises should be damaged or destroyed by fire,
tornado or other casualty, Tenant shall give immediate written
notice thereof to Landlord. Within thirty (30) days of such
notice, Landlord shall notify Tenant whether in Landlord's
opinion such repairs can be made either (1) within ninety
(90) days, (2) in more than ninety (90) days, but in less than
one hundred eighty (180) days, or (3) in more than one hundred
eighty (180) days from the date of such notice; Landlord's
determination shall be binding on Tenant.
B. If the Premises should be damaged by fire, tornado or
other casualty but only to such extent that rebuilding or
repairs can in Landlord's estimation be completed within
ninety (90) days after the date upon which Landlord is
notified by Tenant of such damage, this Lease shall not
terminate, and Landlord shall at its sole cost and expense
thereupon proceed with reasonable diligence to rebuild and
repair the Premises to substantially the condition in which
they existed prior to such damage, except that Landlord shall
not be required to rebuild, repair or replace any part of the
partitions, fixtures, additions and other improvements which
may have been placed in, on or about the Premises by Tenant.
If the Premises are untenantable in whole or in part following
such damage, the Rent payable hereunder during the period in
which they are untenantable shall be reduced to such extent as
may be fair and reasonable under all of the circumstances.
C. If the Premises should be damaged by fire, tornado or
other casualty, but only to such extent that rebuilding or
repairs can in Landlord's estimation be completed in more than
ninety (90) days but in less than one hundred eighty (180)
days, then Landlord shall have the option of either (1)
terminating the Lease effective upon the date of the
occurrence of such damage, in which event the Rent shall be
abated during the unexpired portion of the Lease, or (2)
electing to rebuild or repair the Premises to substantially
the condition in which they existed prior to such damage
except that Landlord shall not be required to rebuild, repair
or replace any part of the partitions, fixtures, additions and
other improvements which may have been placed in, on or about
the Premises by Tenant. If the Premises are untenantable in
whole or in part following such damage, the Rent payable
hereunder during the period in which they are untenantable
shall be reduced to such extent as may be fair and reasonable
under all of the circumstances. In the event that Landlord
should fail to complete such repairs and rebuilding within one
hundred eighty (180) days after the date upon which Landlord
is notified by Tenant of such damage, such period of time to
be extended for delays caused by the fault or neglect of
Tenant or because of acts of God, acts of public agencies,
labor disputes, strikes, fires, freight embargoes, rainy or
stormy weather, inability to obtain materials, supplies or
fuels, or delay of the contractors or subcontractors due to
such causes or other contingencies beyond the reasonable
control of Landlord, Tenant may at its option terminate this
Lease by delivering thirty (30) days prior written notice of
termination to Landlord as Tenant's exclusive remedy,
whereupon all rights and obligations hereunder shall cease and
terminate.
D. If the Premises should be so damaged by fire, tornado,
or other casualty that rebuilding or repairs cannot in
Landlord's estimation be completed within one hundred eighty
(180) days after the date upon which Landlord is notified by
Tenant of such damage, this Lease shall terminate and the Rent
shall be abated during the unexpired portion of this Lease,
effective upon the date of the occurrence of such damage.
E. Notwithstanding anything herein to the contrary, in the
event that holder of any indebtedness secured by a mortgage or
deed of trust covering the Premises requires that the
insurance proceeds be applied to such indebtedness, then
Landlord shall have the right to terminate this Lease by
delivering written notice of termination to Tenant within
fifteen (15) days after such requirement is made by any such
holder, whereupon all rights and obligations hereunder shall
cease and terminate.
F. The provision of Section 1942, Subdivision 2, and
Section 1933, Subdivision 4, of the Civil Code of California
is superseded by the foregoing.
HOLDING OVER 25. IF IN LANDLORD'S OPINION ACTIVE NEGOTIATION OF A RENEWAL IS
NOT UNDERWAY AND PROGRESSING, AND IF Tenant retains possession
of the Premises or any portion thereof without Landlord's
consent following the expiration of the Lease or sooner
termination for any reason, then Tenant shall pay to Landlord
for each day of such retention ONE AND A HALF TIMES the amount
of the daily rental for the first month prior to the date of
expiration or termination. IN THE EVENT OF A RENEWAL OF THE
LEASE, SAID HOLD OVER MONIES WILL BE APPLIED TO THE RENEWAL
PERIOD AT THE RENEWAL RATE. Tenant shall also indemnify and
hold Landlord harmless from any loss or liability resulting
from delay by Tenant in
12
surrendering the Premises, including, without limitation, any
claims made by any succeeding tenant founded on such delay.
Acceptance of Rent by Landlord following expiration or
termination shall not constitute a renewal of this Lease, and
nothing contained in this paragraph shall waive Landlord's
right of reentry or any other right. Tenant shall be only a
tenant at sufferance, whether or not Landlord accepts any Rent
from Tenant while Tenant is holding over without Landlord's
written consent. Additionally, in the event that upon
termination of the Lease, Tenant has not fulfilled its
obligation with respect to repairs and cleanup of the Premises
or any other Tenant obligations as set forth in this Lease,
then Landlord shall have the right to perform any such
obligations as it deems necessary at Tenant's sole cost and
expense, and the terms of this paragraph shall apply.
DEFAULT 26. A. EVENTS OF DEFAULT. The occurrence of any of the
following shall constitute an event of default on the part of
Tenant:
(2) NONPAYMENT OF RENT. Failure to pay any installment
of Rent or any other amount due and payable hereunder upon the
date when said payment is due, such failure continuing without
cure by payment of the delinquent Rent and late charge or
other obligations for a period of five (5) days after written
notice and demand; provided, however, that except as expressly
otherwise provided herein, Landlord shall not be required to
provide such notice more than twice during the Term, the third
such non-payment constituting default for all purposes hereof
without requirements of notice.
(3) OTHER OBLIGATIONS. Failure to perform any
obligations, agreement or covenant under this Lease other than
those matters specified in subparagraphs (1) and (2) of this
subparagraph 26A, such failure continuing for fifteen (15)
days after written notice of such failure, or such longer
period as Landlord determines to be necessary to remedy such
default, provided that Tenant shall continuously and
diligently pursue such remedy at all times until such default
is cured.
(4) GENERAL ASSIGNMENT. A general assignment by Tenant
for the benefit of creditors.
(5) BANKRUPTCY. The filing of any voluntary petition
in bankruptcy by Tenant, or the filing of an involuntary
petition by Tenant's creditors, which involuntary petition
remains undischarged for a period of thirty (30) days. In the
event that under applicable law, the trustee in bankruptcy or
Tenant has the right to affirm this Lease and continue to
perform the obligation of Tenant hereunder, such trustee or
Tenant shall, in such time period as may be permitted by the
bankruptcy court having jurisdiction, cure all defaults of
Tenant hereunder outstanding as of the date of the affirmance
of this Lease and provide to Landlord such adequate assurances
as may be necessary to ensure Landlord of the continued
performance of Tenant's obligations under this Lease.
(6) RECEIVERSHIP. The employment of a receiver to take
possession of substantially all of Tenant's assets of the
Premises, if such attachment or other seizure remains
undismissed or undischarged for a period of ten (10) days
after the levy thereof.
(7) ATTACHMENT. The attachment, execution or other
judicial seizure of all or substantially all of Tenant's
assets of the Premises, if such attachment or other seizure
remains undismissed or undischarged for a period of ten (10)
days after the levy thereof.
B. REMEDIES UPON DEFAULT.
(1) RENT. All failures to pay any monetary obligation
to be paid by Tenant under this Lease shall be construed as
obligations for payment of Rent.
(2) TERMINATION. In the event of the occurrence of any
event of default, Landlord shall have the right, with or
without notice or demand, to immediately terminate this Lease,
and at any time thereafter recover possession of the Premises
or any part thereof and expel and remove therefrom Tenant and
any other person occupying the same, by any lawful means, and
again repossess and enjoy the Premises without prejudice to
any of the remedies that Landlord may have under this Lease,
or at law or equity by reason of Tenant's default or of such
termination.
(3) CONTINUATION AFTER DEFAULT. Even though Tenant has
breached this Lease and/or abandoned the Premises, this Lease
shall continue in effect for so long as Landlord does not
terminate Tenant's right to possession under Paragraph
26.B.(2) hereof, and Landlord may enforce all its rights and
remedies under this Lease, including, but without limitation,
the right to recover Rent as it becomes due, and Landlord,
without terminating this Lease, may exercise all of the rights
and remedies of a Landlord under Section 1951.4 of the Civil
Code of the State of California or any successor code section.
Acts of maintenance preservation or efforts to lease the
Premises or the appointment of a receiver upon application of
Landlord to protect Landlord's interest under this Lease shall
not constitute an election to terminate Tenant's right to
possession.
13
C. DAMAGES UPON TERMINATION. Should Landlord terminate this
Lease pursuant to the provisions of Paragraph 26.B.(2) hereof,
Landlord shall have all the rights and remedies of a Landlord
provided by Section 1951.2 of the Civil Code of the State of
California, or successor code sections. Upon such termination,
in addition to any other rights and remedies to which Landlord
may be entitled under applicable law, Landlord shall be
entitled to recover from Tenant: (1) the worth at the time of
award of the unpaid Rent and other amounts which had been
earned at the time of termination, (2) the worth at the time
of award of the amount by which the unpaid Rent which would
have been earned after termination until the time of award
exceeds the amount of such Rent loss that the Tenant proves
could have been reasonably avoided, (3) the worth at the time
of award of the amount by which the unpaid Rent for the
balance of the term after the time of award exceeds the amount
of such Rent loss that the Tenant proves could be reasonably
avoided, and (4) any other amount necessary to compensate
Landlord for all the detriment proximately caused by Tenant's
failure to perform its obligations under the lease or which,
in the ordinary course of things, would be likely to result
therefrom. The "worth at the time of award" of the amounts
referred to in (1) and (2) above shall be computed with
interest at the maximum rate allowed by law. The "worth at the
time of award" of the amount referred to in (3) above shall be
computed by discounting such amount at the Federal Discount
Rate of the Federal Reserve Bank of San Francisco at the time
of the award plus one percent (1%).
D. LATE CHARGE. In addition to its other remedies, Landlord
shall have the right without notice or demand to add to the
amount of any payment required to be made by Tenant hereunder,
and which is not paid on or before the date the same is due,
an amount equal to ten percent (10%) of the delinquency for
each month or portion thereof that the delinquency remains
outstanding to compensate Landlord for the loss of the use of
the amount not paid and the administrative costs caused by the
delinquency, the parties agreeing that Landlord's damage by
virtue of such delinquencies would be difficult to compute and
the amount stated herein represents a reasonable estimate
thereof.
E. REMEDIES CUMULATIVE. All rights, privileges and
elections or remedies of the parties are cumulative and not
alternative to the extent permitted by law and except as
otherwise provided herein.
LIENS 27. Tenant shall keep the premises free from liens arising out of
or related to work performed, materials or supplies furnished
or obligations incurred by Tenant or in connection with work
made, suffered or done by Tenant in or on the Premises or
Project. In the event that Tenant shall not, within ten (10)
days following the imposition of any such lien, cause the same
to be released of record by payment or posting of a proper
bond, Landlord shall have, in addition to all other remedies
provided herein and by law, the right, but not the obligation,
to cause the same to be released by such means as it shall
deem proper, including payment of the claim giving rise to
such lien. All sums paid by Landlord on behalf of Tenant and
all expenses incurred by Landlord in connection therefore
shall be payable to Landlord by Tenant on demand with interest
at the maximum rate allowable by law. Landlord shall have the
right at all times to post and keep posted on the Premises any
notices permitted or required by law, or which Landlord shall
deem proper, for the protection of Landlord, the Premises, the
Project and any other party having an interest herein, from
mechanics' and materialmen's liens, and Tenant shall give
Landlord not less than ten (10) business days prior written
notice of the commencement of any work in the Premises or
Project which could lawfully give rise to a claim for
mechanics' or materialmen's lien.
TRANSFERS BY
LANDLORD 29. In the event of a sale or conveyance by Landlord of the
Project, the same shall operate to release Landlord from any
future liability upon any of the covenants or conditions,
express or implied, herein contained in favor of Tenant, and
in such event Tenant agrees to look solely to the
responsibility of the successor in interests of Landlord in
and to this Lease. This Lease shall not be affected by any
such sale and Tenant agrees to attorn to the purchaser or
assignee.
14
RIGHT OF
LANDLORD TO
PERFORM
TENANT'S
COVENANTS 30. All covenants and agreements to be performed by Tenant under
any of the terms of this Lease shall be performed by Tenant,
at Tenant's sole cost and expense, and without any abatement
of Rent. If Tenant shall fail to pay any sum of money other
than Rent, required to be paid by it hereunder, or shall fail
to perform any other act on its part to be performed
hereunder, and such failure shall continue for ten (10) days
after notice thereof by Landlord, Landlord may, but shall not
be obligated to do so, and without waiving or releasing Tenant
from any obligations of the Tenant, make any such payment or
perform any such act on the Tenant's part to be made or
performed. All sums so paid by Landlord and all necessary
incidental costs together with interest thereon at the maximum
rate permitted by law from the date of such payment by the
Landlord shall be payable to Landlord on demand, and Tenant
covenants to pay such sums, and Landlord shall have, in
addition to any other right or remedy of Landlord, the same
right and remedies in the event of the nonpayment thereof by
Tenant as in the case of default by Tenant in the payment of
Rent.
WAIVER 31. If either Landlord or Tenant waives the performance of any
term, covenant or condition contained in this Lease, such
waiver shall not be deemed to be a waiver of any subsequent
breach of the same or any other term, covenant or condition
contained herein. The acceptance of rent by Landlord shall not
constitute a waiver of any preceding breach by Tenant of any
term, covenant or condition of this Lease, regardless of
Landlord's knowledge of such preceding breach at the time
Landlord accepted such Rent. Failure by Landlord to enforce
any of the terms, covenants or conditions of this Lease for
any length of time shall not be deemed to waive or to decrease
the right of Landlord to insist thereafter upon strict
performance by Tenant. Waiver of Landlord of any term,
covenant or condition contained in this Lease may only be made
by a written document signed by Landlord.
NOTICES 32. Each provision of this Lease or of any applicable governmental
laws, ordinances, regulations and other requirements with
reference to the sending, mailing or delivery of any notice or
the making of any payment by Landlord or Tenant to the other
shall be deemed to be complied with when and if the following
steps are taken:
A. All Rent and other payments required to be made by
Tenant to Landlord hereunder shall be payable to Landlord at
the address set forth in the Basic Lease Information, or at
such other address as Landlord may specify from time to time
by written notice delivered in accordance herewith. Tenant's
obligation to pay Rent and any other amounts to Landlord under
the terms of this Lease shall not be deemed satisfied until
such Rent and other amounts have been actually received by
Landlord.
B. All notices, demands, consents and approvals which may
or are required to be given by either party to the other
hereunder shall be in writing and shall be deemed to have been
fully given when deposited in the United States mail,
certified or registered, postage prepaid, or express mail or
confirmed facsimile and addressed to the party to be notified
at the address for such party specified in the Basic Lease
Information or to such other place as the party to be notified
may from time to time designate by at least fifteen (15) days
notice to the notifying party. Tenant appoints as its agent to
receive the service of all default notices and notice of
commencement of unlawful detainer proceedings the persons
named in the Basic Lease Information in addition to the person
in charge of or apparently in charge of or occupying the
Premises at the time, and, if there is no such person, then
such service may be made by mailing to the persons named in
the Basic Lease Information and attaching the same on the main
entrance of the Premises.
ATTORNEYS'
FEES 33. In the event either party places the enforcement of this
Lease, or any part thereof, or the collection of any Rent due,
or to become due hereunder, or recovery of the possession of
the Premises in the hands of an attorney or files suit upon
the same, the prevailing party shall recover its reasonable
attorneys' fees and court costs.
SUCCESSORS
AND ASSIGNS 34. This Lease shall be binding upon and inure to the benefit of
Landlord, its successors and assigns, and shall be binding
upon and inure to the benefit of Tenant, its successors, and
to the extent assignment may be approved by Landlord
hereunder, Tenant's assigns.
FORCE MAJEURE 35. Whenever a period of time is herein prescribed for action to
be taken by Landlord, Landlord shall not be liable or
responsible for, and there shall be excluded from the
computation for any such period of time, any delays due to
strike, riots, acts of God, shortages of labor or materials,
war, governmental laws, regulations or restrictions or any
other causes of any kind whatsoever which are beyond the
control of Landlord.
MISCELLANEOUS 36. A. The term "Tenant" or any pronoun used in place thereof
shall indicate and include the masculine or feminine, the
singular or plural number, individuals, firms or corporations,
and their and each of their respective successors, executors,
administrators and permitted assigns, according to the context
hereof.
B. Time is of the essence regarding this Lease and all of
its provisions.
C. This Lease shall in all respects be governed by the laws
of the State of California.
D. This Lease, together with its exhibits, contains all the
agreements of the parties hereto and supersedes any previous
negotiations.
15
E. There have been no representations made by the Landlord
or understandings made between the parties other than those
set forth in this Lease and its exhibits.
F. This Lease may not be modified except by a written
instrument by the parties hereto.
G. If, for any reason whatsoever, any of the provisions
hereof shall be unenforceable or ineffective, all of the other
provisions shall be and remain in full force and effect.
ONE TIME RIGHT
TO CANCEL 37. Tenant shall be granted a one time right to cancel this Lease,
provided that Tenant is not, and has not been, in material
default throughout this Lease, for which Tenant has received
written notice of the default and Tenant has failed to cure as
provided in this Lease. Termination will occur on the first
day of the thirty-seventh (37th) month only if activated by
Tenant giving Landlord at least one hundred eighty (180) days
prior written notice of its intent together with a payment of
all unamortized costs incurred by Landlord for the tenant
improvements outlined in Exhibit C and Exhibit C-l attached
hereto, including permits and space planning costs and using
straight line amortization, plus three months rent equivalent
to the 37th, 38th and 39th months base rent plus operating
expenses ("Cancellation Fee"). Nonpayment of the 37th month
base rent equivalent from the Cancellation Fee at time of said
notice, lack of written notification per the above outlined
schedule, or any material event of default whatsoever during
the term of this Lease for which Tenant has received written
notice of the default and Tenant has failed to cure as
provided in this Lease renders this paragraph null and void.
The balance of the Cancellation Fee (the unamortized
construction costs plus the 38th and 39th month base rent
equivalent plus the operating costs for the 37th through the
39th month) shall be due on the effective date of termination.
38. LEASE EFFECTIVE DATE. Submission of this instrument for
examination or signature by Tenant does not constitute a
reservation or option for lease, and it is not effective as a
lease or otherwise until execution by Landlord and Tenant.
IN WITNESS WHEREOF, the parties hereto have executed this Lease according to the
dates listed below.
"Landlord" "Tenant"
SPIEKER PROPERTIES, L. P., INTUIT INC.,
a California limited partnership a Delaware corporation
BY: SPIEKER PROPERTIES, INC. BY: /s/ DAVID A. KINSER
a Maryland Corporation ---------------------------
Its: General Partner David A. Kinser
Its: Senior Vice President,
Operations
By: /s/ RICHARD L. ROMNEY
--------------------------
Richard L. Romney
Senior Vice President
Date: 7/14/97
16
EXHIBIT "A"
PROJECT AND BUILDING
Not to scale
West Building-5950 Nancy Ridge Drive
East Building-6060 Nancy Ridge Drive
[FLOOR PLAN]
SITE PLAN BUILDING 2 & 3 (LOTS 102 & 103)
17
EXHIBIT "B"
PREMISES
Floor plan of the subject Premises located at 6060 Nancy Ridge Drive, Suite B,
San Diego, California
Not to scale
[FLOOR PLAN]
18
EXHIBIT "C"
TENANT IMPROVEMENTS AND SPECIFICATIONS
Landlord will contribute Three hundred and three thousand dollars ($303,000)
("Landlord's Contribution") toward mutually acceptable tenant improvements
detailed as follows. Tenant is required to pay prior to occupancy, any costs for
Tenant's work which exceeds the total of Landlord's Contribution. Landlord will
cause to be constructed approximately 9,200 rentable square feet of improved
office area per the attached Exhibit C-l to include a reception, conference
room, 3 private offices, 2 large open office areas, duplication room, mail room,
computer/printing room storage, lunch room, AL room, storage and two (2) large
rest rooms. AS A MATERIAL INDUCEMENT TO LANDLORD'S CONTRIBUTION TOWARDS TENANT
IMPROVEMENT COSTS, TENANT HEREBY AGREES TO REMOVE, AT TENANT'S SOLE COST UPON
TERMINATION OR OTHER SUCH END TO THIS LEASE, OFFICE AREA IMPROVEMENTS OF
LANDLORD'S CHOICE IN EXCESS OF 10% OF THE PREMISES RENTABLE AREA. IN THIS CASE
OFFICE AREA OVER 6,000 SQUARE FEET IS SUBJECT TO REMOVAL AT TENANT'S COST AND
AT LANDLORD'S OPTION.
The OFFICE AREA WILL HAVE THE FOLLOWING FINISH:
- heating, ventilation and air-conditioning throughout
- acoustical tile ceiling with batt insulation above
- fire sprinklers
- recessed fluorescent lighting (standard office
footcandle)
- painted walls with building standard paint (insulation
in all perimeter and restroom walls)
- carpet, VCT or vinyl in all office areas ($12.50/sq.yd.
building standard allowance; color selection by Tenant)
- convenience electrical-120 volt power per code
requirements, up to two (2) dedicated circuits and telephone
outlets, mud ring only for phones
- solid core wood doors and metal door frames
- 2 rest rooms each to contain one sink and one water
closet
THE WAREHOUSE WILL BE IMPROVED AS FOLLOWS:
- full height demising wall separating adjacent tenant
- Metal Halide HID lighting (20-25 footcandles)
- electrical service with transformer to step down from
480 (not to exceed 200 amps of 120/280V power)
- sealed concrete floor
- single coat while paint on walls
- separate gas and electric meters
- ESFR sprinklers provided in warehouse-stacking of
materials and all racking systems are the sole responsibility
of Tenant and must be in conformance to ESFR type sprinklers
and City of San Diego guidelines
- Eight (8) hydrolic Rite Hite dock levelers without
dock locks, at locations determined by Tenant, cost not to
exceed $5,400 per unit.
Any additions or modifications to the improvements must be approved in writing
by Landlord. Any increase in cost, including the cost of design, as a result of
such addition or modification shall be acknowledged by Tenant in writing and
paid to Landlord within 30 days of occupancy. Any delay in construction caused
by these changes which extends the completion of the improvements shall not
alter the Commencement Date of the Lease.
Landlord appoints Landlord's Representative to act for Landlord and Tenant
appoints Tenant's Representative to act for Tenant in all matters covered by
this Work Letter. All inquires, requests, instructions, authorizations, and
other communications with respect the matters covered by this Work Letter will
be made to Landlord's Representative or Tenant's Representative, as the case may
be. Tenant will not make any inquires of or requests to, and will not give any
instructions or authorizations to, any other employee or agent of Landlord,
including Landlord's architect, engineers, or contractors or any of their agents
or employees, with regard to matters covered by this Work Letter. Either party
may change its Representative under this Work Letter at any time with three (3)
days' prior written notice to the other party.
Tenant's Representative: Steve Crossley
Landlord's Representative: Tina Ravizza
Space Planner: Sean Tracy-Pacific Cornerstone Architects
Contractor: R. G. Petty Contracting
TENANT'S TAKING POSSESSION OF THE PREMISES AND ACCEPTANCE OF THE PREMISES SHALL
NOT CONSTITUTE A WAIVER OF ANY WARRANTY OR OF ANY DEFECT IN REGARD TO
WORKMANSHIP OR MATERIAL OF THE BUILDING AND OTHER IMPROVEMENTS THAT ARE PART OF
THE PREMISES ("CONSTRUCTION DEFECT"). IF LANDLORD DOES NOT ASSIGN ANY AND ALL
WARRANTIES FOR THE EQUIPMENT ACRD CONSTRUCTION, TENANT SHALL HAVE SIX (6) MONTHS
OR THE ACTUAL APPLICABLE WARRANTY PERIOD AFTER IT ERAS TAKEN POSSESSION OF THE
PREMISES WITHIN WHICH TO NOTIFY LANDLORD OF ANY CONSTRUCTION DEFECT EXCEPT FOR
LATENT DEFECTS. LANDLORD SHALL HAVE A COMMERCIALLY REASONABLE TIME FRAME TO
CORRECT OR REMEDY ANY CONSTRUCTION DEFECT.
19
EXHIBIT "C-1"
TENANT IMPROVEMENTS AND SPECIFICATIONS
OFFICE AREA ONLY
FLOOR PLAN FOR: INTUIT 60585 S.F.
20
EXHIBIT "D"
SIGNAGE CRITERIA
Uniform signage subject to Landlord's approval is allowed above Tenant's
suite entrance. Monument signage is being considered for the project, and if
approved, Tenant will be offered a portion of the monument sign allocated for
Tenant signage.
21
EXHIBIT "E"
SUMMARY OF COMPREHENSIVE LAND USE PLAN ("CLUP")
Tenant hereby acknowledges it has been made aware of a comprehensive land
use plan created and administered by San Diego Association of Governments
("SANDAG") adopted in October 1990 and amended in 1992, which is subject to
further amendment, attached in summary form below. This is provided for
informational purposes only. Further detail regarding the CLUP is available from
SANDAG.
CLUP
Comprehensive Land Use Plan
1990
[PHOTOGRAPH OF JET FIGHTER PLANE]
Naval Air Station Miramar
San Diego, California
AIRPORT NOISE/LAND USE COMPATIBILITY MATRIX
IMPLEMENTATION DIRECTIVES
All the uses specified are "compatible" up to the noise level indicated.
Specified uses are also allowed as "conditionally compatible" in the noise
levels shown if two specific conditions are met and certified by the local
general purpose agency:
- - Proposed buildings will be noise attenuated to the level shown on the
matrix based on an acoustical study submitted along with building plans.
- - In the case of discretionary actions, such as approval of subdivisions,
zoning changes, or conditional use permits, an aviation easement for noise
shall be required to be recorded with the County Recorder as a condition of
approval of the project. A copy shall also be filed with the affected
airport operator. For all property transactions, appropriate legal notice
shall be given to all purchasers, lessees and renters of property in
"conditionally compatible" areas which clearly describes the potential for
impacts from airplane noise associated with airport operations. Notice will
also be provided as required on the State Real Estate Disclosure form.
Identified uses proposed in noisier areas than the level indicated on the matrix
are considered "incompatible."
The directives below relate to the specific "conditionally compatible" land use
categories identified by number on the matrix.
3. New schools, preschools and libraries located within the CNEL 60-65
contours must be subjected to an acoustical study to assure that interior
levels will not exceed CNEL 45.
4. New residential and related uses located within the CNEL 60-65 contours
must be subjected to an acoustical study to assure that interior levels
will not exceed CNEL 45. Appropriate legal notice shall be provided to
purchasers, lessees, and renters of properties in this conditionally
compatible zone in the manner previously described.
"Residential hotels" are defined as those that have 75% or more of
accommodations occupied by permanent guests (staying more than 30 days) or
those hotels which have at least 50 percent of their accommodations
containing kitchens.
5. Transient Lodging is defined as hotels and motels, membership lodgings (Y's
etc.), suite or apartment hotels, hotels, or other temporary residence
units, not defined as residential hotels, above. Within the CNEL 60-70
contours, buildings must be subjected to an acoustical study to assure that
interior levels do not exceed CNEL 45. Appropriate legal notice shall be
provided to purchasers, lessees, and renters of properties in this
conditionally compatible zone in the manner previously described.
6. Office buildings include many types of office and service uses: business
and business services; finance, insurance, real estate; personal services;
professional (medical, legal and educational); and government, research and
development and others. Within the CNEL 65-70 contours, buildings must be
subjected to an acoustical study to assure that interior levels do not
exceed CNEL 50. Appropriate legal notice shall be provided to purchasers,
lessees, and renters of properties in this conditionally compatible zone in
the manner previously described.
8. For new commercial retail uses located within the CNEL 65-75 contours,
buildings must be subjected to an acoustical study to assure that interior
levels do not exceed CNEL 50. Appropriate legal notice shall be provided to
purchasers, lessees, and renters of properties in this conditionally
compatible zone in the manner previously described.
22
WHAT IS THE CLUP?
The Naval Air Station (NAS) Miramar Comprehensive Land Use Plan (CLUP)
represents Navy and community recommendations for achieving compatible
development near the air station. The CLUP was prepared by the San Diego
Association of Governments (SANDAG) under authority of Article 3.5 of the
California Public Utilities Code. The CLUP also incorporates recommendations of
the Navy's Air Installation Compatible Use Zones (AICUZ) program, part of a
nation-wide planning effort by the Department of Defense to look at accident
potential and noise impacts around each military air installation in the United
States. The goals of the CLUP are to:
* Protect NAS Miramar from incompatible land uses;
* Provide criteria for the orderly growth of the area surrounding the
air station;
* Safeguard the general welfare of those inhabitants within the vicinity
of the air station by protecting them from the adverse effects of
aircraft noise and accident potential; and
* Ensure that no obstructions or other hazards affect navigable
airspace.
WHY IS THERE A PROBLEM?
Many military and civilian airfields were originally constructed in the open
countryside. Over the years pressures to house a growing population meant people
tended to move onto land near airfields. This nearby land normally has
established access routes, and in many cases offers the advantages of living or
working close to a major employment base. Meanwhile the level of air traffic has
increased. These counteracting trends can cause problems for the air facility as
well as local residents. Specifically, problems arise when use of the land is
not controlled for compatibility with air operations.
Although noise impact areas no longer grow at rates experienced in the 1970's
(and have actually decreased at NAS Miramar), the land near all airfields will
continue to have high noise levels and potential for aircraft accidents. Land
near airfields is suitable for certain types of development, such as agriculture
or industrial uses, but may not be suitable for other types of development. Land
near NAS Miramar consists of a mix of residential, commercial and industrial
uses. For the most part, these developments are considered compatible with the
current land use plan.
COMMUNITY PARTICIPATION
Land use compatibility is a shared concern of the Navy, the public, and the
local government agencies who have planning and zoning authority. The decision
makers for the local government have the key responsibility for taking actions
that preserve land use compatibility. The cooperative action of all parties
helps to resolve land use compatibility problems.
NAVY ROLE IN THE ECONOMY
More than 11,000 military and 2,500 civilian personnel work at NAS Miramar.
Nearly 2,500 bachelor and 615 married military personnel (with 1,000 dependents)
live at the air facility. An additional 1800 military, with 5,500 dependents
live in military housing off station with the rest living in the surrounding
communities. All totalled -- military, civilians and dependents -- NAS Miramar
has an extended family of nearly 30,000.
NAS Miramar is part of the naval complex in San Diego County. Over 175,000
Department of Defense personnel work in San Diego with a total economic impact
to the community of $9.5 billion annually. NAS Miramar accounts for over $700
million of this total. Overall, one in five dollars in the San Diego economy is
a Navy dollar.
INSTALLATION MISSION
NAS Miramar is the home of the jet fighter and early warning aircraft of the
Pacific Fleet. The mission of the station is to maintain and operate facilities
and provide services and materials to support operations of aviation activities
and units of the operating forces of the Navy.
WHAT IS NAS MIRAMAR DOING?
The people stationed at NAS Miramar are aware of their responsibility to
minimize noise levels and hazards for the residents of nearby communities. Since
1974, noise complaints at NAS Miramar have decreased from a high of over 2,000
to 210 in 1991. This decrease resulted from the installation of hush houses to
suppress ground engine runups, noise abatement procedures, and changes in
aircraft mix.
MORE INFORMATION
Copies of the NAS Miramar CLUP may be obtained from SANDAG. Information on
height restrictions and obstruction determination can be obtained from the
Federal Aviation Administration or NAS Miramar. Information on land use
compatibility may be obtained from the Community Planning Liaison Office at NAS
Miramar.
NAS Miramar Community Planning Liaison Office
NOISE COMPLAINTS Code: 00M, NAS Miramar
(619) 537-4277 San Diego, CA 92145-5000
(619) 537-1235
San Diego Association of Governments Federal Aviation Administration
401 B Street, Suite 800 13006 Aviation Blvd.
San Diego, CA 92101 Hawthorne, CA 90261
(619) 595-5300 (310) 297-1667
23
[CLUP COMPOSITE MAP GRAPHIC]
CLUP Area
The NAS Miramar CLUP Composite Map shows a combination of noise and Accident
Potential Zones (APZs). The noise descriptor used in this study is CNEL, which
stands for Community Noise Equivalent Level. CNEL is the weighted average sound
level for a 24-hour day. It is calculated by weighing evening and night
operations five and ten times more than day operations, respectively, to adjust
for the increased irritation caused by noise during evening and night hours.
The depicted noise footprint ranges from 60 dB CNEL to 75 dB CNEL. The Accident
Potential Zones represent areas that are overflown by aircraft and, therefore,
more susceptible to accidents. The three APZs are APZ II, APZ I, and the Clear
Zone; each progressively closer to the runway and potentially of more concern.
The Land Use Compatibility Guidelines for noise and APZs promote compatible
development near the air station. The guidelines recommend restricting noise
sensitive development in the high noise zones, and restricting population
density within the APZs. Zones of highest noise and accident potential have the
smallest range of compatible land use.
[VICINITY MAP]
Heights and Obstructions
In addition to noise and APZ considerations, height restrictions are necessary
to insure that no object will interfere with the safe operation of aircraft or
deny operational capability of the air station. Any development proposal that
includes an object over 200 feet above ground level (AGL) or which
penetrates the 100:1 slope extending 20,000 feet from the nearest point of the
nearest runway must be submitted to the Federal Aviation Administration (FAA)
for an obstruction evaluation. SANDAG and NAS Miramar must also be notified of
these proposals by the applicant. The following should also be examined for
compatibility:
- Uses that release into the air any substance that would impair
visibility or otherwise interfere with the operation of aircraft (e.g., dust,
smoke, or steam).
- Uses which emit or reflect light that would interfere with aircrew
vision.
- Uses that produce emissions which would interfere with aircraft
communications systems, navigation systems or other electrical systems.
- Uses which attract birds, such as (but not limited to) sanitary
landfills, maintenance of feed stations, growing certain types of vegetation,
etc.
24
Airport Noise/Land Use Compatibility Matrix
This matrix should be used with reference to the Implementation Directives
shown on the reverse
[ ] COMPATIBLE
The outdoor community noise equivalent level in sufficiently attenuated by
conventional construction that the indoor noise level is acceptable, and
both indoor and outdoor activities associated with the land use may be
carried out with essentially no interference from aircraft noise.
[45] CONDITIONALLY COMPATIBLE
The outdoor community noise equivalent level will be attenuated to the
indoor level shown, and the outdoor noise level is acceptable for
associated outdoor activities.
[ ] INCOMPATIBLE
The community noise equivalent level is severe. Although extensive
mitigation techniques could make the indoor environment acceptable for
performance of activities the outdoor environment would be intolerable
for outdoor activities associated with the land use.
Land Use Compatibility In Accident Potential Zones
(1) Residential land uses include single family, duplex, mobile homes,
multi-family, and retirement homes.
* See 1992 CLUP revision for siting of flammable, hazardous, and toxic
materials within the APZs.
** It is suggested that lot coverage in APZ1 should be less than 25%; and less
than 40% in APZ2.
For further information on determining compatibility in APZs, please see
the NAS Miramar CLUP
[ ] COMPATIBLE
[ ]
[50 or fewer ] CONDITIONAL COMPATIBLE
[Persons/Acre ]
[ ] INCOMPATIBLE
[ ]
25
EXHIBIT A
INDUSTRIAL LEASE
RULES AND REGULATIONS
1. Driveways, sidewalks, halls, passages, exits, entrances, elevators,
escalators and stairways shall not be obstructed by tenants or used by
tenants for any purpose other than for ingress to and egress from their
respective premises. The driveways, sidewalks, halls, passages, exits,
entrances, elevators and stairways are not for the use of the general
public and Landlord shall in all cases retain the right to control and
prevent access thereto by all persons whose presence, in the judgment of
Landlord, shall be prejudicial to the safety, character, reputation and
interests of the Building, the Project and its tenants, provided that
nothing herein contained shall be construed to prevent such access to
persons with whom any tenant normally deals in the ordinary course of such
tenant's business unless such persons are engaged in illegal activities.
No tenant, and no employees or invitees of any tenant, shall go upon the
roof of any Building, except as authorized by Landlord.
2. No sign, placard, banner, picture, name, advertisement or notice, visible
from the exterior of the Premises or the Building or the common areas of
the Building shall be inscribed, painted, affixed, installed or otherwise
displayed by Tenant either on its Premises or any part of the Building or
Project without the prior written consent of Landlord in Landlord's sole
and absolute discretion. Landlord shall have the right to remove any such
sign, placard, banner, picture, name, advertisement, or notice without
notice to and at the expense of Tenant, which were installed or displayed
in violation of this rule. If Landlord shall have given such consent to
Tenant at any time, whether before or after the execution of Tenant's
Lease, such consent shall in no way operate as a waiver or release of any
of the provisions hereof or of the Lease, and shall be deemed to relate
only to the particular sign, placard, banner, picture, name, advertisement
or notice so consented to by Landlord and shall not be construed as
dispensing with the necessity of obtaining the specific written consent of
Landlord with respect to any other such sign, placard, banner, picture,
name, advertisement or notice.
All approved signs or lettering on doors and walls shall be printed,
painted, affixed or inscribed at the expense of Tenant by a person or
vendor approved by Landlord and shall be removed by Tenant at the time of
vacancy at Tenant's expense.
3. The directory of the Building or Project will be provided exclusively for
the display of the name and location of tenants only and Landlord reserves
the right to charge for the use thereof and to exclude any other names
therefrom.
4. No curtains, draperies, blinds, shutters, shades, screens or other
coverings, awnings, hangings or decorations shall be attached to, hung or
placed in, or used in connection with, any window or door on the Premises
without the prior written consent of Landlord. In any event with the prior
written consent of Landlord, all such items shall be installed inboard of
Landlord's standard window covering and shall in no way be visible from
the exterior of the Building. All electrical ceiling fixtures hung in
offices or spaces along the perimeter of the Building must be fluorescent
or of a quality, type, design, and bulb color approved by Landlord. No
articles shall be placed or kept on the window sills so as to be visible
from the exterior of the Building. No articles shall be placed against
glass partitions or doors which Landlord considers unsightly from outside
Tenant's Premises.
5. Each tenant shall be responsible for all persons for whom it allows to
enter the Building or the Project and shall be liable to Landlord for all
acts of such persons.
Landlord and its agents shall not be liable for damages for any error
concerning the admission to, or exclusion from, the Building or the
Project of any person.
During the continuance of any invasion, mob, riot, public excitement or
other circumstance rendering such action advisable in Landlord's opinion,
Landlord reserves the right (but shall not be obligated) to prevent access
to the Building and the Project during the continuance of that event by
any means it considers appropriate for the safety of tenants and
protection of the Building, property in the Building and the Project.
6. Tenant shall not alter any lock or access device or install a new or
additional lock or access device or bolt on any door of its Premises,
without the prior written consent of Landlord. If Landlord shall give its
consent, Tenant shall in each case furnish Landlord with a key for any
such lock. Tenant, upon the termination of its tenancy, shall deliver to
Landlord the keys for all doors which have been furnished to Tenant, and
in the event of loss of any keys so furnished, shall pay Landlord
therefor.
7. The restrooms, toilets, urinals, wash bowls and other apparatus shall not
be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown into them.
The expense of any breakage, stoppage, or damage resulting from violation
of this rule shall be borne by the tenant who, or whose employees or
invitees, shall have caused the breakage, stoppage, or damage.
8. Tenant shall not use or keep in or on the Premises, the Building or the
Project any kerosene, gasoline, or inflammable or combustible fluid or
material except in strict accordance with the terms of the Lease.
9. Tenant shall not use, keep or permit to be used or kept in its Premises
any foul or noxious gas or substance. Tenant shall not allow the Premises
to be occupied or used in a manner offensive or objectionable to Landlord
or other occupants of the Building by reason of noise, odors and/or
vibrations or interfere in any way with other tenants or those having
business therein, nor shall any animals or birds be brought or kept in or
about the Premises, the Building, or the Project.
10. Except with the prior written consent of Landlord, Tenant shall not sell,
or permit the sale, at retail, of newspapers, magazines, periodicals,
theater tickets or any other goods or merchandise in or on the Premises,
nor shall Tenant carry on, or permit or allow any employee or other person
to carry on, the business of stenography, typewriting or any similar
business in or from the Premises for the service or accommodation of
occupants of any other portion of the Building, or the business of a
public barber shop, beauty parlor, nor shall the Premises be used for any
illegal, improper, immoral or objectionable purpose, or any business or
activity other than that specifically provided for in such Tenant's Lease.
Tenant shall not accept hairstyling, barbering, shoeshine, nail, massage
or similar services in the Premises or common areas except as authorized
by Landlord.
11. If Tenant requires telegraphic, telephonic, telecommunications, data
processing, burglar alarm or similar services, it shall first obtain, and
comply with, Landlord's instructions in their installation. The cost of
purchasing, installation and maintenance of such services shall be borne
solely by Tenant.
Exhibit A - Page 1
12. Landlord will direct electricians as to where and how telephone, telegraph
and electrical wires are to be introduced or installed. No boring or
cutting for wires will be allowed without the prior written consent of
Landlord. The location of burglar alarms, telephones, call boxes and other
office equipment affixed to the Premises shall be subject to the prior
written approval of Landlord.
13. Tenant shall not install any radio or television antenna, satellite dish,
loudspeaker or any other device on the exterior walls or the roof of the
Building, without Landlord's consent. Tenant shall not interfere with
radio or television broadcasting or reception from or in the Building, the
Project or elsewhere.
14. Tenant shall not mark, or drive nails, screws or drill into the
partitions, woodwork or drywall or in any way deface the Premises or any
part thereof. Tenant shall not lay linoleum, tile, carpet or any other
floor covering so that the same shall be affixed to the floor of its
Premises in any manner except as approved in writing by Landlord. The
expense of repairing any damage resulting from a violation of this rule or
the removal of any floor covering shall be borne by the tenant by whom, or
by whose contractors, employees or invitees, the damage shall have been
caused.
15. Tenant shall not place a load upon any floor of its Premises which exceeds
the load per square foot which such floor was designed to carry or which
is allowed by law.
Business machines and mechanical equipment belonging to Tenant which cause
noise or vibration that may be transmitted to the structure of the
Building or to any space therein to such a degree as to be objectionable
to Landlord or to any tenants in the Building shall be placed and
maintained by Tenant, at Tenant's expense, on vibration eliminators or
other devices sufficient to eliminate noise or vibration. The persons
employed to move such equipment in or out of the Building must be
acceptable to Landlord.
16. Each tenant shall store all its trash and garbage within the interior of
the Premises or as otherwise directed by Landlord from time to time.
Tenant shall not place in the trash boxes or receptacles any personal
trash or any material that may not or cannot be disposed of in the
ordinary and customary manner of removing and disposing of trash and
garbage in the city, without violation of any law or ordinance governing
such disposal.
17. Canvassing, soliciting, distribution of handbills or any other written
material and peddling in the Building and the Project are prohibited and
each tenant shall cooperate to prevent the same. No tenant shall make
room-to-room solicitation of business from other tenants in the Building
or the Project, without the written consent of Landlord.
18. Landlord shall have the right, exercisable without notice and without
liability to any tenant, to change the name and address of the Building
and the Project.
19. Landlord reserves the right to exclude or expel from the Project any
person who, in Landlord's judgment, is under the influence of alcohol or
drugs or who commits any act in violation of any of these Rules and
Regulations.
20. Without the prior written consent of Landlord, Tenant shall not use the
name of the Building or the Project or any photograph or other likeness of
the Building or the Project in connection with, or in promoting or
advertising, Tenant's business except that Tenant may include the
Building's or Project's name in Tenant's address.
21. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
22. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and
other means of entry to the Premises closed.
23. Landlord reserves the right to designate the use of the parking spaces on
the Project. Tenant or Tenant's guests shall park between designated
parking lines only, and shall not occupy two parking spaces with one car.
No trucks, truck tractors, trailers or fifth wheel are allowed to be
parked anywhere at any time within the Project other than in Tenant's own
truck dock well. Vehicles in violation of the above shall be subject to
tow-away, at vehicle owner's expense. Vehicles parked on the Project
overnight without prior written consent of the Landlord shall be deemed
abandoned and shall be subject to tow-away at vehicle owner's expense. No
tenant of the Building shall park in visitor or reserved parking areas or
loading areas. Any tenant found parking in such designated visitor or
reserved parking areas or loading areas or unauthorized areas shall be
subject to tow-away at vehicle owner's expense. The parking areas shall
not be used to provide car wash, oil changes, detailing, automotive repair
or other services unless otherwise approved or furnished by Landlord.
Tenant will from time to time, upon the request of Landlord, supply
Landlord with a list of license plate numbers of vehicles owned or
operated by its employees or agents.
24. No Tenant is allowed to unload, unpack, pack or in any way manipulate any
products, materials or goods in the common areas of the Project including
the parking and driveway areas of the Project. All products, goods and
materials must be manipulated, handled, kept, and stored within the
Tenant's Premises and not in any exterior areas, including, but not
limited to, exterior dock platforms, against the exterior of the Building,
parking areas and driveway areas of the Project. Tenant also agrees to
keep the exterior of the Premises clean and free of nails, wood, pallets,
packing materials, barrels and any other debris produced from their
operation. All products, materials and goods are to enter and exit the
Premises by being loaded or unloaded through dock high doors into trucks
and or trailers, over dock high loading platforms into trucks and or
trailers or loaded or unloaded into trucks and or trailers within the
Premises through grade level door access.
25. Tenant shall be responsible for the observance of all of the foregoing
Rules and Regulations by Tenant's employees, agents, clients, customers,
invitees and guests.
26. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify, alter or amend, in whole or in part, the terms,
covenants, agreements and conditions of any lease of any premises in the
Project.
27. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular tenant or tenants, but no such waiver by
Landlord shall be construed as a waiver of such Rules and Regulations in
favor of any other tenant or tenants, nor prevent Landlord from thereafter
enforcing any such Rules and Regulations against any or all tenants of the
Building.
28. Landlord reserves the right to make such other and reasonable rules and
regulations as in its judgment may from time to time be needed for safety
and security, for care and cleanliness of the Building and the Project and
for the preservation of good order
Exhibit A - Page 2
therein. Tenant agrees to abide by all such Rules and Regulations herein
stated and any additional rules and regulations which are adopted.
Exhibit A - Page 3