HomeMy WebLinkAboutC-1258 - Ground lease for temporary storage yard at 5th & Dahlia, Corona del MarCITY OF NEWPORT BEACH
CALIFORNIA
City Hall
3300 W. Newport Blvd.
Area Code 714
673 -2110
TO: FINANCE DIRECTOR
FROM: City Clerk
SUBJECT: Contract No. ._3258
DATE MW 2a, 197-11
Description of Contract Mmxp�rV rhn4 ,actm St=am yayd
U 5th mid Dahlia, Corona del Mar \L
Authorized by Resolution No. 82ll8 , adopted on r y74
Effective date of Contract 1b* 91, ,197n
Contract with MM IZAdrA CAM
t
Address gin Naetnn 2t A4ntar• pri %m
!,import Avanh, M Q266n
Amount of Contract Extmoim of lease for another 3 year..
"SF RTURN TO,
LAURA Ui.G;CS, CrrY CLERK
CITY OF i *LVI "C'"T BEACH
3300 NEWI'0:7 LOULEVARD
NSW O.'d BEACH, CALIF. 92460
OFFICAL OOICUMENT
AMENDMENT NO. 1 TO LEASE
THIS AMENDMENT NO. 1 TO LEASE is made this ? /a day
of , 1974, by and between THE IRVINE COMPANY, a
West Virgi is Corporation, hereinafter "Lessor" and the CITY OF
NEWPORT BEACH, a municipal corporation, hereinafter "Lessee"
RECITALS
The parties hereto are Lessor and Lessee respectively
under that certain Ground Lease dated October 29, 1969, to that
certain real property located in the County of Orange, State of
California, as more particularly described in said Lease. Said Lease
expires by its terms on May 31, 1974. It is the mutual desire of the
parties hereto to extend the term of said Lease as hereinafter provided.
W I T N E S S E T H:
1. Paragraph 2 "Term" of said Lease is hereby amended to
extend the term of said Lease for three (3) additional years, to
and including May 31, 1977, subject to earlier termination as
provided for in said Lease.
2. Except as herein amended, said Lease of October 29, 1969
shall remain unchanged and shall continue in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this
Amendment No. 1 To Lease as of the day and year first above written.
THE IRVINE COMPANY
CITY OF NEWPORT BEACH
EFF
Mayor
/l_'0>
APPROVED AS TO FORM
Dare:
CITY
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THE IRVINE COMPANY
May 22, 1974
City of Newport Beach
3300 Newport Boulevard
Newport Beach, California 92660
Attn: Laura Lagios, City Clerk
Re: Temporary Storage Yard
Fifth & Dahlia Avenues
Gentlemen:
610 Newport Center Drive
Newport Beach, California 92663
(714) 644 -3011
Enclosed is the fully executed Official Document copy of
Amendment No. 1 to Lease for the subject property. Please
retain this copy in your files.
Thank you for your cooperation.
Sincerely yours,
Robert H.
Manager
Commercial
gb
Encl.
Barrett
Properties
PUBLIC W mss IWWWMT ,
mpuTf my WK
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May 199 1994
CWM4CTM STOP 6E YARD
rim am DIM A9ERMS OORMA DEL MAR
C -1259
Attadad are three aopies of l4nmament No.` 1 to losses
extending the time of the Lass fear as addit Gam d #law
yews. Ina papers have bm signed and an el&r to be
returned to the Irvito Cospsny+ to the attaftli a of
Roiisrt H. BOM*tt, mawws COmmerOial
One a W is to be rsturned fear our files.
We Amendment was authori8ed by the City'Counaft an
MaV 189 1994 by the adoption of ReeolutiOn NO. .62148.
Data GOMP
Deputy City CLuk
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RESOLUTION NO. 8 24 8
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF NEWPORT BEACH AUTHORIZING THE EXECUTION OF
AN AMENDMENT TO LEASE BETWEEN THE CITY OF
NEWPORT BEACH AND THE IRVINE COMPANY EXTENDING
THE TERM OF THE GROUND LEASE OF THE TEMPORARY
STORAGE YARD AT FIFTH AND DAHLIA AVENUES
WHEREAS, there has been presented to the City Council
of the City of Newport Beach Amendment No. 1 to that certain
Ground Lease between the City of Newport Beach and The Irvine
Company covering the lease of the temporary storage yard at
Fifth and Dahlia Avenues in Corona del Mar; and
WHEREAS, the City Council has considered the terms
and conditions of said amendment to ground lease and found
them to be fair and equitable, and in the best interests of
the City;
NOW, THEREFORE, BE IT RESOLVED by the City Council
of the City of Newport Beach that said amendment to the ground
lease for the storage yard, above described, is approved, and
the Mayor and City Clerk are hereby authorized and directed
to execute the same on behalf of the City of Newport Beach.
ADOPTED this 13th day of May, 1974.
Mayor
ATTEST:
City Clerk
mh
5/10/74
THE IRVINE QOMPANY
610 Newport Center Drive
Newport Beach, California 92663
(714) 644 -3011 `
�Y lit j .WORKS --
�{�
4FEWPO ClTy0FJ1O®
C4 T B CH /r /
April 12, 1974
Mr. Joseph T. Devlin
Public Works Director
City of Newport Beach
City Hall
3300 Newport Boulevard
Newport Beach, California 92660
Re: Temporary Storage Yard
Fifth & Dahlia Avenues
Gentlemen:
Enclosed are three (3) copies of Amendment No. 1 To
Lease for the subject property extending the term
from May 31, 1974 to May 31, 1977. Please sign and
return all three copies to The Irvine Company for
execution. Upon completion of documentation, one
copy will be returned for your files.
Thank you for your cooperation.
Sincerely yours,
Robert H. Barrett
Manager
Commercial Properties
gb
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CER ISSUED BE RANGE
lssuED sr oR�itF:oF
i[T8iAND Mwrport eekh forrlig 92660
INSURANCE COMPANY
Neaw al Insured and aad�dlnesuy - - Nrp�'fawt(agagrm fseryw�hao o�1fNisswrrcs N has inch - -
`ii �Y�i 5ler �aaZV�l ' JiwwN +ii � f,Y�. .i,A-.ii� �.fl�i'Aaafi •
330ti i IIOO:.:YJ►R#t 610 =WOW '=W= DAM
. CAUUMM 92660. 1 .=Cxs : FlWJA 92660
- - This is to carDftr that the Company designated above has issued to the IrwuraA named herein the poNCies
Hated below and such policies apply with respact tpthe hoards and for the coverages and limits of liabil-
Ity indicted by specific entry horeln. subject to et #66•f conditions and achnisrrs in such polipies.
TM Company agrees to d a W den written mice to the holder "this CoroNcate of Insurance in the ovens of cancellation of any
policy or coverage NOW above. 2 l "MMAW
iDaK 3/20/74
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COVERAGES AND LIMITS OF LIABILITY
TYPE OF INSURANCE
POLICY NUMBER
EFFECTIVE
EXPIRATION
-
Bodily InInjury Liability
Properly Damage Liability
DATE
DATE
each person.
each occurrence
..
each occurrence
aggregets
Bowr I Wbility -
premises — Operations
24
W 116 -
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2/1% 14
2/1/IS
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s100 Am
= '100 ,ow
Elevator
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{ ';500
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Independent Contractors.
LF 11624
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Products — Completed
Operations
ie! 11624
2/1/74
2/1/75,
wregaNt
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Contractual — as described
ZP 11624
2/1/74
2 /1/75
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below
:100 ,000
:300 ,000
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Automobile Liability —
Owned Automobiles
$ 'Goo
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; ,Owes
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Hired Automobiles
-
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Non - Owned Automobiles
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AubnwMN Physical Damage —
FFim,LiOhtningi 6 Transportation
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Collision or Ups"
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Compensation — SIaOltarY- v
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NUITAW M • CO.
111217179.9
2/1/74
2/1/75
$4* W8d @00 . tat718T3 w
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Doacription and L.ocafion of Operatlerw, Automobiles Covered. Contracts, Additional Irrsuresa, eft.: - .. .
PJ =WPW" f - ORR= (W um im it to �s . �fi!pow o CNW•
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is iL1 im ih$ A Mrr:rOKLL s6M 33 All I= =on rsr I cde25i►cr FOR SBt6
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TM Company agrees to d a W den written mice to the holder "this CoroNcate of Insurance in the ovens of cancellation of any
policy or coverage NOW above. 2 l "MMAW
iDaK 3/20/74
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It_ . y_ 1 ._ QNm
FROM: City Clerk
SUBJECT: Contract No. 1758
W
DATE Mm 22, 1970
Authorized by Resolution No.
Effective date of Contract June 1. 1969
adopted on
Contract with Ilse Irvine Campww
Address 550 Newpm t Center Drive
Newport Beads, CA 92660
Amount of Contract See Article V of Gomal Conditions
city fterk
" RGD:jjs 8-50
a 0I FICiAL DOCUMENT
C- I ? s ,g
GROUND LEASE
THIS GROUND LEASE is made this day of Zdt ,
1969, by and between THE IRVINE COMPANY, a West Virginia corporation,
hereinafter referred to as "Lessor ", and the CITY OF NEWPORT BEACH,
a municipal corporation, hereinafter referred to as "Lessee ".
W I T N E SSETH:
1. Leased Premises: Lessor hereby leases to Lessee that
certain real property (herein the "leased premises ") described in
Exhibit "A" attached hereto and depicted on Exhibit "B" attached hereto,
both of which are made a part hereof.
2. Term: The term of this Lease shall be for five (5)
years commencing June 1 ,1969, and ending on May 31 ,
1974, subject to earlier termination as hereinafter provided. Lessor
may terminate this Lease at any time during the term hereof upon one
(1) year's written notice to Lessee.
3. Rent: Lessee.shall pay as rent for the use and
occupancy of the leased premises all real estate taxes levied upon or
assessed against said premises as provided in Article V of the Gen-
eral Conditions attached hereto.
4. Use: During the term of this Lease, Lessee shall use
and occupy the leased premises for a temporary storage yard. Lessee
shall enclose the leased premises with a fence and shall landscape
said premises. Such fencing and landscaping shall be completed not
later than Three months from the date of the execution of this
Lease. The design of the fences and the landscaping shall be subject
to the approval of Lessor as provided in Article II of the General
Conditions attached hereto.
5. General Conditions: The General Conditions to Ground
Lease attached hereto are by this reference incorporated herein and
made a part hereof. In the event of conflict between the typed porm
tions of this Lease and the General Conditions attached hereto, the
typed portions shall prevail.
IN WITNESS WHEREOF, the parties hereto have ekecuted this
Ground Lease as of the day and year first above written. co
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THE n:!JAM0
SEAL
B
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N
By y0R,
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��- �Sy'c
U Asststan etary
APPROVED AS TO FORM CITY OF NEWPORT BEACH
ten: 1 6( cff
CITY ATTORNEY By
By
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CITY'OF NEWPORT BEACH — PUBLIC WORKS DEPARTNENT
DESCRIPTION FORM
PROJECT Proposed Temporary Storage Yard Area PARCEL No.
-
LOCATION
Fifth Avenue and Dahlia Avenue REF, DWG, R/W -5156 L
<"
PURPOSE;
Construction of Storage Yard DATE July 10, 1969
' PREPARED
-
" R.E.M. CHECKED W•B• PROOFED R.E.M.
That portion of Tract 470 as per map recorded in Book 17, Page 28
K
of Miscellaneous Maps, Records'of Orange County, California; together. ."
with that portion of Block 93 of Irvine's Subdivision, as per map
recorded in Book 1, Page 88 of Miscellaneous Record Maps of said
County described as a whole as follows:
F'
Beginning at the most easterly corner of Lot 3, Block K, .
of said Tract 470; thence North 500 22' West along the
`
northeasterly line of Block K, 75 feet; thence North 390 38'
East, 50 feet to the northwesterly prolongation of the
northeasterly right of way line of Fifth Avenue (50 feet in
width) as per O.R. 5934/127; thence South,500 22' East,
i 75 feet, along said northwesterly prolongation to the „
i. intersection with the northwesterly right of way line of
Dahlia Avenue (50 feet in width); thence South 390 38',
In
West, 50 feet, along said right of way line to the
Point of Beginning.
NA
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1
Exhibit 'W'
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V.
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P ' ' 2
" 3 o i�•aarvcr••r i h ,ti
MtOST. ELY. C17.PNER LO>'Y• •..` '', ;.. . DO • ..�.,'.• , ..
S. ,�9 •dB W '
0,41/1./44 AI/E.
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CITY OF NEWPORT BEACH
PUBLIC WORKS DEPARTMENT
P.2OPOSSEO TE&.ACO' R, e
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GENERAL CONDITIONS TO GROUND LEASE
The following General Conditions are incorporated in and made
a part of the foregoing Lease as though fully set forth at length tihere-
in, to wit:
ARTICLE I
Lessee's Operations
During such term the leased land and all improvements constructed
and maintained thereon shall be used by the Lessee for the use specified
and for no other use or purpose. Lessee shall not use or permit any other
person to use said premises, or any part thereof, for any purposes tending
to injure the reputation thereof or for any improper or offensive use or
to.constitute a nuisance; and Lessee shall at all times during said term
conform to and cause all persons using or occupying any part of said
premises to comply with all public laws, ordinances and regulations from
time to time applicable thereto and to all operations thereon.
ARTICLE II
Lessee's Improvements
1. Lessee shall diligently prosecute the work on any building
and improvements to the leased land (hereinafter referred to as "said
improvements ") to completion and shall complete the same and otherwise
make said improvements ready for use and operation on or before eighteen
(18) months from the date of this Lease. If Lessee shall fail to
complete the construction of said improvements in the manner provided in
this Lease within said time, such failure shall constitute a material
failure of consideration hereunder and a breach of the covenants and
conditions of this Lease; provided, however, that the date specified for
the completion of said improvements shall be extended for so long as
Lessee shall be prevented from completing the same by war, acts of God
or other unavoidable accidents or interferences beyond the reasonable
control of Lessee, but in no event to exceed the period of one (I) year.
Before Lessee commences the construction of said improvements or any part
thereof, Lessee shall deliver to Lessor for its approval two (2) complete
sets of construction plans and specifications for the exterior of said
improvements, prepared by a licensed architect or licensed engineer.,
including but not limited to, grading and drainage plans and soils report
as provided under Article IV hereinbelow, a plot plan showing the proposed
location of said improvements, all utilities and service connections and
all places of ingress and egress to public streets and roads and plans
for outdoor signs, lighting and landscaping. If approved, such approval
shall be endorsed by Lessor upon said plans, specifications and plot plan
within thirty (30) days from the receipt thereof, one (1) set of which
shall be retained by it. If Lessor does not approve such plans and
specifications, Lessor shall within thirty (30) days from the receipt
thercof notify Lessee of its reasons for not approving said plans and
specifications.
2. No structure or other improvement, including but not limited
to storage and /or display structures separate from the main structure, the
RGD /jjs 1 -15 -69
GC -Com /Ind
0 0
plans, specifications and proposed location of which have not first
received the written approval of Lessor, or which does not comply with
such approved plans, specifications and locations, shall be constructed
or maintained on the leased land. No material addition to or alteration
of any building or structure erected on the leased land shall be
commenced unless and until plans and specifications covering the exterior
of the proposed addition or alteration shall have been first submitted
to and approved by Lessor in the manner above provided. When the
construction of any building or other structure on the leased land, or
any addition thereto or alteration thereof, is commenced, the same shall
be prosecuted with reasonable diligence to completion, and shall comply
with all public laws, ordinances and regulations applicable thereto and
shall be constructed and completed at the sole cost and expense of Lessee
and without any cost, expense or liability of Lessor whatsoever.
3. The approval by Lessor of any plans and specifications refers
only to the conformity of such plans and specifications to the general
architectural plan for the leased land and neighboring land of the Lessor;
such plans and specifications are not approved for architectural or
engineering design and Lessor, by approving such plans and specifications,
assumes no liability or responsibility therefor or for any defect in any
structure constructed from such plans or specifications,
4. All of said improvements, and all subsequent additions
thereto and alterations therein and replacements thereof, shall become and
remain a part of the leased land, subject to the use and occupancy of
Lessee hereunder, and none of the same shall be encumbered, transferred,
removed or materially altered, except as otherwise provided in this Lease
and upon the expiration of the term hereof or any earlier termination of
this Lease, all of said improvements shall become the property of Lessor
without the payment of any consideration therefor.
ARTICLE III
Signs
Lessee may, at its expense, erect on the leased land such signs
and exterior display and storage areas and provide such exterior lighting
as shall be provided in the plans and specifications for the improvements
mutually approved under Article II above, but Lessee shall not thereafter
erect or maintain any other or additional signs or exterior displays or
storage areas or any other exterior lighting on said land without the
prior written approval and consent of the Lessor.
ARTICLE IV
Underground Conditions
1: It is understood and agreed that Lessee has made, or prior to
the construction of any building hereunder will make, its own testis to
ascertain the amount and extent of the present fill and /or any subsurface
or soil condition upon or in connection with the leased land and that this
Lease is made subject to and without liability because of or resulting
from any fill or any subsurface or soil condition upon. or in connection
with the leased land. ,
2. Prior to the comme
submit grading and drainage pla
under Article I1 hereof showing
CC- Corn /lnd 1 -15 -69
cement of any grading, I
s to the Lessor for its
the existing topography,
-2-
essee shall
approval as provided
proposed cut and
C • •
`fill and proposed finished grade together with calculations of anticipated
run -off and points of concentration. Such plans must- be prepared and
signed by a licensed civil engineer. A soils report prepared by a
licensed (soils) engineer or geologist shall be submitted with such grading
and drainage plans. All grading work must be conducted under the super -
vision.of a licensed (soils) engineer. A final certification of grading
operations by a recognized soil testing laboratory must be filed with the
Lessor upon completion of the grading work.
3. Lessee shall not drain or discharge water from the leased
land on to adjoining land; the leased land will be so graded and drained
as to cause the discharge of all. water on the street adjoining the leased
land or into an established drainage easement, if any, on the leased land.
ARTICLE V
Taxes
1. In addition to the rentals hereinabove provided, Lessee shall
pay and discharge all taxes, general and special assessments and other
charges of every description which during the term of this Lease may be
levied upon or assessed against the leased land and all interests therein
and all improvements and other property thereon, whether belonging to Lessor.
or Lessee, or to which either of them may become liable in relation thereto,
not later than thirty (30) days prior to the delinquency date thereof.
Lessee hereby agrees to protect and hold harmless Lessor and the leased land
and all improvements in, on or about the same from all liability for any and
all such taxes, assessments and charges, together with any interest,
penalties or other sums thereby imposed, and from any sale or other proceed-
ing to enforce payment thereof. During said term Lessee shall cause all
taxes, assessments and other charges levied'upon or imposed upon any
personal property situated in, on, or about the leased land, to be levied
or assessed separately from the leased land and not as a lien thereon.
2. All such taxes and assessments for the first and, if the
Lessee is not in default under this Lease, the last year of this Lease,
shall be prorated between the Lessor and Lessee on the basis of a tax
fiscal year commencing July 1 and ending June 30.
3. If the leased land is assessed for taxation purposes with
other lands of the Lessor, until the leased land is separately assessed,
all real estate taxes and assessments imposed upon the entire block in
which the leased land is a part shall be prorated and the Lessee shall
pay that portion that the area of the leased land hereunder bears to the
total area of all.land within the assessment block.
ARTICLE VI
utilities
1. Lessee shall determine the availability of and shall, at its
sole cost and expense, cause to be installed in, on, and about the leased
land, all facil.ites necessary to supply thereto all water, sewage, gas,
electricity, telephone and other like services required in Lessee's
operations hereunder, and during the term hereof, Lessee agrees to pay all
charges and expenses in connection therewith and to protect: Lessor and said
land therefrom. If appli.ca'ale, Lessee shall_ pay the standby and connection
charges of the Irvine Ranch (dater District- for the furnishing of water to
the leased land in accordance Frith District regulations. Lessee hereby'
acknowledged that a connection charge is payable with respect- to the
CC -Com /Ind 1 -15 -69
-3-
leased land to Southern California Edison Coin.pany representing payment
for the cost of installation of an underground 12 lcv electrical.backbone
system benefiting the leased land, and Lessee agrees to pay such charge
and all other similar connection or acreage charges levied by public
utilities or municipalities with respect to their services.
2. Lessee shall not enter into any contract or agreement with
any city, the County of orange, or any governmental agency or body or
public utility with reference to sewer lines or connections, water lines
or connections, street improvements, including but not limited to curbs,
gutters, parkways and street lighting, or utility connections, lines or
easements, without the prior written consent of Lessor.
ARTICLE VII
Repairs and Upkeep
1. Lessor shall not be required or obligated to make any changes,
alterations, additions; improvements or repairs in, on, or about the
leased land, or any part thereof, during the term of this Lease.
2. At all times during said term Lessee shall, at its cost and
expense, keep and maintain said land and all improvements thereon and all
facilities appurtenant thereto in good order and repair and safe condition,
and the whole of said land, improvements thereto and landscaping thereon
in a clean, sanitary, orderly and attractive condition, and free from weeds.
Lessee shall make any and all additions to or alterations or repairs in and
about said land and the improvements thereon which may be required by and
shall otherwise observe and comply with all public laws, ordinances and
regulations from time to time applicable to said land; and Lessee shall
indemnify and save harmless Lessor against all actions, claims and damages
by reason of Lessee's failure to comply with and perform the provisions of
the foregoing Article.
ARTICLE VIII
Lessor's Nonliabilitx
Lessor shall not be liable for any loss, damage or injury of any
kind or character to any person or property arising from any use of the
leased land, or any part thereof, or caused by any defect in any building,
structure or ether improvements thereon or in any equipment or other
facility therein, or caused by or arising from any act or omission of
Lessee, or of any of its agents, employees, licensees or invitees, or by
or from any accident on said land or any fire or other casualty thereon,
or occasioned by the failure of Lessee to maintain the premises in safe
condition, or arising from any other cause whatsoever; and Lessee, as a
material part of the consideration of this Lease, hereby waives on its
behalf all claims and demands against Lessor for any such loss, damage or
injury of Lessee, and hereby agrees to indemnify and hold Lessor entirely
free and harmless from all liability for any such loss, damage or injury
to other persons, and from all costs and expenses arising therefrom.
-4-
CC -Com /Ind 1- 15 -69
0
ARTICLE IX
Insurance
1, Fire Insurance. During the period of construction of any
building or other improvement on the leased land and at all times there-
after during the term hereof, Lessee shall keep the same insured against
loss or damage by fire, with extended coverage endorsement or its
equivalent in such responsible insurance companies as Lessee shall select
and Lessor shall approve, and in amounts not less than eighty per cent
(80 %) of the insurable value of the building and other improvements
insured, with loss payable thereunder to Lessor and Lessee and.to any
authorized encumbrancer of Lessee in accordance with their respective
interests therein as provided in this Lease and in any.written consent
to such encumbrance by the Lessor; provided, however, any such policy
may provide that a loss of less than $5,000.00 may be paid directly to
Lessee and any authorized encumbrancer without the prior consent of
Lessor. Lessee shall pay all premiums and other charges in connection.
with such insurance and from time to time shall deposit with Lessor the
certificate of the insurance carrier as to each policy of such insurance
and satisfactory evidence of the payment of premiums and other charges
thereunder. Such insurance policies shall contain an express waiver of
any right of subrogation against Lessor.
2. Liability Insurance_. Lessee shall, at its cost and expense,
at all times during the term of this Lease, maintain in force for the
joint benefit of Lessor and Lessee, a broad form comprehensive coverage
policy of public liability insurance by the terms of which Lessor and
Lessee are named as insured and are indemnified against liability for
damage or injury to the property or person (including death) of any
lessee or invitee of Lessee or any other person entering upon or using
the leased land, or any structure thereon, or any part thereof, and
arising from the use and occupancy thereof. Such insurance policy or
policies shall be maintained on the minimum basis of $ 50,000.00
for damage to property, and $500,000.00 for bodily injury to or death
of one person, and $1,000,000.00 for bodily injury or death in any one
accident. Such insurance policy or policies shall be stated to be primary
and non - contributing with any insurance which may be carried by Lessor,
and Lessee shall deliver to Lessor the certificate of each insurance
carrier as to each such insurance policy.
ARTICLE X
Restoration
1. If during the term hereof any building or improvement erected
by Lessee on the leased land, or any part thereof, shall be damaged or
destroyed by fire or other casualty, Lessee shall, at its cost and expense,
repair or restore the same according to the original plans thereof or to
such modified plans as shall be previously approved in writing by Lessor,
and such work of repair or restoration shall be commenced within one
hundred twenty (1.2.0) days after the damage or loss occurs and shall be
completed with due diligence but not longer than one (1) year after such
work is commenced, and such work shall. be otherwise done in accordance
with the requirements of Article II of these,Ceneral Conditions, and all
insurance proceeds collected for such damage or destruction shall be
applied to the cost of such repairs or restoration, and if such insurance
proceeds shall be insufficient for said purpose, Lessee shall make up the
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CC- Com /l:nd 1 -15 -69
• 0
deficiency out of its own funds. Should Lessee fail or refuse to make
the repairs or restoration as hereinabove provided, or if the authorized
encumbrancer of Lessee, if any, after thirty (30) days' written notice
by Lessor, shall fail or refuse to undertake and complete such work on
behalf of Lessee, then in either of said events such failure or refusal
shall constitute a default under the covenants and conditions hereof and
all insurance proceeds so collected shall be forthwith paid over to and
retained by Lessor on its own account and Lessor may, but shall not be
required to, use and apply the same for and to the repair or restoration
of said land, and Lessor may, at its option, terminate this Lease as
elsewhere provided herein.
2. Notwithstanding anything to the contrary contained in the
preceding paragraph, if during the last five (5) years of the term hereof
any building erected on said land shall be damaged by fire or other
casualty and if the cost of repairing or restoring the same shall exceed
the insurance proceeds payable for such damage, then Lessee shall have
the option, to be exercised within thirty (30) days after such event,
(a) to repair or restore said building as hereinabove provided, or (b)
subject to the prior written consent of the authorized encumbrancer, if
any, to terminate this Lease by written notice thereof to Lessor, which
option to terminate shall be conditioned as follows: (1) Lessee shall,
at its expense, within ninety (90) days after the damage occurs, tear
down and remove all parts of said building and other improvements then
remaining and the debris resulting from such fire or other casualty and
otherwise clean up and restore the leased land, as far as practicable,
to its original condition, free and clear of liens, and (2) within ten (10)
days after the completion of said clean -up and restoration Lessee shall
surrender to Lessor possession of said land, cleaned up and restored as
aforesaid, and shall pay to Lessor any rent accruing to the date of such
surrender and Lessee's pro -rata share of all unpaid taxes and assessments
that then shall have become a lien upon said premises, and (3) thereupon,
but not before, said Lease shall terminate. The insurance proceeds collected
and paid for such damage, to the extent available for said purposes, shall
be applied first to pay the then balance due an authorized encumbrancer,
if any,, second to the cost of such clean -up and restoration, and the
unexpended balance thereof, if any, shall be retained by Lessor.
ARTICLE X1
Liens and Claims
1. Lessee shall not suffer or permit to be enforced against the
leased land, or any part thereof, any mechanics', materialmen's,
contractors' or subcontractors' liens arising from or any claim fo`r damage
growing out of the work of any construction, repair, restoration, replace-
ment or improvement, or any other claim or demand howsoever the same may
arise, but Lessee shall pay or cause to be paid all of said liens, claims
or demands before any action is brought to enforce the same against said
land; and Lessee agrees to indemnify and hold Lessor and said land free
and harmless from all liability for any and all such liens, claims and
demands, together with reasonable attorneys' fees and all costs and expenses
in connection therewith. Notwithstanding anything to the contrary herein -
above contained in this Article X1, if Lessee shall in good faith contest
the validity of any such lien, claim or demand, then. Lessee shall, at its
expense, defend itself and Lessor against the same and shall pay and
satisfy any adverse judgment that may be rendered thereon before the eiforce-
meat thereof against Lessor or the leased land, upon the condition that if
CC -Com /Ind 1 -15 -69
Lessor shall require, Lessee shall furnish to Lessor a surety bond
satisfactory to Lessor in an amount-equal to such contested lien, claim
or demand indemnifying Lessor against liability for the same, and holding
the leased land free from the effect of such lien or claim or if Lessor
shall request, Lessee shall procure and record the bond provided for in
Section 1193 -2 of the California Code of Civil Procedure, or any comparable
statute hereafter enacted providing for a bond freeing the leased land
from the effect of such lien or claim or action thereon.
2. Before the commencement of any work of construction of any
building, structure or other improvement on the leased land, or of any
substantial repairs, alterations; additions, replacement or restoration
in and about said premises as herein provided, Lessee shall give to
Lessor written notice thereof, specifying the nature and location of the .
intended work and the expected date of commencement thereof. At the
request of Lessor, Lessee shall, prior to the commencement of any such
work, deposit with Lessor a certificate or other evidence satisfactory
to Lessor that Lessee has furnished a bond or that Lessee's building
contractor, if any, has furnished a bond in favor of Lessor, with a suirety
approved by Lessor, guaranteeing the completion of said work free and
clear of all subcontractors', mechanics' and materialmen's liens. Lessor
reserves the right at any time and from time to time to post and maintain
on said land such notices as may be necessary to protect Lessor against
liability for all such liens and claims.
ARTICLE XII
Lessor Paying Claims
In the event Lessee shall fail to pay and discharge or cause
to be paid and discharged, when due and payable, any tax, assessment, or
other charge upon or in connection with the leased land, or any lien or
claim for labor or material employed or used in or any claim for damages
arising out of the construction, repair, restoration, replacement,
maintenance and use of said land and the improvements thereon, or any
judgment on any contested lien or claim, or any insurance premium or
expense in connection with said land and improvements, or any other claim,
charge or demand which Lessee has agreed to pay or cause to be paid under
the covenants and conditions of this Lease, and if Lessee, after thirty
(30) days' written notice from Lessor so to do, shall fail to pay and
discharge the same, then Lessor may, at its option, pay any such tax,
assessment, insurance expense, lien, claim, charge or demand, or settle
or discharge any action therefor, or judgment thereon, and all costs,
expenses and other sums incurred or paid by Lessor in connection with any
of the foregoing shall be paid by Lessee to Lessor upon demand, together
with interest thereon at the rate of eighb. percent (8 %) per annum from the
date incurred or paid, and any default in such repayment shall constitute
a breach of the covenants and conditions of this Lease.
ARTICLE XIII
Assignments and Subletting
1. Lessee shall not encumber, assign or otherwise transfer this
Lease, or any right or interest hereunder, or in or to any of the improve=
ments that hereafter may be constructed or installed on the leased land,
and Lessee shall not sublet said premises in whole or in part without the
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CC -Com /Ind 1 -15 -69
prior. written consent and approval of Lessor.. No such encumbrance,
assignment or other transfer, whether voluntary or involuntary, by
operation of law, under legal process, through receivership or bankruptcy,
or otherwise, and no such subletting shall be valid or effective without
such prior written consent and approval. Should Lessee attempt to make
or suffer to be made any such encumbrance, assignment, transfer or sub-
letting, except as aforesaid, or should any right or interest of Lessee
under this Lease be attached, levied upon or seized under legal. process
and the same shall not be released within ten (10) days therefrom, or
should a receiver be appointed to take possession of the leased land or
the operations of Lessee thereon, or should Lessee be adjudged bankrupt
or insolvent and Lessee shall not have been discharged therefrom within
thirty (30) days, then any of the foregoing events shall be deemed a
breach of the conditions and restrictions of this Lease, and thereupon
Lessor may, at its option, terminate this Lease forthwith by written
notice, and upon such termination this Lease shall cease and end and
thenceforth be of no further force or effect, except as hereinafter
otherwise provided. Should Lessor consent to any such encumbrance, assign-
ment, transfer or subletting,.none of the restrictions of this paragraph
shall be thereby waived, but the same shall apply to each successive
encumbrance, assignment, transfer or subletting hereunder, if any, and
shall be severally binding upon each and every encumbrancer, assignee,
transferee, subtenant and other successor in interest of Lessee.
2. If the Lessor consents to an assignment or transfer by
Lessee of all or a portion of Lessee's interest under this Lease, Lessee
shall pay, or cause to be paid, a transfer fee of $500.00; provided,
however, that such transfer fee shall not be payable upon Lessor's consent
to a transfer or assignment of Lessee's interest hereunder as security
for a loan.
3. If the Lessee hereunder is a corporation or an unincorporated
association or a partnership, the transfer, assignment or hypothecation
of any stock or interest in said corporation, association or partnership
in the aggregate in excess of twenty -five per cent (25 %) shall be deemed
an assignment within the meaning and provisions of this Article XIII.
A transfer or an assignment of any such stock or interest to a share-
holder's or member's spouse, children or grandchildren is excepted from
the provisions hereof.
ARTICLE XIV
Encumbrances
Notwithstanding the provisions of Article XIII above, if requested
by Lessee, Lessor agrees to execute its written consent to an assignment
of this Lease to a trustee tinder a deed of trust (herein called "trust
deed ") for the benefit of a lender (herein called "encumbrancer "), upon
and subject to the following covenants and conditions:
(a) Said trust deed and all rights acquired thereunder shall be
subject to each and all of the covenants, conditions and restrictions set
forth in this Lease and to all rights and interests of the Lessor hereunder,
except as herein otherwise provided;
(b) In the event of any conflict between the provisions of this
Lease and the provisions of any such trust deed, the provisions of this
Lease shall control;
(c) The prior written consent of Lessor shall not be required:
(1) To a transfer of this Lease at foreclosure sale under
CC -Com /Ind 1 -15 -69
• •
the trust deed, judicial foreclosure, or an assignment in lieu of fore-
closure; or
(2) To any subsequent transfer by the encumbrancer if the
encumbrancer is an established bank, savings and loan association or
insurance company, and is the purchaser at such foreclosure sale;
provided that in either such event the encumbrancer forthwith gives
notice to the Lessor in writing of any such transfer setting forth the
name and address of the transferee, the effective date of such transfer
and the express agreement of the transferee assuming and agreeing to
perform all of the obligations under this Lease, together with a copy of
the document by which such transfer was made; and the payment to Lessor
of a transfer fee of $50.00 in lieu of the transfer fee as provided under
Article XIII above.
Any transferee under the provisions of subparagraph (c) (1) above
shall be liable to perform the obligations of the Lessee under this Lease
only so long as such transferee holds .title to the leasehold. Any sub-
sequent transfer of the leasehold hereunder shall not be made without
the prior written consent of the Lessor and shall be subject to the
conditions relating thereto as set forth in Article XIII above.
(d) Upon and immediately after the recording of the trust deed,
Lessee, at Lessee's expense, shall cause to be recorded in the office of
the Recorder of Orange County, California, a written request executed
and acknowledged by Lessor for a copy of any notice of default and of
any notice of sale under the trust deed as provided by the statutes of the
State of California relating thereto. Concurrently with the execution of
said consent, Lessee shall furnish to Lessor a complete copy of the trust
deed and note secured thereby, together with the name and address of the
holder thereof. No such encumbrance shall be valid or effective unless
and until Lessor shall execute its written consent thereto as hereinabove
in this Article XIV provided.
Lessor agrees that it will not terminate this Lease because of
any default or breach hereunder on the part of Lessee if the encumbrancer
under such deed of trust, within ninety (90) days after service of written
notice on the encumbrancer by Lessor of its intention to terminate this
Lease for such default or breach, shall:
(1) Cure such default or breach if the same can be cured
by the payment or expenditure of .money provided to be paid under the terms
of this Lease, or if such default or breach is not so cureable, cause the
trustee under the trust deed to commence and thereafter to diligently
pursue to completion steps and proceedings for the exercise of the power
of sale under and pursuant to the trust deed in the manner provided by
law, and
(2) Keep and perform all of the covenants and conditions
of this Lease requiring the payment or expenditure of money by Lessee until
such time as said leasehold shall be sold upon foreclosure pursuant to the
trust deed or shall be released or reconveyed thereunder;
provided, however, that if
to .comply with any and all
thereupon Lessor shall be
contained.
Any notice to the
be given concurrently with
as hereinafter provided in
I, r_r_. /7..d 1 -1 q_AG
the holder of the trust deed shall fail or refuse
of the conditions of this paragraph, then and
released from the covenant of forebearance herein
encumbrancer provided for in this paragraph may
or after Lessor's notice of default to Lessee
Article XV.
sea
ARTICLE XV
Termination
Should Lessee (a) fail to pay or cause to be paid any tax,
assessment, insurance premium, lien, claim, charge or demand herein
provided to be paid or caused to be paid by Lessee at the times and
in the manner herein provided; or (b) should Lessee default in the
payment of any installment of rent or any other sine when due as herein
provided; or (c) should Lessee fail to coirnence or to complete the
construction, repair, restoration or replacement of the building and
other improvements in and about the leased land within the times and
in the manner herein provided; or (d) should Lessee fail to commence
and thereafter to continuously conduct its operations thereon within
the times and in the manner herein provided; or (e) should Lessee fail
to use, maintain and operate the premises as herein required; or (f)
should Lessee default in the performance of or breach any other covenant,
condition or restriction of this Lease herein provided to be kept or
performed by Lessee; and if any such default or breach (other than any
breach of the restrictions of Article XIII hereof for which immediate
notice of termination may be given) shall continue uncured for a period
of thirty (30) days from and after service upon Lessee of written notice
thereof by Lessor, then and in any such event, Lessor may, at its option,
terminate this Lease by giving Lessee written notice thereof and thereupon
the rights of Lessee in and to the leased land and all improvements there-
on shall cease and end, and Lessor may, without further notice or demand
or legal process, re -enter and take possession of said land and all .
improvements thereon and oust Lessee and all persons claiming under
Lessee therefrom, and Lessee.and all such persons shall quit and surrender
possession of said land and all improvements thereon to Lessor,
ARTICLE XVI
Removal
1. Upon the expiration of the term of this Lease or any earlier
termination thereof, Lessee shall surrender to Lessor possession of the
leased land and all improvements constructed and installed thereon;
provided that if Lessee shall not then be in default under any of the
covenants and conditions hereof, Lessee may remove or cause to be removed
all movable furniture, furnishings and equipment installed in the buildings
on said land. Any of said personal property that is not removed from said
premises within thirty (30) days after the date of any termination of this
Lease thereafter shall belong to Lessor without the payment of any
consideration therefor.
.2. Upon the expiration of the term hereof, or any sooner termina-
tion of this Lease, Lessee agrees to execute, acknowledge and deliver to
Lessor a proper instrument in writing, releasing and quitclaiming to
Lessor all right, title and interest of Lessee in and to the leased land
and all improvements thereto.
3. Notwithstanding the preceding paragraph of this Article XVI,
Lessor shall have the option, to be exercised by written notice to Lessee
within thirty (30) clays prior to the expiration of the term of this Lease
or upon the date of any earlier termination thereof, to require Lessee to
remove any or all improvements from the leased land, including without .
limitation buildings, paving and l.andscapigg and restore the surface of
the land to its original condition, so far as possible. Said removal
shall be completed within ninety (90) days after said expiration or
termination.
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ARTICLE xvll
Payments and Notices
All rents and other sums payable by Lessee to Lessor hereunder
shall be paid to Lessor at its business office at 550 Newport Center
Drive, Newport Beach, California 92660, or at such other place as Lessor
may hereafter designate in writing. Any notice to be given by either of
the parties hereto to the other hereunder may be delivered in person to
an officer of Lessor, or to Lessee, or may be deposited in the United
States mail in the State of California, duly registered or certified, with
postage prepaid, and addressed to the party for whom intended as follows:
To Lessor at its said business office, and to Lessee at the leased land or
at such other address as either of the parties hereto may hereafter
designate in writing. Service of any such written notice shall be deemed
complete at the time of such personal delivery or within two (2) days
after the mailing thereof as hereinabove provided. If more than one
lessee is named under this Lease, service of any notice upon any one of
said lessees as herein provided shall be deemed as service upon all of
said lessees.
ARTICLE XVIII
Eminent Domain
1. Definition of Terms_: The term "total taking" as used in
this Article means the taking of the entire leased land under the power
of eminent domain or a taking of so much of said land as to prevent or
substantially impair the conduct of Lessee's business thereon. The term
"Partial taking" means the taking of a portion only of said land which
does not constitute a total taking as above defined.
2. Total Taking_: If during the term hereof there shall be a
total_ taking by public authority under the power of eminent domain, then
the leasehold estate of Lessee in and to the leased land shall cease and
terminate as of the date the actual physical possession thereof shall be
so taken.
3. Partial-Taking: If during said term there shall be a partial
taking of the leased land, this Lease shall terminate as to the portion of
said 1 -and taken upon the date upon which actual possession of said portion
of said land is taken pursuant to said eminent domain proceedings, but said
Lease shall continue in force and effect as'to the remainder of said land.
The basic rental payable by Lessee for the balance of said term shall be
abated in the ratio that the square footage ground area of the leased land
taken bears to the total ground area of said land at the time of such
taking.
4. Allocation of Award: All compensation and damages awarded
for the taking of the leased land or any portion thereof shall, except as
otherwise herein provided, belong to and be the sole property of Lessor,
and Lessee shall rot have any claim or be entitled to any award for
diminution in value of its leasehold hereunder or for the value of any
unexpired term of this Lease; provided, however, that Lessee shall be
entitled'to any award that may be made for the taking of or injury to
Lessee's improvements, or on account of any cost or loss Lessee may sustain
in the removal of Lessee's fixtures, equipment and furnishings, or as a
result of any alterations, modifications or repairs which may be reasonably
required by Lessee in order to place the remaining portion of the leased
land not so condemned in a suitable condition for the continuance of Lessee's
tenancy.
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CC -Com /Ind 1- 15-69
5. Effect of Termination. If this Lease is terminated., in
i
whole or n part, pursuant to any of the provisions of this Article,
all rentals and other charges payable by Lessee to Lessor hereunder and
attributable to the leased land taken, shall be paid up to the date upon
which actual physical possession shall be taken by the condemnor, and
the parties shall thereupon be released from all further li.abi_lity.in
relation thereto.
6. Voluntary Conveyance. A voluntary conveyance by Lessor to
a public utility, agency or authority under threat of a taking under the
power of eminent domain in lieu of formal proceedings shall be deemed a
taking within the meaning of this Article.
ARTICLE XIX
Remedies
1. Any termination of this Lease as herein provided shall not
relieve Lessee from the payment of any sum or sums that shall then be due
and payable to Lessor hereunder or any claim for damages then or thereto-
fore accruing against Lessee hereunder, and any such termination shall
not prevent Lessor- from enforcing the payment of any such sum or stuns or
claim for damages by any remedy provided for by law, or from recovering
damages from Lessee for any default thereunder. All rights, options and
remedies of Lessor contained in this Lease shall be construed and held to
be cumulative, and no one of them shall be exclusive of the other, and
Lessor shall have the right to pursue any one or all of such remedies or
any other remedy or relief which may be provided by law, whether or not
stated in this Lease. No waiver by Lessor of a breach of any of the
covenants, conditions or restrictions of this Lease shall be construed or
held to be a waiver of any succeeding or preceding breach of the same or
any other covenant, condition or restriction herein contained.
2. In the event either Lessor or Less
or proceeding for damages for an alleged breach
Lease, to recover rents, or to enforce, protect
or remedy of either party, the prevailing party
recover as a part of such action or proceedings
fees and court costs.
ARTICLE XX
Holding Over
>_e shall bring any action
of any provision of this
or establish any right
shall be entitled to
reasonable attorneys'
This Lease shall terminate and become null and void without
further notice upon the expiration of the term specified, and any holding
over by Lessee after the expiration of said term shall not constitute a
renewal hereof or give Lessee any rights hereunder or in or to the leased
land, except as otherwise herein provided, it being understood and agreed
that this Lease cannot be renewed, extended or in any manner modified
except in writing signed by both parties hereto.
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CC -Com /Ind 1 -15 -69
ARTICLE XXI
Late Charge
Any installment of rent accruing under the provisions of this
Lease or any other payment due to Lessor under this Lease, which shall not
be paid when due shall be subject to a late charge of one per cent (17,)
per month from the date when due and payable by the terms of this Lease
until the same shall be paid. All payments hereunder shall.be made in
lawful money of the United States.
ARTICLE XXII
Arbitration
If arbitration is regwired to determine and fix the fair market
value of the leased land or of the leased land and improvements thereto,
such arbitration shall be conducted in the following manner:
Within sixty (60) days prior to the expiration of the initial
rent period and each succeeding period thereafter, Lessor shall appoint
in writing an arbitrator and give written notice thereof to Lessee, and
within ten (10) days after the service of such notice, Lessee shall in
like manner appoint an arbitrator and give written notice thereof to
Lessor, or in case of the failure of either party hereto so to do, the
other party shall have the right to apply to the Superior Court of
Orange County, California, to appoint an arbitrator to represent the
defaulting party. The two arbitrators thus appointed (in either manner)
shall select and appoint in writing a third arbitrator and give written
notice thereof to Lessor and Lessee, or if within ten (10) days after
the appointment of said second arbitrator, the two arbitrators shall
fail to appoint a third, then either party hereto shall have the right
to make application to said Superior Court to appoint such third
arbitrator.
The three arbitrators so appointed (in either manner) shall
promptly fix a convenient time and place in the County of Orange for
hearing the matter to be arbitrated and shall give written notice there-
of to each party hereto at least five (5) days prior to the date so
fixed, and said arbitrators shall with reasonable diligence hear and
determine the matter in accordance with the provisions hereof and of
the statutes and judicial decisions of the State of California at the
time applicable thereto, and shall execute and acknowledge their award
thereon in writing and cause a copy thereof to be delivered to each of
the parties hereto.
The award of a majority of said arbitrators shall determine
the question arbitrated, and a judgment may be rendered by said Superior
Court confirming said award, or the same may be vacated, modified or
corrected by said court, at the instance of either of the parties here-
to, in accordance with the then existing statutes of the State of
California applicable to arbitrations, the provisions of which statutes
shall apply hereto as fully as though incorporated herein.
u
If two of the three arbitrators first appointed as aforesaid
shall fail to reach an agreement in the determination of the matter in
question, the same shall be decided by three new arbitrators, who
shall be appointed and shall proceed in the same manner as hereinabove
set forth, and said process shall be repeated until a decision is
finally reached by two of the three arbitrators selected.
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Each of the parties hereto.shall pay for.the'services of its
'appointee and one -half of the fee charged by the arbitrator selected by
their appointees and of all other proper costs of arbitration, with the
i
exception of attorneys' fees and witness' fees.
ARTICLE XXIII
Construction and Effect
Time is of the essence of this Lease. Each and all of the
covenants, conditions and restrictions hereof shall be deemed as running
with the land and shall inure to the benefit of and shall be binding
upon the successors in interest of Lessor, and subject to the restrictions
of Article XIII hereof, ttie authbrized-encumbrancers, assignees, trans-
ferees, subtenants, licensees and other successors in interest of'Lessee:.
__. .In this Lease the neuter gender includes the feminine and'
masculine, and the singular number includes the plural wherever the
context so requires.
The article and paragraph headings in the Ground Lease and
these General Conditions are used only for the purpose of convenience
and shall not.be deemed to limit the subject of the clause or to be
considered in the construction thereof.
If more than one Lessee is named under this Lease the obligation
of all such lessees hereunder shall be and is joint and several.
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GC -(nm /Ind 1 -15 -69