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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 B.... j..... .a • 6 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 i 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 abc ano. i 0 0 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 Enc1. t 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 -0- 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 - /.a . 2/1% 14 2/1/IS S 3" jaw s100 Am = '100 ,ow Elevator - { ';500 { 000 i- ,000 -f i00at Independent Contractors. LF 11624 2JUM 2WIS -{ :app _ -� .a00 '$ _ ,000 = '.. ,000 : apD { ;000 { ,p00 0 - ,000 Products — Completed Operations ie! 11624 2/1/74 2/1/75, wregaNt s Me ado xxxx XxU Contractual — as described ZP 11624 2/1/74 2 /1/75 -108 below :100 ,000 :300 ,000 s00 aoo a aoo Automobile Liability — Owned Automobiles $ 'Goo . =. .000 ; ,Owes 30= Hired Automobiles - : X0 ' t- -,txD- xxxx Non - Owned Automobiles - 0 ,000 = AubnwMN Physical Damage — FFim,LiOhtningi 6 Transportation Q 44/? C � 8 Then n 'C rJ Q i o C/ Collision or Ups" - - I Bilg�• Actual Valve Lo N s i Loss Payable to: - _ �tIF�GY/ WwbnwMS Compensation - - _ Compensation — SIaOltarY- v �. and Empleysrs WbN1b • • #. NUITAW M • CO. 111217179.9 2/1/74 2/1/75 $4* W8d @00 . tat718T3 w sed Doacription and L.ocafion of Operatlerw, Automobiles Covered. Contracts, Additional Irrsuresa, eft.: - .. . PJ =WPW" f - ORR= (W um im it to �s . �fi!pow o CNW• y �w� 0�/ ltti w. Tie A.as AMA rte' I �T =V= 01MMi is iL1 im ih$ A Mrr:rOKLL s6M 33 All I= =on rsr I cde25i►cr FOR SBt6 aRC�sRr�. 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 -0- i :I .. I .. 4 9 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 0 V THE n:!JAM0 SEAL B ca= w" I n N By y0R, �1\17 ��- �Sy'c U Asststan etary APPROVED AS TO FORM CITY OF NEWPORT BEACH ten: 1 6( cff CITY ATTORNEY By By -2- �- ,. ...... .......... ... ..... .... �. .,_..... .......��.+.widw:._.,.._....�_ �. ...........:..mss:..:.— ...•. -... .S' ;...a.� ,. ........, 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 , - 1 Exhibit 'W' .. w:, V. n �a Y 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. -' •� CITY OF NEWPORT BEACH PUBLIC WORKS DEPARTMENT P.2OPOSSEO TE&.ACO' R, e 4i Q ki • 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 -5- 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 -7- 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. -10- CC -Com /Ind 1 -15 -69 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. -11- 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. -12- 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. -13- 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. -14- GC -(nm /Ind 1 -15 -69