HomeMy WebLinkAboutCC AG PKT 2010-04-26 #GAGENDA STAFF REPORT
DATE: April 26, 2010
TO: Honorable Mayor and City Council
THRU David N. Carmany, City Manager
FROM: Jill R. Ingram, Assistant to the City Manager
SUBJECT: APPROVAL OF RESTATED AND AMENDED
LEASE AGREEMENT BETWEEN THE CITY OF
SEAL BEACH AND DOOR, LLC FOR THE
ELECTRICAL SUBSTATION SITE NEAR OCEAN
AVENUE AND FIRST STREET
SUMMARY OF REQUEST:
That the City Council: 1) Consider the adoption of Resolution No. 5990, A
Resolution of the City Council of the City of Seal Beach, California, approving the
Restated and Amended Lease Agreement for the Electrical Substation Site Near
Ocean Avenue and First Street; and 2) Authorize the City Manager to execute
the Agreement.
BACKGROUND:
On May 20, 1995, the City Council approved a lease agreement between the City
and Nuevo Energy Company, now commonly known as "DCOR." DCOR
originally took possession of the premises directly from the prior tenant by
assignment of the prior tenant's interest in a lease agreement dated May 20,
1965. Attached to this report as Attachment C is a copy of the original lease
agreement dated May 20, 1995, for the electrical substation site near Ocean
Avenue and First Street. The lease term of the original agreement was for 15
years, commencing on May 20, 1995, and ending on May 19, 2010. A summary
of the provisions of the proposed Restated and Amended Lease Agreement are
as follows:
J Lease Term The lease term shall be 20 years, commencing on May 20,
2010, and ending on May 10, 2030.
J Rent. DCOR will pay the sum of $25,000 per year in advance on May
20 each year, commencing on May 20, 2010, and continuing annually
during the term of the lease.
Agenda Item Q
Page 2
✓ Annual Rent Adiustment The annual rent shall be adjusted beginning
on the first anniversary of the lease, May 20, 2011, and each one -year
anniversary of the lease commencement date. The base for computing
the annual adjustment is the Consumer Price Index for All Urban
Consumers for the Los Angeles- Anaheim - Riverside Metropolitan Area
published by the U.S. Department of Labor, Bureau of Labor Statistics.
✓ Maintenance DCOR shall maintain the premises in good order,
condition, cleanliness, and repair, at its sole cost and expense.
Utilities DCOR shall be solely responsible for providing utilities or
services to the premises.
FISCAL IMPACT:
Based upon terms in the proposed Restated and Amended Lease Agreement,
the base annual rent is $25,000, with a provision for an annual rent adjustment
based upon the Consumer Price Index for All Urban Consumers for the Los
Angeles- Anaheim- Riverside Metropolitan Area published by the U.S. Department
of Labor, Bureau of Labor Statistics.
RECOMMENDATION:
That the City Council: 1) Consider the adoption of Resolution No. 5990, A
Resolution of the City Council of the City of Seal Beach, California, approving the
Restated and Amended Lease Agreement for the Electrical Substation Site Near
Ocean Avenue and First Street; and 2) Authorize the City Manager to execute
the Agreement.
SUBMITTED BY:
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J P&
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to the City Manager
NOTED AND APPROVED:
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David N. Carmany
City Manager
Attachments:
A. Resolution No. 5990
B. Restated and Amended Lease Agreement
C. Original Lease Agreement dated 5/20/95
D. Redline /Strike -out version
ATTACHMENT "A"
Resolution No. 5990
RESOLUTION NUMBER 5990
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEAL
BEACH, CALIFORNIA, APPROVING A RESTATED AND
AMENDED LEASE AGREEMENT BETWEEN THE CITY OF SEAL
BEACH AND DCOR, LLC
THE CITY COUNCIL OF THE CITY OF SEAL BEACH DOES HEREBY
RESOLVE:
SECTION 1. The City Council hereby approves a Restated and Amended
Lease Agreement between the City of Seal Beach and DCOR,
LLC, regarding the electrical substation site near Ocean Avenue
and First Street.
PASSED, APPROVED and ADOPTED by the City Council of the City of Seal
Beach at a regular meeting held on the 26th day of April , 2010 by the
following vote:
AYES: Council Members
NOES: Council Members
ABSENT: Council Members
ABSTAIN: Council Members
ATTEST:
Mayor
City Clerk
STATE OF CALIFORNIA }
COUNTY OF ORANGE } SS
CITY OF SEAL BEACH }
I, Linda Devine, City Clerk of the City of Seal Beach, do hereby certify that the
foregoing resolution is the original copy of Resolution Number 5990 on file in
the office of the City Clerk, passed, approved, and adopted by the City Council at
a regular meeting held on the 26th day of April , 2010.
City Clerk
ATTACHMENT "B"
Restated and Amended Lease Agreement
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City Clerk
City of Seal Beach
211 Eighth Street
Seal Beach, California 90740
_ Exempt from fees per Government Code § 27383
(space above for recorder's use)
RESTATED AND AMENDED LEASE AGREEMENT
FOR THE ELECTRICAL SUBSTATION SITE
NEAR OCEAN AVENUE AND FIRST STREET
between
City of Seal Beach
211 - 8th Street
Seal Beach, California 90740
I
DCOR, LLC, a
Texas limited liability company
This Lease Agreement ( "Lease ") is made and entered into as of April 26, 2010, by and between
the CITY OF SEAL BEACH, a California charter city ("City") and DCOR, LLC, a Texas
limited liability company ( "Tenant ").
RECITALS
1. The City owns certain real property (`:the Premises ") delineated and identified as
"Electrical Facilities" on Exhibit "A" and legally described in Exhibit `B."
2. Tenant originally took possession of the Premises directly from the prior tenant by
assignment of the prior tenant's interest in a lease agreement dated May 20, 1965 ( "the 1965
Lease ").
3. Tenant currently occupies the Premises pursuant to a lease agreement with the City dated
May 20, 1995 ( "the 1995 Lease "), which will terminate on May 19, 2010.
4. The Parties mutually desire to enter into an amended and restated lease agreement for the
Premises.
NOW THEREFORE, in consideration of the Parties' performance of the promises, covenants,
and conditions stated herein, the Parties hereto agree as follows.
AGREEMENT
1. LEASE. Subject to the terms and conditions of this Lease, City hereby leases to Tenant
and Tenant hereby leases from City the Premises, as identified and described by Exhibits A and
B to this Agreement, which are hereby incorporated as though set forth in full. Tenant
acknowledges that Tenant is in possession of the Premises. Except as specifically stated in this
Lease, City has made and now makes no warranties or representations regarding the condition of
the Premises.
2. TERM. The lease term ( "Term ") shall be 20 years, commencing on May 20, 2010 ("the
Commencement Date ") and ending on May 19, 2030.
3. RENT.
A. Base Annual Rent. Tenant shall pay to City, as annual rent, without deduction,
setoff, prior notice, or demand, the sum of $25,000.00 per year in advance on May 20 of each
year, commencing on the Commencement Date, and continuing during the Term.
B. Annual Rent Adjustment. The annual rent described in Section 3.A shall be
adjusted on the anniversary of the Commencement Date (i.e. May20, 2011) and each
anniversary of the Commencement Date thereafter ("the Adjustment Date "), as follows:
The base for computing the adjustment on each Adjustment Date is the Consumer
Price Index for All Urban Consumers for the Los Angeles- Anaheim - Riverside Metropolitan
Area published by the United States Department of Labor, Bureau of Labor Statistics ( "Index'),
which is published for the fourteenth month preceding that Adjustment Date ("Beginning
Index "). If the Index published for the second month preceding that Adjustment Date
("Extension Index's is less than or equal to the Beginning Index, the annual rent shall not be
adjusted, and shall continue at an amount equal to the annual rent in effect immediately prior to
that Adjustment Date. If the Extension Index is more than the Beginning Index, the annual rent
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shall be adjusted to an amount determined by multiplying the annual rent in effect immediately
prior to that Adjustment Date by a fraction, the numerator of which is the Extension Index and
the denominator of which is the Beginning Index.
If the Index is changed so that the base year differs from that used for the
Beginning Index, the Index shall be converted in accordance with the conversion factor
published by the United States Department of Labor, Bureau of Labor Statistics. If the Index is
discontinued or revised during the term, such other government index or computation with which
it is replaced shall be used in order to obtain substantially the same result as would be obtained if
the Index had not been discontinued or revised.
4. USE. Tenant agrees to use the Premises for operation of an electrical substation and
appurtenant facilities.
5. ALTERATIONS AND IMPROVEMENTS. Tenant shall not construct any structures or
improvements on the Premises without the prior written consent of the City. Any alterations or
improvements constructed by Tenant shall become the property of the City at the time of such
construction or placement and shall remain the property of the City after termination or
expiration of this Lease, unless City elects to require Tenant to remove such improvements and
restore the Premises as herein provided.
6. MAINTENANCE. As part of the consideration for this Lease, Tenant, at its soIe cost and
expense, shall at all times maintain the Premises and every part thereof in good order, condition,
cleanliness, and repair.
7. USES PROHIBITED. Tenant shall not use or allow the Premises to be used for any
improper, immoral, unlawful, or objectionable purpose; nor shall Tenant cause, maintain or
permit any nuisance in, on, or about the Premises. Tenant shall not commit or allow to be
committed any waste in or upon the Premises. Tenant shall not conduct or permit to be
conducted any sale by auction, in, upon or from the Premises whether said auction be voluntary,
involuntary, pursuant to any assignment for the payment of creditors or pursuant to any
bankruptcy or other insolvency proceeding.
Tenant shall not cause or permit any Hazardous Substances (as defined below) to be
used, stored, or generated, on or in the Premises by Tenant, Tenant's agents employees,
contractors, or invitees without first obtaining City's written consent. In no event shall Tenant
ever use the Premises to dispose of any Hazardous Substance or any Solid Waste (as defined by
42 U.S.C. Section 6903(27). If Hazardous Substances are used, stored, or generated, on or in the
Premises except as permitted above, then Tenant shall defend, indemnify and hold harmless City
(and its councihnembers, officers, staff, employees, and agents) from any and all claims,
damages, fines, judgments, penalties, costs, Iiabilities, or losses (including, without limitation, a
decrease in value of the Premises, damages caused by loss or restriction of rentable or usable
space, or any damages caused by adverse impact on marketing of the space, or any governmental
or third -party claim for reimbursement or compensations pursuant to liability under CERCLA,
RCRA, or related statutes, and any and all sums paid for settlement of claims, attorneys' fees,
consultant, and expert fees) arising during or after the term of this Lease and arising as a result of
that contamination. This duty to defend and indemnification includes, without limitation, any
and all costs incurred because of any investigation of the site or any cleanup, removal, or
restoration mandated by a federal, state, or local agency or political subdivision. Without
limitation of the foregoing, if Tenant causes or permits the presence of any Hazardous Substance
on the Premises which results in contamination of the soil, soil vapors, or groundwater beneath
the Premises, then Tenant shall promptly, at Tenant's sole expense, take any and all necessary
actions to return the Premises to the condition existing prior to the presence of any such
Hazardous Substance on the Premises. Tenant shall first obtain City's approval for any such
remedial action. The provisions of this paragraph shall be in addition to any other obligations
and liabilities Tenant may have to City at law or equity and shall survive the expiration or the
termination of this Lease.
In the event that the City notifies Tenant of potential liability under this Section 7, Tenant
shall respond in writing to such a notification within 10 working days. If Tenant does not so
respond and unequivocally accept the duty to defend and indemnify the City without reservation,
then City shall have the right to retain independent legal counsel within its sole discretion and
Tenant shall be responsible for all fees and costs, including attorneys' fees, of any such counsel
selected by the City.
For purposes of this Lease, the term "Hazardous Substance" means any substance that is
listed as a "Hazardous Substance" pursuant to 42 U.S.C. Section 9601(14), and also any toxic,
ignitable, reactive, or corrosive hazardous waste defined pursuant to 42 U.S.C. Section 6921 and
implementing regulations.. "Hazardous Substance" includes without limitation any and all
materials or substances that are defined by federal, state, or local statutes, regulations, or
ordinances as "hazardous waste," "extremely hazardous waste," or a "hazardous substance."
"Hazardous Substance" includes but is not limited to asbestos, polychlorobiphenyls ( "PCBs "),
and oil, petroleum and their fractions or by- products, notwithstanding any "petroleum exclusion"
set forth in 42 U.S.C. Section 9601(14).
8. LIENS. Tenant shall keep the Premises free from any liens or stop notices arising out of
any work performed, materials furnished, or obligations incurred by or on behalf of Tenant. City
may require, at City's sole option, that Tenant shall provide to City, at Tenant's sole cost and
expense, a payment and completion bond in an amount equal to 1 1/2 times the estimated cost of
any improvements, additions, or alterations in the Premises which the Tenant desires to make, to
insure City against any liability for mechanics' and materialmen's liens or stop notices and to
insure completion of the work.
9. ASSIGNMENT AND SUBLETTING. Tenant shall not, either voluntarily or by
operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any
interest herein, or any right or privilege appurtenant hereto, or allow any other person (the
employees, agents and invitees of Tenant excepted) to occupy or use the Premises, or any portion
thereof, without first obtaining the written consent of City, which consent may be withheld in the
sole discretion of City. A consent to one assignment, subletting, occupation or use by any other
person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation,
or use by another person. Consent to any such assignment or subletting shall in no way relieve
Tenant of any liability under this Lease. Any such assignment or subletting without such consent
shall be void, and shall, at the option of the City, constitute a default under this Lease.
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10. LATE PAYMENT. A Iate payment charge of 10% of any rent or any other required
payment to the City shall be paid by the Tenant if such payment is not paid to the City on or
before the 10th day after payment is due. The parties hereby agree that such Iate charge
represents a fair and reasonable estimate of the costs City will incur by reason of late payment by
Tenant. Acceptance of the late charge by City shall not constitute a waiver of Tenant's default
with respect to the overdue amount, nor prevent City from exercising any of the other rights and
remedies available to City.
11. INDEMNIFICATION. Tenant shall defend, indemnify, and hold harmless City, the City
Council and each member thereof, and City's officers, employee and agents (all collectively
referred to as "Indemnitees") from and against any and all claims arising from Tenant's use of
the Premises or from the conduct of its business or from any activity, work, or other things done,
suffered by the Tenant in or about the Premises, and shall further defend, indemnify, and hold
harmless Indemnitees from and against any and all claims arising from any breach or default in
the performance of any obligations on Tenant's part to be performed under the terms of this
Lease, or arising from any act, omission, or negligence of the Tenant, or any officer, agent,
employee, guest, or invitee of Tenant, and from all costs, attorney's fees, and liabilities incurred
in or about the defense of any such claim or any action or proceeding brought thereon. If any
action or proceeding be brought against Indemnitees by reason any such claim, Tenant, upon
notice from Indemnitees shall defend Indemnitees at Tenant's expense, by counsel reasonably
satisfactory to Indemnitees. Tenant, as a material part of the consideration to City, hereby
assumes all risk of damage to property or injury to persons in, upon, or about the Premises, from
any cause; and Tenant hereby waives all claims in respect thereof against City. Tenant shall give
prompt notice to City in case of casualty or accidents in the Premises. City or its agents shall not
be liable for any loss or damage to persons or property resulting from fire, explosion, earthquake,
flood, or any other cause whatsoever. City or its agents shall not be liable for interference with
the light, air, or for any latent defect in the Premises.
12. INSURANCE.
A. Liability. Tenant agrees that at all times during the term of this Lease and any
renewal or extension thereof, it shall at Tenant's expense maintain in force insurance policies
which will insure and indemnify the Tenant, City and the other Indemnitees against liability or
financial loss resulting from any suits, claims or actions and from all costs and expenses of
litigation, in an amount of not less than $2,500,000 combined single limit for any injury to
persons and /or damage to property in or about the Premises by reason of the use and occupation
of the Premises by Tenant or by any other person or persons. If Tenant seeks permission to use,
store, or generate Hazardous Substances (as defined in Section 8 herein) on the Premises, then
such policies shall also include a Pollution Legal Liability policy providing for coverage of any
pollution event on the Premises or migrating from the Premises with a minimum policy value
(separate and apart from any other insurance policies required under this Section) of $3,000,000.
B. Certificate. Said policies shall be issued by an insurer rated in Best's Insurance
Guide with a financial rating of B+ VII or better. Said policies shall provide that the insurance
coverage shall not be cancelled or reduced by the insurance carrier without the City having been
given 30 days' prior written notice thereof by such carrier. The Tenant agrees that it will not
cancel or reduce said insurance coverage. At all times during the term of this Lease and prior to
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taking possession of the Premises, Tenant shall provide the City Clerk of the City a Certificate
from the insurance carrier or carriers showing the aforesaid insurance policies are in effect in the
amounts above provided, and if requested, a copy of each insurance policy. Notwithstanding any
other provision to the contrary contained in this Lease, Tenant shall not have the right to take
possession of the Premises until such certificate or certificates and insurance policies are filed
with the City Clerk who shall review them with the City Attorney to ensure that the submitted
policies comply with all provisions of this Section.
C. Lapsed Insurance. Tenant agrees that if it does not keep the aforesaid insurance
in full force and effect, the City may take out the necessary insurance and pay the premium
thereon, and the repayment thereof shall be deemed to be a part of the rental of the Premises in
addition to the usual rent and payable as such on the tenth (i 0th) day after the City gives the
Tenant notice of the payment by the City.
13. UTILITIES. Tenant shall be solely responsible for providing utilities or services to the
Premises. Lessee agrees to pay before delinquency every charge, lien or expense accruing or
payable during the term of this Lease in connection with the use of the Premises including, but,
not by way of limitation, gas, telephone, and other utilities and services used by Lessee on the
Premises. If any such charge, lien or expense is not paid when due, City may pay the same, and
any amount so paid by City shall be paid by Lessee to City upon demand as additional rent.
14. SIGNS. Tenant shall not without City's prior written approval install or affix any
lighting or shades, awnings, or decorations (including exterior painting), signs, lettering,
placards, or the like on the Premises; display or sell merchandise on the Premises; - cause or
permit to be used any advertising, loudspeakers, unusually bright or flashing lights, and similar
devices which may be seen or heard outside the Premises.
15. COMPLIANCE WITH LAW. Tenant agrees to comply with all existing and future
ordinances, rules, laws, or regulations of any governmental agency that are applicable to the
Premises or the operations of Tenant on the Premises, including but without limitation, all
governmental laws with respect to the use, storage, or generation of any Hazardous Substance on
the Premises.
16. RIGHT OF ACCESS. The City and City's officers, employees, and agents shall at all
reasonable times have the right to enter the Premises for the purpose of inspecting the same,
posting notices of non - responsibility or any other notices required by law for the protection of
the City, doing any work that City is permitted or required to perform under this Lease, and
making any reasonable repairs which the City determines may be required.
In conducting its activities on the Premises as allowed in this section City shall attempt to
minimize the inconvenience, annoyance, or disturbance to Tenant. However, City shall not be
liable in any manner for any inconvenience, disturbance, loss of business, nuisance, or other
damage arising out of City's entry on the Premises as provided in this ,section, except damage
resulting from the negligent or intentional wrongful acts or omissions of City or its authorized
representatives. Tenant shall not be entitled to an abatement or reduction of rent if City exercises
any rights reserved in this section.
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17. TAXES AND ASSESSMENTS. Tenant shall pay or cause to be paid, before
delinquency, any and all taxes and assessments levied and assessed against its interest in the
Premises, upon all Tenant's leasehold improvements, equipment, furniture, fixtures, and any
other personal property located in or on the Premises, or which become a lien against the
Premises or Tenant' s interest therein or its property. Tenant recognizes and understands that
this Lease may create a possessory interest subject to taxes levied upon such interest.
18. TENANT'S DEFAULT. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant: (a) The vacating or abandonment
of the Premises by Tenant; (b) The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due where such failure shall
continue for a period of three (3) days after written notice thereof by City to Tenant; (c) The
failure by Tenant to observe or perform any of the covenants, conditions or provisions of this
Lease to be observed or performed by the Tenant, other than described in subsection (b), where
such failure shall continue for a period of 30 days after written notice thereof by City to Tenant;
provided, however, that if the nature of Tenant's default is such that more than 30 days are
reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant
commences such cure within said 30 day period and thereafter diligently prosecutes such cure to
completion; (d) The making by Tenant of any general assignment or general arrangement for the
benefit of creditors; or unless prohibited by Bankruptcy Law or other paramount law, the filing
by or against Tenant of a petition to have Tenant adjudged a bankrupt, or a petition or
reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant, the same is dismissed within 60 days); or the appointment of a
trustee or a receiver to take possession of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where possession is not restored to Tenant within
30 days; or the attachment, execution or other judicial seizure of substantially all of Tenant's
assets located at the Premises or of Tenant's interest in this Lease, where such seizure is not
discharged with 30 days.
19. REMEDIES ON DEFAULT. In the event of any such default or breach by Tenant, City
may at any time thereafter, in its sole discretion, with or without notice or demand and without
limiting City in the exercise of a right or remedy which City may have by reason of such default
or breach:
(a) Terminate Tenant's right to possession of the Premises by any lawful means, in which
case this Lease shall terminate and Tenant shall immediately surrender possession of the
Premises to City. In such event City shall be entitled to recover from Tenant all damages
incurred by City by reason of Tenant's default including, but not limited to, the cost of
recovering possession of the Premises; expenses of reletting, including necessary renovation and
alteration of the Premises; reasonable attorney's fees; the worth at the time of award by the court
having jurisdiction thereof of the amount by which the unpaid rent and other charges and
adjustments called for herein for the balance of the term after the time of such award exceeds the
amount of such loss for the same period that Tenant proves could be reasonably avoided; and
that portion of any leasing commission paid by City and applicable to the unexpired term of this
Lease. Unpaid installments of rent or other sums shall bear interest from the date due at the
maximum legal rate; or
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(b) Maintain Tenant's right to possession, in which case this Lease shall continue in
effect whether or not Tenant shall have abandoned the Premises. In such event City shall be
entitled to enforce all of City's rights and remedies under this Lease, including the right to
recover the rent and any other charges and adjustments as may become due'hereunder; or
(c) Pursue any other remedy now or hereafter available to City under the laws or judicial
decisions of the State of California.
20. DEFAULT BY CITY: City shall not be in default unless City fails to perform
obligations required of City within 30 days after written notice by Tenant to City specifying
wherein City has failed to perform such obligation; provided, however, that if the nature of
City's obligation is such that more than 30 days are required for performance then City shall not
be in default if City commences performance within such 30 day period and thereafter diligently
prosecutes the same to completion. In no event shall Tenant have the right to terminate this
Lease as a result of City's default and Tenant's remedies shall be limited to damages and/or an
injunction.
21. EMINENT DOMAIN. If all or any portion of the Premises shall be taken or appropriated
by any authority under the power of eminent domain, either party hereto shall have the right, at
its option, within 60 days after said taking, to terminate this Lease upon 30 days' written notice.
If neither party elects to terminate as herein provided, the rent thereafter to be paid shall be
equitably reduced. In the event of any taking or appropriation whatsoever, City shall be entitled
to any and all awards and /or settlements that may be given and Tenant shall have no claim
against City for the value of any unexpired term of this Lease.
22. NOTICE. Any notice, demand, request, consent, approval or communication that either
party desires or is required to give to the other party shall be in writing and shall be deemed
given as of the time of hand delivery to the addresses set forth below, or seventy-two (72) hours
after deposit into the United States mail, postage prepaid, by registered or certified mail, return
receipt requested. Unless notice of a different address has been given in accordance with this
section, all such notices shall be addressed as follows:
If to the City, to: City of Seal Beach
211 Eighth Street
Seal Beach, California 90704
Attn: City Manager
If to Tenant, to: DCOR, LLC
290 Maple Court, Suite 290
Ventura, CA 93003
Attn: Jeffrey H. Warren, Vice President
23. SUCCESSORS. All of the terms, covenants, and conditions of this Lease shall inure to
the benefit of and shall bind the parties hereto and their successors and assigns; provided
however, that any subletting or assignment by Tenant of the whole or any part of the Premises or
any interest therein shall be subject to the provisions of Section 9 of this Lease.
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24. HOLDING OVER. If Tenant, with City's consent, remains in possession of the Premises
after expiration or termination of the term, or after the date in any notice given by City to Tenant
terminating this Lease, such possession by Tenant shall be deemed to be a month -to -month
tenancy, terminable on 30 days' notice given at any time by either Party, at a monthly rental
equal to the then fair - market rent for the Premises, but in no event less than 150% of one - twelfth
of the annual rent in effect immediately prior to such month -to -month tenancy. All provisions of
this Lease except those pertaining to rent and term shall apply to the month -to -month tenancy.
25. SURRENDER. At the expiration or termination of the term of this Lease, Tenant shall
surrender the Premises and all structures and improvements constructed thereon to the City in
good and broom -clean condition. Notwithstanding the foregoing, not later than 90 days after
expiration or termination of the term of this Lease, the City may give notice of its election to
require Tenant at Tenant's expense to remove all improvements and to restore the Premises to
the same condition as originally received from the City by Tenant's predecessor in interest.
26. SUBORDINATION. At the option of the City, this Lease shall be either subordinate or
superior to any ground or underlying lease, deed of trust, mortgage or other encumbrance now or
hereafter placed on the Premises. Tenant shall upon request by City execute any written
subordination agreements or other documents necessary or convenient to implement this section.
In addition, Tenant shall deliver to the City, at its request: (i) a financial statement of Tenant
duly certified by Tenant; (ii) an estoppel certificate in a form satisfactory to the City Attorney
duly executed by Tenant stating that this Lease is in full force and effect, that the Tenant claims
no default by the City hereunder, and stating the amount of the monthly rent and any security
deposit; and (iii) Tenant's agreement to attorn to any lender.
27. BROKERS. Each party represents that it has not had dealings with any real estate
broker, finder, or other person performing the functions of a broker or finder, with respect to this
Lease in any manner. Each party ( "Indemnifying Party") shall hold harmless the other party
from all damages resulting from any claims that may be asserted against the other party by any
broker, finder, or other person with whom the Indemnifying Party has or purportedly has dealt.
28. GENERAL PROVISIONS.
A. Waiver. The waiver by City of any term, covenant or condition herein contained
shall not be deemed to be a waiver of such term, covenant or condition or any subsequent breach
of the same or any other term, covenant or condition herein contained. The subsequent
acceptance of rent hereunder by City shall not be deemed to be a waiver of any preceding default
by Tenant of any term, covenant or condition of this Lease, other than the failure of the Tenant to
pay the particular rental so accepted, regardless of City's knowledge of such preceding default at
the time of the acceptance of such rent.
B. Joint Obligation. If there be more than one Tenant the obligations hereunder
imposed shall be joint and several.
C. Marginal Headings. The marginal headings and article titles to the articles of this
Lease are not a part of the Lease and shall have no effect upon the construction or interpretation
of any part hereof.
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D. Time. Time is of the essence of this Lease and each and all of its provisions in
which performance is a factor.
E. Prior Agreements. This Lease contains all of the agreements of the parties hereto
with respect to any matter covered or mentioned in this Lease, and supersedes all prior
agreements (including but not limited to the 1965 Lease and the 1995 Lease) or understandings
pertaining to any such matters. No provision of this Lease may be amended or added to except
by an agreement in writing signed by the parties hereto or their respective successors in interest.
This Lease shall not be effective or binding on any party until fully executed by both parties
hereto.
F. Inability to Perform. This Lease and the obligations of the Tenant hereunder shall
not be affected or impaired because the City is unable to fulfill any of its obligations hereunder
or is delayed in doing so, if such inability or delay is caused by reason of strike, labor troubles,
acts of nature, or any cause beyond the reasonable control of the City.
G. Partial Invalidity. Any provision of this Lease which shall prove to be invalid,
void, or illegal shall in no way affect, impair or invalidate any other provision hereof and such
other provision shall remain in full force and effect.
H. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, whenever possible, be cumulative with all other remedies at law or in equity.
I. Authority of Tenant. I£ Tenant is a corporation, each individual executing this
Lease on behalf of said corporation represents and warrants that he is duly authorized to execute
and deliver this Lease on behalf of said corporation, in accordance with the bylaws of said
corporation, and that this Lease is binding upon said corporation.
J. City's Approvals. Neither City's execution of this Lease nor any consent or
approval given by City hereunder in its capacity as City shall waive, abridge, impair or otherwise
affect City's powers and duties as a governmental body. Any requirements under this Lease that
Tenant obtain consents or approvals of City are in addition to and not in lieu of any requirements
of law that Tenant obtain approvals or permits. However, City shall attempt to coordinate its
procedures for giving contractual and governmental approvals so that Tenant's requests and
applications are not unreasonably denied or delayed.
10
IN WITNESS WHEREOF, the parties have executed this Lease as of the date first written above.
0
CITY OF SEAL BEACH, a municipal
corporation ( "City")
By:
Mayor
ATTEST:
City Clerk
(City Sea])
DCOR, LLC, a Texas limited liability company
( "Tenant ")
Lo
-en, Vice President
Alan C. Templeton,
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EXHIBIT B
LEGAL DESCRIPTION OF ELECTRICAL SUBSTATION.
In the city of Seal Beach, County of Orange, State of California.
Commencing at a PK nail in the center line of First Street as shown on the map of Bay
City, recorded in book 3, page 19 of Miscellaneous Maps of Orange County California, said
PK nail being S 31* 17' 00" W 889.69 feet from a lead and tack marking the intersection of said
center line with the center line of Bay Boulevard, and from which PK nail a lead and spike is set
in pavement and bears N 57 49' 00" W 27.50 feet; thence along the Southerly prolongation of
said center line of First Street S 3l° 17' 00" W 229.00 feet; thence N 58° 43' 00" W 218.00 feet
to the true point of beginning; thence N 61 ° 04' 15" W 20.00 feet; thence N 28° 55' 45" E 40.00
feet; thence S 61 ° 04' 15" E 20.00 feet; thence S 28° 55' 45" W 40.00 feet to the true point of
beginning.
ATTACHMENT " C "
Original Lease Agreement dated 05/20/95
CITY OF SEAL BEACH
LEASE -- ELECTRICAL SUBSTATION SITE
NEAR OCEAN AVENUE AND FIRST STREET
1. PARTIES. This lease is made and entered into as of May 20, 1995, by and between
the CITY OF SEAL BEACH, a municipal corporation ( "City ") and NUEVO ENERGY
, a Delaware corporation ( "Tenant ").
ComPRNY
2. PREMISES. For and in consideration of the rents, covenants, and conditions set
forth herein, City hereby leases to Tenant and Tenant hereby leases from City that real
property ( "the Premises ") delineated and identified as "Electrical Facilities" on Exhibit "A"
attached hereto and incorporated herein by this reference, and legally described in Exhibit
"B" attached hereto and incorporated herein by this reference. Tenant acknowledges that
Tenant is in possession of the Premises, having taken possession directly from the prior
tenant by assignment of the interest of the prior tenant. Except as specifically stated in this
Lease, City has made and now makes no warranties or representations regarding the
condition of the Premises.
3. TERM. The lease term ( "Term ") shall be fifteen (15) years, commencing on May
20, 1995 ( "the Commencement Date ") and ending on May 19, 2010.
4. RENT.
A. Base Annual Rent. Tenant shall pay to City as annual rent, without
deduction, setoff, prior notice, or demand, the sum of $15,000.00 per year in advance on
May 20 of each year, commencing on the Commencement Date, and continuing during the
Term. Landlord acknowledges receipt of $13,000.00 from Tenant's predecessor in interest
as a credit against the rent due for the first lease year and $13,000.00 from Tenant as a
credit against the rent due for the second lease year; Tenant shall pay the remaining
$4,000.00 of rent due for the first two lease years concurrently with the execution of this
Lease. Rent for any partial year shall be prorated at the rate of 1/365th of the annual rent
per day.
B. Annual Rent Adjustment. The annual rent described in Section 4.A shall be
adjusted on the second anniversary of the Commencement Date (i.e., May 20, 1997) and
each anniversary of the Commencement Date thereafter ( "the Adjustment Date "), as follows:
The base for computing the adjustment on each Adjustment Date is the
Consumer Price Index for All Urban Consumers for the Los Angeles- Anaheim - Riverside
Metropolitan Area published by the United States Department of Labor, Bureau of Labor
Statistics ( "Index "), which is published for the fourteenth month preceding that Adjustment
Date ( "Beginning Index "). If the Index published for the second month preceding that
Adjustment Date ( "Extension Index ") is less than or equal to the Beginning Index, the annual
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970415 bm C109.aer (0)
rent shall not be adjusted, and shall continue at an amount equal to the annual rent in effect
immediately prior to that Adjustment Date. If the Extension Index is more than the
Beginning Index, the annual rent shall be adjusted to an amount determined by multiplying
the annual rent in effect immediately prior to that Adjustment Date by a fraction, the
numerator of which is the Extension Index and the denominator of which is the Beginning
Index.
If the Index is changed so that the base year differs from that used for the
Beginning Index, the Index shall be converted in accordance with the conversion factor
published by the United States Department of Labor, Bureau of Labor Statistics. If the Index
is discontinued or revised during the term, such other government index or computation with
which it is replaced shall be used in order to obtain substantially the same result as would be
obtained if the Index had not been discontinued or revised.
5. USE. Tenant agrees to use the Premises for operation of an electrical substation and
appurtenant facilities.
6. ALTERATIONS AND IMPROVEMENTS. Tenant shall not construct any structures
or improvements on the Premises without the prior written consent of the City. Any
alterations or improvements constructed by Tenant shall become the property of the City at
the time of such construction or placement and shall remain the property of the City after
termination or expiration of this Lease, unless City elects to require Tenant to remove such
improvements and restore the Premises as herein provided.
7. MAINTENANCE. As part of the consideration for this Lease, Tenant, at its sole
cost and expense, shall at all times maintain the Premises and every part thereof in good
order, condition, cleanliness, and repair.
8. USES PROHIBITED. Tenant shall not use or allow the Premises to be used for any
improper, immoral, unlawful or objectionable purpose; nor shall Tenant cause, maintain or
permit any nuisance in, on or about the Premises. Tenant shall not commit or allow to be
committed any waste in or upon the Premises. Tenant shall not conduct or permit to be
conducted any sale by auction, in, upon or from the Premises whether said auction be
voluntary, involuntary, pursuant to any assignment for the payment of creditors or pursuant
to any bankruptcy or other insolvency proceeding.
Tenant shall not cause or permit any Hazardous Substances (as defined below) to be
used, stored, generated, or disposed of on or in the Premises by Tenant, Tenant's agents,
employees, contractors, or invitees without first obtaining City's written consent. If
Hazardous Substances are used, stored, generated, or disposed of on or in the Premises
except as permitted above, or if the Premises become contaminated in any manner for which
Tenant is legally liable, Tenant shall indemnify and hold harmless City from any and all
claims, damages, fines, judgments, penalties, costs, liabilities, or losses (including, without
limitation, a decrease in value of the Premises, damages caused by loss or restriction of
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970415 Bm 009.aor (0)
rentable or usable space, or any damages caused by adverse impact on marketing of the
space, and any and all sums paid for settlement of claims, attorneys' fees, consultant, and
expert fees) arising during or after the term of this Lease and arising as a result of that
contamination. This indemnification includes, without limitation, any and all costs incurred
because of any investigation of the site or any cleanup, removal, or restoration mandated by
a federal, state, or local agency or political subdivision. Without limitation of the foregoing,
if Tenant causes or permits the presence of any Hazardous Substance on the Premises which
results in contamination, Tenant shall promptly, at Tenant's sole expense, take any and all
necessary actions to return the Premises to the condition existing prior to the presence of any
such Hazardous Substance on the Premises. Tenant shall first obtain City's approval for any
such remedial action. The provisions of this paragraph shall be in addition to any other
obligations and liabilities Tenant may have to City at law or equity and shall survive the
expiration or the termination of this Lease.
For purposes of this Lease, the term "Hazardous Substance" means any substance that
is toxic, ignitable, reactive, or corrosive and that is regulated by any local government, the
State of California, or the United States Government. "Hazardous Substance" includes
without limitation any and all materials or substances that are defined by Law as "hazardous
waste", "extremely hazardous waste," or a "hazardous substance". "Hazardous Substance"
includes but is not limited to asbestos, polychlorobiphenyls ( "PCBs "), and oil, petroleum and
their by- products.
9. LIENS. Tenant shall keep the Premises free from any liens or stop notices arising
out of any work performed, materials furnished or obligations incurred by or on behalf of
Tenant. City may require, at City's sole option, that Tenant shall provide to City, at
Tenant's sole cost and expense, a payment and completion bond in an amount equal to 1 1 /2
times the estimated cost of any improvements, additions, or alterations in the Premises which
the Tenant desires to make, to insure City against any liability for mechanics' and material -
men's liens or stop notices and to insure completion of the work.
10. ASSIGNMENT AND SUBLETTING. Tenant shall not, either voluntarily or by
operation of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or
any interest herein, or any right or privilege appurtenant hereto, or allow any other person
(the employees, agents and invitees of Tenant excepted) to occupy or use the Premises, or
any portion thereof, without first obtaining the written consent of City, which consent may
be withheld in the sole discretion of City. A consent to one assignment, subletting,
occupation or use by any other person shall not be deemed to be a consent to any subsequent
assignment, subletting, occupation or use by another person. Consent to any such assign-
ment or subletting shall in no way relieve Tenant of any liability under this Lease. Any such
assignment or subletting without such consent shall be void, and shall, at the option of the
City, constitute a default under this Lease.
11. LATE PAYMENT. A late payment charge of 10 % of any rent or any other required
payment to the City shall be paid by the Tenant if such payment is not paid to the City on or
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970415 bm C109.wr (0)
before the 10th day after payment is due. The parties hereby agree that such late charge
represents a fair and reasonable estimate of the costs City will incur by reason of late
payment by Tenant. Acceptance of the late charge by City shall not constitute a waiver of
Tenant's default with respect to the overdue amount, nor prevent City from exercising any of
the other rights and remedies available to City.
12. INDEMNIFICATION. Tenant shall indemnify and hold harmless City, the City
Council and each member thereof, and City's officers, employees and agents (all collectively
referred to as "Indemnitees ") from and against any and all claims arising from Tenant's use
of the Premises or from the conduct of its business or from any activity, work, or other
things done, suffered by the Tenant in or about the Premises, and shall further indemnify and
hold harmless Indemnitees from and against any and all claims arising from any breach or
default in the performance of any obligations on Tenant's part to be performed under the
terms of this Lease, or arising from any act or negligence of the Tenant, or any officer,
agent, employee, guest, or invitee of Tenant, and from all costs, attorney's fees, and
liabilities incurred in or about the defense of any such claim or any action or proceeding
brought thereon. If any action or proceeding be brought against Indemnitees by reason of
any such claim, Tenant, upon notice from Indemnitees shall defend Indemnitees at Tenant's
expense, by counsel reasonably satisfactory to Indemnitees. Tenant, as a material part of the
consideration to City, hereby assumes all risk of damage to property or injury to persons in,
upon or about the Premises, from any cause; and Tenant hereby waives all claims in respect
thereof against City. Tenant shall give prompt notice to City in case of casualty or accidents
in the Premises. City or its agents shall not be liable for any loss or damage to persons or
property resulting from fire, explosion, earthquake, flood, or any other cause whatsoever.
City or its agents shall not be liable for interference with the light, air, or for any latent
defect in the Premises.
13. INSURANCE.
A. Liability. Tenant agrees that at all times during the term of this Lease and any
renewal or extension thereof, it shall at Tenant's expense maintain in force insurance policies
which will in and indemnify the Tenant, City and the other Indemnitees against liability
or financial loss resulting from any suits, claims or actions and from all costs and expenses
of litigation, in an amount of not less than $2,500,000 combined single limit for any injury
to persons and /or damage to property in or about the Premises by reason of the use and
occupation of the Premises by Tenant or by any other person or persons.
B. Certificate. Said policies shall be issued by an insurer rated in Best's Insurance
Guide with a financial rating of B+ VII or better. Said policies shall provide that the
insurance coverage shall not be cancelled or reduced by the insurance carrier without the
City having been given 30 days' prior written notice thereof by such carrier. The Tenant
agrees that it will not cancel or reduce said 'insurance coverage. At all times during the term
of this Lease and prior to taking possession of the Premises, Tenant shall provide the City
Clerk of the City a Certificate from the insurance carrier or carriers showing the aforesaid
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970415 bm MO.= M
insurance policies are in effect in the amounts above provided, and if requested, a copy of
each insurance policy. Notwithstanding any other provision to the contrary contained in this
Lease, Tenant shall not have the right to take possession of the Premises until such certificate
or certificates and insurance policies are filed with the City Clerk.
C. Lapsed Insurance. Tenant agrees that if it does not keep the aforesaid insurance
in full force and effect, the City may take out the necessary insurance and pay the premium
thereon, and the repayment thereof shall be deemed to be a part of the rental of the Premises
in addition to the usual rent and payable as such on the tenth (10th) day after the City gives
the Tenant notice of the payment by the City.
14. UTILrM. Tenant shall be solely responsible for providing utilities or services to
the Premises. Lessee agrees to pay before delinquency every charge, lien or expense
accruing or payable during the term of this Lease in connection with the use of the Premises
including, but, not by way of limitation, gas, telephone, and other utilities and services used
by Lessee on the Premises. If any such charge, lien or expense is not paid when due, City
may pay the same, and any amount so paid by City shall be paid by Lessee to City upon
demand as additional rent.
15. SIGNS. Tenant shall not without City's prior written approval install or affix any
lighting or shades, awnings, or decorations (including exterior painting), signs, lettering,
placards, or the like on the Premises; display or sell merchandise on the Premises; cause or
permit to be used any .advertising, loudspeakers, unusually bright or flashing lights, and
similar devices which may be seen or heard outside the Premises.
16. CONTLIANCE WITH LAW. Tenant agrees to comply with all existing and future
ordinances, rules, laws, or regulations of any governmental agency which are applicable to
the Premises or the operations of Tenant on the Premises.
17. RIGHT OF ACCESS. The City and City's officers, employees, and agents shall at
all reasonable times have the right to enter the Premises for the purpose of inspecting the
same, posting notices of non - responsibility or any other notices required by law for the
protection of the City, doing any work that City is permitted or required to perform under
this Lease, and making any reasonable repairs which the City determines may be required.
In conducting its activities on the Premises as allowed in this section City shall
attempt to minimize the inconvenience, annoyance, or disturbance to Tenant. However, City
shall not be liable in any manner for any inconvenience, disturbance, loss of business,
nuisance, or other damage arising out of City's entry on the Premises as provided in this
section, except damage resulting from the negligent or intentional wrongful acts or omissions
of City or its authorized representatives. Tenant shall not be entitled to an abatement or
reduction of rent if City exercises any rights reserved in this section.
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970415 bm C109.aer (0)
18. TAXES AND ASSESSMENTS. Tenant shall pay or cause to be paid, before
delinquency, any and all taxes and assessments levied and assessed against its interest in the
Premises, upon all Tenant's leasehold improvements, equipment, furniture, fixtures, and any
other personal property located in or on the Premises, or which become a lien against the
Premises or Tenant's interest therein or its property. Tenant recognizes and understands that
this Lease may create a possessory interest subject to taxes levied upon such interest.
19. TENANT'S DEFAULT. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant: (a) The vacating or
abandonment of the Premises by Tenant; (b) The failure by Tenant to make any payment of
rent or any other payment required to be made by Tenant hereunder, as and when due,
where such failure shall continue for a period of three (3) days after written notice thereof by
City to Tenant; (c) The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by the Tenant, other than
described in subsection (b), where such failure shall continue for a period of 30 days after
written notice thereof by City to Tenant; provided, however, that if the nature of Tenant's
default is such that more than 30 days are reasonably required for its cure, then Tenant shall
not be deemed to be in default if Tenant commences such cure within said 30 day period and
thereafter diligently prosecutes such cure to completion; (d) The making by Tenant of any
general assignment or general arrangement for the benefit of creditors; or unless prohibited
by Bankruptcy Law or other paramount law, the filing by or against Tenant of a petition to
have Tenant adjudged a bankrupt, or a petition or reorganization or arrangement under any
law relating to bankruptcy (unless, in the case of a petition filed against Tenant, the same is
dismissed within 60 days); or the appointment of a trustee or a receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant's interest in this
Lease, where possession is not restored to Tenant within 30 days; or the attachment,
execution or other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where such seizure is not discharged within 30
days.
20. REMEDIES ON DEFAULT. In the event of any such default or breach by Tenant,
City may at any time thereafter, in its sole discretion, with or without notice or demand and
without limiting City in the exercise of a right or remedy which City may have by reason of
such default or breach: (a) Terminate Tenant's right to possession of the Premises by any
lawful means, in which case this Lease shall terminate and Tenant shall immediately
surrender possession of the Premises to City. In such event City shall be entitled to recover
from Tenant all damages incurred by City by reason of Tenant's default including, but not
limited to, the cost of recovering possession of the Premises; expenses of reletting, including
necessary renovation and alteration of the Premises; reasonable attorney's fees; the worth at
the time of award by the court having jurisdiction thereof of the amount by which the unpaid
rent and other charges and adjustments called for herein for the balance of the term after the
time of such award exceeds the amount of such loss for the same period that Tenant proves
could be reasonably avoided; and that portion of any leasing commission paid by City and
applicable to the unexpired term of this Lease. Unpaid installments of rent or other sums
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970415 bm C109.aer (0)
shall bear interest from the date due at the maximum legal rate; or (b) Maintain Tenant's
right to possession, in which case this Lease shall continue in effect whether or not Tenant
shall have abandoned the Premises. In such event City shall be entitled to enforce all of
City's rights and remedies under this Lease, including the right to recover the rent and any
other charges and adjustments as may become due hereunder; or (c) Pursue any other remedy
now or hereafter available to City under the laws or judicial decisions of the State of
California.
21. DEFAULT BY CITY. City shall not be in default unless City fails to perform
obligations required of City within 30 days after written notice by Tenant to City specifying
wherein City has failed to perform such obligation; provided, however, that if the nature of
City's obligation is such that more than 30 days are required for performance then City shall
not be in default if City commences performance within such 30 day period and thereafter
diligently prosecutes the same to completion. In no event shall Tenant have the right to
tenninate this Lease as a result of City's default and Tenant's remedies shall be limited to
damages and/or an injunction.
22. EMINENT DOMAIN. If all or any portion of the Premises shall be taken or
appropriated by any authority under the power of eminent domain, either party hereto shall
have the right, at its option, within 60 days after said taking, to terminate this Lease upon 30
days' written notice. If neither party elects to terminate as herein provided, the rent
thereafter to be paid shall be equitably reduced. In the event of any taking or appropriation
whatsoever, City shall be entitled to any and all awards and/or settlements which may be
given and Tenant shall have no claim against City for the value of any unexpired term of this
Lease.
23. NOTICE. Any notice, demand, request, consent, approval or communication that
either party desires or is required to give to the other party shall be in writing and shall be
deemed given as of the time of hand delivery to the addresses set forth below, or seventy -
two (72) hours after deposit into the United States mail, postage prepaid, by registered or
certified mail, return receipt requested. Unless notice of a different address has been given
in accordance with this section, all such notices shall be addressed as follows:
If to the City, to: City of Seal Beach
211 Eighth Street
Seal Beach, California 90704
Attn: City Manager
If to Tenant, to: Neuvo Energy leo ppe.....
c/o Torch Operating Company
500 N. Kraemer Blvd., Bldg. B
Brea, California 92821
Attn: Land Department
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970415 hm C109.ner (0)
24. SUCCESSORS. All of the terms, covenants, and conditions of this Lease shall inure
to the benefit of and shall bind the parties hereto and their successors and assigns; provided,
however, that any subletting or assignment by Tenant of the whole or any part of the
Premises or any interest therein shall be subject to the provisions of Section 10 of this Lease.
25. HOLDING OVER. If Tenant, with City's consent, remains in possession of the
Premises after expiration or termination of the term, or after the date in any notice given by
City to Tenant terminating this Lease, such possession by Tenant shall be deemed to be a
month -to -month tenancy, terminable on 30 days' notice given at any time by either Party, at
a monthly rental equal to the then fair- market rent for the Premises, but in no event less than
150 % of one - twelfth of the annual rent in effect immediately prior to such month - to-month
tenancy. All provisions of this Lease except those pertaining to rent and term shall apply to
the month - to-month tenancy.
26. SURRENDER. At the expiration or termination of the term of this Lease, Tenant
shall surrender the Premises and all structures and improvements constructed thereon to the
City in good and broom -clean condition. Notwithstanding the foregoing, not later than 90
days after expiration or termination of the term of this Lease, the City may give notice of its
election to require Tenant at Tenant's expense to remove all improvements and to restore the
Premises to the same condition as originally received from the City by Tenant's predecessor
in interest.
27. SUBORDINATION. At the option of the City, this Lease shall be either subordinate
or superior to any ground or underlying lease, deed of trust, mortgage or other encumbrance
now or hereafter placed on the Premises. Tenant shall upon request by City execute any
written subordination agreements or other documents necessary or convenient to implement
this section. In addition, Tenant shall deliver to the City, at its request: (i) a financial
statement of Tenant duly certified by Tenant; (ii) an estoppel certificate in a form satisfactory
to the City Attorney duly executed by Tenant stating that this Lease is in full force and
effect, that the Tenant claims no default by the City hereunder, and stating the amount of the
monthly rent and any security deposit; and (iii) Tenant's agreement to attorn to any lender.
28. BROKERS. Each party represents that it has not had dealings with any real estate
broker, finder, or other person performing the functions of a broker or finder, with respect
to this Lease in any manner. Each party ( "Indemnifying Party ") shall hold harmless the
other party from all damages resulting from any claims that may be asserted against the other
party by any broker, finder, or other person with whom the Indemnifying Party has or
purportedly has dealt.
29. GENERAL PROVISIONS.
A. Plats and Riders. Clauses, plats, riders and addenda, if any, affixed to this
Lease are a part hereof.
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B. Waiver. The waiver by City of any term, covenant or condition herein
contained shall not be deemed to be a waiver of such term, covenant or condition or any
subsequent breach of the same or any other term, covenant or condition herein contained.
The subsequent acceptance of rent hereunder by City shall not be deemed to be a waiver of
any preceding default by Tenant of any term, covenant or condition of this Lease, other than
the failure of the Tenant to pay the particular rental so accepted, regardless of City's
knowledge of such preceding default at the time of the acceptance of such rent.
C. Joint Obligation. If there be more than one Tenant the obligations hereunder
imposed shall be joint and several.
D. Marginal Headings. The marginal headings and article titles to the articles of
this Lease are not a part of the Lease and shall have no effect upon the construction or
interpretation of any part hereof.
F. Time. Time is of the essence of this Lease and each and all of its provisions
in which performance is a factor.
F. Prior Agreements. This Lease contains all of the agreements of the parties
hereto with respect to any matter covered or mentioned in this Lease, and supersedes all
prior agreements (including but not limited to the lease agreement dated May 20, 1965) or
understandings pertaining to any such matters. No provision of this Lease may be amended
or added to except by an agreement in writing signed by the parties hereto or their respective
successors in interest. This Lease shall not be effective or binding on any party until fully
executed by both parties hereto.
G. Inability to Perform. This Lease and the obligations of the Tenant hereunder
shall not be affected or impaired because the City is unable to fulfill any of its obligations
hereunder or is delayed in doing so, if such inability or delay is caused by reason of strike,
labor troubles, acts of nature, or any cause beyond the reasonable control of the City.
H. Partial Invalidity. Any provision of this Lease which shall prove to be invalid,
void, or illegal shall in no way affect, impair or invalidate any other provision hereof and
such other provision shall remain in full force and effect.
I. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, whenever possible, be cumulative with all other remedies at law or in
equity.
J. Authority of Tenant. If Tenant is a corporation, each individual executing this
Lease on behalf of said corporation represents and warrants that he is duly authorized to
execute and deliver this Lease on behalf of said corporation, in accordance with the bylaws
of said corporation, and that this Lease is binding upon said corporation.
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970415 bm C109.uer a
K. City's Approvals. Neither City's execution of this Lease nor any consent or
approval given by City hereunder in its capacity as City shall waive, abridge, impair or
otherwise affect City's powers and duties as a governmental body. Any requirements under
this Lease that Tenant obtain consents or approvals of City are in addition to and not in lieu
of any requirements of law that Tenant obtain approvals or permits. However, City shall
attempt to coordinate its procedures for giving contractual and governmental approvals so
that Tenant's requests and applications are not unreasonably denied or delayed.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date first written
above.
comp"`(
NUEVO PS�GY , a
Delawarg co ration ( "Tenant ")
By:
ST9
';� \ ,President
B I�
Secretary
CITY OF SEAL BEACH, a municipal corporation ( "City")
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Mayor
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CCNVEL CHAWEL
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DOCK 43. PAGE 17
CCUITY OF ORANGE
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EXHIBIT B
LEGAL DESCRIPTION OF ELECTRICAL SUBSTATION.
In the city of Seal Beach, County of Orange, State of California.
Commencing at a PK nail in the center line of First Street as shown on the map
of Bay City, recorded in book 3, page 19 of Miscellaneous Maps of Orange County
California, said PK nail being S 31 ° 17'00" W 889.69 feet from a .lead and tack marking
the intersection of said center line with the center fine of Bay Boulevard, and from
which PK nail a lead and spike is set in pavement and bears N 57 49' 00" W 27.50
feet; thence along the Southerly prolongation of said center line of First Street S 31°
17' 00" W 229.00 feet; thence N 58 43' 00" W 218.00 feet to the true point of
beginning; thence N 61 04' 15" W 20.00 feet; thence N 28° 55' 45" E 40.00 feet;
thence S 61 04' 15" E 20.00 feet; thence S 28 55'45" W 40.00 feet to the true point of
beginning.
ATTACHMENT "D"
Redline /Strike -out Version-
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C !TV OF SEAL BEACH
► ► �; 1 1 ►�: 1 �
U SSTATED AM AMA, ' L EASE - AGREEMENT
Eg &IH ELECTRICAL. SUBSTATION SITE
NEAR OCEAN AVENUE AND FIRST STREET
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+ . PARTIES. This leese pree ent L`�ease" 1 is made and entered into as of
_ , 2010, by and between the CITY OF SEAL BEACH, a muF tiaipal
et jS-. ( "City ") and DCOR, LLC, a ("renant ").
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FA
• RICHAR W ATSON 8 i
RECITALS
• • -1• •'• 1 "•
The A • • 1 • • I :1,, 1 ' X111 • ' , 1 e as
• • 1 1 • i I I • . • I • ' • • 1 • i
Te nant • • • • • • - • 1 •
,_�'_ , ,1Pre mises d tly 1 .11 the •d• 1.1 •
-of the, prior t'.q interest i AsC aaeemegLAUL�L.Mav 20, 1965 ("the 1965
lay 20- '�he 1995 Lcmr0._WJ1igb will termin
4. rl Ew 11,1,• •' 1 gnter JnUup . 11e1•'d an • • lease ae • ,1'
11 r _ r
1 • ► ___ • i n •• 1 • �1 , • 1 • 1 < 11 iy .• III / / 1' • • 11 • yl c.l
ions stated
1, 2. PMMiSF56. For and in eengidefation of the Fews,
horeiff r.EASE. Subiect to the terms and conditions o('tjij,_lease City hereby leases to Tenant
and Tenant hereby leases from City Pfemises") delineated aed identified
a,
f•t' and „
Fa>renee> I ises��s identified and desc,,nb by ExhibitsA U , to this Ag hic
:�v incomora �d a thou se fc�rth�iL� all Tenant acknowledges that Tenant is in
P -session of the Premises,
e the - inte>e . Except as specifically stated in this Lease, City has made and
n -w makes no warranties or representations regarding the condition of the Premises.
I X. -TERM. The lease term ( "Term ") shall be 20 years, commencing on May 20, 2010
(` 1he Commencement Date's and ending on May 19, 2030.
I 4 -RENT.
A. Base Annual Rent. Tenant shall pay to City, as annual rent, without deduction,
stloff, prior notice, or demand, the sum of $25,000.00 per year in advance on May 20 of each
yuar, commencing on the Commencement Date, and continuing during the Tenn.
B. Annual Rent Adjustment. The annual rent described in Section 4.A shall be
adiusted on the seem - anniversary of the Commencement Date (i.e. May 20, 2QQZQW and
ea,.h anniversary of the Commencement Date thereafter ( "the Adjustment Date "), as follows:
The base for computing the adjustment on each Adjustment Date is the Consumer
P rime Index for All Urban Consumers for the Los Angeles- Anaheim- Riverside Metropolitan
Al ea published by the United States Department of Labor, Bureau of Labor Statistics ( "Index's,
which is published for the fourteenth month preceding that Adjustment Date ( "Beginning
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Ii,dex "). If the Index published for the second month preceding that Adjustment Date
( Extension Index ") is less than or equal to the Beginning Index, the annual rent shall not be
a. Ijusted, and shall continue at an amount equal to the annual rent in effect immediately prior to
that Adjustment Date. If the Extension Index is more than the Beginning Index, the annual rent
shall be adjusted to an amount determined by multiplying the annual rent in effect immediately
pnor to that Adjustment Date by a fraction, the numerator of which is the Extension Index and
the denominator of which is the Beginning Index.
If the Index is changed so that the base year differs from that used for the
Beginning Index, the Index shall be converted in accordance with the conversion factor
published by the United States Department of Labor, Bureau of Labor Statistics. If the Index is
dis continued or revised during the term, such other government index or computation with which
it is replaced shall be used in order to obtain substantially the same result as would be obtained if
the Index had not been discontinued or revised.
A. &. —USE. Tenant agrees to use the Premises for operation of an electrical substation and
apliurtenant facilities.
5. &-- ALTERATIONS AND IMPROVEMENTS. Tenant shall not construct any structures
of improvements on the Premises without the prior written consent of the City. Any alterations
of improvements constructed by Tenant shall become the property of the City at the time of such
construction or placement and shall remain the property of the City after termination or
e.l,iration of this Lease, unless City elects to require Tenant to remove such improvements and
rr.;tore the Premises as herein provided.
�. 7- MAINTENANCE. As part of the consideration for this Lease, Tenant, at its sole cost
and expense, shall at all times maintain the Premises and every part thereof in good order,
clindition, cleanliness, and repair.
7, 8—.USES PROHIBITED. Tenant shall not use or allow the Premises to be used for any
improper, immoral, unlawful, or objectionable purpose; nor shall Tenant cause, maintain or
permit any nuisance in, on, or about the Premises. Tenant shall not commit or allow to be
committed any waste in or upon the Premises. Tenant shall not conduct or permit to be
conducted any sale by auction, in, upon or from the Premises whether said auction be voluntary,
in- oluntary, pursuant to any assignment for the payment of creditors or pursuant to any
bankruptcy or other insolvency proceeding.
Tenant shall not cause or permit any Hazardous Substances (as defined below) to be
u:.ed, stored, generated, - eF disposed — e€ on or in the Premises by Tenant, Tenant's agents
employees, contractors, or invitees without first obtaining City's written consent.ln�
l,a p alit ever use tm c-C-D,-MvSolid Waste (as
Jt• fined by 42 L1 .C. Section 690 M, If Hazardous Substances are used, stored, oy—generated,
or .#ispesed —e€ on or in the Premises except as permitted above, e- if the Pr —i °M beee fle
eP .ILYmmated in &R m a n ner- f r_ mod ie h Tenon! le g ally liabl 1 then Tenant shall,
in- lemnify and hold harmless City (and its coundlm tubers_ officers. staff. emplo_yg� _ 1
ALMI;I any and all claims, damages, fines, judgments, penalties, costs, liabilities, or losses
(ii,cluding, without limitation, a decrease in value of the Premises, damages caused by loss or
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r(":triction of rentable or usable space, or any damages caused by adverse impact on marketing of
the space, or Wjy governmental or bird -may claim for reimbursement or GQmflencWjM
pursuant to liability under CERCL.A, RCRA—or related statutes. and any and all sums paid for
settlement of claims, attorneys' fees, consultant, and expert fees) arising during or after the term
o1 this Lease and arising as a result of that contamination. This duty to defend and
indemnification includes, without limitation, any and all costs incurred because of any
investigation of the site or any cleanup, removal, or restoration mandated by a federal, state, or
local agency or political subdivision. Without limitation of the foregoing, if Tenant causes or
p,1 the presence of any Hazardous Substance on the Premises which results in
c• lntamination; of the soil_ ter,bgne_ath the,, E miio- then Tenant shall
pi omptly, at Tenant's sole expense, take any and all necessary actions to return the Premises to
the condition existing prior to the presence of any such Hazardous Substance on the Premises.
Tenant shall first obtain City's approval for any such remedial action. The provisions of this
p shall be in addition to any other obligations and liabilities Tenant may have to City at
12- -.v or equity and shall survive the expiration or the termination of this Lease.
1 1 - "1 667166T4 =-- ..� X11 1 • / 1 • 1• " 1 •1 : ��1
1.11 1 . 'l• 1 1 1 11 1 11 / 1 1 • 1 Ie 11 • 1 •
• • 1 1 - 1 1 . 1 �.!_. • - • 1 • 1 • 1 ' 1 1 } �. , .1 � il• 1 �_ 1__ � .1 1 • " � • 1
1,.1 1• • 1.1 • • .,11 • 1 ---- ' •11" • .1 1 • 1
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For purposes of this Lease, the term "Hazardous Substance" means any substance that is
4. -i as a Maz, us Substance" yursuanl to 42 U.S.C. Section 9601(14) and also My toxic,
i gnitable, reactive, or corrosive ,
C-tli z rdg waste defined ioursuarit to 42
: a , - L .Q�Z1, end imolerncriting zeg> o "Hazardous Substance" includes without ]imitation
ally and all materials or substances that are defined by Iaw federal. state_ or local statutes•
5;1 latiort,S. g psdinances as "hazardous waste," "extremely hazardous waste," or a "hazardous
substance." "Hazardous Substance_' includes but is not limited to asbestos, polychlorobiphenyls
(` PCBs "), and oil, petroleum and their fractions or by- products =3y ilh =ding any "petroleum
&�.:. lusion" set forth in 42 I.S... S t Qja %01( 41.
& 9- LIENS. Tenant shall keep the Premises free from any liens or stop notices arising out
of any work performed, materials furnished, or obligations incurred by or on behalf of Tenant.
City may require, at City's sole option, that Tenant shall provide to City, at Tenant's sole cost
wed expense, a payment and completion bond in an amount equal to 1 1/2 times the estimated
co t of any improvements, additions, or alterations in the Premises which the Tenant desires to
m.tke, to insure City against any liability for mechanics' and materialmen's liens or stop notices
and to insure completion of the work.
Q 4-9—.ASSIGNMENT AND SUBLETTING. Tenant shall not, either voluntarily or by
opt-ration of law, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease or any
inierest herein, or any right or privilege appurtenant hereto, or allow any other person (the
en iployees, agents and invitees of Tenant excepted) to occupy or use the Premises, or any portion
th,-reof, without first obtaining the written consent of City, which consent may be withheld in the
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s. -le discretion of City. A consent to one assignment, subletting, occupation or use by any other
p, Tson shall not be deemed to be a consent to any subsequent assignment, subletting, occupation
Of use by another person. Consent to any such assignment or subletting shall in no way relieve
? , -nant of any liability under this Lease. Any such assignment or subletting without such consent
shall be void, and shall, at the option of the City, constitute a default under this Lease.
I S LATE PAYMENT. A late payment charge of 10% of any rent or any other required
p iyment to the City shall be paid by the Tenant if such payment is not paid to the City on or
b the 10th day after payment is due. The parties hereby agree that such late charge
r(- presents a fair and reasonable estimate of the costs City will incur by reason of late payment by
T,:aant. Acceptance of the late charge by City shall not constitute a waiver of Tenant's default
ith respect to the overdue amount, nor prevent City from exercising any of the other•rights and
rr rnedies available to City.
11. 4-2- INDEMNIFICATION. Tenant shall fen i ndemnify, and hold harmless City, the
C pry Council and each member thereof, and City's officers, employee and agents (all collectively
rt•ferred to as "Indemnitees ") from and against any and all claims arising from Tenant's use of
t1ic Premises or from the conduct of its business or from any activity, work, or other things done,
differed by the Tenant in or about the Premises, and shall further indemnify, and hold
harmless Indemnitees from and against any and all claims arising from any breach or default in
tlic performance of any obligations on Tenant's part to be performed under the terms of this
L� -ase, or arising from any act omission, or negligence of the Tenant, or any officer, agent,
employee, guest, or invitee of Tenant, and from all costs, attorney's fees, and liabilities incurred
in or about the defense of any such claim or any action or proceeding brought thereon. If any
a( pion or proceeding be brought against Indemnitees by reason any such claim, Tenant, upon
n• Mice from Indemnitees shall defend Indemnitees at Tenant's expense, by counsel reasonably
s,irisfactory to Indemnitees. Tenant, as a material part of the consideration to City, hereby
a5 cumes all risk of damage to property or injury to persons in, upon or about the Premises, from
a iv cause; and Tenant hereby waives all claims in respect thereof against City. Tenant shall give
p] ompt notice to City in case of casualty or accidents in the Premises. City or its agents shall not
be liable for any loss or damage to persons or property resulting from fire, explosion, earthquake,
fl- -od, or any other cause whatsoever. City or its agents shall not be liable for interference with
the light, air, or for any latent defect in the Premises.
43- INSURANCE.
A. Liability. Tenant agrees that at all times during the tern of this Lease and any
renewal or extension thereof, it shall at Tenant's expense maintain in force insurance policies
which will insure and indemnify the Tenant, City and the other Indemnitees against liability or
fin.-incial loss resulting from any suits, claims or actions and from all costs and expenses of
lit- ation, in an amount of not less than $2,500,000 combined single limit for any injury to
pt rsons and/or damage to property in or about the Premises by reason of the use and occupation
of the Premises by Tenant or by any other person or persons. If Tenant se permission to uce.
sic or generate Hazardous Substances LM,, efined in Section .8heZ inl on the Premises_
Lu1:h popes shall also include pollution Le a1 L jj�bilitv_eolicv nrovidin� for coverage of a_nv
1?c ll utlon_eye[1t on the Premises or mi¢r�tin� from the Premises wit a minimuuLlic�valug
a�-paratc _ d apart from any oth c policies required under this Sectionl of3.00O.00Q
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B. Certificate. Said policies shall be issued by an insurer rated in Best's Insurance
(aside with a financial rating of B+ VII or better. Said policies shall provide that the insurance
(average shall not be cancelled or reduced by the insurance carrier without the City having been
f 30 days' prior written notice thereof by such carrier. The Tenant agrees that it will not
cartel or reduce said insurance coverage. At all times during the term of this Lease and prior to
t.iking possession of the Premises, Tenant shall provide the City Clerk of the City -a Certificate
f r om the insurance carver or carriers showing the aforesaid insurance policies are in effect in the
amounts above provided, and if requested, a copy of each insurance policy. Notwithstanding any
( provision to the contrary contained in this Lease, Tenant shall not have the right to take
possession of the Premises until such certificate or certificates and insurance policies are filed
v. rth the City Clerk- _vj" them with the City Attorney to ensure that the subu itte-d
p Q Cie c with all Lpovisions of this Section.
C. Lapsed Insurance. Tenant agrees that if it does not keep the aforesaid insurance
ill fitll force and effect, the City may take out the necessary insurance and pay the premium
thereon, and the repayment thereof shall be deemed to be a part of the rental of the Premises in
,,.ldition to the usual rent and payable as such on the tenth (10th) day after the City gives the
I c•nant notice of the payment by the City.
13 _. 44- UTILITIES. Tenant shall be solely responsible for providing utilities or services to
the Premises. Lessee agrees to pay before delinquency every charge, lien or expense accruing or
I iyable during the term of this Lease in connection with the use of the Premises including, but,
n .t by way of limitation, gas, telephone, and other utilities and services used by Lessee on the
Premises. If any such charge, lien or expense is not paid when due, City may pay the same, and
arty amount so paid by City shall be paid by Lessee to City upon demand as additional rent.
14, -1 S—. SIGNS. Tenant shall not without City's prior written approval install or affix any
lighting or shades, awnings, or decorations (including exterior painting), signs, lettering,
placards, or the like on the Premises; display or sell merchandise on the Premises; cause or
p,:nnit to be used any advertising, loudspeakers, unusually bright or flashing lights, and similar
devices which may be seen or heard outside the Premises.
1 : 46r-COMPLIANCE WITH LAW. Tenant agrees to comply with all existing and future
ordinances, rules, laws, or regulations of any governmental agency t ,al are applicable to
tho Premises or the operations of Tenant on the Premises gl Uding but without limitation, all
g , .) VQ=jaj laws with resgect to the._use, gg raee, or generation of any Haar A Substance on
tl,c Premises.
J .j 4- 7-RIGHT OF ACCESS. The City and City's officers, employees, and agents shall at all
ra asonable times have the right to enter the Premises for the purpose of inspecting the same,
Posting notices of non - responsibility or any other notices required by law for the protection of
th,, City, doing any work that City is permitted or required to perform under this Lease, and
making any reasonable repairs which the City determines may be required.
In conducting its activities on the Premises as allowed in this section City shall attempt to
n>inimi2e the inconvenience, annoyance, or disturbance to Tenant. However, City shall not be
bible in any manner for any inconvenience, disturbance, loss of business, nuisance, or other
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&wage arising out of City's entry on the Premises as provided in this section, except damage
resulting from the negligent or intentional wrongful acts or omissions of City or its authorized
representatives. Tenant shall not be entitled to an abatement or reduction of rent if City exercises
a I rights reserved in this section.
4$ —TAXES AND ASSESSMENTS. Tenant shall pay or cause to be paid, before
d,•linquency, any and all taxes and assessments levied and assessed against its interest in the
P. ,miser, upon all Tenant's leasehold improvements, equipment, furniture, fixtures, and any
other personal property located in or on the Premises, or which become a lien against the
Piernises or Tenant' s interest therein or its property. Tenant recognizes and understands that
tliis Lease may create a possessory interest subject to taxes levied upon such interest.
�;;,, 4-9- TENANT'S DEFAULT. The occurrence of any one or more of the following events
shall constitute a default and breach of this Lease by Tenant: (a) The vacating or abandonment
of the Premises by Tenant; (b) The failure by Tenant to make any payment of rent or any other
payment required to be made by Tenant hereunder, as and when due where such failure shall
c -ntinue for a period of three (3) days after written notice thereof by City to Tenant; (c) The
failure by Tenant to observe or perform any of the covenants, conditions or provisions of this
Lease to be observed or performed by the Tenant, other than described in subsection (b), where
s)Ich failure shall continue for a period of 30 days after written notice thereof by City to Tenant;
pi ovided, however, that if the nature of Tenant's default is such that more than 30 days are
rt• :tsonably required for its cure, then Tenant shall not be deemed to be in default if Tenant
commences such cure within said 30 day period and thereafter diligently prosecutes such cure to
ct lmpletion; (d) The making by Tenant of any general assignment or general arrangement for the
b. •nefit of creditors; or unless prohibited by Bankruptcy Law or other paramount law, the filing
bv or against Tenant of a petition to have Tenant adjudged a bankrupt, or a petition or
ruorganization or arrangement under any law relating to bankruptcy (unless, in the case of a
petition filed against Tenant, the same is dismissed within 60 days); or the appointment of a
trostee or a receiver to take possession of substantially all of Tenant's assets located at the
P. anises or of Tenant's interest in this Lease, where possession is not restored to Tenant within
3 it days; or the attachment, execution or other judicial seizure of substantially all of Tenant's
a�.cets located at the Premises or of Tenant's interest in this Lease, where such seizure is not
discharged with 30 days.
1) REMEDIES ON DEFAULT. In the event of any such default or breach by Tenant,
C ity may at any time thereafter, in its sole discretion, with or without notice or demand and
w i thout limiting City in the exercise of a right or remedy which City may have by reason of such
dt•fault or breach: (a) Terminate Tenant's right to possession of the Premises by any lawful
means, in which case this Lease shall terminate and Tenant shall immediately surrender
possession of the Premises to City. In such event City shall be entitled to recover from Tenant
all damages incurred by City by reason of Tenant's default including, but not limited to, the cost
of recovering possession of the Premises; expenses of reletting, including necessary renovation
w-d alteration of the Premises; reasonable attorney's fees; the worth at the time of award by the
court having jurisdiction thereof of the amount by which the unpaid rent and other charges and
aclfustments called for herein for the balance of the term after the time of such award exceeds the
an»ount of such loss for the same period that Tenant proves could be reasonably avoided; and
th.,t portion of any leasing commission paid by City and applicable to the unexpired term of this
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I rase. Unpaid installments of rent or other sums shall bear interest from the date due at the
maximum legal rate; or (b) Maintain Tenant's right to possession, in which case this Lease shall
continue in effect whether or not Tenant shall have abandoned the Premises. In such event City
shall be entitled to enforce all of City's rights and remedies under this Lease, including the right
t� , recover the rent and any other charges and adjustments as may become due hereunder; or
( ) Pursue any other remedy now or hereafter available to City under the laws or judicial
&-cisions of the State of California.
21:1 2+-- DEFAULT BY CITY. City shall not be in default unless City fails to perform
obligations required of City within 30 days after written notice by Tenant to City specifying
v herein City has failed to perform such obligation; provided, however, that if the nature of
City's obligation is such that more than 30 days are required for performance then City shall not
be in default if City commences performance within such 30 day period and thereafter diligently
p msecutes the same to completion. In no event shall Tenant have the right to terminate this
L ti ase as a result of City's default and Tenant's remedies shall be limited to damages and/or an
ii junction.
2 L, 2-2-.—EMINENT DOMAIN. If all or any portion of the Premises shall be taken or
appropriated by any authority under the power of eminent domain, either party hereto shall have
the right, at its option, within 60 days after said taking, to terminate this Lease upon 30 days'
v. i ltten notice. If neither party elects to terminate as herein provided, the rent thereafter to be
p.11d shall be equitably reduced. In the event of any taking or appropriation whatsoever, City
sl :III be entitled to any and all awards and/or settlements whieh1W may be given and Tenant
skill have no claim against City for the value of any unexpired term of this Lease.
2 ', 23. —NOTICE. Any notice, demand, request, consent, approval or communication that
ether party desires or is required to give to the other party shall be in writing and shall be
deemed given as of the time of hand delivery to the addresses set forth below, or seventy -
til."o (72) hours after deposit into the United States mail, postage prepaid, by registered or
certified mail, return receipt requested. Unless notice of a different address has been given in
a� cordance with this section, all such notices shall be addressed as follows:
If to the City, to: City of Seal Beach
211 Eighth Street
Seal Beach, California 90704
Attn: City Manager
If to Tenant, to:
Attn:
2.'. 24- SUCCESSORS. All of the terms, covenants, and conditions of this Lease shall inure
to the benefit of and shall bind the parties hereto and their successors and assigns; provided
h owever, that any subletting or assignment by Tenant of the whole or any part of the Premises or
aiiv interest therein shall be subject to the provisions of Section 10 of this Lease.
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Li, HOLDING OVER. If Tenant, with City's consent, remains in possession of the
Pl -mises after expiration or termination of the term, or after the date in any notice given by City
to Tenant terminating this Lease, such possession by Tenant shall be deemed to be a month -to-
m mth tenancy, terminable on 30 days' notice given at any time by either Party, at a monthly
reiltal equal to the then fair - market rent for the Premises, but in no event less than 150% of one -
tv f-Ifth of the annual rent in effect immediately prior to such month -to -month tenancy. All
pi- visions of this Lease except those pertaining to rent and term shall apply to the month -to-
m , nth tenancy.
L 4&•- SURRENDER. At the expiration or termination of the term of this Lease, Tenant
shill surrender the Premises and all structures and improvements constructed thereon to the City
in ;;ood and broom -clean condition. Notwithstanding the foregoing, not later than 90 days after
eA piration or termination of the term of this Lease, the City may give notice of its election to
re- luire Tenant at Tenant's expense to remove all improvements and to restore the Premises to
thi • same condition as originally received from the City by Tenant's predecessor in interest.
2. t� , SUBORDINATION. At the option of the City, this Lease shall be either subordinate
or superior to any ground or underlying lease, deed of trust, mortgage or other encumbrance now
or hereafter placed on the Premises. Tenant shall upon request by City execute any written
stillordination agreements or other documents necessary or convenient to implement this section.
In addition, Tenant shall deliver to the City, at its request: (i) a financial statement of Tenant
d>ily certified by Tenant; (ii) an estoppel certificate in a form satisfactory to the City Attorney
d>ily executed by Tenant stating that this Lease is in full force and effect, that the Tenant claims
no default by the City hereunder, and stating the amount of the monthly rent and any security
dt-1,osit; and (iii) Tenant's agreement to attom to any lender.
1 29:-- BROKERS. Each party represents that it has not had dealings with any real estate
bu Aker, finder, or other person performing the functions of a broker or finder, with respect to this
Li.ase in any manner. Each party ( "Indemnifying Party ") shall hold harmless the other party
fr, , rn all damages resulting from any claims that may be asserted against the other party by any
bi. , ker, finder, or other person with whom the Indemnifying Party has or purportedly has dealt.
Z, 24- GENERAL PROVISIONS.
1,.- Erse - sparhefee€-
1 & The waiver by City of any term, covenant or condition herein
contained shall not be deemed to be a waiver of such term, covenant or condition or any
subsequent breach of the same or any other term, covenant or condition herein contained. The
subsequent acceptance of rent hereunder by City shall not be deemed to be a waiver of any
prcceding default by Tenant of any term, covenant or condition of this Lease, other than the
failure of the Tenant to pay the particular rental so accepted, regardless of City's knowledge of
su,:h preceding default at the time of the acceptance of such rent.
B_ E -Joint Obligation. If there be more than one Tenant the obligations hereunder
imposed shall be joint and several.
10
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RPR _6 -2010 12:06 RICHRRCS WRTSON & GERSHON 12135268484 P.13/1
�. D- Marginal Headings. The marginal headings and article titles to the articles of
tlos Lease are not a part of the Lease and shall have no effect upon the construction or
interpretation of any part hereof.
D— E- -Time. Time is of the essence of this Lease and each and all of its provisions in
µ hich performance is a factor.
E. F—Prior Agreements. This Lease contains all of the agreements of the parties
h- •reto with respect to any matter covered or mentioned in this Lease, and supersedes all prior
a (including but not limited to the lease agFeement dated May 20, 1965 Lease and
],,,Q ease) or understandings pertaining to any such matters. No provision of this Lease may
b amended or added to except by an agreement in writing signed by the parties hereto or their
rr pective successors in interest. This Lease shall not be effective or binding on any party until
6 I ly executed by both parties hereto.
L Er.- Inability to Perform. This Lease and the obligations of the Tenant hereunder
shall not be affected or impaired because the City is unable to fulfill any of its obligations
hereunder or is delayed in doing so, if such inability or delay is caused by reason of strike, labor
tr oubles, acts of nature, or any cause beyond the reasonable control of the City.
Q Partial Invalidity. Any provision of this Lease which shall prove to be invalid,
vtlid, or illegal shall in no way affect, impair or invalidate any other provision hereof and such
other provision shall remain in full force and effect.
EL 1-- Cumulative Remedies. No remedy or election hereunder shall be deemed
e. elusive but shall, whenever possible, be cumulative with all other remedies at law or in equity.
L 3- Authority of Tenant. If Tenant is a corporation, each individual executing this
L -ase on behalf of said corporation represents and warrants that he is duly authorized to execute
a:td deliver this Lease on behalf of said corporation, in accordance with the bylaws of said
c. , rporation, and that this Lease is binding upon said corporation.
K—.City's Approvals. Neither City's execution of this Lease nor any consent or
al -proval given by City hereunder in its capacity as City shall waive, abridge, impair or otherwise
a I f*ect City's powers and duties as a governmental body. Any requirements under this Lease that
Tenant obtain consents or approvals of City are in addition to and not in lieu of any requirements
o1 law that Tenant obtain approvals or permits. However, City shall attempt to coordinate its
p1c,cedures for giving contractual and governmental approvals so that Tenant's requests and
ap plications are not unreasonably denied or delayed.
P.' WITNESS WHEREOF, the parties have executed this Lease as of the date first written above.
DCOR, LLC, a ( "Tenant ")
M-
11
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RPR-:5 -2010 12:a7 RICHRRDS WRTSON & GERSHON 2136268484 P.14i17
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[Title]
Secretary
C I I OF SEAL BEACH, a municipal
corporation ( "City ")
Mayor
A I TEST:
City Clerk
(( Ity Seal)
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EXHIBIT B
LEGAL DESCRIPTION OF ELECTRICAL SUBSTATION.
In the city of Seal Beach, County of Orange, State of California.
Commencing at a PK nail in the center line of First Street as shown on the map of Bay
City, recorded in book 3, page 19 of Miscellaneous Maps of Orange County California, said
P f: nail being S 31' 17' 00" W 889.69 feet from a lead and tack marking the intersection of said
c+•nter line with the center line of Bay Boulevard, and from which PK nail a lead and spike is set
in pavement and bears N 57° 49' 00" W 27.50 feet; thence along the Southerly prolongation of
s;, A center line of First Street S 31 ° 17' 00" W 229.00 feet; thence N 58° 43' 00" W 218.00 feet
to the true point of beginning; thence N 61' 04' 15" W 20.00 feet; thence N 28 55' 45" E 40.00
f(..--t; thence S 61' 04' 15" E 20.00 feet; thence S 28° 55' 45" W 40.00 feet to the true point of
b, j} nning.
S7 ")6- 0001\ 2�186�5%4-1. ZM 64y -,doc
APR- S-2010 12:07 RICHRRDS WATSON & GERSHON 2136268464 P.17/17
Imument comparison done by DeltaView on Wednesday, March 31, 20109:50:18 AM
4
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iManageDeskSite://RWGLADMS 1 /RWG I MAN 1 /1218615/1
►ocument 2
iManageDeskSite://RWG LADMS 1 /RWG I MAN 1 /1208264/3
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