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HomeMy WebLinkAbout2001 CON CALTRANS- Airspace Ground Lease I 805 Palm DivisionSTATE OF CALIFORNIA - BUSINESS, TRANSPORTATION AND HOUSING AGENCY C2bo1-s° GRAY DAVIS, Governor DEPARTMENT OF TRANSPORTATION DISTRICT 11 P.O. BOX 85406 SAN DIEGO, CA 92186-5406 PHONE: (619) 688-3176 FAX: (619) 688-2570 January 25, 2002 Ms. Rhonda Darling Management Analyst II City of National City Department of Public Works 1243 National City Blvd. National City, CA 91950 CITY OF M1f 1? I(�UAL O l t ENR!NFERIK DEPT. RECEIVED Subject: Executed Lease and examples of subleases (Airspace Parcel 11-SDX805- 0012-01). Ms. Darling: We apologize for the delay in getting back to you with your lease. I am enclosing a fully executed lease. I have researched our leases here in the district and can find none that have the wording you wanted for the non-profit entities you are working with. I am checking with Head Quarters and other districts to see if anyone else has an example for you. Sincerely, 042, Andrew Bartlett STATE OF CALIFORNIA, DEPAR12NT OF TRANSPORTATION AIRSPACE GROUND LEASE FOR COMMUNITY BENEFIT AND SOCIAL SERVICE PURPOSES LEASE AREA No. 11-SDX805-12 THIS LEASE is written pursuant to legislative act by the State of California known as State Senate Bill 160, also known as the State Budget Bill of 1999, items 14(a), 14(b) and 14(c), which state, (14a) "The Department may lease the airspace under the interchange at Palm Avenue and Division Street in San Diego County to any city, county, or other political subdivision, or any state agency, for community - benefit and social service purposes. The Department may provide information to those entities regarding the lease of that airspace for that use. The lease shall be for $1 per month. The lease amount may be paid in advance of the term covered in order to reduce the administrative costs associated with the payment of the monthly rental fee." 14(b) "This lease shall also provide for the cost of administering the lease. The administrative fee shall not exceed $500 per year unless the department determines that a higher administrative fee is necessary." 14(c) "Upon request of the City of National City, the department may renew the lease for the period requested by the city, but not exceed 10 years, and may, subsequent to that renewal, agree to not more than two additional renewals of not more than 10 years each." THIS LEASE dated September 1, 2001 is by and between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, hereinafter called "Landlord," and CITY OF NATIONAL CITY, hereinafter called "Tenant." WITNESSETH For and in consideration of the rental and of the covenants and agreements hereinafter set forth to be kept and performed by the Tenant, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord the Premises herein described for the term, at the rental and subject to and upon all of the terms, covenants and agreements hereinafter set forth. ARTICLE 1. SUMMARY OF LEASE PROVISIONS LANDLORD: DEPARTMENT OF TRANSPORTATION TENANT: CITY OF NATIONAL CITY PREMISES: Near the interchange of Highway 805, Palm Avenue and Division Street located in National City and City of San Diego, County of San Diego, State of California, known to Landlord as 11-SD-805-12 and more particularly described in Article 2 of this lease. LEASE TERM: Ten (10) years, commencing September 1, 2001 and expiring on August 31, 2011 (Article 3), plus two (2) additional ten-year (10-year) renewal options beginning September 1, 2011 and ending August 31, 2031 if elected. RENT: $1.00 per month, plus $500.00 per year administrative fee (Article 4) ADJUSTMENT TO RENT: Adjustments may be made for change in use or assignment of this Lease (Article 4). USE: Community Benefit and Social Service Purposes. LIABILITY INSURANCE: $5 Million (Aide 9). Tenant may self -insure. ASE AREA No. 11-SDX805-12 ADDRESS FOR NOTICES: (Article 19) To Landlord: DEPARTMENT OF TRANSPORTATION, DISTRICT 11 — RIGHT OF WAY, MS 54 PO Box 85406 San Diego, CA 92186-5406 To Tenant: CITY OF NATIONAL CITY, CITY MANAGER 1243 National City Boulevard National City, CA 91950 References in this Article 1 to the other Articles are for convenience and designate other Articles where references to the particular item contained in the Summary of Lease Provisions appear. Each reference in this Lease to the Summary of Lease Provisions contained in this Article 1 shall be construed to incorporate all of the terms provided under the Summary of Lease Provisions. In the event of ary conflict between the Summary of Lease Provisions and the balance of the Lease, the latter shall control. 1 ARTICLE 2. PREMISES Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, for the term, at the rent, and upon the covenants and conditions hereinafter set forth, those certain premises known as Airspace Lease Area No.11-SDX805-12, situated in the City of National City and City of San Diego, County of San Diego, said land or interest therein being shown on the map or plat marked "Exhibit A," attached, hereto and by this reference made a part hereof, and more particularly described as follows:" All that certain real property situated, lying, and being in the City of San Diego and in the "City of National City, County of San Diego, State of California, described as: THAT portion of lot 70, of Ex Mission Lands of San Diego (commonly called Horton's purchase), according to map thereof No. 283, filed in the San Diego County recorder's Office, on March 9, 1878, conveyed to the State of California in a deed recorded on May 21, 1971, as File No. 105932 in said Recorder's Office, TOGETHER WITH that portion of said Lot 70 conveyed to the State of California in a Final Order of Condemnation recorded on May 16, 1972, 183419 in said recorder's Office, TOGETHER WITH that portion of said Lot 70 conveyed to the State of California in a deed recorded on December 31, 1969, as File No. 236282 in said Recorder's Office, TOGETHER WITH that portion of said Lot 70 conveyed to the State of California in a deed recorded on November 13, 1969, as File No. 207832 in said Recorder's Office, TOGETHER WITH that portion of said Lot 70 conveyed to the State of California in a deed recorded on October 6, 1970, as File No. 181572 in said Recorder's Office, TOGETHER WITH Lot 3 and portions of Lots 1,2,4,5, and 31, according to map thereof No. 3153, filed on November 4, 1954, in said County Recorder's Office, conveyed to the State of California in a Final Order of Condemnation recorded April 26, 1972, as file No. 103745 in said Recorder's Office, TOGETHER WITH a portion of Lots 1 and 2 of Millerton, according to map thereof No. 1608, filed on November 7, 1913, in said County Recorder's Office, conveyed to the State of California in a deed recorded on August 14, 1970, as File No. 144917 in said County Recorder's Office , All lying within the following described area: BEGINNING at the Northwesterly terminus of that course shown as "N.59°31'47"W. 107.30 feet" in Parcel-9 of Relinquishment No. 24006 to the City of National City, recorded on, September 2, 1975 as File No. 75-235593 in said County Recorder's Office; Page 2 of 26 Mm ASE AREA No. 11-SDX805-12 Thence (1) along the Northeasterly line of said Parcel-9, from a tangent which bears S. 72°15'46"W., along a curve to the right, having a radius of 30.00 feet, through a central angle of 63°58'57", an arc distance of 33.50 feet; thence (2) leaving said curve and continuing along said Northeasterly line N.43°45' 17"W. beginning of a tangent curve to the right, having a radius of 599 feet; thence (3) continuing along said Northeasterly line, along said curve to the right, through 10°57'28", an arc distance of 114.56 feet; thence (4) leaving said Northeasterly line along the Northerly extension of said curve angle of 47°55'02", and an arc distance of 500.96 feet; thence (5) N. 67°17'50" E., 54.00 feet; thence (6) S.25°05'02" E., 463.03 feet thence (7) S.33°56'57"E., 384.76 feet; thence (8) S72°15'46"W., 121.48 feet to the POINT OF BEGINNING. Containing 3.110 acres, more or less. / The bearings and distances used in the above description are on the California Coordinate System of 1927, Zone 6. Multiply all distances shown by 0.9999942 to obtain ground level distances. EXCEPTING THEREFROM all those portions of the above -described property occupied by the supports and foundations of the existing structure. ALSO EXCEPTING THEREFROM all that portion of said property above a horizontal plane five (5) feet below the underside of the superstructure of the existing structure, which plane extends to a line fifteen (15) feet, measured horizontally, beyond the outermost protrusion of the superstructure of said existing structure, as shown on the diagram marked exhibit "B," attached hereto and by this reference made a part hereof. This Lease is subject to (1) all easements, covenants, conditions, restrictions, reservations, rights of way, liens, encumbrances and other matters of record, (2) all matters discoverable by physical inspection of the Premises or that would be discovered by an accurate survey of the Premises and (3) all matters known to Tenant or of which Tenant has notice, constructive or otherwise including, without limitations, those shown on Exhibit "A" attached hereto and made a part thereof. , 244 feet, to the a central angle of through a central ARTICLE 3. TERM The term of this Lease shall be for ten (10) yrs, commencing September 1, 2001 and expiring on August 30, 2011. Tenant may renew this Lease for two (2) additional ten-year (10-year) terms. Tenant shall provide Landlord with written notice of its intent to renew the Lease not later than thirty (30) days before the expiration of the term or the expiration of the first renewal period, as applicable. Page 3 of 26 SE AREA No. 11-SDX805-12 ARTICLE 4. RENT 4.1 Rent Tenant shall pay to Landlord, without deduction, setoff, prior notice, or demand, the sum of $1.00 a month in advance for ten (10) years, plus $500 stipulated annual processing fee in advance for ten (10) years, totaling $5,120.00, as payment in full for the initial ten-year term. In accordance with section 104.21 of the Streets and Highways Code, this total sum includes rent in the sum of $120.00 and administrative costs in the sum of $5000.00. If, pursuant to Article 3, Tenant requests renewal of the lease for an additional term, Tenant shall pay to Landlord as rent the sum of $5,120.00 before the commencement of the additional term. Landlord recognizes that Tenant may sublease all or part of the premises. All rent received by Tenant from any such subtenants shall be immediately and irrevocably assigned and paid to Landlord as rent in addition to any other amounts paid by Tenant under the terms of this Lease. All rents shall be made payable to the Department of Transportation and delivered to the DEPARTMENT OF TRANSPORTATION, Cashier, PO Box 168019, Sacramento, CA 95816-3819. 4.2 Reevaluation on Change in Use Landlord expressly reserves the right to establish a new minimum monthly rent in the manner provided in Section 4.4 as a condition to Landlord's approval of any use of the leased premises not specifically permitted by Section 5.1 and as a condition to any amendment to or changes in the uses permitted by that section. If such reevaluation is made, the provisions of Section 4.4 shall be followed except that in determining the fair market lease rate the appraisers shall also be instructed to consider the new uses to which the premises may be put as a result of Landlord's approval of those additional uses. 4.3 Reevaluation on Transfer Landlord expressly reserves the right to establish a new minimum monthly rent in the manner provided in Section 4.4 as a condition to Landlord's approval of any transfer, or assignment of this Lease. 4.4 Establishment of New Minimum Monthly Rent If Landlord elects not to terminate the Lease upon a change in use or upon assignment, sublease, encumbrance or transfer, a fair market lease rate shall be determined in the manner set forth below and shall be established as the minimum monthly rent commencing on the effective date of the change in use or the effective date of the assignment, sublease, encumbrance or transfer. The term "fair market lease rate" means the highest lease rate estimated in terms of money which the leased premises, excluding improvements constructed by Tenant thereon, would bring if exposed for lease in the open market, with a reasonable time allowed to find a tenant, leasing with full knowledge of the purpose and uses to which the leased premises is being put and the restrictions on use contained in Section 5.1 of this lease. The parties intend to establish the fair market lease rate through negotiation. However, if Landlord and Tenant have not agreed upon the fair market lease rate for the leased premises at least one -hundred eighty (180) days before the date of the scheduled commencement of the new minimum monthly rent as set forth above, then each party shall appoint an appraiser, who is a member of the American Institute of Real Estate Appraisers (M.A.I.) and who has appraised property put to commercial or industrial uses in San Diego County, and notify the other party of such appointment. Each party shall use its best efforts to give the notice of appointment to the other party at least one hundred fifty (150) days before the said commencement date. Landlord shall set the time and place for a conference between the parties hereto and said two appraisers, which conference shall be held within thirty (30) days of the receipt of notice of appointment by both parties. At such conference, the parties shall agree upon the general instructions to be given to said appraisers. The appraisers shall be instructed that in determining the fair market lease rate they shall Page 4 of 26 ASE AREA No.11-SDX805-12 consider the use to which the premises are being put and shall not consider the highest and best use for the premises without regard to the restrictions on use of the premises contained in the Lease. It is the intent of the Landlord and Tenant that the rent payable under this Lease not be less then the fair market rental value of the leased premises, and the purpose of Section 4.2 is to assure the establishment of this rent and to prevent a bonus value from accruing to either party. The appraisers shall be instructed as to this intent. The general instructions shall not place any additional limitations upon the appraisal techniques to be employed by the appraisers in the evaluation of the rent. Within forty-five (45) days after receiving said instructions, each of the appraisers shall deliver copies of a fitlly-documented signed written report containing an opinion of the fair market lease rate for the leased premises to Landlord and Tenant. When in receipt of both appraisals, Landlord shallseta time eand ivesd place of for a conference. Those to be in attendance at the conference shall include: (a)represent Landlord, (b) representative of Tenant, and (c) the two appraisers. The parties shall endeavor . to reach agreement on the adjusted rent. If the parties cannot agree on the amount of the adjusted rent, the Landlord's and Tenant's appraisers shall select a third appraiser. Said third appraiser shall be allowed access to the two reports, shal30pr pare thif ird appraisal, and shall submit one copy of same to Landlord and Tenant within thirty (30) selection as appraiser. Landlord and Tenant shall each pay for their respective appraisals and, if a third appraisal is necessary, each shall pay one-half (1/2) of the fees and expenses for said third appraisal. The determination of the fair market lease rate for the leased premises by the third appraiser, as documented in his signed written report submitted to the parties, shall be binding on Landlord and Tenant. The signed report shall be received at least thirty (30) days before the date of the scheduled commencement of the new minimum monthly rent as set forth above or on such other date upon which the parties shall have agreed. It is the intent of Landlord and Tenant that the time limitations specified in Section 4.2 are guidelines only and not mandatory. The failure to meet any of the time limitations set forth in Section 4.2 shall not prevent a reevaluation from occurring so long as Landlord requests the reevaluation prior to the scheduled commencement date of the new minimum monthly rent. If the fair market lease rate for the leased premises shall not have been determined prior to the date of the scheduled commencement of the new minimum monthly rent as set forth above, Tenant shall continue to pay the same rent as was being paid in the preceding period until a final determination has been made. Within thirty (30) days after such final determination is made, Tenant shall pay to Landlord the amount of difference between the rent actually paid during the period between the scheduled date of commencement of the new minimum monthly rent and the date the final determination is made and the amount of rent which should have been paid had the determination of the new minimum monthly rent been timely. Such payment shall include interest thereon at a rate one percent (1%) above the discount rate of the Federal Reserve Bank of San Francisco from the date of the scheduled commencement of the new minimum monthly rent until payment is made. For the purposes of this section, the applicable Federal Reserve Board discount rate shall be that which exists on the date of the scheduled commencement of the new minimum monthly rent. ARTICLE 5. USE 5.1 Specified Use The premises shall be used and occupied by Tenant only and exclusively for Community Benefit and Social Services Purposes and for no other purpose whatsoever without obtaining the prior written consent of Landlord and the concurrence of the Federal Highway Administration. Landlord expressly reserves the right to establish a new minimum monthly rent in the manner provided in Section 4.2 and 4.3 as a condition to landlord's approval of any use of the premises not specifically permitted by this section. Page 5 of 26 SASE AREA NO.11-SDX805-12 5.2 Condition of Premises Tenant hereby accepts the Premises in their condition existing as of the date of the execution hereof, subject to all existing and future applicable zoning, municipal, county, state and federal laws, ordinances and regulations governing and regulating the use of the Premises, and accepts this Lease subject thereto and to all matters disclosed thereby and by any exhibits attached hereto. Tenant acknowledges that neither Landlord nor any agent of Landlord has made any representation or warranty with respect to the condition of the Premises or the suitability thereof for the conduct of Tenant's business, nor has Landlord agreed to undertake any modification, alteration or improvement to the Premises except as provided in this Lease. (a) Except as may be otherwise expressly provided in this Lease, Tenant agrees to accept the Premises in its presently existing condition "as is", and that the Landlord shall not be obligated to make any improvements or modifications thereto except to the extent that may otherwise be expressly provided in this Lease. (b) Tenant represents and acknowledges that it has made a sufficient investigation of the conditions of the Premises existing immediately prior to the execution of this Lease (including investigation of the surface, subsurface and groundwater for contamination and hazardous substances) and is satisfied that the Premiseats he will safely support the type of improvements to be maintained by Tenant upon the Premises, Premises are otherwise fully fit physically and lawfully for the uses required and permitted by this Lease and that Tenant accepts all risks associated therewith. © Tenant acknowledges that (1) Landlord has informed Tenant prior to commencement of the term of this lease that Landlord does not know nor has reasonable cause to believe that any release of hazardous substance has come to be located on or beneath the premises; (2) Landlord has provided and anaTenant ccess ze the to l signing the premises for purposes of providing to Tenant the opportunity to investigate, sample n thly Lease soil and groundwater on the premises for the/presence of hazardous substances; (3) by Tenant represents to Landlord that, except as otherwise may be stated on Exhibit "C" attached hereto and by this reference incorporated herein, Tenant does not know nor has reasonable cause to believe that any release of hazardous substance has come to be located on or beneath the Premises and (4) with respect to any hazardous substance which Tenant knows or has reasonable cause to believe will come to be located on or beneath the Premises, Tenant has listed the hazardous substance on attached Exhibit "C" and agrees to promptly commence and complete the removal of or other appropriate remedial action regarding the hazardous substance at no cost or expense to Landlord and in full compliance with all applicable laws, regulations, permits, approvals and authorizations. The phrase 'hazardous substance", as used herein, has the same meaning as that phrase has under Section 25359.7 of the California Health and Safety Code. (d)Tenant agrees that, except as otherwise expressly provided in this Lease, Tenant is solely responsible without any cost or expense to the Landlord to take all actions necessary, off as well as on the premises to improve and continuously use the Premises as required by this Lease and in compliance with all applicable laws and regulations. 5.3 Compliance with Law Tenant shall not use the premises or permit anything to be done in or about the premises which will in any way conflict with any law, statute, zoning restriction, ordinance or governmental rule or regulation or requirements of duly constituted public authorities now in force or which may hereafter be in force, or with the requirements of the State Fire Marshal or other similar body now or hereafter constituted, relating to or affecting the condition, use or occupancy of the premises. The judgment of any court of competent jurisdiction or the admission of Tenant in an} :action against Tenant, whether Landlord be a party thereto or not, that Tenant has violated any law, statute, ordinance or governmental rule, regulation or requirement, shall be conclusive of that fact as between Landlord and Tenant. Tenant shall not allow the premises to be used for any unlawful purpose, nor shall Tenant cause, maintain or permit any nuisance in, Page 6 of 26 SE A1EkNo.11-SDX805-12 • on or about the premises. Tenant shall not commit or suffer to be committed any waste in or upon the premises. 5.4 Petroleum Products or freeway,a Tenant shall not install facilities for, nor operate on the 1d orbove storage of gasoline or petroleum gasoline or petroleum supply station, nor shall the transportation o products be permitted under the structures, except those products stored within an operable vehicle for exclusive use by that vehicle. 5.5 Explosives and Flammable Materials storage of The premises shall not be used for the manufacture of flammable materials deemed by explosives,losor foro be a any pstoma fireo flammable materials, explosives or other materials or other purposes or other hazard to the transportation facility. The operation and maintenance of the leased premises shall be subject to regulations of Landlord so as to protect against fire or other hazard impairing the use, safety and appearance of the transportation facility. The occupancy and use of the area shall not be such as will permit hazardous or unreasonably objectionable smoke, fumes, vapors or odors to rise above the surface of the traveled way of the transportation facility. 5.6 Hazardous Materials Tenant shall at all times and in all respects comply with all federal, state and local laws, ordinances and regulations, including, but not limited to, the Federal Water Pollution Control Act (33 U.S.C. sectionet seq.), Resource Conservation and Recovery Act (42 U.S.C. section 6901, et seq.), Safe Drinking Water Act Air Act( 42 U.S.C. section 300f, et seq.), Toxic Substances Control Act (15 U.S.C. section 2601, et seq.), Clean(42 U.S.C. section 7401, et seq.), Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. section 9601, et seq.), Safe Drinking Water and Toxic Enforcement Act (California Health and Safety Code section 25249.5, et seq.), other applicable provisions of the California Health and Safety Code (section 25100, et seq., and section 39000, et seq.), California Water Code (section 13000, et seq.), and other comparable state laws, regulations and local ordinances relating to industrial hygiene, environmental protection or the use, analysis, generation, manufacture, storage, disposal or transportation of any oil, flammable explosives, asbestos, urea formaldehyde, radioactive materials or waste, or other hazardous, toxic, contaminated or polluting materials, substances or wastes, including, without limitation, any "hazardous substances" under any such laws, ordinances or regulations (collectively "Hazardous Materials Laws"). As used in the provisions of this Lease, "hazardous materials" include any "hazardous substance" as that term is defined in section 25316 of the California Health and Safety Code and any other material or substance listed or regulated by any Hazardous Materials Law or posing a hazard to health or the environment. Except as otherwise expressly permitted in this Lease, Tenant shall not use, create, store or allow any hazardous materials on the premises. Fuel stored in a motor vehicle for the exclusive use in such vehicle is excepted. In no case shall Tenant cause or allow the deposit or disposal of any hazardous materials on the Premises. Landlord, or its agents or contractors, shall at all times have the right to go upon and inspect the Premises and the operations thereon to assure compliance with the requirements herein stated. This inspection may include taking samples of substances and materials present for testing, and/or the testing of soils or underground tanks on the Premises. In the event Tenant breaches any of the provisions of this Section, this Lease may be terminated immediately by Landlord and be of no further force or effect. It is the intent of the parties hereto that Tenant shall be responsible for and bear the entire cost of remcyal and disposal of hazardous materials introduced to the Premises during Tenant's period of use and possession as owner, operator or Tenant of the Premises. Tenant shall also be responsible for any clean up and decontamination on or off the Premises necessitated by the introduction of such hazardous materials on the Premises. Tenant shall not be responsible for or bear the cost of removal or disposal of hazardous materials introduced to the Premises by any party other than Tenant durin; Page 7 of 26 1s4ZSE AREA No.11-SDX805-12 any period prior to commencement of Tenant's period of use and possession of the Pres from all es as owner, operator or Tenant. Tenant shall further hold Landlord, and its officers and employees, liability and claim for damages resulting from the presence or use of hazardous materials on the Premises during Tenant's period of use and possession of the Premises. Landlord shall be responsible rrem vol of hazoveardous u freeway strucroduced to the leased premises from a highway accident or other occurrence re. 5.7 Signs Tenant shall not construct, erect, maintain or permit any sign, banner or flag upon the premises without the prior written approval of Landlord. Tenant shall not place, construct or maintain upon the premises any advertising media that include moving or rotating parts, searchlights, flashing lights, loudspeakers,metal, phonographs or other similar visual or audio media. The term "sign"" means any to the and card, cloth, trpaper,, metal, painted or wooden sign of any character placed for any pure se unapproved anybanner wall, bush, flag rock, fence, building, structure, trailer or thing. Landlord mayremove any unapp sign, existing on the premises, and Tenant shall be liable to and shall reimburse Landlord for the cost of such removal plus interest from the date of completion of such removal. 5.8 Landlord's Rules and Regulations Tenant shall faithfully observe and comply with the rules and regulations that Landlord shall from time to time promulgate for the protection of the transportation facility and the safety of the traveling public. Landlord reserves the right from time to time to make reasonable modifications to said a Tenant and regulations. The additions and modifications to those rules and regulations shall be binding upon upon delivery of a copy of them to Tenant. 5.9 Wrecked Vehicles Tenant shall not park or store wrecked or inoperable vdhicles of any kind on the leased premises. 5.10 Vendin Tenant shall not conduct or permit the vending or sale of any goods or services upon the premises except as specifically permitted under Section 5.1. 5.11 Water Pollution Control Tenant shall fully conform to the requirements of the Department of Transportation statewide NPDES Storm Water Permit, Order No. 99-06-DWQ, NPDES No. CAS000003 adopted by the State Water Resources Control board on July 15, 1999. This permit regulates storm water and non -storm water discharges associated with activities within Department of Transportation right of way. Tenant shall develop, implement, and maintain a Facilities Pollution Prevention Plan (FPPP), describing the pollution prevention practices associated with activities on facilities located within the Department of Transportation right of way. Tenant shall comply with the statewide NPDES Storm Water Permit by incorporating storm water management into its operational activities. The FPPP will accomplish compliance by implementing Best Management Practices (BMPs) described in the Department of Transportation Statewide Storm Water Management Plan (SWMP). Copies of the Permit and the Department of transportation SWMP may be obtained from the Department of Transportation, Material Operations Branch, Publication Distribution Unit, 1900 royal Oaks drive, Sacramento, California, 98518, Telephone (916) 445-3520. Tenant shall not allow the unauthorized dische of storm water runoff into private or public storm water drainage systems. Tenant must comply wit li State and federal storm water pollution control standards, including those of the State Water Resources Control Board, and the lawful requirements of municipalities, counties, drainage districts, and other local agencies regarding discharges of storm water to separate storm sewer systems or other watercourses under jurisdiction of the above agencies. Page 8 of 26 ASE AREA NO.11-SDX805-12 To minimize the discharge of pollutants, spilled or leaked fluids, and any other wastewater into the storm water drainage system, Tenant shall not allow the washing, fueling and repair of vehicles and equipment on the site. To minimize the discharge of pollutants from storm water resulting from contact with hazardous materials, Tenant shall not allow the storage or stockpile of hazardous materials on the site. Landlord, or its agents or contractors shall at all times have the right to go upon and inspect the site and the operations therein to assure compliance with the requirements herein stated. Inspection may include taking samples of substances and materials present for testing, and/or the testing of storm water systems or watercourses on the site ARTICLE 6. IMPROVEMENTS 6.1 Construction of Improvements and Alterations Tenant shall not place any improvements in, on, or upon the premises, nor shall Tenant make any alterations to said premises without the prior written consent and approval of Landlord and the Federal Highway Administration. 6.2 Standard of Construction Tenant agrees that any improvements or construction upon the premises shall: (a) be consistent with all fire safety requirements, (b) be subject to the approval of Landlord, the State Fire Marshall and the concurrence of the Federal Highway Administration, and (c) in every respect comply with the laws, ordinances and regulations, federal, state, municipal or otherwise, that may govern construction of the lease. Tenant shall not construct or place/ on the leased premises any improvements which impair Landlord's ability to maintain, operate, use, repair or improve any part of the transportation facility situated on the leased premises or on adjoining real property. Tenant shall save Landlord harmless of and from any loss or damage caused by reason of the construction or use of said improvements. 6.3 Encroachment Permit Tenant, prior to construction or alteration of any improvements on or of the leased premises, shall obtain an executed Encroachment Permit from Landlord. Issuance by Landlord of an Encroachment Permit shall be contingent upon Tenant's providing the following: (a) Final construction plans and detailed specifications. All such plans and specifications submitted by Tenant to landlord shall be subject to the review and approval of Landlord, the State Fire Marshall and the Federal Highway Administration. (b) Evidence of coverage that assures Landlord that sufficient monies will be available to complete the proposed construction or alteration. The amount of coverage shall be at least equal to the total estimated construction costs. Such coverage shall take one of the following forms: Completion bond issued to Landlord as obligee. Performance bond and labor and material bond or Performance bond containing the provisions of the labor and Material bond supplied by Tenant's contractor or contractors, provided said%onds are issued jointly to Tenant and Landlord as obligees. Any combination of the above. (1) (2) (3) Page 9 of 26 ASE AREA No. 11-SDX805-12 All bonds shall be issued by a company qualified to do business in the State of California and acceptable to Landlord. All bonds be in a form acceptable to Landlord and shall ensure faithful and full observance and performance by Tenant of all terms, conditions, covenants and agreements relating to the construction of improvements within the leased premises. (c) Liability insurance as provided in Section 9.2. (d) Fire insurance as provided in Section 9.3. (e) A copy of a building permit issued by the appropriate local jurisdiction. (f) A copy of Tenant's contract with the general contractor actually performing construction. (g) Final landscaping and irrigation plans and detailed specifications including a maintenance plan for litter removal, watering, fertilization and replacement of landscaping. (h) Evidence of compliance with the applicable provisions of all federal, state and local environmental statutes, laws, regulations and ordinances. (i) Tenant agrees to diligently apply for and meet all requirements for issuance of Encroachment Permit and Landlord agrees to not unreasonably withhold issuance of said Encroachment Permit. Tenant is obligated to deliver to Landlord the documents described in subdivisions (a) through (h) of this section regardless of whether an Encroachment Permit may have been issued inadvertently before these documents have been provided to Landlord. 6.4 Standard of Construction Tenant agrees that any improvements or construction upon the premises shall: (a) be consistent with all fire safety requirements: (b) be subject to the approval of Landlord and the concurrence of the Federal Highway Administration, and (c) in every respect comply with the laws, ordinances and regulations, federal, state, municipal or otherwise, that may govern construction of the same. Tenant shall not construct or place on the leased premises any improvements which impair Landlord's ability to maintain, operate, use, repair or improve any part of the transportation facility situated on the leased premises or on adjoining real property. Tenant shall save Landlord harmless of and from any loss or damage caused by reason of the construction of said improvements. 6.5 "As -Built" Plans Within ninety (90) days after completion of construction of improvements or alterations, Tenant shall furnish Landlord, at Tenant's expense, one set of "As -Built" plans, according to a scale and size designated by Landlord, showing said improvements as constructed in detail, including the location of underground and aboveground utility lines. ARTICLE 7. OWNERSHIP OF IMPROVEMENTS AND PERSONAL PROPERTY 7.1 Ownership of Improvements During Term All improvements constructed on the premises by Tenant as permitted or required by this Lease shall, during the term of this Lease, be and remain the property of Tenant; provided, however, that Tenant's rights and powers with respect to the improvements are subject to the terms and limitations of this lease and Tenant's interest in such improvements shall terminate upon the expiration or earlier termination of this Lease. Tenant shall not remove any improvements from the premises nor waste, destroy or modify any improvements on the premises, except as siiecifically permitted by this Lease. At the expiration or termination of this lease, all improvements constructed on the premises by Tenant shall vest in Landlord. Tenant shall deliver said improvements to Landlord in good condition and repair, reasonable wear and tear excepted, without compensation to Tenant, any subtenant or third party, free and clear of all claims to or Page 10 of 26 L ' E AREA No. 11-SDX805-12 against them by Tenant, subtenant or third party, and Tenant shall defend and hold Landlord harmless from all liability arising from such claims or from the exercise by Landlord of its rights under this section. In the event said improvements are not delivered to Landlord in good condition and repair, reasonable wear and tear excepted, Landlord shall make the necessary maintenance and repairs and Tenant shall be liable to and shall reimburse Landlord for any such expenditures made, plus interest as provided in Section 20.11 from the date of completion of work. Landlord and Tenant covenant for themselves and all persons claiming under or through them that the improvements are real property. 7.2 Removal of Personal Property and Ownership at Termination At the expiration or earlier termination of this lease, Landlord may, at Landlord's sole election, require the removal from the premises, at Tenant's sole cost and expense, of all personal property (other than fixtures), or of certain personal property (other than fixtures), as specified in the notice provided for below. A demand to take effect at the normal expiration of the term shall be effected by notice given at least thirty (30) days before the expiration date. A demand to take effect on any other termination of the term of this Lease shall be effectuated by notice given concurrently with notice of such termination or within ten (10) days after such termination. Tenant shall be liable to Landlord for costs incurred by Landlord in effecting the removal of personal property which Tenant has failed to remove after demand pursuant to Section 7.2. Tenant may remove any personal property from time to time within forty-five (45) days of the expiration of the term. Tenant shall repair all damage (structural or otherwise) caused by any such removal. Any personal property not removed by Tenant within forty-five (45) days following expiration of the term shall be deemed to be abandoned by Tenant and shall, without compensation to Tenant, become the Landlord's property, free and clear of all claims to or against them by Tenant or any other person. 7.3 Removal of Improvements at Termina ion Upon the expiration or earlier termination of this lease, Landlord may, upon written notice, require tenant to remove, at the sole cost and expense of Tenant, and not later than ninety (90) days after the expiration or earlier termination of this lease, all structures, buildings and improvements of any kind whatsoever placed or maintained on the premises, whether below, on or above the ground by Tenant or others, including, but not limited to, foundations, structures, buildings, utility lines, switchboards, transformer vaults and all other service facilities constructed or installed upon the premises; and Tenant shall, upon the expiration or earlier termination of this Lease, immediately restore, and quit and peacefully surrender possession of the premises to Landlord in at least as good and usable condition, acceptable to Landlord, as the same was in at the time of first occupation thereof by Tenant or others, ordinary wear and tear excepted, and shall, in any event, leave the surface of the ground in a level, graded condition, with no excavations, holes, hollows, hills, or humps. Should Tenant fail to so remove said structures, buildings and improvements and restore the premises, Landlord may sell, remove or demolish the same, and in the event of said sale, removal or demolition, Tenant shall reimburse Landlord for any cost or expense thereof in excess of any consideration received by Landlord as a result of such sale, removal or demolition. ARTICLE 8. MAINTENANCE AND REPAIRS 8.1 Tenant's Obligations Tenant, at its own cost and expense, shall maintain the leased premises, improvements and landscaping thereon, including fences, and guardrails heretofore, or hereafter erected, in first class order, repair and condition and in compliance with all requirements of law. Tenant shall also, at its own cost and expense, install or provide for the installation of all retired lighting on the leased premises and shall maintain the lighting in first class order, repair and condition. Landlord and Tenant recognize that because of the length of the term of this Lease it may be necessary for Tenant to perform certain substantial maintenance, repair, Page 11 of 26 ASE AREA No. 11-SDX805-12 rehabilitation or reconstruction (hereinafter collectively referred to as "repair" or "repairs") of the improvements in order to ensure that the premises are kept in first-class order, repair and condition. "First-class order, repair and condition", as used herein, shall mean the maintenance, repair, renovation or replacement of buildings, equipment, furniture, fixtures, landscaping and appurtenances necessary to keep the premises in efficient and attractive condition, given the nature and age of the improvements at any time during the term of this Lease. Landlord and Tenant do not intend by the immediately preceding sentence that a property item is not first-class merely because of ordinary and reasonable wear and tear that does not materially and substantially reduce the attractiveness and utility of the item given the nature and age of the improvements at any time during the term of this Lease. Tenant hereby expressly waives the right to make repairs at the expense of Landlord and the benefit of the provisions of Sections 1941 and 1942 of the California Civil Code or any successor thereto. Tenant shall take all steps necessary to protect effectively the fences, guardrails, and the piers and columns, if any, of the structure from damage incident to Tenant's use of said premises and improvements, all without expense to Landlord. Tenant shall, at its own cost and expense, repair in accordance with Landlord's standards any damage to any property owned by Landlord, including, but not limited to, all fences, guardrails, piers and columns, caused by Tenant, subtenants, invitees or other third parties. At Tenant's request, Landlord will repair the damage to its property and Tenant agrees to reimburse Landlord promptly after demand for the amount Landlord has reasonably expended to complete the repair work. Tenant shall designate in writing to Landlord a representative who shall be responsible for the day-to-day operation and level of maintenance, cleanliness and general order. 8.2 Landlord's Rights In the event Tenant fails to perform Tenant's obligations under this Article, Landlord shall give Tenant notice to do such acts as are reasonably required to so maintain the premises. If within thirty (30) days after Landlord sends written notice to repair, Tenant fails to do the work and diligently proceed in good faith to prosecute it to completion, Landlord shall have the right, but not the obligation, to do such acts and expend such funds at the expense of Tenant as are reasonably required to perform such work. Any amount so expended by Landlord shall be paid by Tenant promptly after demand plus interest from the date of completion of such work to date of payment. Landlord shall have no liability to Tenant for any damage, inconvenience or interference with the use of the premises by Tenant as a result of performing any such work. ARTICLE 9. INSURANCE 9.1 Exemption of Landlord from Liability This Lease is made upon the express condition that Landlord is to be free from all liability and claims for damages by reason of any injury to any person or persons, including Tenant, or property of any kind whatsoever and to whomsoever belonging, including Tenant, from any cause or causes resulting from the operation or use of the premises by Tenant, its agents, customers or business invitees. Tenant hereby covenants and agrees to indemnify and save harmless Landlord from all liability, loss, cost and obligation on account of any such injuries or losses. 9.2 Liability Insurance Tenant shall at its own cost and expense procure and keep in force during the term of this Lease bodily injury liability and property damage liability insurance adequate to protect Landlord, its officers, agents and employees, against any liability to the pub& resulting from injury or death of any person or damage to property in connection with the area, operation or condition of the premises, including any and all liability of Landlord for damage to vehicles parked on the leased premises. Such insurance shall be in an amount of not less than $5,000,000 (Five Million Dollars) combined single limit for bodily injury and property damage. The limits of such insurance shall not limit the liability of Tenant. Tenant may self -insure. If Page 12 of 26 E AREA No. 11-SDX805-12 Tenant elects to not self -insure, all insurance required hereunder shall be with companies to be approved by Landlord. All such insurance policies shall be written as primary policies, not contributing with and not in excess of coverage which Landlord may carry. Said policies shall name the State as an additional insured and shall insure against the contingent liabilities, if any, of Landlord and the officers, agents, and employees of Landlord and shall obligate the insurance carriers to notify Landlord, in writing, not less than thirty (30) days prior to the cancellation thereof, or any other change affecting the coverage of the policies. If said policies contain any exclusion concerning property in the care, custody or control of the insured, an endorsement shall be attached thereto stating that such exclusion shall not apply with regard to any liability of the State of California, its officers, agents, or employees. Tenant shall furnish to Landlord a Certificate of Insurance acceptable to Landlord within not more than ten (10) days after execution thereof. Landlord shall retain the right at any time to review the coverage, form, and amount of the insurance required hereby. If, in the opinion of Landlord, the insurance provisions in this Lease do not provide adequate protection for Landlord and for members of the public using the leased premises, Landlord may require Tenant to obtain insurance sufficient in coverage, form and amount to provide adequate protection. Landlord's requirements shall be reasonable but shall be designed to assure protection from and against the kind and extent of the risks which exist at the time a change in insurance is required. Landlord shall notify Tenant in writing of changes in the insurance requirements; and if Tenant does not deposit copies of acceptable insurance policies with Landlord incorporating such changes within sixty (60) days of receipt of such notice, this Lease may be terminated, at Landlord's option, without further notice to Tenant, and be of no further force and effect. 9.3 Fire and Extended Coverage Insurance Tenant shall obtain and keep in effect at all times during the term of this Lease fire and extended coverage insurance upon all buildings, structures and improvements constructed on the premises. Such policy or policies of insurance shall be for not less that one hundred percent (100%) of the full replacement value of the property covered and shall provide for payment of losses to Tenant. Landlord shall be named as an additional insured on all fire and extended coverage insurance policies placed on the buildings, structures and improvements on said premises. The full replacement value of the buildings, structures and improvements to be insured under this section shall be determined by the company issuing the insurance policy at the time the policy is initially obtained. Not more frequently than once each year, either party shall have the right to notify the other party that it elects to have the replacement value re -determined by an insurance company. The predetermination shall be made promptly and in accordance with the rules and practices of the Board of Fire Underwriters, or a like board recognized and generally accepted by the insurance company, and each party shall be promptly notified of the results by the company. The insurance policy shall be adjusted according to the predetermination. 9.4 Failure to Procure and Maintain Insurance If Tenant fails to procure or maintain the insurance required by this Article in full force and effect, Landlord may take out insurance and pay the premiums thereon. The repayment of those premiums, plus payment of interest from the date such insurance is obtained, shall be the sole obligation of Tenant and shall be deemed to be additional rental and payable as such on the next day upon which rent becomes due hereunder. In addition, if Tenant fails to procure or maintain the insurance required by this Article, Tenant shall cease and desist from operating any business on the premises and the improvements erected thereon and shall prevent members of the public fromhgaining access to the premises during any period in which such insurance policies are not in full force and effect. 9.5 Waiver of Subrogation Landlord and Tenant each hereby waive any and all rights of recovery against the other, or against the officers, employees, agents and representatives of the other, for loss of or damage to such waiving party or Page 13 of 26 ASE AREA No. 11-SDX805-12 its property or the property of others under its control to the extent that such loss or damage is insured against under any insurance policy in force at the time of such loss or damages. The party obtaining the policies of insurance required hereunder shall give notice to the insurance carrier or carriers that the foregoing mutual waiver of subrogation is contained in the Lease. ARTICLE 10. DAMAGE OR DESTRUCTION 10.1 Duty to Repair or Restore If during the term of this Lease any building or improvement on, in or appurtenant to the land at the commencement of the term or thereafter erected thereon shall be destroyed or damaged in whole or in part by fire or other cause, or shall be declared unsafe or unfit for use or occupancy by a public entity with the authority to make and enforce such declaration, Tenant shall within ten (10) days of the occurrence of such event, give to Landlord immediate notice thereof, and Tenant shall within sixty (60) days commence, and diligently pursue to completion, the repair, replacement or reconstruction of the same, at least to the extent of the value and as nearly as possible to the character of the buildings and improvements existing immediately prior to the occurrence of such event; and Landlord shall in no event be called upon to repair, replace or rebuild any such buildings or improvements. All buildings and improvements shall be repaired, replaced or reconstructed in accordance with the standards and requirements contained in Article 6. Tenant shall continue to pay rent hereunder (except if rent has been prepaid) during the period said improvements shall be damaged or destroyed. 10.2 Relief for Substantial Loss of Area and Damage or Destruction During Final Years of Term Tenant is relieved of the obligation to, but may, repair, restore, or reconstruct improvements damaged or destroyed during the final five (5) years of the term if (a) more than thirty-five percent (35%) of the improvements constructed on the premises are damaged or destroyed ; (b) the damage or destruction is uninsured and is not required to be insured under any provision of this Lease; and (c) Tenant complies with all the following conditions: (1) Gives Landlord notice of damage or destruction promptly but not later than ten (10) days after the event, detailing facts that qualify the casualty under this provision. (2) Is not in default under any provision or condition of this lease. (3) Continues to make all payments when due as required by the provisions of this Lease, provided that Landlord may, by notice given at any time after Tenant's notice of the damage or destruction, elect to terminate the Lease at a date stated in Landlord's notice and to forgive all rent for the period following that date. (4) Pay in full, or has paid in full, any outstanding indebtedness incurred by Tenant and secured by an encumbrance or encumbrances on the leasehold. (5) Delivers possession of the premises to Landlord and quitclaims all right, title and interest in the land and improvements promptly upon ceasing to do business on the premises. (6) Causes to be discharged all liens and encumbrances resulting from any act or omission of Tenant. (7) Removes or deposits the cost of removing all fixtures and improvements if Landlord so elects under the provisions of Article 7. Tenant shall also be relieved of the obligations to repair, restore or reconstruct improvements because of an insured loss if Tenant complies with all the above provisions and also assigns all net proceeds from the insurance settlement to Landlord. "Net proceeds" shall mean the full amount of the insurance settlement. Landlord and Tenant hereby waive the provisions of Section 1932 (2) and 1933 (4) of the California Civil Code and waive the provisions of any other statutes which relate to the termination of a lease when the leased property is destroyed. Landlord and Tenant agree that such an event shall be governed by the terms of this Lease. Page 14 of 26 SE AREA No.11-SDXSO$-12 ARTICLE 11. PAYMENT OF TAXES Tenant agrees to pay and discharge, or cause to be paid and discharged when due, before the same become delinquent, all taxes, assessments, impositions, levies and charges of every kind, nature and description, whether general or special, ordinary or extraordinary, which may at any time or from time to time during the term of this Lease, by or according to any law or governmental, legal, political, or other authority whatsoever, directly or indirectly, be taxed, levied, charged, assessed or imposed upon or against, or which shall be or may be or become a lien upon said premises or any buildings, improvements or structures at any time located thereon, or any estate, right, title or interest of Tenant in and to said premises, buildings, improvements or structures. Tenant shall pay when due, before delinquency, personal property taxes on fixtures, equipment and facilities owned by Tenant, whether or not the same have become so fixed to the land as to comprise a part of the real estate. Tenant understands that any possessory interest of Tenant created in the leased premises by this Lease may be subject to property taxation and that Tenant may be liable for payment of any such tax levied on such interest. Any obligation of Tenant under this Article, including possessory interest tax that the city or county may impose upon Tenant's interest herein, shall not reduce any rent due Landlord hereunder and any such obligation shall become the liability of and be paid by Tenant. In the event Tenant shall fail to discharge any of the above obligations, Landlord may, at its option, discharge the same and the amount so paid by Landlord, plus interest from the date of payment by Landlord, shall be added to the rentals next accruing under this Lease. Tenant may, at its own expense, and before delinquency occurs, contest, object to or oppose the legality, validity or amount of such taxes. Landlord shall not be required to join in any proceeding or contest brought by Tenant. Immediately upon the final determination of the proceeding or contest, Tenant shall pay or discharge any decision or judgment rendered, together with all costs, charges, interest and penalties incident to the decision or judgment. If Tenant contests or seeks a reduction in the taxes as provided in this Article, Tenant shall, before the commencement of the proceedings or contest, furnish to Landlord security or other evidence satisfactory to Landlord that Landlord and the Premises will be held harmless from any damage arising out of the proceedings or contest and assuring the payment of any judgment that may be rendered. Any default in the payment of any of the obligations set forth in this Article shall, at the option of Landlord, be considered a default under the terms of this Lease. ARTICLE 12. RIGHT OF ENTRY 12.1 Inspection, Maintenance, Construction and Operation of Freeway Structures Landlord, through its agents or representatives, and other city, county, state and federal agencies, through their agents or representatives, shall have full right and authority to enter in and upon the premises and any building or improvements situated thereon at any and all reasonable times during the term of this Lease for the purpose of inspecting the same without interference or hindrance by Tenant, its agents or representatives. Landlord further reserves the right of entry for the purpose of inspecting the premises, or the doing of any and all acts necessary or proper on said premises in connection with the protection, maintenance, reconstruction, and operation of the freeway structures and its appurtenances; provided, further, that Landlord reserves the further right, at its discretion, to immediate possession of the same in case of any national or other emergency, or for the purpose of preventing sabotage, and for the protection of said freeway structures, in which event the term of this Lease shall be extended for a period equal to the emergency occupancy by Landlord, and during said period Tenant shall be relieved, to the degree of interference, from the performance of cond1 ions or covenants specified herein. Landlord further reserves the right of entry by any authorized officer, engineer, employee, contractor or agent of the Landlord for the purpose of performing any maintenance activities upon the property which Tenant has failed to perform. All agreements which Tenant enters into for the sublease or use of all or any part of Page 15 of 26 .-IASE AREA No. 11-SDX805-12 the leased premises shall contain a provision, approved by Landlord, which describes Landlord's right of entry as set forth in this Article. 12.2 Future Transportation Project (a) Landlord's Right to Possession of Premises. Tenant understands and acknowledges that Landlord may, during the Term of this Lease, construct an "Approved and Funded Transportation Project", which may require the temporary or permanent use of all or a portion of the premises. An "Approved and Funded Transportation Project" is defined as a proposed transportation facility to be constructed by Landlord where the funds necessary to construct the facility are available to Landlord (regardless of the source of the funds) and where the transportation facility can reasonably be expected to be constructed within a reasonable period of time following termination of this Lease as provided in this Section 12.2. In the event Landlord determines that the premises or any portion thereof will be affected by an "Approved and Funded Transportation Project", Landlord shall immediately notify Tenant of its intent to take possession of all or a portion of the premises and shall provide Tenant with at least one hundred eighty (180) days written notice within which to vacate the required area. Landlord's notice to Tenant shall indicate the area of the premises to be taken. If possession is to be a temporary use of all or part of the premises, Landlord shall additionally state in such notice to Tenant Landlord's reasonable estimate of the period of time of such temporary use by Landlord. Upon the date Landlord is entitled to possession of the premises, or portion thereof, Tenant shall peaceably surrender possession of the premises, or portion thereof, and comply with the restrictions as stated in the notice. The failure of Tenant to vacate the required area of the premises shall constitute a material default and breach of this Lease entitling Landlord to exercise its rights and remedies. (b) Tenant's Sole Rights; Tenant's Waiver Landlord's taking of possession of the premises under Section 12.2 does not constitute a taking or damaging entitling Tenant to compensation under Article 13. Tenant expressly agrees to hold Landlord harmless from any and all liability for, and expressly waives any right it may have to recover against Landlord, damages to the Premises, any improvements constructed on the premises or improvements thereon, and damages to any other property, project or operations including any claim for loss of business goodwill or resulting from Tenant's inability to use or possess all or any portion of the premises as a result of an "Approved and Funded Transportation Project". In addition, Tenant expressly recognizes that it is not entitled to receive benefits under the federal or state Uniform Relocation Assistance Act (United States Code, Section 7260, et seq.) as a result of Landlord's use or possession of any portion of the premises for an "Approved and Funded Transportation Project". Landlord agrees to instruct its authorized representatives to minimize the effect of any required construction on Tenant's use of the premises, both in the construction phase and in the permanent effect on the premises in connection with an "Approved and Funded Transportation Project." In furtherance of the objectives of Section 12.2, Tenant acknowledges Landlord's power of eminent domain and Tenant hereby waives all objections that Tenant may have to Landlord's right to take all or part of the premises as provided in Section 12.2. 12.3 Retrofitting of Freeway Structures Tenant understands and agrees that Landlord may be required to perform retrofit work on all or a part of the freeway structures which are situated on and above the premises. Landlord shall have the right to impose such restrictions on Tenant's right o enter, occupy, and use the premises and to construct improvements thereon as Landlord deems are necessary to enable it to complete construction of all freeway structural retrofit work without interference from Tenant. In the event Landlord determines that it needs to obtain possession of all or a portion of the premises, or needs to place restrictions on Tenant's use of the premises, Landlord shall, at least thirty (30) days prior to Page 16 of 26 riea.LASE AREA NO.11-SDX1105-12 the effective date of the commencement of such possession or restrictions notify Tenant in writing describing the extent of the possession or restrictions and the effective date of their commencement. Upon the effective date of said notice, Tenant shall peaceably surrender possession of the premises and comply with the restrictions as stated therein. Tenant expressly agrees to hold Landlord harmless from any and all liability for, and expressly waives any right it may have to recover against Landlord, damages to the premises, any improvements constructed on the premises, and waives its right to use or possess eraany portion of the premises or improvements thereon, and damages to any other property, prop caused by Landlord's possession, imposition of restrictions or Tenant's inability to use or possess all or any portion of the premises. In addition, Tenant expressly recognizes that it is not entitled to receive benefits under the federal or state Uniform Relocation Assistance Acts (United States Code, title 42, Section 4601, et seq.; California Government Code, Section 7260, et seq.) as a result of Landlord's use or possession of any portion of the premises. Tenant shall conduct its operation on the premises in such manner so as not to interfere with Landlord's or its contractor's performance of any required construction in connection with an "Approved and Fundedd Transportation Project", on or above the premises. Tenant acknowledges the performance of any require construction may cause damage to paving and other improvements constructed by Tenant on the premises. Tenant expressly agrees to hold Landlord harmless from all such damage to its improvements, except that at the conclusion of construction, Landlord shall restore the premises to their pre-existing condition at no cost to Tenant. Tenant shall conduct its operations on the premises in such a manner so as not to interfere with Landlord's or its contractor's performance of any structural retrofit work done on or above the premises. Tenant acknowledges that the performance of the structural retrofit work may cause damage to paving or other improvements constructed by Tenant on the premises. Tenant expressly agrees to hold Landlord harmless from all such damage to its improvements, except that at the conclusion of the retrofit work, Landlord shall restore the,premises to their preexisting condition at no cost to Tenant. ARTICLE 13. CONDEMNATION BY PUBLIC ENTITIES OTHER THAN LANDLORD 13.1 Definitions (a) "Condemnation" means (1) the exercise of the power of eminent domain, whether by legal proceedings or otherwise, by a public entity having that power, that is, a condemnor, and (2) a voluntary sale or transfer to any condemnor, either under the threat of condemnation or while legal proceedings in condemnation are pending. (b) "Award" means all compensation, sums, or anything of value awarded, paid or received upon a total or partial condemnation of the leased premises. (c) "Substantial taking" means a taking of a portion of the leased premises by condemnation which, assuming a reasonable amount of reconstruction on the remainder, substantially impairs Tenant's ability to use the remainder for the purposes permitted under this Lease. 13.2 Termination of Lease as to Part Condemned In the event the whole or any part of the premises is taken by condemnation by a public entity, other than Landlord, in the lawful exercise of its power of eminent domain, this Lease shall cease as to the whole or the part condemned upon the date possession of the whole or that part is taken by the public entity. 13.3 Partial Taking If a part of the leased premises is taken by cot dlemnation but there is no substantial taking of the premises, Tenant shall continue to be bound by the terms, covenants, and conditions of this Lease. However, if the fair rental value of the remainder will be less than the rent required by this Lease, the minimum monthly rent and adjusted minimum monthly rent shall be reduced to an amount equal to the fair rental value as of the date possession of the part is taken by the public entity. Page 17 of 26 EASE AREA No.11-SDX805-12 If the part taken by condemnation constitutes a substantial taking of the leased premises, Tenant may elect to: (a) Terminate this Lease and be absolved of obligations hereunder which have not accrued at the date possession is taken by the public entity; or (b) Continue to occupy the remainder of the premises and remain bound by the terms, covenants and conditions of this Lease. If Tenant elects to continue to occupy the remainder, and if the fair rental value of the remainder will be less than the rent required by this Lease, the minimum monthly rent and adjusted minimum monthly rent shall be reduced to the fair rental value as of the date possession of the part is taken by the public entity. Tenant shall give notice in writing of its election to terminate this Lease hereunder within thirty (30) days of the date possession of the part is taken by the public entity. If Tenant fails to give Landlord its written notice of termination within the time specified, this Lease shall remain in full force and effect except that the minimum monthly rental shall be reduced as provided in this section. If it continues to occupy the remainder, Tenant, whether or not the award upon the taking by condemnation is sufficient for the purpose, shall, at its expense, within a reasonable period of time, commence and complete restoration of the remainder of the leased premises as nearly as possible to its value, condition and character immediately prior to such taking; provided, however, that in the case of a taking for temporary use, Tenant shall not be required to effect restoration until such taking is terminated. Tenant shall submit to Landlord its plans for the restoration of the remainder within ninety (90) days of the date possession of the part is taken by the public entity. 13.4 Compensation Landlord shall be entitled to receive and shall receive all compensation for the condemnation of all or any portion of the premises by exercise of eminent domain except as hereinafter provided. Tenant shall be entitled to that portion of said compensation which represents the present worth as of the date possession is taken by the public entity of the remaining use under the Lease of all improvements constructed by Tenant on the leased premises located within the part taken by the public entity. Tenant may also assert a claim for loss of business goodwill under the provisions of Section 1263.510 of the California Code of Civil Procedure. Tenant shall assert no claim for loss of bonus value. For the purposes of this Article, "bonus value" means that value attributable to the fact that the rental rate Tenant is obligated to pay under this Lease is less than the fair market lease rate of the premises as defined in Section 4.3 above. If all or a portion of the leased premises is condemned at a time when Tenant possesses an interest in real property located outside the leased premises (hereinafter called "outside property"), Tenant may claim entitlement to an award of damages accruing to the outside property by reason of the severance therefrom of the condemned portion of the leased premises as provided in the Eminent Domain Law (California Code of Civil Procedure Sections 1230.010 through 1273.050). ARTICLE 14. UTILITIES Tenant shall pay when due, and shall hold Landlord harmless from any liability for, all charges for water, gas, heat, light, power, telephone, sewage, air conditioning and ventilating, scavenger, janitorial and landscaping services and all other materials art$ utilities supplied to the premises. Landlord shall not be liable in damages or otherwise for any failure or interruption of any utility service furnished to the premises, and no such failure or interruption shall entitle Tenant to terminate this Lease. Page 18 of 26 � r ASE AREA No. 11-SDX805-12 ARTICLE 15. LIENS 15.1 Exemption of Landlord from Liability Tenant shall at all times indemnify and save Landlord harmless from all claims for labor or materials in connection with construction, repair, alteration, or installation of structures, improvements, equipment or facilities within the premises, and from the cost of defending against such claims, including attorney fees. 15.2 Tenant's Obligations In the event a lien is imposed upon the premises as a result of such construction, repair, alteration or installation, Tenant shall either: (a) Record a valid Release of Lien, or (b) Deposit sufficient cash with Landlord to cover the amount of the claim on the lien in question and authorize payment to the extent of said deposit to any subsequent judgment holder that may arise as a matter of public record from litigation with regard to a lien holder claim, or (c) Procure and record a bond in accordance with Section 3143 of the California Civil Code, which frees the premises from the claim of the lien and from any action brought to foreclose the lien. Should Tenant fail to accomplish one of the three optional actions within 15 days after the filing of such a lien, the Lease shall be in default and shall be subject to immediate termination. ARTICLE 16. DEFAULT 16.1 Default The occurrence of any of the following shall constitute a material breach and default of this Lease by Tenant. (a) Any failure by Tenant to pay rent or any other monetary sums required to be paid hereunder, where such failure continues for ten (10) days after written notice thereof has been given by Landlord to Tenant. (b) The abandonment or vacation of the premises by Tenant. Failure to occupy and operate the premises for thirty (30) consecutive days following the mailing of written notice from Landlord to Tenant calling attention to the abandonment shall be deemed an abandonment or vacation. (c) A failure by Tenant to observe and perform any other provision of this Lease to be observed or performed by Tenant, where such failure continues for thirty (30) days after written notice thereof by Landlord to Tenant; provided, however, that if the nature of such default is such that it cannot be reasonably cured within such thirty (30) day period, Tenant shall not be deemed to be in default if Tenant shall within such period commence such cure and thereafter diligently prosecute the same to completion. (d) The making by Tenant of any general assignment or general arrangement for the benefit of creditors; the filing by or against Tenant of a petition to have Tenant adjudged bankrupt or of a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Tenant the same is dismissed within sixty (60) days); the appointment of a trustee or receiver to take possession of substantially all of Tenant's assets, where possession is not restored to Tenant within forty-five (45) days; or the attachment, execution or other judicial seizure of substantially all of Tenant's assets, where such seizure is not discharged within thirty (30) days. 16.2 Landlord's Remedies Page 19 of 26 ,-ASE AREA No.11-SDX805-12 In the event of any material default or breach by Tenant, Landlord may at any time thereafter, without limiting Landlord in the exercise of any right of remedy at law or in equity which Landlord may have by reason of such default or breach: (a) Maintain this Lease in full force and effect and recover the rent and other monetary charges as they become due, without terminating Tenant's right to possession, irrespective of whether Tenant shall have abandoned the premises. Landlord has the remedy described in California Civil Code Section 1951.4 (Landlord may continue the lease in effect after Tenant's breach and abandonment and recover rent as it becomes due, if Tenant has the right to sublet or assign, subject only to reasonable limitations). In the event Landlord elects not to terminate the Lease, Landlord shall have the right to attempt to re -let the premises at such rent and upon such conditions and for such a term, and to do all acts necessary to maintain or preserve the premises as Landlord deems reasonable and necessary without being deemed to have elected to terminate the Lease, including removal of all persons and property from the premises; such property may be removed and stored in a public warehouse or elsewhere at the cost of and for the account of Tenant. In the event any such re -letting occurs, this Lease shall terminate automatically upon the new tenant taking possession of the premises. Notwithstanding that Landlord fails to elect to terminate the Lease initially under this subparagraph, Landlord at any time during the term of this Lease may elect to terminate this Lease by virtue of such previous default of Tenant. (b) Terminate Tenant's right to possession by any lawful means, in which case this Lease shall immediately terminate and Tenant shall immediately surrender possession of the premises to Landlord. In such event Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant's default including, but not limited to, the following: (i) the worth at the time of award of any unpaid rent which had been earned at the time of such termination; plus (ii) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that is proved could have been reasonably avoided; plus (iii) the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that is proved could be reasonably avoided; plus (iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary course of events would be likely to result therefrom; plus (v) at Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable State law. Upon any such re-entry Landlord shall have the right to make any reasonable repairs, alterations or modifications to the premises, which Landlord in its sole discretion deems reasonable and necessary. As used in subparagraphs (i) and (ii), above, the "worth at the time of award" is computed by including interest on the principal sum at a ratne percent (1%) above the discount rate of the Federal Reserve Bank of San Francisco from the date of default. As used in subparagraph (iii), above, the "worth at the time of award" is computed by discounting such amount at a rate one percent (1%) above the discount rate of the Federal Reserve Bank of San Francisco at the time of award. The term Page 20 of 26 sE AREA No. 11-SDX805-12 "rent" as used in this Article shall be deemed torbe and to mean rent to be paid pursuant to Article 4 and all other monetary stuns required to be paid by Tenant pursuant to the terms of this Lease. 16.3 Landlord's Right to Cure Tenant's Default At any time after Tenant is in default or material breach of this Lease, Landlord may cure such default or breach at Tenant's cost. If Landlord at any time, by reason of such default or breach, pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord at the time the sum is paid, and if paid at a later date shall bear interest from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant. The sum, together with interest on it, shall be additional rent. ARTICLE 17. ASSIGNMENTS, SUBLEASES AND ENCUMBRANCES 17.1 Voluntary Assignments, Subleases and Encumbrances Tenant shall not voluntarily assign, transfer or encumber its interest in this Lease or in the premises, or sublet all or any part of the premises, or allow any other person or entity (except Tenant's authorized representatives) to occupy or use all or any part of the premises without first obtaining Landlord's written consent and the concurrence of the Federal Highway Administration, unless otherwise expressly permitted by the provisions of this Article. Landlord may withhold its consent to any such assignment, transfer, encumbrance or sublease unless all of the following express conditions are satisfied: (a) Landlord and Tenant recognize that any sublessee is to be a non-profit entity and that any sublease is to be for community benefit and social service purposes. (b) Plans for any and all improvements to the lease property by sublessee(s) will be reviewed by Landlord and the Federal Highway Administration for approval. (c) Landlord receives and has the right to receive any and all consideration, whether in present payments or in future payments, which Tenant receives from an assignee, transferee or subtenant in excess of the amount of rent Tenant is obligated to pay to Landlord under this Lease. Tenant's failure to obtain Landlord's required written approval of any other assignment, transfer, or sublease shall render such assignment, transfer, or sublease void. Occupancy of the leased premises by a prospective transferee, sublessee or assignee before approval of the transfer, sublease or assignment by Landlord shall constitute a breach of this Lease. Landlord's consent to any assignment, or sublease shall not constitute a waiver of any of the terms, covenants or conditions of this Lease. Such terms, covenants and conditions shall apply to each and every assignment, and sublease of this Lease and shall be severally binding upon each and every party thereto. Any document to transfer, sublet, or assign the leased premises or any part thereof shall incorporate directly or by reference all the provisions of this Lease. 17.2 Assignment of Rent from Subtenants Tenant immediately and irrevocably assigns to Landlord, as security for Tenant's obligations under this Lease, all rent from any subletting of all or a part of the premises as permitted by this Lease, and Landlord, as assignee and attorney -in -fact for Tenant, or a receiver for Tenant appointed on Landlord's application, may collect such rent and apply it toward 'tenant's obligation under this Lease; except that, until the occurrence of an act of default by Tenant, Tenant shall have the right to collect such rent. Page 21 of 26 ),SE AREA No. 11-SDX805-12 17.3 Information to be Supplied to Landlord Tenant shall supply Landlord with the necessary information on all persons or firms to which Tenant proposes to sublet or assign any of its interest in the premises, or which might establish rights to enter, control, or otherwise encumber the premises by reason of any agreement made by Tenant. In addition, with respect to any proposed sublease or assignment, Tenant shall provide Landlord with: (a) a copy of all documents relating thereto, (b) a statement of all terms and conditions of said transaction, including the consideration therefor, and (c) a copy of the financial statement of the prospective subtenant or assignee. 17.4 Encumbrances (a) Landlord and Tenant hereby acknowledge and agree that Tenant intends to encumber by deed of trust Tenant's interest in the leased premises, for the purpose of constructing improvements thereon, and/or the permanent financing of new improvements. Any such encumbrance is void without the prior written consent of Landlord. Tenant must secure the financing from a financial institution (hereinafter called "Lender") qualified to do business in the State of California. (b) Landlord agrees that it will not terminate this lease because of any default or breach thereunder on the part of Tenant if the Lender or the trustee under such deed of trust, within ninety (90) days after service of written notice on the Lender by Landlord of its intention to terminate said Lease for such default or breach, shall: (1) Cure such default or breach if the same can be cured by the payment or expenditure of money provided to be paid under the terms of said Lease, or if such default or breach is not so curable, cause the trustee under the deed of trust to commence and thereafter to diligently pursue to completion steps and proceedings for the exercise of the power of sale under and pursuant to the trust deed in the manner provided by law, and (2) Keep and perform all of the covenanth and conditions of this Lease requiring the payment or expenditure of money by Tenant until such time as the leasehold shall be sold upon foreclosure pursuant to the trust deed, or shall be released or reconveyed thereunder, or shall be transferred upon judicial foreclosure; provided, however, that if the lender or the trustee under the trust deed shall fail or refuse to comply with any and all of the conditions of this section, then and thereupon Landlord shall be released from the covenants of forbearance herein contained, and all rights of Tenant and/or Lender and those who claim under Tenant, under this Lease, shall terminate. (c) in the event of a judicial foreclosure sale or trustee's sale of Lender's security interest pursuant to the laws of the State of California, or an assignment in lieu of foreclosure, the transferee, be it Lender or others, shall succeed to all of the right, title and interest of Tenant. (d) Landlord shall give Lender a written notice of any default by Tenant under this Lease which notice shall be given concurrently with the notice to Tenant. The prior written consent of Landlord shall not be required: (1) to a transfer of this Lease at foreclosure sale under the trust deed, under judicial foreclosure or by an assignment in lieu of foreclosure; or (2) to any subsequent transfer by the Lender if the Lender is an established bank, savings and loan association or insurance company, and is the purchaser at such foreclosure sale; provided that in either such event the Lender forthwith gives notice to the Landlord in writing of any such transfer, setting forth the name and address of the transferee, the effective date of such transfer and the express agreement of the transferee assuming and agreeing to perform all of the obligations of this Lease, together with a ,opy of the document of which such transfer was made and the payment to Landlord of the processing fee provided in Section 19.8. Any transferee under this section shall be liable to perform the obligations of the Tenant under this Lease only so tong as such transferee holds title to the leasehold. Any subsequent transfer of the leasehold shall Page 22 of 26 2ASE AREA No.11-SDX805-12 not be made without the prior written consent of the Landlord and shall be subject to the conditions relating thereto as set forth in this Lease. (e) Upon and immediately after the recording of the trust deed, Tenant at Tenant's expense, shall cause to be recorded in the office of the Recorder of San Diego County, California, a duly executed and acknowledged written request for a copy of any notice of default and of any notice of sale under the trust deed as provided by the statutes of the State of California relating thereto. Concurrently with the execution of the consent to a trust deed, Tenant shall furnish to Landlord a complete copy of the trust deed and note secured thereby, together with the name and address of the holder thereof. (f)The trust deed and all rights acquired thereunder shall be subject to each and all of the covenants, conditions, and restrictions set forth in this Lease and to all rights and interests of Landlord hereunder, except as otherwise provided therein. In the event of any conflict between the provisions of this Lease and the provisions of any trust deed, the provisions of this Lease shall control. (g) No trust deed which Tenant may execute or create at any time shall include the Landlord's right, title and interest in and to the demised premises, nor shall any such trust deed subordinate or be deemed to subordinate the fee title to the demised premises or Landlord's interest in this Lease to the security interest created by such trust deed. It is the intention and agreement of the parties hereto that during the entire term of this Lease Landlord's right, title and interest in and to the demised premises shall not be subject to any liens or encumbrances of any kind or nature created either by Tenant or by Landlord. Nothing contained in any such trust deed, and no such trust deed, shall release or be deemed to release Tenant from the full and faithful•observance and performance of any covenants and conditions in this Lease contained and on the part of Tenant to be observed and performed, nor be deemed to constitute a waiver of any rights of Landlord hereunder and the terms, covenants and conditions of this Lease shall control in case of any conflict between this Lease and any such trust deed. ARTICLE 18. NONDISCRIMINATION Tenant, for itself, its personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that: (1) no person, on the ground of race, color, or national origin shall be excluded from participation in, be denied the benefits of, or otherwise subjected to discrimination in the use of said facilities, (2) in connection with the construction of any improvements on said land and the furnishing of services thereon, no discrimination shall be practiced in the selection of employees and contractors, by contractors in the selection and retention of first -tier subcontractors, and by first -tier subcontractors in the selection and retention of second -tier subcontractors, (3) such discrimination shall not be practiced against the public in its access to and use of the facilities and services provided for public accommodations (such as eating, sleeping, rest, recreation, and vehicle servicing) constructed or operated on, over, or under the premises, and (4) Tenant shall use the land in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, Part 21 (49 C.F.R., Part 21) and as said regulations may be amended. In the event of breach of any of the above nondiscrimination covenants, the Landlord shall have the right to terminate this Lease, and to re-enter and repossess said land and the fa ..ilities thereon, and hold the same as if said Lease had never been made or issued. ARTICLE 19. SECURITY DEPOSIT No Security Deposit is required ARTICLE 20. ADDITIONAL PROVISIONS 20.1 Quiet Enjoyment Page 23 of 26 ASE AREA NO. 11-SDX805-12 Landlord covenants and agrees with Tenant that upon Tenant, paying rent and other monetary sums due under the Lease and performing its covenants and conditions, Tenant shall and may peaceably and quietly have, hold and enjoy the premises for the term, subject however, to the terms of the Lease and of any of the mortgages or deeds of trust described above. 20.2 Captions, Attachments, Defined Terms The captions of the Articles of this Lease are for convenience only and shall not be deemed to be relevant in resolving any question of interpretation or construction of any section of this Lease. Exhibits attached hereto, and addendum and schedules initiated by the parties, are deemed by attachment to constitute part of this Lease and are incorporated herein. The words "Landlord" and "Tenant," as used herein, shall include the plural as well as the singular. Words used in neuter gender include the masculine and feminine and words in the masculine or feminine gender include the neuter. If there be more than one Landlord or Tenant, the obligations hereunder imposed upon Landlord or Tenant shall be joint and several. If the Tenants are husband and wife, the obligations shall extend individually to their sole and separate property as well as to their community property. 20.3 Entire Agreement This instrument along with any exhibits and attachments hereto constitutes the entire agreement between Landlord and Tenant relative to the premises and this agreement and the exhibits and attachments may be altered, amended or revoked only by an instrument in writing signed by both Landlord and Tenant. Landlord and Tenant agree hereby that all prior or contemporaneous oral agreements between and among themselves and their agents and representatives relative to the leasing of the premises are merged in or revoked by this agreement. 20.4 Severability If any terms or provision of this Lease shall, to any extent, be determined by a court of competent jurisdiction to be invalid or unenforceable, the remainder of this Lease shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforceable to the fullest extent permitted by law. 20.5 Costs of Suit If Tenant or Landlord shall bring any action for any relief against the other, declaratory or otherwise, arising out of this Lease, including any suit by Landlord for the recovery of rent or possession of the premises, the losing party shall pay the successful party a reasonable sum for attorney's fees which shall be deemed to have accrued on the commencement of such action and shall be paid whether or not such action is prosecuted to judgment. Should Landlord, without fault on Landlord's part, be made a party to any litigation instituted by Tenant or by any third party against Tenant, or by or against any person holding under or using the premises by license of Tenant, or for the foreclosure of any lien for labor or materials furnished to or for Tenant or any such other person or otherwise arising out of or resulting from any act or transaction of Tenant or of any such other person, Tenant shall save and hold Landlord harmless from any judgment rendered against Landlord or the premises or any part thereof, and all costs and expenses, including reasonable attorney's fees, incurred by Landlord in connection with such litigation. 20.6 Time, Joint and Several Liability Time is of the essence of this Lease and each and every provision hereof, except as to the conditions relating to the delivery of possession of the premises to Tenant. All the terms, covenants and conditions contained in this Lease to be performed by either party if such party shall consist of more than one person or organization, shall be deemed to be joint anct several, and all rights and remedies of the parties shall be cumulative and non-exclusive of any other remedy at law or in equity. 20.7 Binding Effect; Choice of Law Page 24 of 26 eL Pt :a & sE AREA No.11-SDX805-12 The parties hereto agree that all the provisions hereof are to be construed as both covenants and conditions as though the words importing such covenants and conditions were used in each separate section hereof; and all of the provisions hereof shall bind and inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns. This Lease shall be governed by the laws of the State of California. 20.8 Waiver No covenant, term or condition or the breach thereof shall be deemed waived, except by written consent of the party against whom the waiver is claimed and any waiver or the breach of any covenant, term or condition shall not be deemed to be a waiver of any preceding or succeeding breach of the same or any other covenant, term or condition. Acceptance by Landlord of any performance by Tenant after the time the same shall have become due shall not constitute a waiver by Landlord of the breach or default of any covenant, term or condition. Acceptance by Landlord of any performance by Tenant after the time the same shall have become due shall not constitute a waiver by Landlord of the breach or default of any covenant, term or condition unless otherwise expressly agreed to by Landlord in writing. 20.9 Surrender of Premises The voluntary or other surrender of this Lease by Tenant, or a mutual cancellation thereof, shall not work a merger and shall, at the option of the Landlord, terminate all or any existing subleases or subtenancies, or may, at the option of Landlord, operate as an assignment to it of any or all such subleases or subtenancies. 20.10 Holding Over If Tenant remains in possession of all or any part of the premises after the expiration of the term hereof, with or without the express or implied consent of Landlord, such tenancy shall be from month to month only and not a renewal hereof or an extension for any further term, and in such case, rent and other monetary sums due hereunder shall be payable in the amount and at the time specified in this Lease and such month -to -month tenancy shall be subject to every other term, covenant and agreement contained herein. 20.11 Interest on Past Due Obligations Except as expressly herein provided, any amount due to Landlord not paid when due shall bear interest at a rate one percent (1%) above the discount rate of the Federal Reserve Bank of San Francisco from the due date. Payment of such interest together with the amount due shall excuse or cure any default by Tenant under this Lease. 20.12 Recording Tenant shall not record this Lease without Landlord's prior written consent, and such recordation shall, at the option of Landlord, constitute a noncurable default of Tenant hereunder. Either party shall, upon request of the other, execute, acknowledge and deliver to the other a short form memorandum of this Lease for recording purposes. 20.13 Notices All notices or demands of any kind required or desired to be given by Landlord or Tenant hereunder shall be in writing and shall be deemed delivered forty-eight (48) hours after depositing the notice or demand in the United States mail, certified or registered, postage prepaid, addressed to the Landlord or Tenant respectively at the addresses set forth in Article 1. 20.14 No Reservation Submission of this instrument for examinatio;or signature by Tenant does not constitute a reservation of or option for lease; it is not effective as a lease or otherwise until execution and delivery by both Landlord and Tenant. 20.15 Corporate Authority Page 25 of 26 • SE AREA No. 11-SDX805-12 This section is not applicable. 20.16 Force Majeure If either Landlord or Tenant shall be delayed or prevented from the performance of any act required hereunder by reason of acts of God, governmental restrictions,regulations or controls (except those reasonably foreseeable in connection with the uses contemplated by this Lease) or other cause without fault and beyond the control of the party obligated (except financial inability), performance of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. Nothing in this clause shall excuse Tenant from prompt payment of any rent, taxes, insurance or any other charge required of Tenant, except as may be expressly provided in this Lease. In Witness Whereof Landlord and Tenant have executed this Lease as of the date first written a above. LANDLORD: STATE OF CALIFORNIA, TENANT: CITY OF NATIONAL CITY, DEPARTMENT OF TRANSPORTATION CALIFORNIA BY: .,5., SCOTT ATKINS Chief, Airspace and Outdoor Advertising Branch Right of Way Division Department of Transportation i APPROVED AS TO FORM: BY: ndepa.,= George H. Eiser, III City Attorney BY: rsge H. Waters Mayor BY: Al'1'LST: BY: Michael R. Dall City Clerk Paae 26 of 26 IFLA/ mu Am I Sou or smelts I ElfmEMET ANA I TATOFFSCSF: I 20S 5.70 S•M iT•••:—..” • :2LEASE P*RCEL ; • TvPIRO. SECTION r- A- •---Ls UULLIT AccETT DEFEDI VIT,-••" Nett: uni.inEs Sxbau rze OM, COW= Imo Ncomsre unury ruern VOL. IC VERIFICO VI THE MUM STATE OF CALIFOI TRANSPORTATION AGI DEPARTMENT OF TRANSP DIVISION OF 1114111, DISTRICT II FREEWAY LEA AREA MAP CITY OF SAN DIEGC RECORD MAP REFER0122, L.O. 450571 MAP DATE: MEETING DATE City of National City, California COUNCIL AGENDA STATEMENT November 6, 2001 « L D -sc Soz-sl AGENDA ITEM NO. 10 ITEM TITLE RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE AN AIRSPACE GROUND LEASE WITH THE STATE OF CALIFORNIA, DEPARTMENT OF TRANSPORTATION FOR THE AIRSPACE LOCATED NEAR THE INTERCHANGE OF HIGHWAY 805, PALM AVENUE AND DIVISION STREET PREPARED BY Rhonda Darling DEPARTMENT Public Works EXPLANATION On October 16, 2001, the City Council decided on accepting the proposed lease as it has been written between the City and Caltrans for the property at Division Street and Palm Avenue. We are now presenting the lease to City Council to request authorization for the Mayor to sign the lease. After the initial ten-year lease expires, it may be renewed for two additional ten-year terms. Once signed by the Mayor, the lease will be forwarded to Caltrans for their signature and finalization. After the lease with Caltrans is executed, the City can then negotiate sub -leases for non-profit, community -benefit type use of the property. Caltrans has examples of subleases they will provide us as a basis for preparing our subleases. Environmental Review X N/A Financial Statement The cost of the ten-year lease There are two ten-year renewal ten-year lease at this time. e forwarded to the State. STAFF RECOMMENDA Recommend the City to aut orize the , ayor to sign the lease. is $5,120, which will be paid fr6ETAVedfiriff terms allowed by the lease, but are only requesting fundsefor the initial I a •e r- • - es that any rent charged to subleases by the City must be Account No. BOARD / COMMISSION RECOMMENDATION ATTACHMENTS ( Listed Below) Resolution No. 2001-164 Proposed lease A-200 (9,99) RESOLUTION NO. 2001 - 164 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE AN AIRSPACE GROUND LEASE WITH THE STATE OF CALIFORNIA, DEPARTMENT OF TRANSPORTATION FOR THE AIRSPACE LOCATED NEAR THE INTERCHANGE OF HIGHWAY 805, PALM AVENUE AND DIVISION STREET WHEREAS, SB 160 authorized the State of California, Department of Transportation to have the airspace under the interchange of Highway 805 at Palm Avenue and Division Street for community benefit and sound services purposes; and WHEREAS, the State of California, Department of Transportation has prepared and submitted an airspace ground lease for approval by the City of National City. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of National City that the Mayor is hereby authorized to execute an airspace ground lease with the State of California, Department of Transportation for the airspace located near the interchange of Highway 805, Palm Avenue and Division Street. Said Lease is on file in the office of the City Clerk. PASSED and ADOPTED this 6th day of November, 2001. George H. aters, Mayor ATTEST: Mic : • 1 Dalla, Cityy lerk APPROVED AS TO FORM: George H. Eiser, III City Attorney Passed and adopted by the Council of the City of National City, California, on November 6, 2001, by the following vote, to -wit: Ayes: Councilmembers Beauchamp, Inzunza, Morrison, Zarate, Waters. Nays: None Absent: None. Abstain: None. AUTHENTICATED BY: GEORGE H. WATERS Mayor of the City of National City, California N lerk of the City f National City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2001-164 of the City of National City, California, passed and adopted by the Council of said City on November 6, 2001. City Clerk of the City of National City, California By: Deputy City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Dalla, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 November 9, 2001 Scott Atkins, Chief Airspace and Outdoor Advertising Branch Right of Way Division Department of Transportation District 11 — Right of Way, MS 54 PO Box 85406 San Diego CA 92186-5406 Dear Mr. Atkins, On November 6, 2001, Resolution No. 2001-164 was passed and adopted by the City Council of the City of National City, authorizing the Mayor to execute an Airspace Ground Lease with the State of California, Department of Transportation for the airspace located near the interchange of Highway 805, Palm Avenue and Division Street. We are enclosing for your records a certified copy of the above Resolution and three original agreements. Please sign the three original agreements and return one executed original agreement to the City Clerk at the above address. Thank you in advance for your prompt action on this matter. Sincerely, Michael R. Dalla, CMC City Clerk MRD/mla Enclosures cc: Engineering Dept. File No. C2001-50 CO Recycled Paper