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HomeMy WebLinkAbout2008 CON San Diego Repertory Theatre - Lease Former Library - Arts CenterLEASE By and between the CITY OF NATIONAL CITY and SAN DIEGO REPERTORY THEATRE This Lease is made and entered into this 4th day of March, 2008, by and between the City of National City ("City"), hereinafter designated as "Lessor," and San Diego Repertory Theatre, ("REP"), hereinafter designated as "Lessee." RECITALS A. Lessee is desirous of leasing from Lessor, and Lessor is desirous of leasing to Lessee, certain real property identified as the eastern portion of the building located at 200 East 12`1' Street in National City. California as more fully described below. B. Lessee is desirous to use the Leased Premises to design and manage a cultural and educational program for the benefit of the residents of and visitors to National City as well as for rehearsals of theatrical productions and the construction and storage of scenery and properties. The specific uses to be made of the Leased Premises are described in detail herein below. C. It is in the hest interests of Lessor, on behalf of the citizens of National City, to enter in a lease of the Leased Premises with Lessee. Lessor envisions that the use of the Leased Premises by Lessee will enrich the lives of the citizens of National City by providing an educational and cultural resource within the City. NOW, THEREFORE, the parties hereto agree as follows: 1. Legal Status of Lessee. Lessee warrants that it is a California nonprofit corporation. 2. Leased Premises. Lcssor does hereby lease, demise and let to Lessee the real property situated in the City of National City, County of San Diego, State of California, commonly described as the eastern portion (approximately 13,000 square feet) of the building located (the "Leased Premises") at 200 East 12th Street in National City, California (the "Building"), otherwise known as the former National City Library building (San Diego County Assessor's Parcel number 560-100-03). The approximate configuration and location of the Leased Premises is shown on Exhibit A, attached hereto and incorporated herein by reference. Nothing in this Section 2, shall cause the Museum, identified as the museum in Exhibit A hereto, to become or be construed as a part of the Leased Premises. Upon not less than two (2) business days prior written notice by Lessor, by facsimile, to Lessee, Lessee agrees, in accordance with the terms of said written notice, to lock and unlock the entrance to the Museum for use by Lessor or a third party. Said terms shall not be unreasonable. Lessee shall not be liable to Lessor or any third party for any damage caused by Lessee 's locking or unlocking the entrance to the Museum pursuant to said written notice by Lessor. Lessor agrees to indemnify and hold Lessee harmless against and from liability and all claims of any kind for loss or damage to Lessor, the M useum or any other person, or for any injury to or death of any person, arising out of Lessor's use or occupancy, or any work, activity or other things allowed by Lessor to be done in, on or about the M useum. Lessor shall at Lcssor's expense, and by counsel reasonable satisfactory to Lessee, defend Lessee in any action or proceeding arising from any such claim and shall indemnify Lessee against all costs, attorneys' fees, expert witness fees and any other expenses incurred in such action or proceeding. Notwithstanding anything to the contrary herein, the obligations of Lessee under this Section 2 shall terminate immediately upon Lessor 's leasing of the Museum to any third party. 3. Use. The primary use of this facility will be for rehearsals of theatrical productions and the construction and storage of scenery and properties by the Lessee. In addition, the Lessee will work closely with National City staff to design and manage a plan that a) makes the rehearsal halls available to National City based groups and b) provides an annual series of workshops and/or classes in the performing arts which are made available to citizens of National City. The goals of this plan are detailed in Exhibit B, attached hereto and incorporated herein by reference. 4. Term. The initial term of this Lease shall be thirty-six (36) months ("Term"), beginning on the date which is the earlier of (i) July 1, 2008, or (ii) ten (10) days after Lessor has completed all of the Lessee improvements ("Lessee Improvements") as described in and in accordance with the Work Letter, attached to this Lease as Exhibit C, and incorporated herein by reference (the "Commencement Date") Lessor shall deliver possession of the Leased Premises to Lessee (on the "Commencement Date. Ninety (90) days prior to the expiration of the Term, Lessor, in its sole discretion, may give notice granting Lessee the options (collectively, "Options") to extend the Term for two (2) additional twelve (12) month periods, commencing when the Term expires, and twelve (12) months thereafter. To exercise any Option, Lessee must be current on all obligations. including Liability Insurance. 5. Rent. Lessor and Lessee acknowledge that the consideration for this Lease and any option period shall be the annual sum of One Dollar ($1.00) and the mutual benefit to be derived from Lessee's uses of the Leased Premises, as specified herein. 6. Assignment & Subletting. This Lease shall not be assigned, sublet, hypothecated, leveraged, or transferred without the prior written consent of the Lessor. 2008 Lease for Portion of 2 City of National City,SD Repertory "theatre Former National City Library 7. Repairs by Lessor. Lessor shall be required to make such repairs or replacements to the Leased Premises as may be required for normal maintenance and operation, which shall include the repairs and/or replacements to all structural portions of the Building and all walls, floors, corridors, windows, HVAC, mechanical electrical, plumbing, paving and parking, exterior windows, and other structures and equipment within and serving the Leased Premises, and such additional maintenance as may be necessary because of damages by persons other than Lessee, its agents, employees, invitees, or visitors, all in accordance with standard practices for similar commercial buildings in the San Diego, California area. Lessor shall be responsible for extermination/pest control for the Leased Premises. Without limiting the foregoing, notwithstanding anything to the contrary set forth herein, if Lessor is required to make repairs to take other corrective action in the Leased Premises by reason of Lessee's negligent acts or negligent failure to act reasonably, Lessor shall have the right to recover from Lessee the reasonable cost of the repairs or other work. 8. Repairs by Lessee. Lessee agrees to repair or replace any damage or injury done to the Leased Premises, or any part thereof, caused by Lessee or Lessee's agents, employees, invitees, or visitors, at Lessee's own cost and expense within a reasonable time after written notice from Lessor. If Lessee fails to make such repairs or replacements within a reasonable time after written notice, Lessor may, at its option, make such repairs or replacements, and Lessee shall repay the cost thereof to the Lessor as additional rent within ten (10) days of written demand. However, for any repair work, other than repair work in emergency situations, costing over Five Hundred and no/100 Dollars (S500.00) to be performed by Lessee or Lessee's agents, Lessee shall not perform such repair work without Lessor's prior written consent. Any repairs or replacements in or to the Leascd Premises, other than repair work in emergency situations, which would require an expenditure exceeding Five Thousand and no/100 Dollars (5,000.00) and which constitute a "public project" under Section 20161 of the California Public Contract Code, shall be contracted for/by Lessor and let to the lowest responsible bidder after notice. Lessee shall not be liable for damage or loss that results from Lessor's failure to consent to repair work costing over Five Hundred Dollars ($500.00) or from Lessor's failure to contract for repair work exceeding Five Thousand Dollars ($5,000.00). 9. Routine Maintenance by Lessee. From and after the Commencement Date and during the Term, Lessee shall, at its own cost and expense, make all repairs and replacements required by this Lease, reasonable wear and use excepted, and excepting those repairs to he made by Lessor as set forth in Section 7 above. 10. Waste. Lessee shall not commit waste (property abuse, destruction, or damage) beyond normal wear and tear of the Leased Premises. 11. Parking. Lessee shall have four reserved parking spaces for use between the hours of 8:00 a.m. and 5:00 p.m. 2008 Lease for Portion of Former National City Library 3 City of National City!SD Repertory Theatre 12. Improvements, Alterations, and Additions. Lessee shall not make or allow to be made any major alterations or physical additions in or to the Leased Premises which affect the structure or any other improvements without first obtaining the written consent of Lessor, which shall not be unreasonably withheld. All work shall be done by contractors approved by Lessor. Any alterations or physical additions in or to the Leased Premises, other than repair work in emergency situations, which would require an expenditure exceeding Five Thousand and no/I00 Dollars (S5,000.00), and which constitute a "public project" under Section 20161 of the California Public Contract Code, shall be contracted for/by Lessor and let to the lowest responsible bidder after notice. Any and all such alterations, physical additions, or improvements, when made to the Leased Premises by Lessee, shall at once become the property of Lessor and shall be surrendered to Lessor upon the termination of this Lease by lapse of time or otherwise; provided, however, this clause shall not apply to trade fixtures, equipment or furniture owned by Lessee. Any Lessee improvements, alterations or additions shall comply with all government. local building code, permitting and competitive bidding requirements. Lessee shall give Lessor written notice five (5) days prior to employing any laborer or contractor to perform major work on the Leased Premises so that Lessor may post a notice of non - responsibility if allowed by law. Lessee shall not be required to remove alterations, physical additions, or improvements upon termination of this Lease 13. Utilities. Lessor shall separately meter Lessee's utilities. Lessee will be responsible for payment of utilities, including but not limited to electric, gas, telephone, security, fire alarm, sewer, trash and water. Lessee understands that it is responsible for the proper disposal of debris in the designated trash receptacles provided by the Lessor. No trash is to be placed in front of or on the sides of the container nor should any trash be placed on top of the lids. Lessee further understands that it will he billed accordingly for not disposing of trash in the proper manner, which includes breaking down all boxes and containers prior to being placed in the trash bins. 14. Indemnity and Insurance. a. Disclaimer of Liability. Lessor shall not at any time he liable for injury or damage occurring to any person or property from any cause whatsoever arising out of Lessee's construction, maintenance, repair, use, operation, or dismantling of the Leased Premises except to the extent caused by Lessor's negligence or willful misconduct. h. indemnification. Lessee shall, at its sole cost and expense, defend, indemnify and hold harmless Lessor and its officials, boards, commissions, employees, agents, attorneys, and contractors (hereinafter referred to as "indemnitees"), from and against: i. Any and all liability, obligation, damages, penalties, claims, liens, costs, charges, losses and expenses, including without limitation, reasonable fees and expenses of attorneys, expert witnesses and consultants, which may arise out of or he in any way connected with Lessee's construction, maintenance, repair, usc, operation, or dismantling of the Leased Premises 2008 Lease for Portion of 4 City of National (:ity'SD Repertory Theatre Former National City Library or Lessee's failure to comply with any federal, State or local statute, ordinance or regulation. ii. Lessee's obligations to indemnify indemnities under this Lease shall not extend to claims, losses, and other matters covered hereunder to the extent such claims arise out of the negligence or willful misconduct of one or more indemnitiees. c. Assumption of Risk. Lessor warrants that it does not have actual knowledge that a dangerous condition exists at the Premises except as may be specifically set forth in this Lease. Lessee undertakes and assumes for its officers, agents, affiliates, contractors and subcontractors and employees (collectively for the purpose of this section), all risks of unknown dangerous conditions, if any, on or about the Leased Premises, and Lessee hereby agrees to indemnify and hold harmless Lessor against and from any claim asserted or liability imposed upon the lndemnitiees for personal injury or property damage to any person (other than from indemnitee's negligence or willful misconduct) arising out of Lessee's construction, maintenance, repair, use, operation or dismantling of the Leased Premises or Lessee's failure to comply with any federal, State or local statute, ordinance or regulation. d. Defense of Lessor. In the event any action or proceeding shall be brought against Lessor by reason of any matter for which Lessor is indemnified hereunder, Lessee shall, upon notice from Lessor at Lessee's sole cost and expense, resist and defend the same with legal counsel mutually selected by Lessor and Lessee, provided however, that Lessee shall not admit liability in any such matter on behalf of Lessor without written consent of Lessor, and provided further that Lessee shall not admit liability for, nor enter into any compromise or settlement of, any claim for which it is indemnified hereunder, without the prior written consent of Lessor. e. Notice, Cooperation and Expenses. Lessee shall give Lessor prompt notice of the making of any claim or the commencement of any action, suit or other proceeding covered by the provisions of this paragraph. Nothing herein shall be deemed to prevent Lessor from cooperating with Lessee and participating in the defense of any litigation by Lessor's own counsel. f. Insurance. During the term of the Lease, Lessee shall maintain, or cause to be maintained, in full force and affect and at its sole cost and expense, the following types and limits of insurance: i. Worker's compensation insurance meeting applicable statutory requirements. ii. Comprehensive commercial general liability insurance with minimum limits of Two Million and no/100 Dollars ($2,000,000.00) as the combined single limit for each occurrence of bodily injury, personal injury 2008 Lease f'or Portion of 5 City of National City/SD Repertory "Theatre Fortner National City Library g. and property damage. The policy shall provide blanket contractual liability insurance for all written contracts, and shall include coverage for products and completed operations liability, independent contractor's liability; coverage for property damage from perils of explosion, collapse or damage to underground utilities, commonly known as XCU coverage. iii. Automobile liability insurance covering all owned, hired, and non -owned vehicles in use by Tenant, its employees and agents, with personal protection insurance and property protection insurance to comply with the provisions of state law with minimum limits of One Million and no/100 Dollars ($1,000,000.00) as the combined single limit of each occurrence for bodily injury and property damage. (Please change if possible) iv. At the start of and during the period of any construction by Lessee, builders all-risk insurance, together with an installation floater or equivalent property coverage covering cables, materials, machinery and supplies of any nature whatsoever which are to be used in or incidental to the installation of improvements. v. All policies other than for Worker's Compensation shall be written on an occurrence and not on claims made basis. vi. The coverage amounts set forth above may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated. vii. Lessee shall furnish certificates of insurance to Lessor before commencement of the Lease term. Named Insureds. All policies, except for worker's compensation policies, shall naive Lessor and its officials, boards, commissions, employees, agents and contractors, as their respective interests may appear, as additional insureds (herein referred to as the "Additional Insureds"). h. Evidence of Insurance. Certificates of Insurance of each insurance policy required to he obtained by Lessee in compliance with this paragraph, along with written evidence of payment of required premiums shall be filled and maintained with Lessor annually during the term of the Lease. Lessee shall immediately advise Lessor of any claim or litigation that may result in liability to Lessor. Cancellation of Policies of Insurance. All insurance policies maintained pursuant to this Lease shall contain the following endorsement: At least thirty (30) days' prior written notice shall be given to Lessor by the insurer of any intention not to renew such policy or to cancel, replace or materially alter same. 2005 Lease for Portion of 6 City of National City/SD Repertory Theatre Former National City 1.ihrary j• Insurance Companies. All insurance shall be affected under valid and enforceable policies, insured by insurers licensed to do business by the State of California or surplus carriers on the State of California Insurance Commissioner's approval list of companies qualified to do business in the State of California. All insurance carriers and surplus line carriers shall be rated A+ or better by A.M. Best Company, or as otherwise approved by Lessor's Risk Manager. k. Deductibles. All insurance policies may be written with deductibles not to exceed $50,000 unless approved in advance by Lessor. Lessee agrees to indemnify and save harmless Lessor, the indemnities and Additional Insureds from and against the payment deductible and from the payment of any premium on any insurance policy required to he furnished by the Lease. Contractors. Lessee shall require that each and every one of its contractors and their subcontractors who perform work on the I,eased Premises on behalf of Lessee to carry in full force and effect, workers' compensation, comprehensive commercial general liability and automobile liability insurance coverages of the type which Lessee is required to obtain under the terms of this paragraph with appropriate limits of insurance. m. Survival of Indemnity Provisions. The indemnity provisions of this Section 14 shall survive any termination of this Lease. 15. Inspection. Lessor, by and through its proper officers, reserves and shall always have the right, upon reasonable notice and at a reasonable time, to enter the Leased Premises for the purpose of viewing and ascertaining the conditions of the same and the operation and maintenance thereof. 16. Optional Termination by Lessor. This Lease may be terminated by Lessor, upon one hundred eighty (180) days' written notice to Lessee, if Lessor determines, in its sole discretion, that the Leased Premises are needed for a public purpose. in the event of such termination, Lessor shall reimburse Lessee the Fair Market Value of all improvements installed by Lessee on the Leased Premises, excluding the "Lessee Improvements" described in the Work Letter, as determined by an independent qualified appraiser retained by Lessor and subject to Lessee's reasonable approval. Notwithstanding anything to the contrary herein, Lessor may not exercise its option to terminate as set forth in this Section 16 during the initial Term and may only exercise its option to terminate the Lease no sooner than the first day of the initial option period, if any. 17. Removal of Personal Property. At the termination or expiration of this Lease or any renewal thereof, Lessee shall, within ninety (90) days of written request by Lessor, remove any and all personal property not owned by Lessor, placed or erected on the premises during the term thereof, or any renewal thereof, and that all expense connected with such removal shall be borne by Lessee. Lessor shall have the right to sell, destroy, remove, or otherwise dispose of any such personal property left on the premises longer than ninety (90) days after termination of this Agreement. The premises shall be left by Lessee in a clean, neat and safe condition, and the exclusive possession and use of the property shall revert to Lessor. 2008 Lease for Portion of 7 City of National City'SD Repertory Theatre Former National Ciry Literary 18. Non -Discrimination. Lessee agrees that there shall be no discrimination against or segregation of any person or group of persons because of race, color, creed, national origin, sex, sexual orientation, ancestry, marital status, physical handicap or medical condition in the use occupancy or enjoyment of the property, nor shall Lessee, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of users of the property. 19. Waiver. The failure or omission of Lessor to tenninate this Lease for any violations of any of its terms, conditions, or covenants shall in no way he deemed to be a consent by Lessor to such violation and shall in no way bar, stop or prevent Lessor from terminating this Lease thereafter, either for such or for any subsequent violation of any such term, condition or covenant. 20. Signs. Lessee agrees that no sign, advertisement, or notices shall be inscribed, painted or affixed on or to any part or portion of the outside of the Leased Premises except to be of such type and color, size and style, and in such place as may be approved by Lessor. Any additional signage or changes to existing signage after the Commencement Date will require the Lessee to pay for and obtain in all regulatory approvals (permits) for the Leased Premises. 21. Waiver of Relocation Assistance. In consideration for the execution of this Lease by Lessor, Lessee hereby waives any claim for relocation assistance benefits to which it may otherwise be entitled under federal, state, or local law or regulations, upon vacation of the Leased Premises. 22. Americans with Disabilities Act. Upon commencement of this Lease, Lessee shall comply, at its sole cost, with requirements of ADA which provides for the removal of architectural barriers that prevent equal access to disabled persons on the interior of the Leased Premises. Through the duration of the Lease, Lessor shall comply, at its sole cost, with requirements of the ADA which provides for the removal of architectural barriers that prevent equal access to disabled persons on the exterior of the Leased Premises. Lessor warrants that the Premises will he ADA compliant at the time possession is delivered to Lessee. 23. Compliance with Environmental and Other Laws. Lessee shall not engage in activities upon the Leased Premises, or any portion thereof, for the purpose of or anyway involving the handling, manufacturing, treatment, storage, use, transportation, spillage, leakage, dumping, discharge or disposal (whether legal or illegal, accidental or intentional) or any hazardous or toxic substances, materials or wastes, or any wastes regulated under any local, state or federal law; provided, however, normal quantities and use of those hazardous or toxic substances or materials customarily used in the conduct of Lessee's permitted uses, such as paints, stains, solvents, and similar materials, may be used and stored by Lessee at the Leased Premises. Lessee shall be, and remain for the term of this Lease, in full compliance with all applicable laws governing the use and occupancy of the Leased Premises including, without limitation, the handling, manufacturing, treatment, storage, disposal, discharge, 2008 Lease for Portion of 8 City of National City/SD Repertory Theatre Former National City I.ihrary use, and transportation of hazardous or toxic substances, materials or wastes, and any wastes regulated under any local, state or federal law. Lessee has been advised that no digging or excavation at the site will be authorized without appropriate environmental oversight. In addition, Lessee has been advised that this site may have been constructed with building materials that at this time arc considered hazardous substances. 24. Obstruction. Except as permitted by this Lease, and except for those materials customarily used in the conduct of Lessee's permitted uses. Lessee shall not place, install, maintain, or allow any combustible materials in buildings, structures, or other improvements upon the Leased Premises and shall not cause or allow the surface elevation therein to he changed in any way whatsoever, without Lessor prior written approval. 25. Lessee's Obligation to Ouit. Lessee shall, upon termination of this Lease, leave and peaceably and quietly surrender and deliver to Lessor the Leased Premises and all improvements, buildings and fixtures hereon or constituting a part thereof and any replacements or renewals thereof in a good condition, order and repair as the same were at the Commencement Date or thereafter may have been put, reasonable wear and use excepted. Notwithstanding the foregoing or anything in this Lease to the contrary, Lessee shall have the right at any time during this Lease to remove from the Leased Premises Lessee's trade fixtures, furniture, equipment and personal property, provided that. Lessee repairs any damage caused by such removal. 26. I-lazardous Substances. Lessee shall indemnify, protect and hold harmless Lessor and each of its respective subsidiaries from and against all costs and damages incurred by Lessor in connection with the presence, emanation, migration, disposal, release or threatened release of any oil or other petroleum products or hazardous materials or substances on, within, or to or from the Leased Premises as a result of (i) the operations of Lessee after the Commencement Date, and (ii) the activities of third parties affiliated with Lessee or invited on the Leased Premises by Lessee. Each party agrees that such party will promptly give written notice to the other party of any investigation, claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Leased Premises and any hazardous substance or environmental law of which such party has actual notice. 27. 28. Taxes. Lessee recognizes and understands that this Lease may create a possessory interest subject to property taxation and that Lessee may he subject to the payment of property taxes levied on such interest. Lessee further agrees to pay any and all property taxes, if any, assessed during the term of this Lease pursuant to Section l 07 and 107.1 of the Revenue and Taxation Code against Lessee's possessory interest in the Leased Premises. 29. Representations and Warranties. The parties represent and warrant that they have powers adequate for the execution, delivery and performance of their obligations under this Lease; they have taken all necessary actions required to make this Lease the valid and enforceable obligation it purports to be; and this Lease has been duly executed and delivered. 200S Lease tnr Portion of 9 City of National City.'SD Repertory Theatre Former National City Library 30. Sevcrahility; Choice of Law. If any provision of this Lease shall be declared to he void or unenforceable either by law or by a court of competent jurisdiction, the validity or enforceability of remaining provisions shall not thereby be affected. Provided, however, that if any portion of Section 3 herein is determined to be void or unenforceable. Notwithstanding the foregoing, Lessor and Lessee shall first make best efforts to revise Section 3 to the extent necessary to bring it in compliance with any law by which it is declared void or unenforceable without sacrificing, to the extent possible, the intentions of Lessor and Lessee when initially drafting Section 3. This Lease shall be governed and construed in accordance with the laws of the State of California. 31. Brokers. Each party hereto represents and warrants to the other that it has not dealt with any broker in connection with the Leased Premises or this Lease. Each party hereto hereby indemnifies and holds the other harmless from and against any liability for commissions due any broker of finder with whom such party has dealt in connection with this Lease. 32. Mailings & Noticing. All notices or other communications required or permitted hereunder shall be in writing, and shall be personally delivered or sent by overnight mail (Federal Express or the like); or sent by registered or certified mail, postage prepaid, return receipt requested; or sent by ordinary mail, postage prepaid; or telegraphed or cabled; or delivered or sent by telex, telecopy, facsimile, fax or email; and, shall he deemed received upon the earlier of (i) if personally delivered, the date of delivery to the address of the person to receive such notice, (ii) if sent by overnight mail, the business day following its deposit in such ovemight mail facility, (iii) if mailed by registered, certified or ordinary mail, three (3) days (five (5) days if the address is outside the State of California) after the date of deposit in a post office, mailbox, mail chute, or other like facility regularly maintained by the United States Postal Service, (iv) if given by telegraph or cable, when delivered to the telegraph company with charges prepaid, or (v) if given by telex, telecopy, facsimile, fax or email, when sent. Any payment, notice, request, demand, direction or other cormnunication delivered or sent as specified above shall be directed to the following persons: To the Lessor: To the Lessee: City Manager, City of National City 1243 National City Boulevard National City, California 91950-4397 San Diego Repertory 'Theatre Attn: Larry Alldredge 79 IIorton Plaza San Diego, CA 92101 33. Entire Agreement. This Lease supersedes any prior agreements, negotiations and communications, oral or written, and contains the entire agreement between the parties as to the subject matter hereof No subsequent agreement, representation, or promise made by either party hereto, or by or to an employee, officer, agent or representative of any party hereto shall be of any effect unless it is in writing and executed by the party to be bound thereby. 2008 Lease for Portion. of Donner National City Library 10 City of National City/SD Repertory Thcatrc 34. Construction. The parties acknowledge and agree that (i) each party is of equal bargaining strength; (ii) each party has actively participated in the drafting, preparation and negotiation of this Lease; (iii) each such party has consulted with or has had the opportunity to consult with its own, independent counsel and such other professional advisors as such party has deemed appropriate, relative to any and all matters contemplated under this Lease; (iv) each party and such party's counsel and advisors have reviewed this Lease; (v) each party has agreed to enter into this Lease following such review and the rendering of such advice; and (vi) any rule or construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of this Lease; or any portions hereof, or any amendments hereto. 35. No Agency. Nothing in this Lease Agreement shall cause or imply any agency relationship or duty between Lessor and Lessee. 36. Counterparts. This Lease may be signed in counterparts. 37. Recordation. This Lease may be recorded. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to he executed by their duly authorized officers or representatives as of the day and year first above written above. COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF NATIONAL CITY sir Ron Morrison Chairman APPROVED AS TO FORM: 7) George H. iser, III, Legal Counsel 2008 Lease for Portion of Fornicr National City Library SAN DIEGO REPERTORY THEATRE (Lessee) (Signatures of two corporate off rs required.) By: Name: Title: Title: //t'—*Oe /t r,t/c./ecj0.e_ 1 1 City of National City/SD Repertory Theatre (VOfe : MVSLUM not- part of Lea sect Premises Etc 7 /ol PROPOSED FIRST FLOOR PLAN 1 L L--o. 1 FEXI-ifiT 4r. O� W 400 - My. v000ti 0000 wf1MM 1.0011 3460 tan, WPM AD011 PLAN Stoma A2.2 EXHIBIT B In addition to the primary use of the space as a rehearsal and theatrical construction and storage hall for Lessee, Lessee agrees to: 1. OFFER THE USE OF THE REHEARSAL HALLS TO OTHER PERFORMING ARTS ORGANIZATIONS Lessee shall make the rehearsal halls available to organizations and schools located within National City, and to for -profit and nonprofit organizations that primarily benefit the performing arts in accordance with an established calendar of available dates as provided by the San Diego Repertory Theatre. Lessee shall ensure that rehearsal halls are made available to the public in accordance with said calendar of available dates. Preference for use of the halls shall be given to organizations and schools located within National City, and to performing arts nonprofit organizations with a majority of their members being National City residents. Lessee may charge the organizations fees for use of the rehearsal halls to cover expenses incurred by it in making the halls available, including for utility costs, security costs, and any administrative costs, Lessee shall at all times maintain a current schedule of such fees, which shall be available to the public. A discount or fee waiver shall be offered to designated National City -based non- profit organizations and schools located within National City and to performing arts nonprofit organizations with a majority of its members being National City residents. The National City City Council or its designees and San Diego Repertory representatives shall together designate groups that are defined as "National City -based organizations." A premium may be charged to the remaining organizations to offset the discount or fee waiver given to the performing arts nonprofit organizations with a majority of its member being National City residents. 2. ANNUAL WORKSHOPS Lessee shall design and manage an annual series of performing arts workshops or classes to be offered to the general public with preference for available space in the workshops or classes to be given to National City residents, Lessee may charge a reasonable tuition for such workshops or classes. Lessee shall at all times maintain a current tuition schedule, which shall be made available to the public. 3. BUILD COMMUNITY PARTNERSHIPS Lessee shall make reasonable efforts to build partnerships with local and regional performing arts groups that support the long-term goal of creating a cultural arts district in National City. [ 193310a I /2646-001 J EXHIBIT "C" WORK LETTER — LESSEE IMPROVEMENT ,This Work Letter is made part of that certain Lease dated as of July 1, 2008 ("Lease") by and between City of National City ("Lessor") and The San Diego Repertory (SDREP) ("Lessee"). Capitalized terms not otherwise defined herein shall have the meaning set forth in the Lease. 1. General Contractor. Lessor and Lessee acknowledge that the Lessee Improvements will be considered a "public project" under Section 20161 of the California Public Contract Code, shall be contracted for/by Lessor and let to the lowest responsible bidder after Notice. The lowest responsible bidder shall be the agreed general contractor (the "Contractor") for the construction of the Lessee Improvements (as defined below). Lessor shall cause Contractor to complete construction of the initial improvements to the Leased Premises in accordance with the following terms and provisions of this Exhibit "C" (the "Work Letter"), promptly, in a good and workmanlike manner and in compliance with all applicable laws. It is understood that the intention of both parties is that Lessor and Lessor's Contractor is to construct the Leased Premises and all of the Lessee Improvements on behalf of Lessee at no cost to Lessee. Should the lowest responsive, responsible bid which Lesser receives for construction of the Lessee Improvements exceeds $1,018,000.00 then Lessor in its discretion may re -bid the work and/or renegotiate the scope of the Lessee Improvements with Lessee. (a) Permit Set/Working Drawings. On or before April 1, 2008 (the "Final Drawing Deadline"), Lessor shall furnish to Lessee for Lessee's written approval (which shall not be unreasonably withheld, delayed or conditioned) working plans and specifications (the "Working Drawings") prepared by Lessor's Architect for substantially all of the improvements, including any proposed structural work, mechanical, electrical, plumbing or HVAC requirements, and shall contain such detail and specifications as would permit the Contractor to obtain all necessary governmental permits for construction of the improvements and to secure multiple bids from qualified contractors to perform the work and shall show improvements which substantially conform to applicable building codes and legal requirements. Lessee shall respond to the Working Drawings within five (5) working days of its receipt thereof. Lessee shall not unreasonably withhold its approval to the Working Drawings and the improvements set forth thereon. Lessor shall respond promptly to any reasonable objections of Lessee to the Working Drawings and shall resubmit appropriately revised Working Drawings prepared by Lessor's Architect with ten (10) working days of Lessor's receipt of Lessee's objections. Such resubmitted Working Drawings shall clearly indicate which portions of the plans. Lessee shall respond to revised Working Drawings within three (3) working days of receipt thereof, unless such revised Working Drawings include material revisions to structural, mechanical, electrical, or life safety components, in which event Lessee shall respond within five (5) working days of receipt thereof. Lessee and 1 Lessor shall reasonably collaborate and agree on commercial quality grade lighting, carpet, paint and other design and finish related details. Where there is conflict between Lessee and Lessor as to the quality of finishes to be used in constructing the Lessee Improvements the Lessee's current leased premises shall serve as a benchmark. The Working Drawings, as approved in writing by Lessee, as revised by Lessor from time to time with Lessee's written approval in accordance with the following provisions of this Work Letter, are hereinafter called the "Final Plans", and the improvements to be performed in accordance with the Final Plans are hereinafter called the "Lessee Improvements". The Lessee Improvements shall include and incorporate, without limitation, each of the items specified in Schedule 1 attached hereto and incorporated herein by reference. (b) Approval. Lessee's approval of any item reviewed by Lessee under this Work Letter shall merely indicate Lessee's consent to the proposed work shown thereon, and in no event shall such consent by Lessee be deemed to constitute a representation by Lessee that the work called for therein complies with applicable building codes or other legal requirements, nor shall such consent release Lessor from Lessor's obligation to supply Working Drawings that do so substantially conform to applicable building codes and legal requirements. (c) Construction Documents. Lessor shall provide copies to Lessee of Construction Documents prepare by Lessor's Architect prior to commencing any of the works or making changes to any of the works. 2. Plans. Working Drawings for the Lessee Improvements have been prepared by Jeff Katz Architecture, and have been approved by Lessor and Lessee. 3. Lessee's Representative. For the purposes of this Work Letter, Lessee's representative shall be name of representative San Diego Repertory Theater or such other representative(s) designated by Lessee from time to time ("Lessee's Representatives"). 4. Cooperation. Lessor and Lessee and their respective contractors, consultants and representatives, shall communicate and cooperate with each other to the end that the Lessee Improvements are constructed in an expeditious manner, having due regard for minimizing disturbance of other Lessees and park visitors in the area. Lessor and Lessee shall cooperate with each other to resolve any space planning or other issues that are raised by applicable local, state or federal building codes during the planning, permit or construction process. Lessor shall keep Lessee informed regarding the progress of the work, and Lessor and Lessee's Representative shall hold construction meetings with frequency reasonably satisfactory to Lessee. 5. Lessors Work. In addition to Lessor's sole responsibility for payment of all expenses related to the construction of the Final Space Plan 2 incorporating the Demolition Work and Lessee Improvements, Lessor shall, at Lessor's sole cost and expense, perform all work necessary to cause the restroom facilities in the Leased Premises to comply with applicable laws and codes regarding handicap access and use (using Building standard plans and finishes) to the extent such work is required in connection with the Lessee Improvements (collectively, "Lessor's Work"). 6. Construction. (a) Construction Operations Fee. Lessor acknowledges and agrees that no construction management or administration fee shall be charged by Lessor to Lessee in connection with the demolition or construction of the Lessee Improvements. (b) Preconstruction Services. Lessor shall cause Lessor's Contractor to perform the following preconstruction services: Participate in a reasonable number of construction meetings and provide to Lessee an estimated schedule for the construction of the Lessee Improvements including providing Lessee weekly updates to any schedule changes or complications related to the construction of the Lessee Improvements. Lessor shall cause Lessor's Contractor to use reasonable care in preparing these schedules and weekly updates. (c) Schedule of Values. Upon approval of the Final Plans and selection of a Contractor and approval of the schedule, and after securing all necessary permits, Lessor shall cause Contractor to provide a detailed line item schedule of values for the Lessee Improvements ("Schedule of Values"). The Schedule of Values shall include all items included in Schedule 1 attached hereto. (d) Commencement of Construction: On -going Obligations. Upon approval of the Final Plans and selection of a contractor and approval of the schedule, and after securing all necessary permits, Lessor shall cause Contractor to promptly commence and diligently pursue to completion construction of the Lessee Improvements. Lessor's Contractor shall update the project schedule weekly, and Lessee shall be provided on a weekly basis a reasonably thorough report on its progress on the Lessee Improvements showing impact to schedule and estimated impact to the anticipated completion date. 7. Changes. If Lessee shall desire any change in or to the Final Plans (a "Change") Lessees shall submit to Lessor for Lessor's review and written request including illustrations prepared by Lessee's Architect incorporating the requested Change. Lessor shall not unreasonably withhold or delay its approval of the revised Working Drawings, provided, however, that Lessor shall have at least three (3) business days after r receipt of the revised Working Drawings to review any proposed Change. If Lessor fails to approve or disapprove a requested Change which is not a Material Change within the three (3) business day period specified above, Lessor shall be deemed to have approved such proposed Change. If Lessor approves any proposed Change, then together with such approval, if practicable as soon thereafter as is practicable, Lessor' 3 Contractor shall give Lessee Lessor's estimated delay (if any) which would result from incorporating such Change. If, following Lessee's review of the estimated delays, Lessee desires Lessor to incorporate the Change into the Lessee Improvements, then Lessor and Lessee shall execute a change order for such Change on Lessor's Contractor's standard form therefore, and the term "Final Plans" shall thereafter be deemed to refer to the Working Drawings as so revised and approved. If a change will increase the cost of an item (an "Item Change") in the Budget by more than 10%, the cost over that percentage, plus the Contractor mark-up (not to exceed 4%) shall be borne by Lessee (the "Lessee Overcharge"). If the accumulation of Item increases the total Cost of the Lessee Improvements by more than 5%, Lessee shall pay the total Lessee Overcharge. The Lessee shall pay to Lessor within fourteen (14) days of payments by Lessor to Contractor for the Lessee Overcharge. 8. Substantial Completion. "Substantial Completion" of the Lessee Improvements shall be deemed to have occurred when (i) the Lessee Improvements have been completed pursuant to the Final Plans, subject only to the completion or correction of Punch List Items, and (ii) Lessor has obtained all approvals and permits from the appropriate governmental authorities required for the legal occupancy of the Leased Premises for Lessee's intended use. Punch List Items shall mean incomplete or defective work or materials in the improvements, of a nonmaterial nature, called for in the Final Plans which do not materially impair Lessee's use of the Leased Premises for the conduct of Lessee's business therein. Upon notice from Lessor that the Lessee improvements have been Substantially Completed, Lessor and Lessee shall tour the Leased Premises and prepare a joint list of Punch List Items. Lessor shall cause Lessor's Contractor to diligently pursue the Punch List Items to completion to Lessee's reasonable satisfaction, and Lessee shall reasonably cooperate with an accommodate Lessor's Contractor in connection therewith. Within one month after upon Substantial Completion of the project, Lessor shall cause Lessor's Architect to deliver to Lessee a set of "as -built" drawings for the Lessee Improvements. 9. Cost of Improvements. The cost of the construction and installation of the Lessee Improvements shall be borne entirely by Lessor, except for any Lessee Overcharge, including but no limited to; (a) Lessor shall pay the entire cost of Lessor's Work. (b) Lessor shall pay for all of the construction and installation of the Lessee Improvements. 10. Vendor Entry During Construction Period. Notwithstanding anything to the contrary in the Lease or this Work Letter, Lessee may, prior to the Substantial Completion of the Lessee Improvements, and during and in conjunction with the construction of the Lessee Improvements, permit Lessee's vendors to enter the Leased Premises for the purpose of installing telephones, electronic communication or related equipment, security or audio/visual 4 • equipment, and furniture systems and equipment. Such early access to the Leased Premises and such installation shall be permitted only to the extent that Lessor determined that such early access and installation activities will not delay Lessor's contractor's completion of the construction of the Lessee Improvements, provided that Lessor's Contractor shall use reasonable good faith efforts to reasonably integrate the work to be completed by Lessee's Vendors into Lessor's Contractor's scheduling and planning such that the Lessee Improvements and the work to be completed by Lessee's Vendors will be completed in an efficient manner. Lessee's Vendor will be responsible for any damage Vendor during Lessee's installation activities. 11. Addresses for Notice and Deliveries. For the purposes of this Work Letter (i) notices, submittals and deliveries to Lessor shall be made to Lessor's Representative at the addresses se forth below, (ii) notices, submittals and deliveries to Lessee shall be made to Lessee's Representative at the address set forth below, and (iii) notices, submittals and deliveries to either pay may be made via facsimile transmissions with answerback confirmation at the respective facsimile numbers set forth below. Facsimile transmission received after 6:00 p.m. shall be deemed to have been given the following business day. (a) Lessee's Representative: San Diego Repertory Theater Sam Woodhouse 79 Horton Plaza San Diego, CA 92101 Fax No. 619-235-0939 (b) Lessor's Representative: Jeff Katz Architecture Jeff Katz 6353 Del Cerro Boulevard San Diego, Ca 92120 Fax No. 619-698-9177 Security: - The building and windows shall be secured in an appropriate manner to resist access by vandals as reasonably agreed by San Diego Repertory. HVAC: - Landlord to provide adequate Heating Ventilation and Air Conditioning to reasonably support Tenants Use during the Term per the Lease. - All work to be done in a professional and workman like manner by qualified contractors 5 SCHEDULE (LESSEE IMPROVEMENTS DETAIL) The following are a list of items Lessee shall receive as part of the Lessee Improvements: • All "New Construction" materials to be new and of commercial grade. • New Commercial Grade floor finishes to be installed throughout space (Carpet, VCT ETC) All sub -flooring to be prepared to meet code and industry standards prior to the installation of any new finishes, San Diego Repertory to have input on selection of all color. • All -walls to be new construction or repaired to like new condition with smooth surface to receive new paint. • All walls to receive at least one (1) coat of primer and two (2) coats of commercial grade paint, San Diego Repertory to have input on all paint colors. • Exterior lighting shall be sufficient to appropriately illuminate all parking areas and walkways. Lights to be operated on timers for illumination during all evening and early morning hours. • All ceiling tile to be replaced with new White acoustic tile. • All existing Gypsum Board ceilings to be replaced or repaired to like new condition with smooth surface to receive paint. • All Gypsum Board ceilings to receive at lease one (1) coat of primer and two (2) coats of commercial grade ceiling paint. • All exterior doors to be replaced or repaired to like new condition with operable and appropriate Code compliant locking hardware. All exterior doors should be metal and installed in hollow metal frames. • Ail exterior doors to be finished with Exterior Grade finish on ail exterior exposures. All interior exposures should be finished to compliment the surrounding interior space. • All interior doors and frames to be new or in like new condition with appropriate code compliant locking hardware. • All interior doors to have locking hardware and be keyed to the same master pin configuration. Contractor to distribute 2 keys for each door and 2 master keys upon final inspection to construction inspector. • All interior doors and frames to be finished with appropriate commercial grade finish complimenting the surrounding areas. 6 • All toilet room partitions, fixtures, and accessories to be new commercial grade. • Interior lighting to provide adequate distribution of light for standard office environment. • All interior light fixtures and lamps to be new or in like new and code compliant condition. • Power distribution — 120 v AC power to be distributed throughout the space to meet code and provide no less than 6 watts per Rentable Square Foot to operate standard office equipment. San Diego Repertory to have input on placement of all outlets. • Telephone/Data cabling distribution — category 5e cable to be distributed throughout the space to standard complement of four (4) drops per location to provide adequate access for installation of business computers and phones. Alt cable to be landed in the proposed electrical and data rooms on appropriate Punch Down blocks. San Diego Repertory to have input on location of all jacks. • Landlord to provide live telephone circuit at data room. • All interior and exterior windows shall be in operable condition and replaced where broken. EXHIF3IT C 7 RESOLUTION NO. 2008 — 42 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A LEASE WITH THE SAN DIEGO REPERTORY THEATRE FOR A PORTION OF THE FORMER PUBLIC LIBRARY BUILDING WHEREAS, through a Redevelopment Agency Bond issuance, approximately $1.4 Million was contributed to the City of National City for the purpose of creating a Community Art Center; and WHEREAS, the former National City Public Library was chosen as the location for the Art Center; and WHEREAS, the Art Center project was put on hold due to ongoing operational costs and the City's budget constraints; and WHEREAS, the San Diego REPertory Theatre desires to rent the vacant space in the former Public Library for theatrical rehearsals and the building of props for their performances, to make workshops and classes in the performing arts available to the citizens of National City, and to build partnerships with local and regional performing arts groups that support the long-term goal of creating a cultural arts district in National City, and WHEREAS, the San Diego REPertory Theatre has a solid reputation for working with diverse visual and performance art groups, and collaboration with an arts organization of this caliber and scope could be beneficial to the community and to the City's future goal of creating a Cultural Arts District. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of National City hereby authorizes the Mayor to execute a three-year Lease Agreement, which includes an option to renew for one year, with the San Diego REPertory Theatre 10 lease space in the former National City Public Library building for rehearsal space and a property shop, and to facilitate programming for a future Arts Center at the site. Said Lease Agreement is on file in the office of the City Clerk. PASSED and ADOPTED this 4th day of March, 20f18. ATTEST: h is ael R. Dalla M , City Clerk APPROVED AS TO FORM: L George H. tiser, III City Attorney Ron Morrison, Mayor Passed and adopted by the Council of the City of National City, Califomia, on March 4, 2008 by the following vote, to -wit: Ayes: Councilmembers Morrison, Natividad, Parra, Ungab, Zarate. Nays: None. Absent: None. Abstain: None. AUTHENTICATED BY: RON MORRISON Mayor of the City of National City, California City erk of the City oflational City, California By: Deputy I HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 2008-42 of the City of National City, Califomia, passed and adopted by the Council of said City on March 4, 2008. City Clerk of the City of National City, California By: Deputy C a00% • 6 City of National City, California CITY COUNCIL AGENDA STATEMENT MEETING DATE March 4, 2008 AGENDA ITEM NO. 9 ITEM TITLE RESOLUTION OF THE CITY COUNCIL OF THE CITY OF NATIONAL CITY AUTHORIZING THE MAYOR TO EXECUTE A LEASE WITH THE SAN DIEGO REPERTORY THEATRE FOR A PORTION OF THE FORMER NATIONAL CITY PUBLIC LIBRARY PREPARED BY George H. Eiser, III DEPARTMENT City Attorney (Ext. 4221) EXPLANATION Please see attached memorandum. Environmental Review Financial Statement Approximately $1.4 Million in CDC tax increment bonds have been allocated for tenant improvements. N/A Approved By: Finance Director Account No. STAFF RECOMMENDATION Adopt resolution. BOARD / COMMISSION RECOMMENDATION N/A ATTACHMENTS ( Listed Below) Resolution No. 'a 0 0 Memorandum Proposed Resolution Lease A-200 (9/99) City of National City Office of the City Clerk 1243 National City Boulevard, National City, CA 91950-4397 Michael R. Della, CMC - City Clerk (619) 336-4228 Fax: (619) 336-4229 March 17, 2008 Mr. Larry Alldredge Interim Managing Director San Diego Repertory Theatre 79 Horton Plaza San Diego, Ca 92101 Dear Mr. Alldredge On March 4'I', 2008, Resolution No. 2008-42 was passed and adopted by the City Council of the City of National City, authorizing the execution of a Lease with San Diego Repertory Theatre. We are enclosing for your records a certified copy of the above Resolution and a fully executed original agreement. Michael R. Dalla, CMC City Clerk Enclosures cc: Community Services Dept. ® Recycled Paper