ADDENDUM TO THE LEASE DATED AUGUST 15, 1994, BY AND BETWEEN WATERFRONT TOWER
PARTNERS, L.P., A CALIFORNIA LIMITED PARTNERSHIP, LANDLORD, AND SERENA
CONSULTING, INCORPORATED, A CALIFORNIA CORPORATION, TENANT, FOR THOSE
PREMISES LOCATED AT 000 XXXXXXX XXXXXXXXX, XXXXX 000, XXXXXXXXXX, XXXXXXXXXX.
40. TOXIC CONTAMINATION DISCLOSURE:
Lessor and Lessee acknowledge that they have been advised that numerous
federal, state, and/or local laws, ordinances and regulations (hereinafter
referred to as the "Laws") affect the existence and removal, storage,
disposal, leakage of and contamination by materials designated as hazardous
or toxic (hereinafter referred to as the "Toxics"). Many materials, some
utilized in everyday business activities and property maintenance, are
designated as hazardous or toxic.
Some of the Laws require that Toxics be removed or cleaned up by landowners,
future landowners or former landowners without regard to whether the party
required to pay for "clean up" caused the contamination, owned the property
at the time the contamination occurred or even knew about the contamination.
Some items, such as asbestos or PCBs, which were legal when installed, now
are classified as Toxics, and are subject to removal requirements. Civil
lawsuits for damages resulting from Toxics may be filed by third parties in
certain circumstances.
Cornish & Xxxxx Commercial has recommended, and hereby recommends, that each
of the parties have competent professional environmental specialists review
the Property and make recommended tests so that a reasonably informed
assessment of these matters can be made by each of the parties. Lessor and
Lessee acknowledge that neither Cornish & Xxxxx Commercial nor its agents or
salespersons, have been retained to investigate or arrange investigation by
others, and have not made any recommendations or representations with regard
to the presence or absence of Toxics on, in or beneath the Property. Lessor
and Lessee agree that they will rely only on persons who are experts in this
field and will obtain such expert advice so each of them will be as fully
informed as possible with regards to Toxics in entering into this Agreement.
41. TENANT IMPROVEMENTS:
Lessor shall, at Lessor's cost and expense, cause the following improvements
to be made to the Premises prior to the commencement date:
Existing space Suite 200:
a. Re-configure walls per attached space plan;
b. Replace carpeting in main hallway with new of same grade and
color;
c. Touch up, patch and paint on walls where necessary;
d. Remove carpeting in break room and replace with VCT tile or sheet
vinyl;
e. Install VCT tile in the newly enlarged equipment room;
f. Install upper and lower cabinets in break room to end of wall
(see attached space plan);
g. Install additional outlets in break room to accommodate new
appliances;
h. Install package HVAC unit in equipment room to accommodate above
standard load generated by computers; and
i. Construct and install a countertop per attached plan in rear LAN
room.
Expansion Space:
a. Construct walls per attached space plan;
b. Texture and paint walls with a mutually acceptable color;
c. Install new carpeting per building standard, color to be mutually
acceptable;
d. Install new ceiling tiles and light lenses; and
e. Install electrical distribution per attached space plan.
42. OPTION TO RENEW:
Lessee is given the option to extend the term on all the provisions contained
in this Lease, except for minimum monthly rent, for a period of five years
(hereinafter referred to as the "Extended Term") following expiration of the
initial term, by giving notice of exercise of the option (hereinafter
referred to as the "Option Notice") to Lessor at least 90 days, but not more
than 120 days before the expiration of the term. Provided that, if Lessee is
in default on the date of giving the option notice, the option notice shall
be totally ineffective, or if Lessee is in default on the date the extended
term is to commence, the extended term shall not commence and this Lease
shall expire at the end of the initial term.
The parties shall have 30 days after Lessor receives the option notice in
which to agree on minimum monthly rent during the extended term. If the
parties agree on the minimum monthly rent for the
extended term, which shall be 95% of the then prevailing fair market rental
rate for comparable property, they shall immediately execute an amendment to
this Lease stating the minimum monthly rent for the extended term.
If the parties are unable to agree on the minimum monthly rent for the
extended period within that period, the option notice shall be of no effect
and this Lease shall expire at the end of the term. Neither party to this
Lease shall have the right to have a court or other third party set the
minimum monthly rent.
Lessee shall have no other right to extend the term beyond the extended term.
43. RIGHT OF FIRST OFFERING TO LEASE:
Lessee shall have the First Right of Offering on any space which becomes
available on the second floor and which is unencumbered by any other First
Rights (the "Expansion Space"). When such Expansion Space becomes available,
Lessee shall be notified in writing of its availability and shall have five
business days to notify Lessor of its intent to lease said Expansion Space
and shall at that time begin negotiations and have five business days to come
to an agreement on this Expansion Space.
If Lessee does not indicate within five business days its agreement to lease
the Expansion Space or part thereof, Lessor thereafter shall have the right
to lease or extend the Lease covering the Expansion Space or part of it to a
third party.
44. DUAL REPRESENTATION:
Lessor and Lessee acknowledge that Cornish & Xxxxx Commercial represents both
Lessor and Lessee, and Lessor and Lessee consent thereto.
45. ABOVE STANDARD IMPROVEMENTS:
If Lessee chooses, Lessee can request full height glass walls in offices #266
and #267. The cost of this above standard improvement will be amortized into the
monthly rental (plus a 10% money factor) and paid in addition to the rental
amounts set forth in paragraph 2.5.
LANDLORD: WATERFRONT TOWER PARTNERS, L.P., a California limited partnership
By: __________________________ Date: ____________________
TENANT: SERENA CONSULTING, INCORPORATED, a California corporation
By: /s/ Xxxxxxx X. Xxxxxx Date: 94/11/21
---------------------
EXHIBIT A
---------
THE PREMISES
------------
[To Be Attached]
EXHIBIT B
---------
WORK LETTER AGREEMENT
---------------------
In connection with the Tenant Improvements to be installed on the Premises
the parties hereby agree as follows:
1. PLANS AND SPECIFICATIONS. Landlord shall retain TSH Architects as
the architect ("Architect") for the completion of final working architectural
and engineering plans and specifications for the Tenant Improvements to be
constructed on the Premises ("Final Plans and Specifications"). Landlord
reserves the right to substitute the Architect with another architect of its
selection. Tenant shall cooperate diligently with the Architect, and shall
furnish on or before AUGUST 29, 1994, all information required by the
Architect for completion of the Final Plans and Specifications. Landlord and
Tenant shall indicate their approval of the Final Plans and Specifications by
Initialing them and attaching them hereto as EXHIBIT B-1. Either party shall
have the right to terminate this Lease upon notice to the other party, if the
Final Plans and Specifications are not approved by Tenant and Landlord in
writing on or before AUGUST 29, 1994 through no fault of the terminating
party. Upon completion of the Final Plans and Specifications and approval
thereof by Landlord and Tenant, Landlord will obtain subcontractor trade bids
and furnish a cost breakdown to Tenant.
2. LANDLORD TO CONSTRUCT. Landlord shall complete construction of the
Tenant Improvements in a good and workmanlike manner.
3. TENANT IMPROVEMENTS ALLOWANCE. Landlord shall provide an allowance
for the planning and construction of the Tenant Improvements in the amount of
turn-key per mutually acceptable space plan ("Tenant Improvements
Allowance"). The Tenant Improvements Allowance shall be the maximum
contribution by Landlord for the Tenant Improvements Cost, as defined in
Paragraph 4, subject to the provisions of Paragraph 5.
4. TENANT IMPROVEMENTS COST. The Tenant Improvements cost ("Tenant
Improvements Cost") to be paid by Landlord from the Tenant Improvements
Allowance shall include, but not be limited to:
(a) All costs of preliminary and final architectural and engineering
plans and specifications for the Tenant Improvements, and engineering costs
associated with completion of the State of California energy utilization
calculations under Title 24 legislation;
(b) All costs of obtaining building permits and other necessary
authorizations from the City of Burlingame;
(c) All costs of Interior design and finish schedule plans and
specifications including as-built drawings;
(d) All direct and indirect costs of procuring, constructing and
installing the Tenant Improvements in the Premises, including, but not limited
to, the construction fee for overhead and profit and the cost of all on-site
supervisory and administrative staff, office, equipment and temporary services
rendered by Landlord's contractor in connection with construction of the Tenant
Improvements; and
(e) All fees payable to the Architect and Landlord's engineering firm
if they are required by Tenant to redesign any portion of the Tenant
Improvements following Tenant's approval of the Final Plans and Specifications.
In no event shall the Tenant Improvements Cost include any costs of
procuring, constructing or installing in the Premises any of Tenant's personal
property.
Tenant shall make all cash payments in a lump sum within ten (10) days after
receipt of a statement from Landlord therefor. If Tenant fails to make a timely
election of the foregoing alternatives, it will be deemed to have elected
alternative (II).
6. CHANGE REQUESTS. No revisions to the approved Final Plans and
Specifications shall be made by either Landlord or Tenant unless approved in
writing by both parties. Landlord agrees to make all changes: (i) required by
any public agency to conform with governmental regulations, or (ii) requested
in writing by Tenant and approval in writing by Landlord, which approval
shall not be unreasonably withheld. Any costs related to such changes shall
be added to the Tenant Improvements Cost and shall be paid for by Tenant as
and with any Excess Tenant Improvements Cost as set forth in Paragraph 5. The
billing for such additional costs to Tenant shall be accompanied by evidence
of the amounts billed as is customarily used in the business. Costs related
to changes shall include, without limitation, any architectural or design
fees, and Landlord's general contractor's price for effecting the change.
7. TERMINATION. If the Lease is terminated prior to the Commencement
Date and prior to completion of the Tenant Improvements, either by Landlord
pursuant to the provisions of Paragraph 1 of this Work Letter Agreement, or
for any reason due to the default of Tenant hereunder, Tenant shall pay to
Landlord, within five (5) days of receipt of a statement therefor, any costs
incurred by Landlord through the date of termination in connection with the
Tenant Improvements.
8. CONDITION. If Landlord is unable to obtain a building permit for
the Tenant Improvements within one hundred twenty (120) days from the date of
execution hereof, then Landlord shall have the right to terminate this Lease
upon written notice to Tenant.
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EXHIBIT C
---------
COMMENCEMENT DATE MEMORANDUM
----------------------------
LANDLORD: Waterfront Tower Partners, L.P.
TENANT: Serena Consulting, Incorporated, a California Corporation
---------------------------------------------------------
LEASE DATE: August 15, 1994
--------------------
PREMISES: 000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
---
Xxxxxxxxxx, XX 00000
Pursuant to Paragraph 4.1 of the above-referenced Lease, the Commencement
Date is hereby established as Feb 1, 1995
-----------
LANDLORD
Waterfront Tower Partners, L.P., a
California limited partnership
By Peninsula Office Management,
Inc., a California corporation,
General Partner
By /s/ Xxxxxx X. Orphan
------------------------
Its Pres.
TENANT
Serena Consulting, Incorporated,
a California Corporation
By /s/ Xxxxxxx X. Xxxxxx
------------------------
Its President
RULES AND REGULATIONS
---------------------
1. Except as specifically provided in the Lease to which these Rules and
Regulations are attached, no sign, placard, picture, advertisement, name or
notice shall be installed or displayed on any part of the outside or inside
of the Building without the prior written consent of Landlord. Landlord
shall have the right to remove, at Tenant's expense and without notice, any
sign Installed or displayed in violation of this rule. All approved signs
or lettering on doors and walls shall be printed, painted, affixed or
inscribed at the expense of Tenant by a person approved by Landlord.
2. If Landlord objects in writing to any curtains, blinds, shades, screens or
hanging plants or other similar objects attached to or used in connection
with any window or door of the Premises, or placed on any windowsill, which
is visible from the exterior of the Premises, Tenant shall immediately
discontinue such use. Tenant shall not place anything against or near glass
partitions or doors or windows which may appear unsightly from outside the
Premises.
3. Tenant shall not obstruct any sidewalks, halls, passages, exists,
entrances, elevators, or stairways of the Building. The halls, passages,
exists, entrances, elevators, and stairways are not open to the general
public, but are open, subject to reasonable regulation, to Tenant's
business invitees. Landlord shall in all cases retain the right to control
and prevent access thereto of all persons whose presence in the judgment of
Landlord would be prejudicial to the safety, character, reputation and
interest of the Building and its tenants; provided that nothing herein
contained shall be construed to prevent such access to persons with whom
any tenant normally deals in the ordinary course of its business, unless
such persons are engaged in illegal or unlawful activities. No tenant and
no employee or invitee of any tenant shall go upon the roof of the
Building.
4. The directory of the Building will be provided exclusively for the display
of the name and location of tenants only, and Landlord reserves the right
to exclude any other names therefrom.
5. All cleaning and janitorial services for the Building and the Premises
shall be provided exclusively through Landlord, and except with the written
consent of Landlord, no person or persons other than those approved by
Landlord shall be employed by Tenant or permitted to enter the Building for
the purpose of cleaning the same.
6. Landlord will furnish Tenant, free of charge, with two keys to each door
lock in the Premises. Landlord may make a reasonable charge for any
additional keys. Tenant shall not make or have made additional keys, and
Tenant shall not alter any lock or install a new additional lock or bolt on
any door of its Premises. Tenant, upon the termination of its tenancy,
shall deliver to Landlord the keys of all doors which have been furnished
to Tenant, and in the event of loss of any keys so furnished, shall pay
Landlord therefor.
7. If Tenant requires telegraphic, telephonic, burglar alarm or similar
services, it shall first obtain, and comply with, Landlord's instructions
in their installation.
8. The Building freight elevator(s) shall be available for use by all tenants
in the Building, subject to such reasonable scheduling as Landlord, in its
discretion, shall deem appropriate. No equipment, materials, furniture,
packages, supplies, merchandise or other property will be received in the
Building or carried in the elevators except between such hours and in such
elevators as may be designated by Landlord. Tenant's initial move in and
subsequent deliveries of bulky items, such as furniture, safes and similar
items shall, unless otherwise agreed in writing by Landlord, be made during
the hours of 6:00 p.m. and 6:00 a.m. or on Saturday or Sunday. Deliveries
during normal office hours shall be limited to normal office supplies and
other small items. No deliveries shall be made which impede or interfere
with other tenants or the operation of the Building.
9. Tenant shall not place a load upon any floor of the Premises which exceeds
the load per square foot which such floor was designed to carry and which
is allowed by law. Landlord shall have the right to prescribe the weight,
size and position of all equipment, materials, furniture or other property
brought into the Building. Heavy objects shall, if considered necessary by
Landlord, stand on such platforms as determined by Landlord to be necessary
to properly distribute the weight, which platforms shall be provided at
Tenant's expense. Business machines and mechanical equipment belonging to
Tenant, which cause noise or vibration that may be transmitted to the
structure of the Building or to any space therein to such a degree as to be
objectionable to Landlord or to any tenants in the Building, shall be
placed and maintained by Tenant, at Tenant's expense, on vibration
eliminators or other devices sufficient to eliminate noise or vibration.
The persons employed to move such equipment in or out of the Building must
be acceptable to Landlord. Landlord will not be responsible for loss of, or
damage to, any such equipment or other property from any cause, and all
damage done to the Building by maintaining or moving such equipment or
other property shall be repaired at the expense of Tenant.
-1-
10. Tenant shall not use or keep in the Premises any kerosene, gasoline or
inflammable or combustible fluid or material other than those limited
quantities necessary for the operation or maintenance of office equipment.
Tenant shall not use or permit to be used in the Premises any foul or
noxious gas or substance, or permit or allow the Premises to be occupied or
used in a manner offensive or objectionable to Landlord or other occupants
of the Building by reason of noise, odors or vibrations, nor shall Tenant
bring into or keep in or about the Premises any birds or animals.
11. Tenant shall not use any method of heating or air-conditioning other than
that supplied by Landlord.
12. Tenant shall not waste electricity, water or air-conditioning and agrees to
cooperate fully with Landlord to assure the most effective operation of the
Building's heating and air-conditioning and to comply with any governmental
energy-saving rules, laws or regulations of which Tenant has actual notice.
13. Landlord reserves the right, exercisable without notice and without
liability to Tenant, to change the name and street address of the Building.
14. Landlord reserves the right to exclude from the Building between the hours
of 6 p.m. and 7 a.m. the following day, or such other hours as may be
established from time to time by Landlord, and on Sundays and legal
holidays, any person unless that person is known to the person or employee
in charge of the Building and has a pass or is property identified. Tenant
shall be responsible for all persons for whom it requests passes and shall
be liable to Landlord for all acts of such persons. Landlord shall not be
liable for damages for any error with regard to the admission to or
exclusion from the Building of any person.
15. The toilet rooms, toilets, urinals, wash bowls and other apparatus shall
not be used for any purpose other than that for which they were constructed
and no foreign substance of any kind whatsoever shall be thrown therein.
The expense of any breakage, stoppage or damage resulting from the
violation of this rule shall be borne by the tenant who, or whose employees
or invitees, shall have caused it.
16. Tenant shall not sell, or permit the sale at retail, of newspapers,
magazines, periodicals, theater tickets or any other goods or merchandise
to the general public in or on the Premises. Tenant shall not make any
room-to-room solicitation of business from other tenants in the Building.
Tenant shall not use the Premises for any business or activity other than
that specifically provided for in Tenant's Lease.
17. Tenant shall not install any radio or television antenna, loudspeaker or
other devices on the roof or exterior walls of the Building. Tenant shall
not interfere with radio or television broadcasting or reception from or in
the Building or elsewhere.
18. Tenant shall not xxxx, drive nails, screw or drill into the partitions,
woodwork or plaster or in any way deface the Premises or any part thereof,
except in accordance with the provisions of the Lease pertaining to
alterations. Landlord reserves the right to direct electricians as to where
and how telephone and telegraph wires are to be introduced to the Premises.
Tenant shall not cut or bore holes for wires. Tenant shall not affix any
floor covering to the floor of the Premises in any manner except as
approved by Landlord. Tenant shall repair any damage resulting from
noncompliance with this rule.
19. Tenant shall not install, maintain or operate upon the Premises any vending
machines without the written consent of Landlord.
20. Canvassing, soliciting and distribution of handbills or any other written
material, and peddling in the Building are prohibited, and Tenant shall
cooperate to prevent such activities.
21. Landlord reserves the right to exclude or expel from the Building any
person who, in Landlord's judgment, is intoxicated or under the influence
of liquor or drugs or who is in violation of any of the Rules or
Regulations of the Building.
22. Tenant shall store all its trash and garbage within its Premises or in
other facilities provided by Landlord. Tenant shall not place in any trash
box or receptacle any material which cannot be disposed of in the ordinary
and customary manner of trash and garbage disposal. All garbage and refuse
disposal shall be made in accordance with directions issued from time to
time by Landlord.
23. The Premises shall not be used for the storage of merchandise held for sale
to the general public, or for lodging or for manufacturing of any kind, nor
shall the Premises be used for any improper, immoral or objectionable
purpose. No cooking shall be done or permitted on the Premises without
Landlord's consent, except that the use by Tenant of Underwriters'
Laboratory approved equipment for brewing coffee, tea, hot chocolate and
similar beverages or use of microwave
-2-
over for employed use shall be permitted, provided such equipment and use
is in accordance with all applicable federal, state, county and city laws,
codes, ordinances, rules and regulations.
24. Tenant shall not use in any space or in the public halls of the Building
any hand truck except those equipped with rubber tires and side guards or
such other material-handling equipment as Landlord may approve. Tenant
shall not bring any other vehicles of any kind into the Building.
25. Without the written consent of Landlord, Tenant shall not use the name of
the Building in connection with or in promoting or advertising the business
of Tenant except as Tenant's address.
26. Tenant shall comply with all safety, fire protection and evacuation
procedures and regulations established by Landlord or any governmental
agency.
27. Tenant assumes any and all responsibility for protecting its Premises from
theft, robbery and pilferage, which includes keeping doors locked and other
means of entry to the Premises closed.
28. Tenant's requirements will be attended to only upon appropriate application
to the Building management office by an authorized individual. Employees of
Landlord shall not perform any work or do anything outside of their regular
duties unless under special instructions from Landlord, and no employee of
Landlord will admit any person (Tenant or otherwise) to any office without
specific instructions from Landlord.
29. Landlord may waive any one or more of these Rules and Regulations for the
benefit of Tenant or any other tenant, but no such waiver by Landlord shall
be construed as a waiver of such Rules and Regulations in favor of Tenant
or any other tenant, nor prevent Landlord from thereafter enforcing any
such Rules and Regulations against any or all of the tenants of the
Building.
30. These Rules and Regulations are in addition to, and shall not be construed
to in any way modify or amend, in whole or in part, the terms, covenants,
agreements and conditions of Tenant's lease of its Premises in the
Building.
31. Landlord reserves the right to make such other and reasonable Rules and
Regulations as, in its judgment, may from time to time be needed for safety
and security, for care and cleanliness of the Building and for the
preservation of good order therein. Tenant agrees to abide by all such
Rules and Regulations hereinabove stated and any additional rules and
regulations which are adopted.
32. Tenant shall be responsible for the observance of all of the foregoing
rules by Tenant's employees, agents, clients, customers, invitees and
guests.
-3-
EXHIBIT E
---------
PARKING RULES AND REGULATIONS
-----------------------------
The following rules and regulations shall govern use of the parking facilities
which are appurtenant to the Building.
1. Tenant shall not park or permit the parking of any vehicle under its
control in any parking designated by Landlord as areas for parking by
visitors to the Building. Tenant shall not leave vehicles in the parking
areas overnight nor park any vehicles in the parking areas other than
automobiles, motorcycles, motor driven or non-motor driven bicycles or
four-wheeled trucks.
2. Parking stickers or any other device or form of identification supplied by
Landlord as a condition of use of the parking facilities shall remain the
property of Landlord. Such parking identification device must be displayed
as requested and may not be mutilated in any manner. The serial number of
the parking identification device may not be obliterated. Devices are not
transferable and any device in the possession of an unauthorized holder
will be void.
3. No overnight or extended term storage of vehicles shall be permitted.
4. Vehicles must be parked entirely within the painted stall lines of a single
parking stall.
5. All directional signs and arrows must be observed.
6. The speed limit within all parking areas shall be 5 miles per hour.
7. Parking is prohibited:
(a) In areas not striped for parking;
(b) In aisles;
(c) where "no parking" signs are posted;
(d) on ramps;
(e) in cross hatched areas; and
(f) in such other areas as may be designated by Landlord.
8. Every xxxxxx is required to park and lock his own vehicle. All
responsibility for damage to vehicles is assumed by the xxxxxx.
9. Loss or theft of parking identification devices from automobiles must be
reported immediately, and a lost or stolen report must be filed by the
customer at that time. Landlord has the right to exclude any car from the
parking facilities that does not have an identification device.
10. Any parking identification devices found by the purchaser must be reported
immediately to avoid confusion.
11. Lost or stolen devices found by the purchaser must be reported immediately
to avoid confusion.
12. Washing, waxing, cleaning or servicing of any vehicle in any area not
specifically reserved for such purpose is prohibited.
13. Landlord reserves the right to modify and/or adopt such other reasonable
and non-discriminatory rules and regulations for the parking facilities as
it deems necessary for the operation of the parking facilities. Landlord
may refuse to permit any person who violates these rules to park in the
parking facilities, and any violation of the rules shall subject the car to
removal.
14. Landlord reserves the right to charge for parking on a non-discriminatory
basis.
15. Tenant shall have a total of 11 covered parking spaces at no additional
charge. Tenant shall be responsible for the cost of the signs which
designate each space.
/s/ D.D.T.
Initial
/s/ A.A.O.
Initial
