COURTHOUSE SQUARE LEASE AGREEMENT
COURTHOUSE
SQUARE
This
Courthouse Square Lease Agreement ("Lease") is made and entered into this
30th
day of
September, 2008, by
and
between the CITY OF HANFORD, a municipal corporation, with its principal place
of business in the City of Hanford, County of Kings, State of California
(hereinafter referred to as "Landlord"), and Global
Food Technologies, Inc.,
a
Delaware Corporation with its principal place of business in the City
of
Hanford,
County
of Kings,
State
of California, (hereinafter referred to as "Tenant").
WITNESSETH:
that;
The
parties hereto, in consideration of the rental hereinafter reserved and the
covenants and agreements hereinafter set forth, do make and enter into the
following Agreement of Lease:
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1.
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PREMISES
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Landlord
hereby leases to Tenant and Tenant hereby hires and takes from Landlord, at
the
rental rate, and upon the conditions hereinafter set forth, those certain
premises identified as 000 Xxxxx Xxxxxx comprising and area of approximately
3,420
square
feet of the Courthouse Square Building, together with all rights and
appurtenances as set forth herein, being located in the City of Hanford, County
of Kings, State of California, and more commonly known as 000 Xxxxx Xxxxxx,
Xxxxxx 000, 206, 207, 208, 000 & 000, Xxxxxxx, Xxxxxxxxxx 00000
(“Premises’).
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000
Xxxxx Xxxxxx, Xxxxxxx
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Suite
205/206/207
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1322
square feet
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000
Xxxxx Xxxxxx, Xxxxxxx
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Xxxxx
000
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739
square feet
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000
Xxxxx Xxxxxx, Xxxxxxx
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Xxxxx
000
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731
square feet
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000
Xxxxx Xxxxxx, Xxxxxxx
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Suite
210
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628
square feet
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Total
Premises Leased
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3,420
square feet
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2.
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FACILITY
COMMON AREAS
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The
term
"common areas" means all areas and facilities outside the Premises and within
the interior and exterior boundaries of the Courthouse Square Building within
which the Premises is located that are provided and designated by Landlord
from
time to time for the general use and convenience of Tenant and of other tenants
of the Courthouse Square Building and their respective authorized
representatives and invitees. Common areas include, without limitation,
walkways, decorative walls, plazas, malls, loading areas, roads, parking area
and restrooms.
A. Tenant's
Right to Use:
Landlord
gives to Tenant and its authorized representatives and invitees the
non-exclusive right to use the common areas, with others who are entitled to
use
the common areas, subject to Landlord's rights as hereinafter set
forth.
B. Landlord's
Maintenance and Management:
Landlord
shall maintain the common areas in good condition at all times. Landlord shall
have the right to:
1. Establish
and enforce reasonable rules and regulations applicable to all tenants
concerning the maintenance, management, use, and operation of the common areas.
2. Close
any
of the common areas to whatever extent required in the opinion of Landlord's
counsel to prevent a dedication of any of the common areas or the accrual of
any
rights to any person or of the public to the common areas.
3. Close
temporarily any of the common areas for maintenance purposes.
4. Designate
other property outside the boundaries for the Courthouse Square Building to
become part of the common areas.
5. Select
a
person to maintain and operate any of the common areas if at any time Landlord
determines that the best interests of the Courthouse Square Building will be
served by having any of the common areas maintained and operated by that person.
Landlord shall have the right to negotiate and enter into a contract with that
person on such terms and conditions and for such period of time as Landlord
deems reasonable and proper both as to service and as to cost.
6. Make
changes to the common areas including, without limitation, changes in the
location of driveways, entrances, exits, or the direction of the flow of traffic
so long as such changes do not unreasonably interfere with Tenant's use and
possession of the Premises.
C. Tenant's
Share of Cost:
Tenant
shall pay to Landlord, on a monthly basis, an amount calculated by Landlord
to
be Tenant's share of Common Area Costs (as defined in this paragraph), on the
first day of each month, commencing on the date the term commences, or on the
first day of the month following the month the term commences if the term
commences on a day other than the first day of a month as the case may be,
and
continuing during the term or any extension thereof.
Tenant's
proportionate share of Common Area Costs shall be calculated by multiplying
the
total Common Area Costs times the ratio of the total number of square feet
in
the Premises to the total number of leasable square feet in the Courthouse
Square Building. Common Area Costs that cover a period not within the term
of
this Lease shall be prorated.
Landlord
can adjust the monthly Common Area Costs July 1st
of each
year of the lease term, on the basis of Landlord's calculation of Common Area
costs for the next year of the lease term.
Landlord
shall furnish to Tenant a statement showing the total Common Area Costs,
Tenant's share of Common Area Costs for that respective year of the lease term,
and the monthly payments to be made by Tenant for that next year. For the time
period commencing on the date of this Lease through September 30, 2009, Tenant's
monthly Common Area Cost shall be Five
Hundred Eighteen Dollars and Seventy-five Cents ($518.75).
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2
For
purposes hereof, the term "Common Area Costs" shall include, but is not limited
to, the real property taxes and assessments and other taxes and assessments
of
any nature levied or assessed against the Common Areas and the Courthouse Square
Building, or assessed against Landlord as a result of the Common Areas or the
Courthouse Square Building, all natural gas and electrical charges assessed
against the Common Areas, all of Landlord's cost for any type of insurance
for
the Common Areas and the Courthouse Square Building, all sums expended by
Landlord for property management and maintenance and operation of the Common
Areas, and the cost of natural gas service for the Premises.
Costs
of
maintenance and operation of the Common Areas shall include, without limitation,
cleaning, sweeping and other janitorial services, policing, maintenance of
refuse receptacles, security systems, parking lot maintenance, planting and
relandscaping, directional signs and other markers, lighting and other utilities
and premiums for public liability and property damage insurance, and other
costs
necessary in Landlord's judgment for the maintenance and operation of the Common
Areas.
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3.
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TERM
OF LEASE
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The
term
of this lease shall be for a period of two (2) years, effective, October
1, 2008 and ending at midnight, Pacific Standard Time or Pacific Daylight Time,
whichever is applicable, September 30, 2010.
A. Delivery
of Possession:
Tenant
agrees that, in the event of the inability of Landlord to deliver possession
of
the Premises to Tenant on the date above specified for the commencement of
this
Lease, this Lease shall not be void or voidable, nor shall Landlord be liable
to
Tenant for any loss or damage resulting therefrom, nor shall the expiration
date
of the above term be in any way extended, but, in such event, Tenant shall
not
be liable for any rent until such time as Landlord delivers possession of the
Premises to Tenant.
The
provisions of Subsection (1) of Section 1932 of the California Civil Code shall
not apply to this Lease, and Tenant waives the benefit of such
provisions.
Should
Landlord tender possession of the Premises to Tenant prior to the date specified
for commencement of the term thereof, and Tenant elects to accept such prior
tender, such prior occupancy shall be subject to all of the terms, covenants,
and conditions of this Lease, except payment of rent. By entering into and
occupying the Premises, Tenant shall be deemed to acknowledge that the Premises
are in good order and repair.
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B. Surrender
of Premises:
Tenant
agrees to surrender the Premises at the termination of the tenancy herein
created to Landlord including all of the Tenant's improvements and alterations
in good condition (except for ordinary wear and tear occurring to the Premises
and except for alterations that Tenant has the right to remove or is obligated
to remove under the provisions of this Lease). Tenant shall remove all its
personal property prior to the date of termination of the tenancy and shall
remove all other improvements and alterations to the Premises if Landlord
directs Tenant to do so, at Tenant's sole cost and expense. Tenant shall perform
all restoration made necessary by the removal of any alterations or Tenant's
personal property prior to termination of the tenancy.
Landlord
can elect to retain or dispose of in any manner any alterations or Tenant's
personal property that Tenant does not remove from the Premises upon termination
of the tenancy as allowed or required by this Lease by giving at least ten
(10)
days notice to Tenant. Title to any such alterations or Tenant's personal
property that Landlord elects to retain or dispose of on expiration of the
ten
(10) day period shall vest in Landlord. Tenant waives all claims against
Landlord for any damage to Tenant resulting from Landlord’s retention or
disposition of any such alterations or Tenant's personal property. Tenant shall
be liable to Landlord for Landlord's cost for storing, removing and disposing
of
any alterations of Tenant's personal property.
If
Tenant
fails to surrender the Premises to Landlord on the termination of the tenancy,
Tenant shall indemnify, defend and hold Landlord harmless from any claims,
damages, costs, expenses and attorney’s fees incurred by Landlord as a result of
Tenant's failure to surrender the Premises.
If
Tenant
shall fail to remove all of its effects from said Premises upon termination
of
this Lease for any cause whatsoever, Landlord may, at its option, remove the
same in any manner that Landlord shall choose, and store said effects without
liability to Tenant for loss thereof, and Tenant agrees to pay Landlord upon
demand any and all expenses incurred in such removal including court costs
and
attorney’s fees and storage charges on such effects for any length of time that
the same shall be in Landlord's possession, or Landlord may, at its option,
without notice, sell said effects, or any of the same, at private sale and
without legal process, for such price as Landlord may obtain and apply the
proceeds of such sale upon any amounts due under this Lease from Tenant to
Landlord and upon the expense incident to the removal and sale of said
effects.
C.
Holding
Over:
If
Tenant
holds over after the expiration or earlier termination of the term of this
Lease, Tenant shall become a Tenant at sufferance only, at the rental rate
of
150% of the rental rate in effect on the date of such expiration and otherwise
upon the terms, covenants and conditions herein specified, so far as
applicable.
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4
If
Tenant, with Landlord's express written consent, remains in possession of the
Premises after expiration or earlier termination of the term hereof, such
possession shall be deemed a month-to-month tenancy, terminable on thirty (30)
days written notice given at any time by either party, and at the rental rate
in
effect upon the date of such expiration and otherwise upon the terms, covenants,
and conditions herein specified, so far as applicable. Acceptance by Landlord
of
rent after such expiration or earlier termination shall not constitute a
holdover hereunder or result in a renewal of this Lease.
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4.
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RENT
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Tenant
agrees to and shall pay to Landlord as rent for the Premises the
following:
A. Monthly
Rent:
Tenant
agrees to pay Landlord as the total rent for the Premises for the period of
October
1, 2008 through September 30, 2010 Eighty-two Thousand and Eighty Dollars
($82,080) in equal monthly installments of Three Thousand Four Hundred Twenty
Dollars ($3,420).
Rental
payments pursuant to this section shall be paid each in advance on the first
day
of each and every calendar month during said term, except that the first month's
rent shall be paid upon the execution of this Lease. In the event the term
of
this Lease commences or ends on a day other than the first day of a calendar
month, then the rental for such periods shall be prorated in the proportion
that
the number of days this Lease is in effect during such period bears to thirty
(30) days, and such rental shall be paid at the commencement of such periods.
Said rental shall be paid to Landlord, without deduction offset, prior notice
or
demand, in lawful money of the United States of America, which shall be legal
tender at the time of payment, at the office of Landlord or to such other person
or at such other place as Landlord may, from time to time, designate in writing.
Tenant
shall pay to Landlord, concurrent with the effectiveness of this Lease, an
amount equal to the first and last month's rent of the Premises.
C. Rental
Adjustment
Commencing
with the thirteenth (13th) full calendar month of the term of this Lease, and
at
the end of each twelfth (12th) month thereafter, during the term, the Monthly
Rent as described in Section 4A of this Lease Agreement for the ensuing twelve
(12) month period ("Adjustment Period") shall be increased by 5.0%.
D. Security
Deposit:
On
execution of this Lease, Tenant shall deposit with Landlord an amount equal
to
one month’s rent as a security deposit for the performance by Tenant of the
provision of this Lease. If Tenant is in default, Landlord can use the security
deposit, or any portion of it, to cure the default or to compensate Landlord
for
all costs and damages sustained by Landlord resulting from Tenant’s default.
Tenant shall immediately on demand, pay to Landlord a sum equal to the portion
of the security deposit expended or applied by Landlord as provided in this
paragraph so as to maintain the security deposit in the sum initially deposited
with Landlord. If Tenant is not in default at the expiration or termination
of
this Lease, Landlord shall return the security deposit to Tenant. Landlord’s
obligations with respect to the security deposit are those of a debtor and
not a
trustee. Landlord can maintain the security deposit separate and apart from
Landlord’s general funds or can co-mingle the security deposit with Landlord’s
general and other funds. Landlord shall not be required to pay Tenant interest
on the security deposit.
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5
E. Late
Charge
Tenant
acknowledges that late payment by Tenant to Landlord of rent will cause Landlord
to incur costs not contemplated by this Lease, the exact amount of such costs
being extremely difficult and impracticable to fix. Such costs include, without
limitation, processing and accounting charges, and late charges that may be
imposed on Landlord by the terms of any encumbrance and note secured by any
encumbrance covering the Premises. Therefore, if any installment of rent due
from Tenant is not received by Landlord within ten (10) days from the date
when
said rent was due, Tenant shall pay to Landlord an additional sum of Ten Percent
(10%) of the overdue rent as a late charge. The parties agree that this late
charge represents a fair and reasonable estimate of the costs that Landlord
will
incur by reason of late payment by Tenant. Acceptance of any late charge shall
not constitute a waiver of Tenant's default with respect to the overdue amount,
nor prevent Landlord from exercising any of the other rights and remedies
available to Landlord.
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5.
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TAXES
AND ASSESSMENTS
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A. Personal
Property and Possessory Interest Taxes:
If
during
the term of this Lease or any extension thereof, Tenant is required to pay
taxes
as defined below, Tenant, shall be liable for and shall pay ten (10) days before
delinquency all taxes, assessments, license fees, and other charges ("Taxes")
that are levied and assessed against Tenant's personal property or trade
fixtures installed or located in or about Premises or Tenant's possessory
interest in the Premises, and that become payable during the Lease term. On
demand by Landlord, Tenant shall furnish Landlord with satisfactory evidence
of
these payments.
If
any
taxes on Tenant's personal property, trade fixtures or possessory interest
are
levied against Landlord or Landlord's property, or if the assessed value of
the
Premises is increased by the inclusion of a value on Tenant's personal property,
trade fixtures or possessory interest and if Landlord pays the Taxes on any
of
these items of the Taxes based on the increased assessment of these items,
which
Landlord shall have the right to do regardless of the validity thereof, but
only
under proper protest if requested by Tenant, Tenant shall on demand, immediately
reimburse Landlord for the sum of the Taxes levied against Landlord, or the
proportion of the Taxes resulting from the increase in Landlord's
assessment.
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If
Tenant's improvements on the Premises, whether installed and/or paid for by
Landlord or Tenant and whether or not affixed to the real property so as to
become a part thereof, are assessed for Real Property tax purposes at a
valuation higher than the valuation at which Tenant's improvements are assessed,
then the Real Property taxes and assessments levied against Landlord or the
Premises by reason of such excess assessed valuation shall be deemed to be
taxes
levied against personal property of Tenant and shall be governed by the
provisions of the above. If the records of the County Assessor are available
and
sufficiently detailed to serve as a basis for determining whether said Tenant
improvements are assessed at a higher valuation, such records shall be binding
on both Landlord and Tenant. If the records of the County Assessor are not
available or sufficiently detailed to serve as a basis for making said
determination, the actual cost of construction shall be used.
B. Tenant
Acknowledgment Of Possessory Interest Taxes
Tenant
acknowledges, understands and agrees that: (1) this Lease may create a
possessory interest in Tenant which may be subject to real property taxes;
(2)
the property interest of Tenant created by this Lease may be subject to property
taxes; and (3) this Lease may be subject to property taxes. Tenant agrees to
pay
all such taxes, as identified above, before the same become
delinquent.
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6.
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USE
OF PREMISES
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A. Permitted
Use:
Tenant
shall use the Premises for Corporate
Business Offices
and for
no other use without Landlord's consent. Tenant shall conduct its business
at
the Premises as Global
Food Technologies, Inc.
B. Prohibited
Use:
Tenant
shall not use or occupy the Premises in violation of law or of the Certificate
of Occupancy issued for the Premises, and shall, upon five (5) days written
notice from Landlord, discontinue any use of the Premises declared by any
governmental authority having jurisdiction including but not limited to
Landlord, which shall, by reason of the nature of Tenant's use or occupancy
of
the Premises, impose any duty upon Tenant or Landlord with respect to the
Premises or with respect to the use or occupancy thereof. Tenant shall not
do or
permit to be done anything which will invalidate, cause cancellation or increase
the cost of any fire, extended coverage of any other insurance policy covering
the Premises and/or property located therein and shall comply with all rules,
orders, regulations. and requirements of the Pacific Fire Rating Bureau or
any
other organization performing a similar function.
If
the
rate of any insurance carried by Landlord is increased as a result of Tenant's
use, Tenant shall pay to Landlord within ten (10) days before the date Landlord
is obligated to pay a premium on the insurance, or within fifteen (15) days
after Landlord delivers to Tenant a certified statement from Landlord's
insurance carrier stating that the rate increase was caused solely by an
activity of Tenant on the Premises as permitted in this Lease, whichever date
is
later, a sum equal to the difference between the original premium and the
increased premium.
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Tenant
shall comply with all laws concerning the Premises or Tenant's use of the
Premises, including, without limitation, the obligation at Tenant's cost to
alter, maintain, or restore the Premises in compliance and conformity with
all
laws relating to the condition, use or occupancy of the Premises during the
term
of this Lease.
Tenant
shall promptly, upon demand, reimburse Landlord for any additional premium
charged for such policy by reason of Tenant's failure to comply with the
provisions of this article.
Tenant
shall not use or allow the Premises to be used for any improper, immoral,
unlawful, or objectionable purpose, nor shall Tenant cause, maintain or permit
any nuisance in, on or about the Premises.
Tenant
shall not use the Premises in any manner that will constitute waste, nuisance,
or unreasonable annoyance (including, without limitation, the use of
loudspeakers or sound or light apparatus that can be heard or seen outside
the
Premises) to other tenants in the Facility in which the Premises are
located.
Tenant
shall not use the Premises for sleeping, washing clothes, cooking, or the
preparation, manufacture, or mixing of anything that might emit any odor or
objectionable noises or lights onto the Premises.
No
secondhand store, auction, distress or fire sale, or bankruptcy or going
out-of-business sale may be conducted on the
Premises without Landlord's consent. Tenant shall not sell or display
merchandise outside the confines of the Premises.
Tenant
shall not do anything on the Premises that will cause damage to the
Premises.
The
Premises shall not be overloaded. No machinery, apparatus, or other appliance
shall be used or operated in or on the Premises that will in any manner injure,
vibrate, or shake the Premises.
Tenant
will not, without the written consent of Landlord, either use any apparatus
or
devise in connection with the Premises which will in any way increase the amount
of electricity or water usually furnished or supplied to the Premises, or
connect with the electric current or with water any apparatus or device for
the
purpose of using electric current or water.
Throughout
the term of this Lease, Tenant, at its sole cost, shall maintain the Premises
in
compliance with the Americans With Disabilities Act of 1990 and the regulations
related thereto.
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7.
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LEASEHOLD
IMPROVEMENTS
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Tenant
shall, at its own cost and expense, furnish and install all leasehold
improvements. Said improvements shall be subject to Landlord's prior written
consent thereto and shall be in accordance with the plans and specifications
first approved by Landlord.
Tenant
covenants and agrees that all work done by Tenant shall be performed in full
compliance with all laws, rules, orders, ordinances, directions, regulations,
and requirements of all governmental agencies, offices, departments, bureaus
and
board having jurisdiction and in full compliance with the rules, orders,
directors, regulations and requirements of the Pacific Fire Rating Bureau and
of
any similar body. Tenant shall keep the Premises and all improvements thereon,
free from all liens and claims of mechanics, labors, materialmen and others
for
work done and materials furnished to Tenant and Tenant shall not create or
suffer to be created any lien or encumbrance on the Premises.
All
alterations, decorations, additions or improvements upon the Premises made
by
Tenant shall, unless Landlord elects otherwise, become the property of Landlord,
and shall remain upon, and be
surrendered with the Premises, as a part thereof, at the end of the Lease term,
except that Landlord may, by written notice to Tenant, given at least thirty
(30) days prior to the end of the Lease term, require Tenant to remove all
improvements installed by Tenant, and Tenant shall repair or, at Landlord's
option, pay to Landlord all costs arising from such removal.
All
articles or personal property and all business and trade fixtures, machinery,
and equipment, furniture and movable partitions owned by Tenant or installed
by
Tenant at its expense in the Premises, shall be and remain the property of
Tenant and may be removed by Tenant at any time during the term of this Lease
when Tenant is not in default hereunder. If Tenant shall fail to remove all
of
its effects from the Premises upon termination of this Lease for any cause
whatsoever, Landlord may, at its option, remove the same in any manner that
Landlord shall choose, and store said effects with liability to Tenant for
loss
thereof, and Tenant agrees to pay Landlord upon demand any and all expense
incurred in such removal, including court costs and attorney’s fees and storage
charges on such effects for any length of time that the same shall be in
Landlord's possession, or Landlord may, at its option, without notice, sell
said
effects or any of the same, at private sale and without legal process, for
such
price as Landlord may obtain and apply the proceeds of such sale upon any
amounts due under this lease from Tenant to Landlord and upon the expense
incident to the removal of and sale of said effects.
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8.
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TENANT'S
MAINTENANCE
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Tenant
has examined and inspected and knows the condition of the Premises and every
part thereof and has received the same in good order and repair and accepts
the
same in its present condition. Tenant shall, at Tenant's sole cost and expense
keep the Premises and every part thereof, including, but not limited to, all
Tenant's personal property, storefronts, plate glass, signs, windows, heating
and air condition systems in good condition and repair, damage thereto from
causes beyond the reasonable control of Tenant and ordinary wear and tear
excepted. Tenant shall, upon the expiration or sooner termination of the hereof,
surrender the Premises to Landlord as improved by Tenant, ordinary wear and
tear
excepted.
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9
If,
at
any time, Premises shall fall into disrepair, Tenant shall have thirty (30)
days
from the date of receipt of written notice of such disrepair from Landlord
to
make the necessary repairs to place the Premises in good condition. If said
repairs are not completed within said thirty (30) day period, Landlord may
enter
the Premises and begin to complete the necessary repairs and Tenant agrees
to
immediately reimburse Landlord for the cost of said repairs upon presentation
by
Landlord to Tenant a xxxx for said repairs.
Landlord
shall have no obligation to maintain, alter, remodel, improve, repair, decorate
or paint the Premises or any, part thereof and the parties hereto affirm that
Landlord has made no representations to Tenant in respect of the condition
of
the Premises except as specifically set forth herein.
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9.
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ALTERATIONS
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Except
as
otherwise contained herein, Tenant shall not make any structural or exterior
alterations to the Premises without Landlord’s consent, Tenant may make
nonstructural alterations to the interior of the Premises that Tenant requires
in order to conduct its business on the Premises. In making any alterations
that
Tenant has a right to make, Tenant shall comply with the following:
A. Tenant
shall submit to Landlord reasonably detailed final plans and specifications and
working drawings of the proposed alterations and the name of its contractor
at
specifications least thirty (30) days before the date it intends to commence
the
alterations.
B. The
alterations shall not be commenced until two (2) days after Landlord has
received notice from Tenant stating the date the installation of the alterations
is to commence so that Landlord can post and record an appropriate Notice of
Nonresponsibility.
C. The
alterations shall be approved by all appropriate governmental agencies, and
all
applicable permits and authorizations shall be obtained before commencement
of
the alterations.
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10.
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UTILITIES
AND SERVICES
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A. Other
than specific utilities contracted for directly by Tenant, including without
limitation telephone services, Landlord shall pay for all utilities and services
furnished to or used by Tenant including, without limitation, electricity,
natural gas, and water for the Premises and all connection charges or other
charges related thereto. Tenant shall pay to Landlord a utility reimbursement
amount in the sum of Six
Hundred Eighty-four Dollars ($684.00) per month. On
July 1
of any year of the term and any Extended Term of this Lease, Landlord shall
have
the right to increase the monthly utility reimbursement amount and Tenant agrees
to pay such increased amount to Landlord.
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10
B. If,
at
Landlord’s sole cost and expense, Landlord elects to install a separate
electrical meter for the Premises, then Tenant shall become solely responsible
to contract and pay for electrical service to the Premises with a private
electrical services provider. In the event that Landlord installs a separate
electrical meter for the Premises and Tenant contracts with and pays for
electrical service from a private electrical services provider the utility
reimbursement shall be reduced to take into account the electrical service
paid
for by Tenant. On July 1 during any year of the Term or Extended Term of this
Lease, Landlord shall have the right to increase the monthly reduced utility
amount identified in this subparagraph 9B, and Tenant agrees to pay such
increased amount to Landlord.
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11.
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INSURANCE
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A.
Fire
Insurance
1. For
Personal Property.
Tenant,
at its sole cost and expense, shall maintain on all its personal property,
Tenant's improvements, and alterations in, on or about the Premises, a policy
of
standard fire and extended coverage insurance, with vandalism and malicious
mischief endorsements, to the extent of at least One Hundred Percent (100%)
of
their full replacement value. The proceeds from any such policy shall be used
by
Tenant for the replacement of personal property and the restoration of Tenant's
improvements or alterations.
2. Definition
of "Full Replacement Value".
The
"Full Replacement Value" of Tenant's personal property, improvements and
alterations, shall be determined by the company issuing the fire insurance
policies at the time said policies are initially obtained. Not more frequently
than once every three (3) years, either party shall have the right to notify
the
other party that it elects to have the replacement value redetermined by an
insurance company. The redetermination 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 redetermination.
B. General
Comprehensive Liability Insurance:
1.
General
Comprehensive Liability Insurance for Tenant's Premises.
At all
times during the term of this Lease or any extension thereof, Tenant shall
maintain general comprehensive liability insurance, including products liability
insurance with such limits as it deems necessary but not less than ONE MILLION
DOLLARS ($1,000.000.00) for injury or death to one person; ONE MILLION DOLLARS
(1,000,000.00) for injury or death to more than one person; and ONE MILLION
DOLLARS ($1,000,000.00) against claims of third persons for property damage.
Said insurance shall cover the Premises leased by Tenant as defined
herein.
Said
insurance shall insure performance by
Tenant of the indemnity provisions of this Lease. Landlord, its officers,
officials, employees, agents and representatives, shall be named as a coinsured,
and the provisions of such insurance shall contain cross-liability
endorsements.
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11
C. General
Insurance Provisions:
(a) Subrogation
Waiver.
Tenant shall cause insurance carrier to provide a waiver of all rights of
recovery by way of subrogation against Landlord in connection with any damage
covered by said insurance. Landlord shall not be liable to Tenant for any damage
caused by fire or any of the risks insured against under any insurance required
by this Lease.
(b) Proof
of Coverage.
Tenant
shall give Landlord written verification that its insurance satisfies all of
Tenant's insurance requirements as set forth in this Lease and will remain
in
existence for the entire term of this Lease or any extension
thereof.
(c) Protection
Against Cancellation.
Written
proof must also be given by Tenant that the insurance provided for in this
section expressly provides that it shall not be canceled or altered without
thirty (30) days prior written notice to Landlord.
(d) Failure
to Secure.
If
Tenant, at any time during the term of this Lease or any extension thereof,
should fail to secure or maintain the foregoing insurance, Landlord shall be
permitted to obtain such insurance in Tenant's name or as the agent of Tenant
and shall be compensated by Tenant for the cost of the insurance premiums.
Tenant shall pay Landlord interest on paid insurance premiums at the rate of
Ten
Percent (10%) per annum computed from the date written notice is received that
the premiums have been paid.
(e) As
Between the Parties Hereto.
The
parties release each other, and their respective authorized representatives,
from any claims for damage to any person or to the Premises, and to the
fixtures, personal property, Tenant's improvements, and alterations of either
Landlord or Tenant in or on the Premises that are caused by or result from
risks
insured against under any insurance policies carried by the parties and in
force
at the time of any such damage.
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12.
|
DAMAGE
OR DESTRUCTION OF BUILDING OR
PREMISES
|
If,
during the term of this Lease or any extension thereof, the Premises or
Courthouse Building are damaged or totally or partially destroyed, Landlord
in
its sole and absolute discretion, may either restore the Premises and/or
Courthouse Building or terminate this Lease. If Landlord elects to repair or
restore such damage, this Lease shall continue in full force and effect, but
the
rent will be proportionately reduced based upon the extent, if any, to which
the
damage interferes with the business carried on by Tenant. If Landlord elects
not
to repair or restore such damage, Landlord may give notice to Tenant at any
time
within thirty (30) days after such damage, terminating this Lease as of the
date
specified in such notice, which date shall be not less than thirty (30) days
nor
more than sixty (60) days after giving of such notice. In the event of giving
of
such notice, this Lease shall expire and all interest of Tenant in the Premises
shall terminate on the date so specified in such notice and the rent, reduced
by
any proportionate reduction, based upon the extent, if any, to which the damage
interfered with the business carried on by Tenant in the Premises, shall be
paid
up to date of such termination.
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12
Landlord
shall not be required to repair any injury or damage by fire or other cause,
or
to make any repairs or replacements of any panels, decoration, office fixtures,
railings, ceiling, floor coverings, partitions, or any other property or
improvements installed in the Premises by Tenant.
The
provisions of Section 1932, Subdivision 2, and Section 1933, Subdivision 4,
of
the Civil Code of the State of California are hereby waived by
Tenant.
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13.
|
INDEMNITY
|
A. No
Liability of Landlord:
Landlord
shall not be liable to Tenant for any injury or damage that may result to any
person or property by or from any cause whatsoever, and without limiting the
generality of the foregoing whether caused by water leakage of any character
from the room, walls or other portion of the Premises, or caused by gas, fire,
oil, electricity, or any cause whatsoever, in, on, or about the Premises or
any
part thereof.
B. Indemnification
of Landlord:
Tenant
shall indemnify and hold harmless Landlord against and from any and all claims
arising from Tenant's use of the Premises or the conduct of its business or
from
any activity, work or thing done, permitted or suffered by Tenant in or about
the Premises, and shall further indemnify and hold harmless Landlord against
and
from any and all claims arising from any breach or default in the performance
of
any obligation on Tenant's part to be performed under the terms of this Lease,
or arising from any act, neglect, fault or omission of Tenant, or of its agents,
employees, representatives, customers, invitees or contractors, for any injury
or damage to any person or property whatsoever occurring in, on, or about the
Premises or any part thereof, and from and against all costs, attorneys' fees,
expenses, liabilities, claims or any action or prosecution brought thereon.
If
any action or proceeding be brought against Landlord by reason of any such
claims, Tenant, upon notice from Landlord, shall defend the same at Tenant's
expense by counsel reasonably satisfactory to Landlord. Tenant, as a material
part of the consideration to Landlord, hereby assumes all risk of damage to
property or injury to persons in, upon, or about the Premises from any cause
whatsoever. The provisions of this paragraph 12 B. shall survive the termination
of this Lease.
C. Damage
to Tenant's Property:
Notwithstanding
anything above to the contrary, Landlord or its officials, officers, employees,
representatives and agents shall not be liable for loss of or damage to any
property by theft or otherwise, nor for any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water or rain which may leak from any part of the Premises or
from
the pipes, appliances or plumbing works therein or from the roof, street or
subsurface or from any other place or resulting from dampness or any other
cause
whatsoever. Landlord, its officials, officers, employees, representatives,
or
its agents shall not be liable for any latent defect in the Premises or any
building or improvements thereon. Tenant shall give prompt notice to Landlord
in
case of fire or accidents in the Premises or in the building located thereon
or
of defects therein.
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14.
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ASSIGNMENT
|
A. Prohibition
Against Voluntary Assignment, Subletting and Encumbering
Tenant
shall not voluntarily assign, mortgage, hypothecate or encumber its interest
in
this Lease or in the Premises, or sublease 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 consent. Any assignment, encumbrance, or sublease without Landlord's
consent, shall be voidable and at Landlord's election, shall constitute a
default. Consent to any assignment, encumbrance or sublease shall not operate
as
a waiver of the necessity for a consent to any subsequent assignment or
subletting, and at the terms of such consent shall be binding upon any person
holding by, under, or through Tenant.
If
Tenant
is a limited liability company or partnership, a withdrawal or change,
voluntary, involuntary, or by operation of law of the persons or entities owning
Fifty-One Percent (51%) or more of the entity or the dissolution of the entity,
shall be deemed a voluntary assignment.
If
Tenant
consists of more than one person, a purported assignment, voluntary, involuntary
or by operation of law, from a majority of persons to the other shall be deemed
a voluntary assignment. If Tenant is a corporation, any dissolution, merger,
consolidation or other reorganization of Tenant, or the sale of other transfer
of a controlling percentage of the capital stock of Tenant, or the sale of
Fifty-One Percent (51%) of the value of the assets of Tenant, shall be deemed
a
voluntary assignment. The phrase "controlling percentage" means the ownership
of, and the right to vote, stock possession at least Fifty-One Percent (51%)
of
the total combined voting power of all classes of Tenant's capital stock issued,
outstanding and entitled to vote for the election of directors. This paragraph
shall not apply to corporations the stock of which is traded through an exchange
or over the counter.
B. Involuntary
Assignment:
No
interest of Tenant in this Lease shall be assignable by operation of law,
(including without limitation, the transfer of this Lease by testacy or
intestacy) without the consent of Landlord. Each of the following acts shall
be
considered an involuntary assignment:
1. If
Tenant
is or becomes bankrupt or insolvent, makes an assignment for the benefit of
creditors, or institutes a proceeding under one or more Chapters of the
Bankruptcy Act, in which Tenant is the Bankrupt or a reorganizing debtor, or
if
Tenant is a partnership or consists of more than one person or entity, is or
becomes bankrupt or a debtor in a Chapter proceeding, or insolvent, or makes
an
assignment to the benefit of creditors;
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14
2. If
a writ
of attachment or execution is levied on this Lease;
3. If
in any
proceeding or action to which a Tenant is a party, a receiver is appointed
with
authority to take possession of the Premises.
An
involuntary assignment shall constitute a default by Tenant and Landlord shall
have the right to elect to terminate this Lease, in which case this Lease shall
not be treated as an asset of Tenant.
In
the
event Tenant desires Landlord to provide written consent to the assignment
by
Tenant of Tenant's interest in the Lease, or the subletting the Premises or
any
part thereof to another person or entity, Tenant shall provide Landlord with
a
written request for consent and shall provide therewith information concerning
the proposed assignee or sublessee, appropriate financial statements and such
other information that the Landlord shall request. Landlord shall have the
sole
discretion as to whether or not to consent to any proposed assignment or
sublease. In the event that the Premises are leased to more than one Tenant,
this Lease shall automatically transfer to the survivor or survivors, in the
event of death of one Tenant.
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15.
|
ENTRY
BY LANDLORD
|
Landlord
and its authorized representative shall at any and all times have the right
to
enter the Premises to inspect the same, to submit said Premises to prospective
purchasers or tenants, to post notices of nonresponsibility, for sale signs
and
for rent or for lease signs or during the time that Tenant is in default, to
alter, improve, or repair the Premises or any other portion of the building,
all
without being deemed guilty of an eviction of Tenant and without abatement
of
rent, and may for that purpose erect scaffolding, protective barricades and
other necessary structures where reasonably required by the character of the
work to be performed, providing that the business of Tenant shall be interfered
with as little as is reasonably practicable. Tenant hereby waivers any claim
for
damages for any injury or inconvenience to or interference with Tenant's
business, any loss of occupancy or quiet enjoyment of the Premises, and any
other loss occasioned thereby. For each of the aforesaid purposes, Landlord
shall at all times have and retain a key with which to unlock all of the doors
in, upon, and about the Premises, excluding Tenant's vaults and safes, and
Landlord shall have the right to use any and all means which Landlord may deem
proper to open said door in an emergency in order to obtain entry to the
Premises, and any entry to the Premises obtained by Landlord by any of said
means, or otherwise, shall not under any circumstances be construed or deemed
to
be a forcible or unlawful entry into, or a detainer of, the Premises, or an
eviction of Tenant from the Premises or any portion thereof, and any damages
caused on account thereof shall be paid by Tenant. It is understood and agreed
that no provision of the within Lease shall be constructed as an obligation
Landlord to perform any repairs, alterations or decorations except as otherwise
expressly agreed herein to be performed by Landlord.
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15
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16.
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DEFAULT
AND REMEDIES
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A. Acts
Constituting a Default:
Any
and
all of the following actions shall constitute default of this
Lease:
1. Use
of
the Premises for any purpose other than as authorized in this
Lease;
2. The
abandonment of the Premises by Tenant. Abandonment is herein defined to include,
but is not limited to, any absence by Tenant from the Premises for five (5)
business days or longer during the term of this Lease or while in default of
any
provisions of this Lease;
3. The
failure by Tenant to make any payment of rent required to be made by Tenant
hereunder, as and when due, where such failure shall continue for a period
of
three (3) days after written notice thereof from Landlord to Tenant; provided,
however, that any such written notice shall be in lieu of, and not in addition
to, any notice required under California Code of Civil Procedure, Section
1161;
4. The
failure by Tenant to observe or perform any of the express or implied covenants
or provisions of this Lease to be observed or performed by Tenant, other than
as
specified in 2. or 3. above, where such failure shall continue for a period
of
ten (10) days after written notice thereof from Landlord to Tenant; provided,
however, that any such notice shall be in lieu of, and not in addition to,
any
notice required under California Code of Civil Procedure, Section 1161; provided
further, that if the nature of Tenant's default is such that more than ten
(10)
days are reasonably required for its cure, then Tenant shall not be deemed
to be
in default if Tenant shall commence such cure within said ten (10) day period
and thereafter diligently prosecute such cure to completion;
5. (i)
The
making by Tenant of any general assignment for the benefit of creditors; (ii)
the filing by or against Tenant of a petition to have Tenant adjudged bankrupt
or 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 thirty (30) days; (iii) the appointment of a trustee or
receiver to take possession of substantially all of Tenant's assets located
at
the Premises or of Tenant's interest in this Lease, where possession is not
restored to Tenant within thirty (30) days; or (iv) the attachment, execution
or
other judicial seizure of substantially all of Tenant's assets located at the
Premises or of Tenant's interest in this Lease, where such seizure is not
discharged within thirty (30) days.
6. Assignment
of the Premises by Tenant, either voluntarily or by operation of law, whether
by
judgment, executions, death, or any other means, without the consent of
Landlord; and
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16
B. Remedies:
Landlord
shall have the following remedies if Tenant commits a default. These remedies
are not exclusive, but are cumulative and in addition to any remedies now or
hereafter allowed by law or elsewhere provided.
1. Tenant's
Right to Possession Not Terminated.
Landlord can continue this Lease in full force and effect, and the Lease will
continue in effect as long as Landlord does not terminate Tenant's right to
possession, and Landlord shall have the right to collect rent when due. During
the period Tenant is in default, Landlord can enter the Premises and relet
them,
or any part of them, to third parties for Tenant's account. Tenant shall be
liable immediately to Landlord for all costs Landlord incurs in reletting the
Premises, including, without limitation, broker's commission, expenses of
remodeling the Premises required by the reletting, and like costs. Reletting
can
be for a period shorter or longer than the remaining term of this Lease. Tenant
shall pay to Landlord the rent due under this Lease on the dates the rent is
due, less the rent Landlord received from any reletting. No act by Landlord
allowed by this paragraph shall terminate or cause a forfeiture of this Lease
unless Landlord notifies Tenant that Landlord elects to terminate and forfeit
this Lease.
2. Termination
of Tenant's Right to Possession.
Landlord can terminate Tenant's right to possession of the Premises at any
time.
No act by Landlord other than giving notice to Tenant shall terminate or cause
a
forfeiture of this Lease. Acts of maintenance, efforts to relet the Premises
or
the appointment of a receiver on Landlord's initiative to protect Landlord’s
interest under this Lease shall not constitute a termination of Tenant's right
to possession. On termination, Landlord has the right to recover from
Tenant:
a. The
worth, at the time of the award of the unpaid rent that had been earned at
the
time of termination of this Lease;
b. The
worth, at the time of the award of the amount by which the unpaid rent that
would have been earned after the date of termination of this Lease until the
time' of award exceeds that amount of the loss of rent that Tenant proves could
have been reasonably avoided;
c. The
worth, at the time of the award of the amount by which the unpaid rent for
the
balance of the term after the time of award exceeds that amount of the loss
of
rent Tenant proves could have been reasonably avoided; and
d. Any
other
amount, and court costs, necessary to compensate Landlord for all detriment
proximately caused by Tenant's default of this Lease or which in the ordinary
course of things, would be likely to result therefrom.
"The
worth at the time of the award" as used in a., b. and c. of this paragraph,
is
to be computed by allowing interest at the rate of Ten Percent (10%) per annum
or the maximum amount allowed by law, whichever is greater. "The worth, at
the
time of the award", as referred to in c. of this paragraph, is to be computed
by
discounting the amount at the discount of the Federal Reserve Bank of San
Francisco at the time of award, plus One Percent
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17
3. Appointment
of Receiver.
If
Tenant is in default of this Lease, Landlord shall have the right to have a
receiver appointed to collect rent and conduct Tenant's business. Neither the
filing of a petition for the appointment of a receiver nor the appointment
itself shall constitute an election by Landlord to terminate or forfeit this
Lease.
4. Removal
of Property.
Where
personal property of the Tenant remains on the Premises after the tenancy has
been terminated, for whatever reason, and the Premises have been vacated by
the
Tenant, the Landlord shall give written notice to such Tenant in accordance
with
the language of California Civil Code Sections 1983 through 1985, inclusive.
The
notice shall advise the person to be notified that said personal property must
be claimed within fifteen (15) days from the date of personal delivery of said
notice or within eighteen (18) days after the date said notice is deposited
in
the mail.
During
the notice period, Landlord may store said personal property in a place of
safekeeping pursuant to the language of California Civil Code Section 1986.
Tenant shall pay to Landlord the reasonable cost of storage of said personal
property before Landlord is obligated to release said personal property to
Tenant.
If
said
personal property is not claimed and released within the abovementioned fifteen
(15) days or eighteen (18) day period, then, pursuant to the language of
California Civil Code Section 1988, Landlord may either retain said personal
property, or sell said personal property at a public sale.
5. Landlord's
Right to Cure Tenant's Default.
Upon ten
(10) days prior written notice to Tenant,
Landlord may cure any default by Tenant at Tenant's cost and may enter upon
the
Premises for such purpose. If Landlord, at any time by reason of Tenant's
default, 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 at the
rate of Ten Percent (10%) per annum or the maximum amount allowed by law 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.
C. Interest
on Unpaid Rent:
Rent
and
other amounts not paid when due shall bear interest at the rate of Ten Percent
(10%) per annum or the maximum amount allowed by law from the date due until
paid.
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D. Tenant's
Right to Cure Landlord's Default:
Landlord
shall be in default of this Lease if it fails or refuses to perform any
provision of this Lease that it is obligated to perform if the failure to
perform is not cured within thirty (30) days after written notice of the default
has been given by Tenant to Landlord.
If
the
default cannot be reasonably cured within thirty (30) days, Landlord shall
not
be in default of this Lease if Landlord commences to cure the default within
thirty (30) days, and diligently and in good faith continues to cure the
default.
Tenant,
at any time after Landlord commits a default, can cure the default at Landlord’s
cost. If Tenant, at any time, by reason of Landlord’s default, pays any sum or
does any act that requires the payment of any sum, the sum paid by Tenant shall
be due immediately from Landlord to Tenant at the time the sum is
paid.
E. Waiver
of Damages.
Tenant
hereby waives all claims for damages that may be caused by Landlord's default
under any provision of this Lease, re-entering and taking possession of the
Premises or removing and storing furniture and property, as herein provided,
and
will save Landlord harmless from loss, costs or damages occasioned thereby,
and
no such re-entry shall be considered or construed to be a forcible entry as
the
same is defined in the Code of Civil Procedure of the State of
California.
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17.
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Environmental
Matters.
|
A. Compliance
with Environmental Law.
Tenant
shall at all times and in all respects comply with all
federal, state and local laws, ordinances and regulations (collectively
"Hazardous Materials Laws")
relating to industrial hygiene, environmental protection or the use, analysis,
generation, manufacture, storage, disposal, or transportation of any hazardous,
toxic, contaminated or polluting materials, substances or wastes, including
without limitation, any "hazardous substances", "hazardous waste", "hazardous
materials", "toxic substances" or "petroleum products" (collectively "Hazardous
Materials").
B. Hazardous
Materials Handling.
Tenant
shall at its own costs, procure and maintain in effect during the entire term
of
this Lease or any extension thereof, and comply with all conditions of any
and
all permits, licenses or governmental and regulatory approvals required for
Tenant's use, analysis, generation, manufacture, storage, disposal or
transportation of the Hazardous Materials on the Premises. Tenant shall cause
any and all Hazardous Materials removed from the Premises to be removed and
transported solely by duly licensed haulers to duly licensed facilities for
final disposal of such materials and waste. Tenant shall in all respects use,
handle, treat, deal and manage any and all Hazardous Materials in, on, under
or
about the Premises in total conformity with all applicable Hazardous Materials
Laws and pursuant to prudent industry practices. Upon expiration or earlier
termination of the term of this Lease or any extension thereof, Tenant shall
cause all Hazardous Materials to be removed from the Premises and transported
for use, storage or disposal in accordance and in compliance with all applicable
Hazardous Materials Laws. Tenant shall not take any remedial action in response
to the presence of any Hazardous Materials in, about or under the Premises
or
any building, or enter into any settlement agreement, consent decree or other
compromise in respect to any claims relating to any Hazardous Materials in
any
way connected with the Premises, without first notifying Landlord of Tenant's
intention to do so and affording Landlord ample opportunity to appear, intervene
or otherwise appropriately assert and protect Landlord’s interest with respect
thereto.
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19
C. Notices.
Tenant
shall immediately notify Landlord in writing of; (i) any enforcement, clean
up,
removal or other governmental or regulatory action instituted, completed or
threatened pursuant to any Hazardous Materials Laws; (ii) any claim made or
threatened by any person against Tenant or the Premises relating to damage,
contribution, cost recovery compensation, loss or injury resulting from or
claimed to result from any Hazardous Materials; and (iii) any reports made
to
any governmental agency arising out of or in connection with any Hazardous
Materials used or stored upon or removed from the Premises, including any
complaints, notices, warnings or asserted violations in connection therewith.
Tenant shall also supply to Landlord as promptly as possible, and in any event
within five (5) business days after Tenant first receives or sends the same,
with copies of all claims, reports, complaints, notices, warnings or asserted
violations relating in any way to the Premises or Tenant's use thereof. Upon
Landlord's request, Tenant shall promptly deliver to Landlord copies of
hazardous waste manifests reflecting the legal and proper use and disposal
of
all Hazardous Materials used or removed from the Premises.
D. Indemnification
of Landlord.
Tenant
shall indemnify, defend (by counsel reasonably acceptable to Landlord), protect
and hold Landlord, its employees, agents, attorneys, successors, assigns,
officials, officers, free and harmless from and against any and all claims,
liabilities, penalties, forfeitures, losses or expenditures (including
attorneys' fees) or death of or injury to any person or damage to any property
whatsoever, arising from or caused in whole or in part, directly or indirectly,
by (a) the presence in, on, upon or about the Premises or a discharge in or
from
the Premises of any Hazardous Materials or Tenant's use, analysis, storage,
transportation, disposal, release, threatened release, discharge or generation
of Hazardous Materials to, in, on, upon, about or from the Premises or (b)
Tenant's failure to comply with any Hazardous Materials Law. Tenant's
obligations hereunder shall include, without limitation, and whether foreseeable
or unforeseeable, all costs of any required or necessary repair, clean up or
detoxification or decontamination of the Premises, and the preparation and
implementation of any closure, remedial action or other required plans in
connection therewith, and shall survive the expiration or earlier termination
of
the term of this Lease or any extension thereof. For purposes of the release
and
indemnity provisions hereof, any acts or omissions of Tenant or its employees,
agents, assignees, contractors, licensees or invitees of Tenant, or other acting
for or on behalf of Tenant, whether or not they are negligent, intentional,
willful or unlawful, shall be strictly attributable to Tenant. This
indemnification shall survive the termination of this Lease.
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20
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18.
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SIGNS,
ADVERTISING
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A. Type
of Signs Allowed:
Tenant
shall not have the right to place, construct or maintain on the glass panes
or
supports of the show windows of the Premises, the doors, or the exterior walls
or roof of the building in which the Premises is located or any interior
portions of the Premises, any signs, advertisements, names insignia, trademarks,
descriptive material, or any other similar item without Landlord's prior written
consent. All such signs must conform to the requirements of the Hanford
Municipal Code. Landlord, at Tenant's cost, can remove any item placed,
construed or maintained that does not comply with the provisions of this
paragraph. Tenant agrees to keep its signs on the Premises in a good state
of
repair and to save the Landlord harmless from any loss or damage resulting
from
the erection, maintenance, existence, or removal of any of Tenant's
signs.
Tenant
shall not, without Landlord's consent, place, construct or maintain on the
Premises any advertisement media, including without limitation, searchlights,
flashing lights, loudspeakers, phonographs or other similar visual or audio
media.
B. Compliance
with Laws:
Any
sign
that Tenant has the right to place, construct and maintain shall comply with
all
laws, and Tenant shall obtain any approval required by such laws. Landlord
makes
no representation with respect to Tenant's ability to obtain such
approval.
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19.
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SUBORDINATION-ESTOPPEL
|
This
Lease is and shall be subordinate to any encumbrance now of record or recorded
after the date of this Lease affecting the Premises, and land of which the
Premises is a part.
Such
subordination is effective without any further act of Tenant. Tenant shall
from
time to time on request from Landlord execute and deliver any documents or
instruments that may be required by a lender to effectuate any subordination.
If
Tenant fails to execute and deliver any such documents or instruments, Tenant
irrevocably constitutes and appoints Landlord as Tenant's special
attorney-in-fact to execute and deliver any such documents or
instruments.
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20.
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NOTICE
|
Except as
otherwise expressly provided herein, any notice, consent, authorization or
other
communication to be given hereunder shall be in writing and shall be deemed
duly
given and received when delivered personally, when transmitted by facsimile
or
e-mail if receipt is acknowledged by the addressee, one business day after
being
deposited for next-day delivery with a nationally recognized overnight delivery
service, or three business day after being mailed by first class mail, charges
and postage prepaid, property addressed to the party to receive such notice
at
the last address furnished for such purpose by the party to whom notice is
directed and addressed as follows:
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(a)
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In
the case of Landlord:
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Deputy
City Manager
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|
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City
of Hanford
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|
000
X. Xxxxx Xxxxxxx, XX 00000
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|
|
or
such other address as Landlord may form time to time furnish to
Tenant
|
|
|
(b)
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In
the case of Tenant:
|
|
Xxxxx
Xxxxx
|
|
|
Global
Food Technologies
|
|
|
0000
Xxxxxx Xxxxx
|
|
|
Xxxxxxx,
XX 00000
|
|
|
or
such other addresses Tenant may form time to time furnish to
Landlord
|
If
mailed, said notice shall be deemed properly given when deposited in the United
States mail.
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21.
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WAIVER
OF BREACH
|
Landlord's
failure to take advantage of any default or breach of covenant on the part
of
Tenant shall not be, or be construed as a waiver thereof, nor shall any custom
or practice which may grow up between the parties in the course of administering
this Lease be construed to be a waiver or to lessen the right of Landlord to
insist upon the performance by Tenant of any term, covenant, or condition
hereof, or to exercise any rights given him on account of any such default.
A
waiver of a particular breach, or default, shall not be deemed to be a waiver
of
the same or any other subsequent breach or default.
The
receipt and acceptance by Landlord of delinquent rent shall not constitute
a
waiver of any default.
No
act or
conduct of Landlord, including without limitation, the acceptance of the keys
to
the Premises shall constitute an acceptance of the surrender of the Premises
by
Tenant before the expiration of the term. Only a written notice from Landlord
to
Tenant shall constitute acceptance of the surrender of the Premises and
accomplish a termination of the Lease.
Landlord's
consent to or approval of any act by Tenant requiring Landlord's consent or
approval shall not be deemed to waiver or render unnecessary Landlord's consent
to or approval of any subsequent act by Tenant.
Any
waiver by Landlord of any default must be in writing and shall not be a waiver
of any other default concerning the same or any other provision of this
Lease.
Page
22
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22.
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SALE
OR TRANSFER OF PREMISES
|
A. Effect
on Lease:
If
Landlord sells or transfers all or any portion of the Premises, Landlord, on
consummation of the sale or transfer, shall be released from any liability
thereafter accruing under this Lease. If any security deposit or prepaid rent
has been paid by Tenant, Landlord can transfer the security deposit or prepaid
rent to Landlord's successor and on such transfer Landlord shall be discharged
from any further liability in reference to the security deposit or prepaid
rent.
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23.
|
ATTORNEY'S
FEES
|
Should
either party hereto institute any legal action to enforce any provision thereof,
the prevailing party in such action shall be entitled to receive from the losing
party such amount as the court may adjudge to be reasonable attorney’s fees.
Should Landlord be named as a defendant in any suit brought against Tenant
in
connection with or arising out of Tenant's occupancy hereunder, Tenant shall
pay
to Landlord its costs and expenses incurred in such suit, including reasonable
attorney’s fees. With respect to any suit, action or proceeding arising out of
or related to this Lease, Landlord and Tenant submit to the jurisdiction and
venue of the Superior Court, in the County of Kings, State of California, for
any proceeding arising thereunder.
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24.
|
ESTOPPEL
CERTIFICATE
|
Tenant
shall, at any time and from time to time upon not less than ten (10) days prior
written notice from Landlord, execute, acknowledge, and deliver to Landlord
a
statement in writing (i) certifying that this Lease is unmodified and in full
force and effect (or if modified, stating the nature of such modification and
certifying that this Lease as so modified, is in full force and effect) and
the
dates to which the rental and other charges are paid in advance, if any, and
(ii) acknowledging that there are not, to Tenant's knowledge, any incurred
defaults on the part of Landlord hereunder, or specifying such defaults, if
any
are claimed. Any such statement may be relied upon by any prospective purchaser
or encumbrance of all or any portion of the real property of which the Premises
are a part.
Tenant's
failure to deliver such statement within such time shall be conclusive upon
Tenant (i) that this Lease is in full force and effect, without modification
except as may be represented by Landlord, (ii) that there are no incurred
defaults in Landlord's performance, and
(iii)
that not more than one (1) month's rental has been paid in advance.
|
25.
|
AGENCY
|
Nothing,
contained in this Lease shall be deemed or construed by the parties hereto
or by
any third person to create the relationship of principal and agent or of
partnership or of joint venture or any other association other than Landlord
and
Tenant.
|
26.
|
TERMS
AND CAPTIONS
|
The
words
"Landlord" and "Tenant," as used herein, shall include the plural as well as
the
singular. Words used in any gender include other genders. If there be more
than
one Tenant, the obligations hereunder imposed upon Tenant shall be joint and
several. The article captions of this Lease are not a part of this Lease and
shall have no effect upon the construction or interpretation of any part
hereof.
Page
23
|
27.
|
TIME
OF ESSENCE
|
Time
is
of the essence in the performance of each provision of this Lease.
|
28.
|
SUCCESSORS
|
Subject
to the provisions of paragraph 13 of this Lease, this Lease shall inure to
the
benefit of, and be binding upon, the successors and assigns of the parties
hereto.
|
29.
|
STATUS
OF PARTIES ON TERMINATION OF
LEASE
|
Except
as
otherwise provided in this Lease, if a party elects to terminate this Lease
as
allowed herein, on the date this Lease terminates, the parties shall be released
from further liabilities and obligations and Landlord shall return to Tenant
any
unearned rent, as long as Tenant is not in default on the date the Lease
terminates.
|
30.
|
PROVISIONS
AND COVENANTS AND CONDITIONS
|
All
provisions, whether covenants or conditions, on the part of the Tenant shall
be
deemed to be both covenants and conditions.
|
31.
|
INVALIDITY
|
If
any
term, covenant, condition, or provision of this Lease is held by a court of
competent jurisdiction to be invalid, void, or unenforceable, the remainder
of
the provisions hereof shall remain in full force and effect and shall in no
way
be affected, impaired, or invalidated thereby.
|
32.
|
PRIOR
AGREEMENTS, AMENDMENTS
|
This
Lease contains all of the agreements of the parties hereto with respect to
any
matter covered or mentioned in this Lease, and no prior agreement or
understanding pertaining to any such matter shall be effective for any purpose.
No provision of this Lease may be amended or added to, except by an agreement
in
writing signed by the parties hereto or their respective successors in
interest.
|
33.
|
CONTROLLING
LAW
|
The
validity, interpretation, and performance of this Lease shall be governed by
the
laws of the State of California.
Page
24
IN
WITNESS WHEREOF, the parties hereto have executed this Lease on the date first
set forth above.
|
“LANDLORD”
|
“TENANT”
|
|
CITY
OF HANFORD
|
GLOBAL
FOOD TECHNOLOGIES, INC
|
|
By:
/s/ Xxxx Xxxxxxxxxxxx
|
By:
/s/ Xxxxx Xxxxx
|
|
Xxxx
Xxxxxxxxxx
|
Xxxxx
Xxxxx, President
|
City
Manager
