California-Los Altos-330 Distel Circle Lease - Midpeninsula Regional Open Space District and DrugAbuse Sciences Inc.
OFFICE BUILDING LEASE
1. PARTIES. This Lease dated as of February 9, 2000, is made by and
between the Midpeninsula Regional Open Space District, a special
district formed pursuant to Section 5500, ET SEQ., of the California
Public Resources Code ("District") and DrugAbuse Sciences Inc., a
California Corporation ("Lessee").
2. PREMISES. District hereby leases to Lessee, and Lessee hereby leases
from District, that certain office space (hereinafter, "Premises"),
the area of which is shown by outline on Exhibit "A", attached here
to and incorporated herein by this reference. It is agreed that said
Premises, for the purpose of this Lease, have an area of
approximately 2,487 square feet, situated on the ground floor of
that certain office building ("Building") known as 330 Distel
Circle, Los Altos, California. Said Premises are more precisely
identified as Suite 150 of said Building. The Premises exclude the
access ways and pipes, ducts, conduits, wires and appurtenant
fixtures serving, exclusively or in common, other parts of the
Building. By taking possession of the Premises, Lessee accepts the
improvements as complete except as otherwise provided herein.
3. TERM. The term of this Lease shall be for 36 months, commencing on
March 1, 2000 (the "Commencement" or "Commencement Date") and ending
February 28, 2003 unless sooner terminated pursuant to this Lease.
4. POSSESSION.
4.1 If District, for any reason whatsoever, cannot initially deliver
possession of the Premises to Lessee at the Commencement of the term
hereof this Lease shall not be void or voidable nor shall District be
liable to Lessee for any loss or damage resulting therefrom, nor shall
the expiration date of the above term be in any way extended, but, in
that event, all rent shall be abated during the period between the
Commencement of said term and the time when District delivers
possession.
4.2 In the event that District shall permit Lessee to occupy the Premises
prior to the Commencement Date of the term, such occupancy shall be
subject to all of the provisions of this Lease, except for the payment
of rent, and said early possession shall not advance the termination
date herein above provided. In the event Lessee occupies the Premises
prior to the Commencement Date of the term for the purpose of
installation of Lessee's trade fixtures and equipment in the Premises,
or otherwise, such use or occupancy shall be pursuant to the express
conditions that (a) Lessee's early entry shall not interfere with
District's work or construction or cause labor difficulty; (b) Lessees
shall pay for and provide evidence of the insurance coverage required
pursuant to Section 10 hereof; and (c) Lessees shall pay utility
charges reasonably allocated to Lessee by District. Lessee shall not
commence the operation of business prior to the Commencement Date of
the term without express prior written consent of District.
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5. RENT.
5.1 Lessee shall pay to District as rent for the Premises, without demand,
deduction, abatement or set-off, except as expressly permitted herein,
the sum of Eight Thousand Seven Hundred Four and 50/100 Dollars
($8,704.50) on or before the first day of each and every calendar month
of the term of this Lease, the first monthly payment to be made
concurrently with the execution hereof. If the Lease termination date
is not the last day of a month, the rent payable hereunder shall be
prorated on a daily basis at the then current rate for the fractional
month during which this Lease terminates. Said rent shall be paid to
District in lawful money of the United States of America, which shall
be legal tender at the time of payment at the District office in the
Building, or to such other person or at such other place as District
may from time to time designate in writing.
5.2 Rent Increase.
5.2.1 Upon the first anniversary of the Commencement Date of this
lease and annually on such date thereafter, the monthly
Rent payable under Section 5.1 of this Lease shall be
adjusted by the greater of four (4%) of the previous period
Rent, or the percentage increase, if any, in the Consumer
Price Index of the Bureau of Labor Statistics of the United
States Department of Labor for All Urban Consumers
(1982-84=100), "All Items," for San Francisco-Oakland-San
Jose Bay Area, herein referred to as "C.P.I.", since the
Commencement Date of this Lease or since the last annual
adjustment, as appropriate.
5.2.2 The monthly Rent payable pursuant to Section 5.1 shall be
increased pursuant to Section 5.2.1 as follows: the Rent
payable for the first month of the term of this Lease, or
the month in which it was last adjusted, shall be
multiplied by a fraction, the numerator of which shall be
the C.P.I. of the calendar month during which the
adjustment is to take effect, and the denominator of which
shall be the C.P.I. for the calendar month in which the
original Lease term commenced or in which it was last
adjusted. The sum so calculated shall constitute the new
monthly Rent under Section 5 hereof, but, in no event,
shall such new monthly Rent be less than a four (4%)
increase over the previous period Rent nor greater than a
seven (7%) increase over the previous period Rent.
5.2.3 In the event the compilation and/or publication of the
C.P.I. shall be transferred to any other governmental
department or bureau or agency or shall be discontinued,
then the index most nearly the same as the C.P.I. shall be
used to make such calculations. In the event that District
and Lessee cannot agree on such alternative index, then the
matter shall be submitted for decision to the American
Arbitration Association in the County of Santa Clara, or,
if such does not exist, an arbitration service
substantially similar thereto, in accordance with the then
rules of said association and the decision of the
arbitrators shall be binding upon the parties,
notwithstanding one party failing to appear after due
notice of the proceeding. The cost of said Arbitrators
shall be paid equally by District and Lessee.
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5.2.4 Lessee shall continue to pay the rent at the rate
previously in effect, plus the minimum annual rent increase
of four percent (4%), until the amount of the C.P.I.
increase, if any, is determined. Within five (5) days
following the date on which the increase is determined,
Lessee shall make such payment to District as will bring
the increased rental current, commencing with the effective
date of such increase through the date of any rental
installments then due. Thereafter the rent shall be paid
at the increased rate.
6. SECURITY DEPOSIT. Concurrently with the execution of this Lease, Lessee
has deposited with District the sum of Eighteen Thousand Dollars
($18,000.00), in the form of an Irrevocable Letter of Credit acceptable
to District, receipt of which is hereby acknowledged, to secure the
faithful performance by Lessee of all of the terms, covenants and
conditions of this Lease by Lessee to be kept and performed during the
term hereof. Lessee agrees that if it shall fail to pay when due any
installment of rent or any other sums provided in this Lease to be paid
by Lessee to District, or if Lessee shall default in or breach any of
the other terms, covenants and conditions of this Lease and District
shall suffer any damages as a result of said default or breach, then in
any such event District may, at its option (but District shall not be
required to) draw upon said Irrevocable Letter of Credit for any rent
or other sum due and unpaid by Lessee to District hereunder, for any
damage suffered by District as a result of such default or breach to
the extent of the amount of damage suffered by District, or for any
reasonable attorney's fees incurred by District in connection with such
default or breach. Should the Irrevocable Letter of Credit be drawn
upon by District as herein provided, then Lessee, without the need for
written demand by District, shall forthwith remit a sufficient amount
in cash to restore said security deposit to its original amount, and
Lessee's failure to do so within ten (10) days after such demand shall
constitute a breach of this Lease. Should Lessee comply with all of the
terms, covenants and conditions of this Lease and promptly pay all
rental herein provided for as it falls due and all other sums payable
by Lessee to District hereunder, the un-appropriated balance of said
security deposit shall be returned to Lessee at the expiration of the
Term of this Lease or upon any earlier termination. Should District
sell its interest in the Premises during the term hereof and if
District deposits with the purchaser thereof the then un-appropriated
funds deposited by Lessee as aforesaid, thereupon District shall be
discharged from any further liability with respect to such deposit.
7. TAXES.
7.1 Property Taxes: The term "property taxes," as used in this Lease, is
defined as all real estate taxes or personal property taxes levied
with respect to the Building and the land, and any improvements,
fixtures and equipment and other property of the District, real or
personal, located in the Building and used in connection with the
operation of the Building and the land, or any tax, general or
special assessment, or other charge of any description imposed upon
or in respect of the Building and the land, including without
limitation, a tax upon any rent therefrom or any occupancy or use
thereof, or a tax in lieu of or in addition to real estate or
personal property taxes.
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7.2 Personal Property and Ad Valorem Taxes. Lessee hereby agrees to pay
all taxes which may be levied with respect to Lessee's personal
property located upon the Premises, including without limitation,
the portion of the improvements to the Premises the cost of which
was borne by Lessee, furniture, office equipment and other
furnishings.
7.3 Possessory Interest Tax. The property interest created herein may be
subject to property taxation and Lessee may be subject to payment of
property taxes levied on such possessory interest. Lessee shall be
responsible for any Possessory Interest Tax arising out of or in any
way created by this Lease. Lessee's rent shall be reduced by the
amount of any such Possessory Interest Tax in the month following
actual payment by Lessee of such tax or if no rent due in cash, and
upon submittal of a copy of the bill evidencing such obligation and
a copy of the check evidencing such payment.
8. USE OF PREMISES.
8.1 Use. The Premises shall be used and occupied by Lessee for general
office purposes, including without limitation, marketing, accounting,
tracking of regulatory control, investor relations, business
development and related clerical functions and for no other purpose
without the prior written consent of District.
8.2 Suitability. Lessee acknowledges that neither District nor any agent
of District has made any representation or warranty with respect to
the Premises or the Building or with respect to the suitability of
either for the conduct of Lessee's business, nor has District agreed
to undertake any modification, alteration or improvement to the
Premises except as provided in this Lease. The taking of possession
of the Premises by Lessee shall conclusively establish that the
Premises and the Building were at such time in satisfactory
condition unless within fifteen (15) days after such date Lessee
shall give District written notice specifying in reasonable detail
the respects in which the Premises or the Building were not in
satisfactory condition. To District's knowledge, the Premises are in
compliance with all rules, regulations and ordinances whether
federal, state or local.
8.3 Uses Prohibited.
8.3.1 Premises shall not be used for retail sales, warehousing,
manufacturing, or patient treatment facilities.
8.3.2 Lessee shall not do or permit anything to be done in or
about the Premises nor bring or keep anything therein which
will in any way increase the existing rate or affect any
fire or other insurance upon the Building or any of its
contents, or cause a cancellation of any insurance policy
covering said Building or any part thereof or any of its
contents, nor shall Lessee sell or permit to be kept used
or sold in or about said Premises any articles or
substance, inflammable or otherwise, which may be
prohibited by a standard form policy of fire insurance.
8.3.3 Lessee shall not do or permit anything to be done in or
about the Premises which will in any way obstruct or
interfere with the rights of other Lessees or occupants of
the Building or injure or annoy them or use or allow the
Premises to be used for any unlawful or objectionable
purpose, nor shall Lessee cause, maintain or
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permit any nuisance in or about the Premises. Lessee shall not
commit or suffer to be committed any waste in or upon the
Premises.
8.3.4 Lessee shall not use the Premises or permit anything to be
done in or about the Premises which will in any way
conflict with any law, statute, ordinance or governmental
rule or regulation or requirement of duly constituted
public authorities now in force or which may hereafter be
enacted or promulgated. Lessee shall at its sole cost and
expense promptly comply with all laws, statutes, ordinances
and governmental rules, regulations or requirements now in
force or which may hereafter be in force and with the
requirements of any board of fire underwriters or other
similar body now or hereafter constituted relating to or
affecting the condition, Lessee's particular use or
occupancy of the Premises, excluding structural changes not
relating to or affecting the condition, use or occupancy of
the Premises, or not related or afforded by Lessee's
improvements or acts. The judgment of any court of
competent jurisdiction or the admission of Lessee in any
action against Lessee, whether District be a party thereto
or not, that Lessee has violated any law, statute,
ordinance or governmental rule, regulation or requirement,
shall be conclusive of the fact as between District and
Lessee.
9. SERVICES AND UTILITIES.
9.1 District's Obligations. District agrees to furnish to the Premises
during the hours of 8:00AM - 6:00PM, generally recognized business
days of Monday through Friday excepting major holidays, and subject
to the Rules and Regulations of the Building, water, gas and
electricity suitable for the intended use of the Premises, heat and
air conditioning required in District's judgment for the comfortable
use and occupancy of the Premises, scavenger, janitorial and window
washing service and security customary in similar buildings in the
competing geographical area. District shall also maintain and keep
lighted the common entries and toilet rooms in the Building.
9.2 Lessee's Obligation. Lessee shall pay for, prior to delinquency, all
telephone and all other materials and services, not expressly
required to be paid by District, which may be furnished to or used
in, on or about the Premises during the term of this Lease.
9.3 Lessee's Additional Requirements.
9.3.1 Lessee will not, without the prior written consent of
District not unreasonably withheld, and subject to any
conditions which District may impose, use any apparatus or
device in the Premises, including but without limitation
therefor, electronic data processing machines, punch card
machines and machines using current in excess of 110 volts,
which will in any way increase the amount of electricity or
water usually furnished or supplied for use of the Premises
as general office space. Lessee shall not connect with
electrical current, except through existing electrical
outlets in the Premises, or connect to water pipes, any
apparatus or device for the purposes of using electric
current or water.
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9.3.2 If Lessee shall require water or electric current in excess
of that usually furnished or supplied for use of the
Premises as general office space, Lessee shall first
procure the consent of District for the use thereof, which
consent District may not unreasonably withhold. District
may cause a water meter or electric current meter to be
installed in the Premises, so as to measure the amount of
water and electric current consumed for any such other use.
The costs of such meters and of installation, maintenance
and repair thereof shall be paid for by Lessee and Lessee
agrees to pay District promptly upon demand by District for
all such water and electric current consumed as shown by
said meters, at the rate charged for such services by the
city in which the Building is located or the local public
utility as the case may be, furnishing the same, pays any
additional expense incurred in keeping account of the water
and electric current to consumed.
9.3.3 Wherever heat generating machines or equipment are used in
the Premises which affect the temperature otherwise
maintained by the air conditioning system, District
reserves the right to install supplementary air
conditioning units in the Premises and the cost thereof
including the cost of installation, operation and
maintenance thereof, shall be paid by Lessee to District
upon demand by District.
9.4 Nonliability for Failure to Provide Services or Utilities. District
shall not be liable for, and Lessee shall not be entitled to, any
abatement or reduction of rent by reason of District's failure to
furnish any of the foregoing when such failure is caused by
accidents, breakage, repairs, strikes, lockouts or other labor
disturbances or labor disputes of any character, or by any other
cause similar or dissimilar, beyond the reasonable control of
District. District shall not be liable under any circumstances for
loss of or injury to property, however occurring, through or in
connection with or incidental to failure to furnish any of the
foregoing, except for loss arising due to District's or District's
agents, employees or contractors active negligence or willful
misconduct.
10. INSURANCE.
10.1 Coverage. Lessee shall assume the risk of damage to any fixtures,
goods, inventory, merchandise, equipment, furniture and leasehold
improvements, and District shall not be liable for injury to
Lessee's business or any loss of income therefrom relative to such
damage. Lessee shall, at all times during the term of this Lease,
and at its own cost and expense, procure and continue in force the
following insurance coverage:
10.1.1 Comprehensive general liability insurance, insuring
District and Lessee against any liability arising out of
the ownership, use, occupancy or maintenance of the
Premises and all areas appurtenant thereto in an amount of
not less than Two Million Dollars ($2,000,000.00) per
occurrence.
10.1.2 Fire and extended coverage insurance including vandalism
and malicious mischief coverage, in an amount equal to the
full replacement value of all fixtures, furniture and
improvements installed by or at the expense of Lessee.
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10.2 Insurance Policies. The limits of said insurance policies shall not,
however, limit the liability of the Lessee hereunder. Lessee may
carry said Insurance under blanket policies; providing, however,
said Insurance by Lessee shall have a District's protective
liability endorsement attached thereto. If Lessee shall fail to
procure and maintain said insurance District may, but shall not be
required to, procure and maintain same, but at the expense of
Lessee. Insurance required hereunder shall be in companies rated A-
or better in "Best's Insurance Guide." Lessee shall deliver to
District prior to occupancy of the Premises copies of policies of
insurance required herein or certificates evidencing the existence
and amounts of such insurance with loss payable clauses, all such
policies subject to District's approval which shall not be
unreasonably withheld. No policy shall be cancelable or subject to
reduction of coverage except after thirty (30) days prior written
notice to District.
10.3 Waiver of Subrogation. As long as their respective insurers so
permit, District and Lessee each hereby waive any and all rights of
recovery against the other for any loss or damage occasioned to such
waiving party or its property or the property of others under its
control to the extent that such loss or damage is insured against
under any fire or extended coverage insurance policy which either
may have in force at the time of such loss or damage. Each party
shall obtain any special endorsement, if required by their insurer,
to evidence compliance with the aforementioned waiver.
11. MAINTENANCE AND REPAIRS.
11.1 District's Obligations. District shall maintain in good order,
condition and repair the Building and all other portions of the
Premises not the obligation of Lessee or any other Lessee in the
Building, including the basic plumbing, air conditioning, heating
and electrical systems installed or furnished by District, unless
such maintenance and repairs are caused in part or in whole by the
act, neglect, fault or omission of any duty by the Lessee, it
agents, servants, employees or invitees, in which case Lessee shall
pay to District the reasonable cost of such maintenance and repairs.
District shall not be liable for any failure to make any such
repairs or to perform any maintenance unless such failure shall
persist for five (5) business days after written notice of the need
of such repairs or maintenance is given to District by Lessee,
provided such repairs or maintenance can be reasonably performed
within five (5) business days. Except as provided in Section 18
hereof there shall be no abatement of rent and no liability of
District by reason of any injury to or interference with Lessee's
business arising from the making of any repairs, alterations or
improvements in or to any portion of the Building or the Premises or
in or to fixtures, appurtenances and equipment therein. Lessee
waives the right to make repair at District's expense under any law,
statute or ordinance now or hereafter in effect.
11.2 Lessee's Obligations. By taking possession of the Premises, Lessee
shall be deemed to have accepted the Premises as being in good,
sanitary order, condition and repair, and Lessee's obligations to
preserve the Premises are as follows:
11.2.1 Lessee at Lessee's sole cost and expense, except for
services furnished by District pursuant to Section 9
hereof, shall maintain the non-structural portion of the
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Premises in good order, condition and repair including the
interior surfaces of the ceilings, walls and floors, all
doors, interior windows, exterior windows at or below
street level, all plumbing pipes, electrical wiring,
switches, fixtures and special items in excess of building
standard furnishings, and equipment installed by or at the
expense of Lessee. Lessee expressly waives the benefits of
any statute now or hereafter in effect which would
otherwise afford Lessee the right to make repairs at
District's expense or to terminate this Lease because of
District's failure to keep the Premises in good order,
condition and repair.
11.2.2 Upon the expiration or earlier termination of this Lease,
Lessee shall surrender the Premises in the same condition
as received, ordinary wear and tear and condemnation or
damage by fire, earthquake, act of God or the elements
alone excepted, and shall promptly remove or cause to be
removed from the Premises and the Building, at Lessee's
expense, any signs, notices and displays placed by Lessee.
11.2.3 Lessee agrees to repair any damage to the Premises or the
Building caused by or in connection with the removal of any
articles of personal property, business or trade fixtures,
machinery, equipment, furniture, movable partitions,
including without limitation thereto, repairing the floor
and patching and painting the walls where required by
District to District's reasonable satisfaction, all at
Lessee's sole cost and expense. Lessee shall indemnify the
District against any loss or liability resulting from delay
by Lessee in so surrendering the Premises, including
without limitation any claims made by any succeeding Lessee
founded on such delay.
11.2.4 In the event Lessee fails to maintain the Premises in good
order, condition and repair, District shall give Lessee
notice to do such acts as are reasonably required to so
maintain the Premises. In the event Lessee fails to
promptly commence such work and diligently prosecute it to
completion, then District shall have the right to do such
acts and expend such funds at the expense of Lessee as are
reasonably required to perform such work. Any amount so
expended by District shall be paid by Lessee promptly after
demand with interest at ten percent (10%) per annum from
the date of such work. District shall have no liability to
Lessee for any damage, inconvenience or interference with
the use of the Premises by Lessee as a result of performing
any such work.
12. ALTERATIONS AND ADDITIONS.
12.1 Lessee shall at Lessee's sole cost and expense, replace the existing
carpet and paint the interior walls of the Premises. The colors of
the carpet and paint shall be approved by District, which approval
shall not be unreasonably withheld. Lessee shall be allowed to
credit up to $7,200 of the carpet and paint costs against the rent
payment due in the second month of the Lease Term.
12.2 Lessee shall make no other alterations, additions or improvements to
the Premises or any part thereof without obtaining the prior written
consent of District.
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12.3 District may impose as a condition to the aforesaid consent such
requirements as District may deem necessary in its reasonable
discretion, including with limitation thereto, the manner in which
the work is done, a right of approval of the contractor by whom the
work is to be performed, the times during which it is to be
accomplished, and the requirement that upon written request of
District prior to the expiration or earlier termination of the
Lease, Lessee will remove any and all movable partitions, counters,
personal property, equipment, fixtures and furniture, unless upon
granting consent District agrees otherwise.
12.4 All such alterations, additions or improvements shall at the
expiration or earlier termination of the Lease, become the property
of District and remain upon and be surrendered with the Premises,
unless specified pursuant to Section 11.2 above, or if upon granting
consent, District agrees otherwise.
12.5 All articles of personal property and all business and trade
fixtures machinery and equipment, furniture and movable partitions
owned by Lessee or installed by Lessee at its expense in the
Premises shall be and remain the property of Lessee and may be
removed by Lessee at any time during the Lease term when Lessee is
not in default hereunder.
13. INDEMNIFICATION. Lessee shall indemnify and hold harmless District
from and against any and all claims arising from Lessee's use of the
Premises, or from the conduct of Lessee's business or from any
activity, work or things done, permitted or suffered by Lessee in or
about the Premises or elsewhere and shall further indemnify and hold
harmless District from and against any and all claims arising from
any breach or default in the performance of any obligation on
Lessee's part to be performed under the terms of this Lease, or
arising from any negligence of the Lessee, or any of Lessee's
customers, directors, officers, invitees, licensees, agents,
contractors or employees, and from and against all costs, attorney's
fees, expenses and liabilities incurred in the defense of any such
claim or any action or proceeding brought thereby; and in case any
action or proceeding be brought against District by reason of any
such claim. Lessee upon notice from District shall defend the same
at Lessee's expense by counsel satisfactory to District. Lessee, as
a material part of the consideration to District, hereby assumes all
risk of damage to property or injury to persons, in, upon or about
the Premises arising from any cause, and Lessee hereby waives all
claims in respect thereof against District except claims solely
arising from willful or active negligent acts or omissions by
District or its agents or employees. Lessee hereby agrees that
District shall not be liable for injury to (a) Lessee's business or
for any loss of income therefrom or damage to the goods, wares,
merchandise or other property of Lessee, (b) Lessee's customers,
directors, officers, invitees, licensees or any other persons in or
about the Premises, (c) Lessee's employees, agents or contractors,
whether such damage or injury is caused by or results from fire,
steam, electricity, gas, water or rain, or from the breakage,
leakage, obstruction or other defects of pipes, sprinklers, wires,
appliances, plumbing, air conditioning or lighting fixtures, or from
any other cause, whether the said damage or injury results from
conditions arising upon the Premises or upon other portions of the
Building, or from other sources or places, and regardless of whether
the cause of such damage or injury or the means of repairing the
same is inaccessible to Lessee. District shall not be liable for any
damages arising from any act or neglect of any other Lessee of the
Building.
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14. LIENS. Lessee shall not permit to be enforced against the Premises,
any mechanics', materialmen's, contractors' or other liens arising
from, or any claims for damages growing out of any work of repair or
alteration as herein authorized or otherwise arising (except from
the actions of District), and Lessee shall pay or cause to be paid
all of said liens and claims before any action is brought to enforce
the same against District or the Premises; and Lessee agrees to
indemnify and hold District and the Premises free and harmless from
all liability for any and all such liens and claims and all costs
and expenses in connection therewith. Lessee shall give District no
less than ten (10) days prior notice in writing before commencing
construction of any kind on the Premises so that District may post
notices of nonresponsibility.
15. ASSIGNMENT AND SUBLETTING.
15.1 District's Consent Required. Lessee shall not assign, transfer,
mortgage, pledge, hypothecate or encumber this Lease or any interest
therein, and shall not sublet the Premises or any part thereof
without the prior written consent of District, such consent not to
be unreasonably withheld and any attempt to do so without such
consent being first had and obtained shall be wholly void and shall
constitute a breach of this Lease.
15.2 Subletting Submission. Should Lessee desire to assign or sublet the
Premises, Lessee shall submit in writing to District (a) the name
and legal composition of the proposed sublessee or assignee; (b) the
nature of the business proposed to be carried on in the Premises;
(c) the terms and provisions of the proposed sublease for District's
review and approval; and (d) such reasonable financial information
for District's review and approval as District may request
concerning the proposed sub-lessee or assignee. In determining the
approval of an assignee or sub-lessee, the compatibility and
suitability of the proposed assignee or sub-lessee with the
District's government operations, statutory purposes and open space
mission shall be of prime importance.
15.3 No Release of Lessee. No consent by District to any assignment of
subletting by Lessee shall relieve Lessee of any obligation to be
performed by Lessee under this Lease, whether occurring before or
after such consent, assignment or subletting. The consent by
District to any assignment of subletting shall not relieve Lessee
from the obligation to obtain District's express prior written
consent to any other assignment or subletting. The acceptance of
rent by District from any other person shall not be deemed to be a
waiver by District of any provision of this Lease or to be a consent
to any assignment, subletting or other transfer. Consent to one
assignment, subletting or other transfer shall not be deemed to
constitute consent to any subsequent assignment, subletting or other
transfer.
16. ENTRY BY DISTRICT. District reserves and shall at any and all times
have the right to enter the Premises to inspect the same, to supply
janitor service and any other service to be provided by District to
Lessee hereunder, to submit said Premises to prospective purchasers
or Lessees, to post notices of nonresponsibility and "for lease"
signs, and to alter, improve or repair the Premises and any portion
of the Building without abatement of rent, and may for that purpose
erect scaffolding and other necessary structures where reasonably
required by the character of the work to be performed, always
providing the entrance to the Premises shall not be blocked thereby,
and further providing that the
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business of Lessee shall not be interfered with unreasonably. Lessee
hereby waives any claim for damages for any injury or inconvenience
to or interference with Lessee's business, any loss of occupancy and
any other loss occasioned thereby. For each of the aforesaid
purposes, District shall at all times have and retain a key with
which to unlock all of the doors in, upon and about the Premises,
excluding Lessee's vaults and safes, and District shall have the
right to use any and all means which District may deem proper to
open said doors in an emergency, in order to obtain entry to the
Premises, and any entry to the Premises obtained by District 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 Lessee from the Premises
or any portion thereof.
17. HOLDING OVER. This lease shall terminate and become null and void
without further notice upon the expiration of the term herein
specified and any holding over by Lessee after such expiration shall
not constitute a renewal hereof or give Lessee any rights under this
Lease, except as otherwise herein provided, it being understood and
agreed that this Lease cannot be renewed, extended or in any manner
modified except in writing signed by both parties hereto. If Lessee
shall hold over for any period after the expiration of said term,
District may, at its option, exercised by written notice to Lessee,
treat Lessee as a Lessee from month-to-month commencing on the first
day following the expiration of this Lease and subject to the terms
and conditions herein contained, at a rental in the amount of one
hundred twenty-five percent (125%) of the last monthly rental, plus
all other charges payable hereunder. If Lessee fails to surrender
the Premises upon the expiration of this Lease despite demand to do
so by District, Lessee shall indemnify and hold District harmless
form all loss or liability, including without limitation, any claim
made by an succeeding Lessee founded on or resulting from such
failure to surrender.
18. DAMAGE OR DESTRUCT10N.
18.1 Partial Damage - Insured. In the event the Premises or the Building
are damaged by any casualty which is covered under fire and extended
coverage insurance carried by District, then District shall restore
such damage provided insurance proceeds are available to pay ninety
percent (90%) or more of the cost of restoration and provided such
restoration can be completed within sixty (60) days after the
Commencement of the work in the opinion of a registered architect or
engineer appointed by District. In such event this Lease shall
continue in full force and effect, except that Lessee shall be
entitled to proportionate reduction of rent as determined by
District while such restoration takes place, such proportionate
reduction to be based upon the extent to which the restoration
efforts interfere with Lessee's business in the Premises. Lessee
shall not be entitled to any compensation or damages for loss of the
use of the whole or any part of the Premises and/or any
inconvenience or annoyance occasioned by any such damage, repair,
reconstruction or restoration.
18.2 Partial Damage - Uninsured. In the event the Premises or the
Building are damaged by a risk not covered by District's insurance
or the proceeds of available insurance are less than ninety percent
(90%) of the cost of restoration, or if the restoration cannot be
completed within sixty (60) days after the Commencement of work in
the opinion of the
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registered architect or engineer appointed by District, then District
shall have the option either to (a) repair or restore such damage,
this Lease continuing full force and effect, but the rent to be
proportionately abated as hereinabove provided, or (b) give notice
to Lessee (at any time within thirty (30) days after such damage)
terminating this Lease as of a date to be specified in such notice,
which date shall not be less than thirty (30) nor more than sixty
(60) days after giving such notice. In the event of the giving of
such notice, this Lease shall expire and all interest of Lessee in
the Premises shall terminate on such date so specified in such
notice and the rent, reduced by any proportionate reduction based
upon the extent, if any, to which said damage interfered with the
use and occupancy of Lessee as determined hereinabove shall be paid
to the date of such termination. District agrees to refund to the
Lessee any rent therefore paid in advance for any period of time
subsequent to such date of termination as provided herein.
18.3 Total Destruction. In the event the Premises are total destroyed or
the Premises cannot be restored as required herein under applicable
laws and regulations, notwithstanding the availability of insurance
proceeds, this Lease shall be terminated effective as of the date of
the damage.
18.4 Damage Near End of the Term. Notwithstanding anything to the
contrary contained in this Section 18, District shall not have any
obligation whatsoever to repair, reconstruct or restore the Premises
when the damage resulting from any casualty covered under this
Section 18 occurs during the last twelve (12) months of the term of
this Lease or any extension thereof.
18.5 District's Obligations. The District shall not be required to repair
any injury or damage by fire or other cause, or to make any
restoration or replacement of any panelings, decorations,
partitions, railings, floor covering, office fixtures or any other
improvements or property installed in the Premises by Lessee or at
the direct or indirect expense of Lessee. Lessee shall be required
to restore or replace same in the event of damage. Except for
abatement of rent, if any, Lessee shall have no claim against
District for any damages suffered by reason of any such damage,
destruction repair or restoration, nor shall Lessee have the right
to terminate this Lease as the result of any statutory provision now
or hereafter in effect pertaining the damage and destruction of the
Premises or the Building, except as expressly provided herein.
18.6 Lessee's Right to Terminate. If at anytime a portion of the Premise
is damaged or destroyed by any cause thereby rendering the Premises
unusable, even if such damage is required to be insured against
pursuant to Article 10, District shall notify Lessee in writing as
to the estimated time for repairing the damage within ten (10) days
of the date on which District learns of the damage. If District
reasonably estimates that the time required for repair exceeds three
(3) months, from the date of damage, or the damage occurs within the
last twelve months of the Lease term, then Lessee, at Lessee's sole
election; may terminate this Lease by delivering written notice of
termination to District within ten (10) days after receipt of the
estimation. Regardless of the total repair time, if this Lease is
not terminated, rent will abate during the period until the Premises
are repaired and ready for Lessee's full use and occupancy.
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19. DEFAULT; REMEDIES.
19.1 Default. The occurrence of any of the following shall constitute a
material default and breach of this Lease by Lessee:
19.1.1 Any failure by Lessee to pay the rent or any other monetary
sums required to be paid hereunder (where such failure
continues for three (3) business days after written notice
by District to Lessee; or
19.1.2 The abandonment of the Premises by Lessee; or
19.1.3 A failure by Lessee to observe and perform any other
provision of this Lease to be observed or performed by
Lessee, where such failure continues for thirty (30) days
after written notice thereof by District to Lessee:
provided, however, that if the nature of the default is
such that the same cannot reasonably be cured within said
thirty (30) day period, Lessee shall not be deemed to be in
default if Lessee shall within such period commence such
cure and thereafter diligently prosecute the same to
completion; or
19.1.4 The making by Lessee of any general assignment or general
arrangement for the benefit of creditors; the filing by or
against Lessee of a petition to have Lessee adjudged a
bankrupt or of a petition for reorganization or arrangement
under any law relating to bankruptcy [unless, in the case of
a petition filed against Lessee, same is dismissed within
sixty (60) days]; the appointment of trustee or receiver to
take possession of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this
Lease, where possession is not restored to Lessee within
thirty (30) days, or the attachment, execution or other
judicial seizure of substantially all of Lessee's assets
located at the Premises or of Lessee's interest in this
Lease, where such seizure is not discharged within thirty
(30) days. Lessee agrees that in the event of the above,
then this Lease or any interest in or to the Premises shall
not become an asset in any of such proceedings.
19.2 Remedies. In the event of any such material default or breach by
Lessee, District may, at any time thereafter, without limiting
District in the exercise of any right or remedy at law or in equity
which District may have by reason of such default or breach:
19.2.1 Maintain this Lease in full force and effect and recover
the rent and other monetary charges as they become due,
without terminating Lessee's right to possession
irrespective of whether Lessee shall have abandoned the
Premises. In the event District elects not to terminate the
Lease, District shall have the right to attempt to re-let
the Premises at such rent and upon such conditions and for
such a term, and to do all acts necessary to maintain or
preserve the Premises as District deems reasonable and
necessary without being deemed to have elected to terminate
the Lease, including removal of all persons and property
from the Premises. Such property may be removed and stored
in a public warehouse or elsewhere at the cost of and for
the account of Lessee. In the event any such reletting
occurs, this Lease shall terminate automatically upon the
new Lessee
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taking possession of the Premises, notwithstanding failure by
District to elect to terminate the Lease initially.
District at any time during the term of this Lease may
elect to terminate this Lease by virtue of such previous
default of Lessee.
19.2.2 Terminate Lessee's right to possession by any lawful means,
in which case this Lease shall terminate and Lessee shall
immediately surrender possession of the Premises to
District. In such event District shall be entitled to
recover from Lessee all damages incurred by District by
reason of Lessee's default, including without limitation
thereto, the following: (a) the worth at the time of award
of any unpaid rent which has been earned at the time of
such termination; plus (b) the worth at the time of award
of the amount by which the unpaid rent which would have
been earned after termination until the time of award
exceeds the amount of such rental loss that is proved could
have been reasonably avoided; plus (c) any other amount
necessary to compensate District for all the detriment
proximately caused by Lessee's failure to perform any
obligations under this Lease or which in the ordinary
course of events would be likely to result therefrom; plus
(d) at District's election, such other amounts in addition
to or in lieu of the foregoing as may be permitted from
time to time by applicable State law. Upon any such
re-entry District shall have the right to make any
reasonable repairs, alterations or modifications to the
Premises, which District in its sole discretion deems
reasonable and necessary. As used in (a) above, the "worth
at the time of award" is computed by allowing interest at
the rate of ten percent (10%) per annum from the date of
default. As used in (b), the "worth at the time of award"
is computed by discounting such amount at the discount rate
of the U.S. Federal Reserve Bank at the time of award plus
one percent (1%). The term "rent," as used in this Section
18, shall be deemed to be and to mean the rent to be paid
pursuant to Section 5 and all other monetary sums required
to be paid by Lessee pursuant to the terms of this Lease.
All rights, options and remedies of District contained in
this Lease shall be construed and held to be cumulative,
and no one of them shall be exclusive of the other, and
District shall have the right to pursue any one or all of
such remedies or any other remedy or relief which may be
provided by law, whether or not stated in this Lease. No
waiver of any default of Lessee hereunder shall be implied
from any acceptance by District or any rent or other
payments due hereunder or any omission by District to take
any action on account of such default if such default
persists or is repeated, and no express waiver shall affect
defaults other than as specified in said waiver. The
consent or approval of District to or of any act by Lessee
requiring District's consent or approval shall not be
deemed to waive or render unnecessary District's consent or
approval to or of any subsequent similar acts by Lessee.
20. CONDEMNATION. If all or any part of the Premises shall be taken or
appropriated for public or quasi-public use by right of eminent
domain with or without litigation or transferred by agreement in
connection with such public or quasi-public use, either party hereto
shall have the right at its option exercisable within thirty (30)
days of receipt of notice of such taking to terminate this Lease as
of the date possession is taken by the
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condemning authority; provided, however, that before Lessee may
terminate this Lease by reason of taking or appropriation as
provided hereinabove, such taking or appropriation shall be of such
an extent and nature as to substantially handicap, impede or impair
Lessee's use of the Premises. If any part of the Building other than
the Premises shall be so taken or appropriated, District shall have
the right at its option to terminate this Lease. No award for any
partial or entire taking shall be apportioned, and Lessee hereby
assigns to District any award which may be made in such taking or
condemnation, together with any and all rights of Lessee now or
hereafter arising in or to the same or any part thereof, provided,
however, that nothing contained herein shall be deemed to give
District any interest in or to require Lessee to assign to District
any award made to Lessee for the taking of personal property and
fixtures belonging to Lessee and/or the interruption of or damage to
Lessee's business and/or for Lessee's unamortized cost of leasehold
improvements and/or for Lessee's loss of goodwill and/or moving
expenses. In the event of a partial taking which does not result in
a termination of this Lease, rent shall be abated in the proportion
which the part of the Premises so made unusable bears to the rented
area of the Premises immediately prior to the taking District, at
District's sole cost, will make Premises suitable for Lessee's use.
No temporary taking of the Premises and/or of Lessee's rights herein
or under this Lease shall terminate this Lease or give Lessee any
right to any abatement of rent thereunder, and any award made to
Lessee by reason of any such temporary taking shall belong entirely
to Lessee and District shall not be entitled to share therein.
21. LATE CHARGES.
21.1 Lessee hereby acknowledges that late payment by Lessee to District
of rent and other sums due hereunder not paid within five (5)
calendar days of the due date of such payment will cause District to
incur costs not contemplated by this Lease, the exact amount of
which will be extremely difficult to ascertain. Such costs include
but are not limited to, processing and accounting charges, and late
charges which may be imposed on District by the terms of any
mortgage or trust deed covering the Premises. Accordingly, in the
event that Lessee shall fail to pay to District within five (5) days
of the date when due any payment owing to District pursuant to the
terms of this Lease, said late payment shall bear interest at the
rate of ten percent (10%) per annum from the date due and payable
until the same shall have been fully paid and, in addition:
21.1.1 Service Charge. For each such payment to District not paid
within five (5) days following the date of said payment
Lessee shall pay to District a service change in the amount
of Five Hundred Dollars ($500.00); and
21.1.2 District's Option. Following each second consecutive late
payment of rent, District shall have the option (a) to
require that beginning with the first payment of rent due
following the date such late payment was due, rent shall no
longer be paid in monthly installments but shall be payable
three (3) months in advance until twelve (12) months have
elapsed with no late payment, at which time the rent will
revert to payment in monthly amounts.
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22. DISTRICT'S PERFORMANCE OF LESSEE'S OBLIGATIONS. Should Lessee fail
to pay and discharge, when due and payable, any tax or assessment,
or any premium or other charge in connection with any insurance
policy or policies which Lessee is obligated to pay, or any lien or
claim for labor or material employed or used in, or any claim for
damages arising out of the repair, alternation, maintenance and use
of the Premises, as provided in this Lease, after ten (10) days
written notice from District, then District may, at its option, and
without waiving or releasing Lessee from any of Lessee's obligations
hereunder, pay any such tax, assessment, lien, claim, insurance
premium or charge, or settle or discharge any action therefore or
satisfy any judgment thereon. All costs, expenses and other sums,
incurred or paid by District in connection therewith, together with
interest at the rate of ten percent (10%) per annum on such costs,
expenses and sums from the date incurred or paid by District, shall
be deemed to be an additional charge hereunder and shall be paid by
Lessee with and at the same time as the next installment of rent
hereunder, and any default therein shall constitute a breach of the
covenants and conditions of this Lease.
23. COST OF SUIT. In the event that any action shall be instituted by
either of the parties hereto for the endorsement of any of its
rights or remedies in and under this Lease, or any facts based upon
or involving same, the prevailing party, whether in court or by way
of out-of-court settlement, shall be entitled to recover from the
nonprevailing party or parties such prevailing party's attorney
fees, court costs, expert witness fees and/or other expenses
relating to such controversy, including attorney's fees, court costs
and/or expenses on appeal, if any.
24. ESTOPPEL STATEMENT. Lessee shall at any time and from time to time
upon not less than ten (10) days prior written notice from District
execute, acknowledge and deliver to District a statement in writing,
(a) 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 date to which the rental and other charges are paid
in advance, if any, and (b) acknowledging that there are not, to
Lessee's knowledge, any uncured defaults on the part of the District
hereunder, or specifying such defaults if any are claimed. Any such
statement may be relied upon by any prospective purchaser or
encumbrancer of all or any portion of the real property of which the
Premises are a part.
25. PARKING. Lessee shall have the right to use, in common with District
and other Lessees or occupants of the Building, their pro-rata
portion of the parking facilities of the Building, at no additional
cost, which is hereby agreed to be nine (9) unassigned parking
spaces and includes use of spaces designated for handicapped parking
as necessary. Such parking spaces shall be subject to the rules and
regulations of District, which may be established or altered by
District at any time or from time to time during the term hereof and
shall be effective upon written notice to Lessee.
26. AUTHORITY OF PARTIES.
26.1 Lessee represents that it is a corporation duly authorized to
conduct business in California. Each individual executing this Lease
on behalf of said corporation represents
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and warrants that such individual is duly authorized to execute and
deliver this Lease on behalf of said corporation, in accordance with
a duly adopted resolution of the Board of Directors of said
corporation or in accordance with the bylaws of said corporation,
and that this Lease is binding upon said corporation in accordance
with its terms.
26.2 District represents that it is a special district formed pursuant to
Article 3 of Chapter 3 of Division 5 of the California Public
Resources Code and is authorized by Section 5540 therein to, INTER
ALIA., lease real property in furtherance of District purposes. The
individual executing this Lease on behalf of District is duly
authorized to execute and deliver this Lease and to do such other
acts as are necessary or convenient to accomplish such matter.
27. NOTICES. All notices and demands which may or are to be required or
permitted to be given by either party to the other hereunder shall
be in writing. All notices and demands by the District to the Lessee
shall be sent by United States Mail, postage prepaid, addressed to
the Lessee at the Premises, or to such other place as Lessee may
from time to time designate in a notice to the District. All notices
and demands by the Lessee to the District shall be sent by United
States Mail, postage prepaid, addressed to the District at the
Building, or to such other person or place as the District may from
time to time designate by notice to Lessee.
28. SUBORDINATION. Lessee covenants and agrees that it will execute,
without further consideration, any and all instruments desired by
District or District's mortgagee, creditor, or Lessor, subordinating
this Lease in the manner requested by District to all ground or
underlying leases and the lien of any mortgage and/or any deed of
trust or other encumbrance which may hereafter affect the Premises
together with all renewals, modifications, consolidations,
replacements or extensions thereof, provided that any lien or
encumbrancer relying on such subordination or such additional
agreements will covenant with Lessee that this Lease shall remain in
full force and effect and Lessee shall not be disturbed in the event
of sale or foreclosure so long as Lessee is not in default
hereunder. Lessee agrees to attorn to the successor in interest of
District following any transfer of such interest either voluntarily
or by operation of Law and to recognize such successor as the
District under this Lease. However, if District or any such ground
District or mortgagee so elects, this Lease shall be deemed prior in
lien to any ground lease, mortgage, deed of trust or other
encumbrance upon or including the Premises regardless of date of
recording and Lessee will execute a statement in writing to such
effect at District's request. District is hereby irrevocably
appointed and authorized as agent and attorney-in-fact of Lessee to
execute all subordination instruments in the event Lessee fails to
execute said instruments within ten (10) days after notice from
District demanding the execution thereof.
29. TRANSFER BY DISTRICT. The term "District" as used in this Lease, so
far as covenants or obligations on the part of District are
concerned, shall mean and include only the owner or owners at the
time in question of the Premises, and in the event of any transfer
or transfers of the title to the Premises, District herein named
(and in case of any subsequent transfers or conveyances, the then
grantor), except as hereinafter provided, shall be automatically
freed and relieved from and after the date of such transfer or
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conveyance, of all personal liability as respects the performance of
any covenants or obligations on the part of District contained in
the Lease thereafter to be performed; provided that any funds in
which Lessee has an interest which are in the hands of such District
or the then grantor at the time of such transfer shall be turned
over to the grantee, and any amount then due and payable to Lessee
by District or the then grantor under any provisions of this Lease
shall be paid to Lessee. It is intended hereby that the covenants
and obligations contained in this Lease on the part of District
shall, subject to the foregoing, be binding on District, its
successors and assigns, only during and in respect of their
respective successive periods of ownership.
30. INABILITY TO PERFORM. This Lease and the obligation of Lessee to pay
rent hereunder and to keep, observe and perform all of the other
terms, covenants, conditions, provisions and agreement of this Lease
on the part of Lessee to be kept, observed or performed shall in
nowise be affected, impaired or excused because District is unable
to fulfill any of its obligations under this Lease or to supply or
is delayed in supplying any service expressly or impliedly to be
supplied or is unable to supply or is delayed in supplying any
equipment or fixtures, if District is prevented or delayed from
doing so by reason of strike or labor troubles, unavailability of
materials, riots, rebellion, insurrection, invasion, war, action or
interference of governmental authorities, acts of God or any other
cause whether similar or dissimilar of the foregoing which is beyond
the control of District.
31. SURRENDER OF PREMISES. The voluntary or other surrender of this
Lease by Lessee, or a mutual cancellation thereof shall not work a
merger, and shall, at the option of the District, terminate all or
any existing subleases, or subtenancies, or may, at the option of
District, operate as an assignment to it of any or all such
subleases or subtenancies.
32. RULES AND REGULATIONS. Lessee and Lessee's agents, servants,
employees, visitors and licensees shall observe and comply fully and
faithfully with all reasonable and nondiscriminatory rules and
regulations adopted by District for the care, protection,
cleanliness and operation of the Building and its Lessees, including
those rules and regulations attached to this Lease as Exhibit "B"
and incorporated herein by this reference, and any modification or
addition thereto adopted by District, provided District shall give
written notice thereof to Lessee. District shall not be responsible
to Lessee for the nonperformance by any other Lessee or occupant of
the Building of any of said rules and regulations.
33. SCOPE AND AMENDMENTS. This Lease is and shall be considered to be
the only agreement between the parties hereto. All negotiations and
oral agreements acceptable to both parties are included herein. No
amendment or other modification of this Lease shall be effective
unless in a writing signed by District and by Lessee.
34. GENERAL PROVISIONS.
34.1 Waiver. No waiver of any default or breach of any covenant by either
party hereunder shall be implied from any omission by either party
to take action on account of such
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default if such default persists or is repeated, and no express waiver
shall affect any default other than the default specified in the
waiver, and then said waiver shall be operative only for the time and
to the extent therein stated. Waivers of any covenant, term or
condition contained herein by either party shall not be construed as a
waiver of any subsequent breach of the same covenant, term or
condition. The consent or approval by either party to or of any act by
either party requiring further consent or approval shall not be deemed
to waiver or render unnecessary their consent or approval to or of any
subsequent similar acts.
34.2 Accord and Satisfaction. No payment by Lessee or receipt by District
of a lesser amount than the rent payment herein stipulated shall be
deemed to be other than on account of the rent, nor shall any
endorsement or statement on any check or any letter accompanying any
check or payment as rent be deemed an accord and satisfaction, and
District may accept such check or payment without prejudice to
District's right to recover the balance of such rent or pursue any
other remedy provided in this Lease.
34.3 Individual Liability. The obligations of District under this Lease
do not constitute personal obligations of the employees, officers or
directors of the District, and Lessee shall look solely to the real
estate that is the subject of this Lease and to no other assets of
District for satisfaction of any liability in respect of this Lease
and will not seek recourse against the employees, officers or
directors of the District or any of their personal assets for such
satisfaction.
34.4 Time. Time is of the essence hereof.
34.5 Captions; Attachments; Defined Terms.
34.5.1 The captions of the Sections of this Lease are for
convenience only and shall not be deemed to be relevant in
resolving any question of interpretation or construction of
any Section of this Lease.
34.5.2 Exhibits attached hereto, and addendum and schedules
initialed by the parties, are deemed by attachment to
constitute part of this Lease and are incorporated herein.
34.5.3 The words "District" and "Lessee", as used herein shall
include the plural as well as the singular. Words used in
neuter gender include the masculine and feminine and words
in the masculine or feminine gender include the neuter. If
there be more than one District or Lessee, the obligations
hereunder upon District or Lessee shall be joint and
several; as to a Lessee which consists of husband and wife,
the obligations shall extend individually to their sole and
separate property as well as community property. The term
"District" shall mean only the owner or owners at the time
in question of the fee title or a Lessee's interest in a
ground lease of the land underlying the Building. The
obligations contained in this Lease to be performed by the
District shall be binding on District successors and
assigns only during their respective period of ownership.
34.6 Severability. If any term, covenant, condition or provision of this
Lease, or the application thereof to any person or circumstance, shall
to any extent be held by a court
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of competent jurisdiction to be invalid, void, or unenforceable, the
remainder of the terms, covenants, conditions, or provisions of this
Lease, or the application thereof to any person or circumstance,
shall remain in full force and effect and shall in no way be
affected, impaired or invalidated thereby.
34.7 Applicable Law. This Lease, and the rights and obligations of the
parties hereto, shall be construed and enforced in accordance with the
laws of the State in which the Premises are located.
34.8 Examination of Lease. Submission of this instrument for examination or
signature by Lessee does not constitute a reservation of or option to
lease, and it is not effective as a lease or otherwise until execution
and delivery by both District and Lessee.
34.9 Quiet Possession. Provided Lessee has performed all of the terms,
covenants, agreements and conditions of this Lease, including the
payment of rental and all other sums due hereunder, Lessee shall
peaceably and quietly hold and enjoy the Premises against District and
all persons claiming by, through or under District, for the term herein
described subject to the provisions and conditions of this Lease.
Lessee's right to use the Premises as herein provided shall be subject
to restrictions or other limitations or prohibitions resulting from any
laws, statutes, ordinances, and governmental rules, regulations or
requirements now in force or which may hereafter be in force, and no
such event shall in any way affect this Lease, abate rent, relieve
Lessee of any liabilities or obligations under this Lease or give rise
to any claim whatsoever against District.
34.10 Light and Air Easement. Any diminution or shutting off of light or air
by any structure which may be erected on lands adjacent to the Building
shall in no way affect this Lease, abate rent or otherwise impose any
liability on District.
35. BROKERS.
35.1 Brokers. Lessee warrants that it has had no dealing with any real
estate broker or agents in connection with the negotiation of this
Lease excepting only the Staubach Company and BT Commercial and it
knows of no other real estate broker or agent who is entitled to a
commission in connection with this Lease.
35.2 Commission. District shall be responsible for any real estate
commission or other related costs or fees in this transaction due to BT
Commercial. Lessee agrees to and does hereby indemnify and hold
District harmless from and against any and all other costs,
liabilities, losses, damages, claims, causes of action or proceedings
which may result from any broker, agent or finder, licensed or
otherwise, claiming through, under or by reason of the conduct of
Lessee in connection with this transaction.
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The parties hereto have executed this Lease on the dated specified immediately
adjacent to their respective signatures.
"Lessee" DrugAbuse Science, Inc.
330 Distel Circle, Suite 150
Los Altos, California 94022
Telephone: (650) 462-1000
Facsimile: (650) 462-1003
By: /s/ Philippe Pouletty Dated:
------------------------------- --------------------
Title: CEO
"District": Midpeninsula Regional Open Space District
330 Distel Circle
Los Altos, California 94022
Telephone: (650) 691-1200
Facsimile: (650) 691-0485
By: /s/ L. Craig Britton Dated: 2/24/00
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L. Craig Britton
General Manager
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EXHIBIT A
DIAGRAM OF LEASE PREMISES
of
330 Distel Circle, Suite 150
Los Altos, California 94022
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EXHIBIT B
RULES AND REGULATIONS
1. No new or additional sign, placard, picture, advertisement, name or
notice shall be inscribed, displayed or printed or affixed on or to any
part of the outside or inside of the Building without written consent
of District first had and obtained and Lessee shall be provided space
for signage on the road side monument and front entrance subject to
District's approval and consistent with building standards (note wood
design). All costs of signage shall be the responsibility of Lessee.
All approved signs or letter on doors shall be printed, painted,
affixed or inscribed at the expense of the Lessee unless otherwise
agreed.
Lessee shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly
from outside the Premises, provided, however, that District may furnish
and install a Building standard window covering at all exterior
windows. Lessee shall not without prior written consent of District
cause or otherwise sunscreen any window.
2. The sidewalks, halls, passages, exits, entrances, elevators and
stairways shall not be obstructed by any of the Lessees or used by them
for any purpose other than for ingress and egress from their respective
Premises.
3. Lessee shall not alter any exterior lock or install any new or
additional exterior locks or any bolts on any doors or windows of the
Premises. Lessee shall have the right to install a security system for
its computer facilities and nothing herein contained shall abrogate or
modify the right to do so.
4. The toilet rooms, urinals, wash bowls and other apparatus shall not be
used for any purpose other than for which they were constructed and no
foreign substance of any kind whatsoever shall be thrown therein and
the expense of any breakage, stoppage or damage resulting from the
violation of the rule shall be borne by the Lessee who, or whose
employees or invitees shall have caused it.
5. Lessee shall not overload the floor of the Premises or in any way
deface the Premises or any part thereof.
6. No furniture, freight or equipment of any kind shall be brought into
the common areas of the Building without prior notice to District and
all moving of the same shall be done at such time and in such manner as
District shall designate. District shall have the right to prescribe
the weight, size, and position of all safes and other heavy equipment
brought into the Building and also the times and manner of moving the
same in and out of the Building: Safes or other heavy objects shall, if
considered necessary by District, stand on supports of such thickness
as is necessary to properly distribute the weight. District will not be
responsible for loss or damage to any such safe or property from any
cause and all
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damage done to the Building by moving or maintaining any such safe
or other property shall be repaired at the expense of the Lessee.
7. Lessee shall not use, keep or permit to be used or kept any foul or
noxious gas or substance in the Premises, or permit or suffer the
Premises to be occupied or used in a manner offensive or objectionable
to the District or other occupants of the Building by reason of noise,
odors and/or vibrations, or interface in any way with other Lessees or
those having business therein, nor shall any animals or birds be
brought in or kept in or about the Premises or the Building.
8. No cooking shall be done or permitted by any Lessee on the Premises,
nor shall the Premises be used for the storage of merchandise, for
washing clothes, for lodging, or for any improper, objectionable or
immoral purposes. The brewing of coffee or tea or the use of a
microwave oven shall not be considered "cooking".
9. Lessee shall not use or keep in the Premises or the Building any
kerosene, gasoline or inflammable or combustible fluid or material, or
use any method of heating or air conditioning other than that supplied
by District.
10. District will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for wires
will be allowed without the consent of the District. The location of
telephones, call boxes and other office equipment affixed to the
Premises shall be subject to the approval of District, but consent is
hereby given to install facilities reasonably necessary to the
installation of the telephone and computer system within the Premises.
11. On Saturdays, Sundays and legal holidays, and everyday between the
hours of 6:00 p.m. and 8:00 a.m. the following day, access to the
Building or to the halls, corridors, elevators or stairways in the
Building, or to the Premises may be refused unless the person seeking
access is known to the person or employee of the Building in charge and
has a pass or is properly identified. The District shall in no case be
liable for damages for any error with regard to the admission to or
exclusion from the Building of any person.
In case of invasion, mob, riot, public excitement, or other commotion,
the District reserves the right to prevent access to the Building
during the continuance of the same by closing of the doors or
otherwise, for the safety of the Lessees and protection of property in
the Building and the Building.
12. District reserves the right to exclude or expel from the Building any
person who, in the judgment of District, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner to any act in
violation of any of the rules and regulations of the Building. Lessee,
Lessee's invitees, customers, agents, employees, or guests shall not
disrupt or annoy or cause a disturbance to the operations of the
District.
13. No vending machine or machines of any description shall be installed,
maintained or operated upon the Premises without the written consent of
the District.
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14. District shall have the right, exercisable without notices and without
liability to Lessee, to change the name and street address of the
Building of which the Premises are a part.
15. Lessee shall not disturb, solicit, or canvass any occupancy of the
Building and shall cooperate to prevent same.
16. Without the written consent of District, Lessee shall not use the name
of the Building in connection with or in promoting or advertising the
business of Lessee except as Lessee's address.
17. District shall have the right to control and operate the public
portions of the Building; and the public facilities, and heating and
air conditioning as well as facilities furnished for the common use of
the Lessees, in such manner as it deems best for the benefit of the
Lessees generally.
18. All entrance doors in the Premises shall be left locked when the
Premises is not in use, and all doors opening to public corridors shall
be kept closed except for normal ingress and egress from the Premises.
19. Lessee shall not bring any animal or pet into the building or anywhere
on the property
20. Lessee shall comply with applicable municipal ordinances regulating
smoking in places of employment. Smoking within the Premises and common
areas is prohibited.
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DRUGABUSE SCIENCES, INC.
CERTIFICATE OF SECRETARY
The undersigned, Jeffrey P. Higgins, hereby certifies as
follows:
1. He is the duly elected, qualified and acting Secretary
of DrugAbuse Sciences, Inc., a California corporation (the "Company."
2. Philippe Pouletty, M.D. is the Chairman and Chief
Executive Officer of the Company and is authorized to sign leases or similar
documents on behalf of the Company:
3. The signature below is the true signature of the
Philippe Pouletty, M.D.
NAME TITLE SIGNATURE
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Philippe Pouletty, M.D. Chairman and Chief Executive Officer /s/ Philippe Pouletty
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IN WITNESS WHEREOF, the undersigned has executed this
Certificate this 18 day of February, 2000.
/s/ Jeff Higgins
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Jeffrey P. Higgins, Secretary