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Resolution No. 79481 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 " 23 24 25 26 27 28 RESOLUTION NO. 7948 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF VERNON GRANTING A VARIANCE TO UNITED ALLOYS, INC. FROM SECTION 26.4.2-8(b) OF THE COMPREHENSIVE ZONING ORDINANCE, FOR THE PROPERTY LOCATED AT 3398 LEONIS BOULEVARD IN THE CITY OF VERNON WHEREAS, United Alloys, Inc., (hereinafter referred to as "United Alloys") is a manufacturing and distributing company of alloys and stainless steel located at 3398 Leonis Boulevard in the City of JVernon; and WHEREAS, United Alloys is requesting a variance from Section 26.4.2-8(b) of the Comprehensive Zoning Ordinance; and WHEREAS, 3398 Leonis Boulevard is located in the M-Zone, General Industrial and the operation is consistent with the objectives of the General Plan and Comprehensive Zoning Ordinance; and WHEREAS, United Alloys proposes to install temporary freestanding shelving units which will cause the elimination of several required automobile parking spaces; and WHEREAS, Section 26.4.2-8(b) allows the parking facilities to be on the same lot as the occupant or on a separate lot or parcel located within one thousand (1,000) feet from the main building; and WHEREAS, when parking is in a separate lot, a covenant is to be recorded restricting the use of the property to parking for the benefit of the use requiring the parking; and WHEREAS, United Alloys has leased a portion of the adjacent property from Packaging Advantage Corporation, for the required automobile parking spaces; and 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, Packaging Advantage Corporation does not desire to execute a covenant restricting the use of its property; and WHEREAS, given the physical conditions of the property, strict compliance with Section 26.4.2-8(b) would force United Alloys to remodel portions of its existing facility in order to provide additional required automobile parking thus creating an unreasonable (hardship; and WHEREAS, Section 26.5.1-6 permits the City Council to grant ,variances from the Comprehensive Zoning Ordinance; and WHEREAS, a variance relieving United Alloys from the covenant recordation requirement will not adversely affect the interest of the public or the interest of other residents and property owners within the vicinity of the premises because this requirement is a mechanism of ensuring the parking restrictions and does not affect the actual parking requirements; and WHEREAS, United Alloys proposes installing shelving units that would eliminate ten (10) required automobile spaces from 3398 Leonis Boulevard site, which will be replaced on the leased lot; and WHEREAS, United Alloys proposes to pave and stripe the leased lot and provide ten (10) automobile parking spaces; and WHEREAS, United Alloys has agreed to demolish the shelving units and restore the required automobile parking spaces if its lease with Packaging Advantage Corporation should expire or terminate for any reason; and WHEREAS, a variance from this section is required before United Alloys can install freestanding shelving units in any portion of their current parking lot; and - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WHEREAS, with the approval of this variance, United Alloys will bring its nonconforming automobile parking spaces into compliance and its facility will then meet the number of automobile parking spaces required by Section 26.4.2-6 of the Comprehensive Zoning Ordinance and is consistent with the objectives of the General Plan and the Zoning Ordinance; and WHEREAS, the granting of a variance will not constitute a granting of a special privilege inconsistent with the limitations on other nearby properties but will allow United Alloys to use the parking option in Section 26.4.2-8(b) as other property owners would be able to do; and WHEREAS, the existing use does not and will not adversely affect the surrounding area because the site has historically been used for manufacturing; and WHEREAS, the project is categorically exempt from the California Environmental Quality Act pursuant to Section 15301; and WHEREAS, the City Council has received a Staff Report dated April 10, 2002, upon which it has relied in making the foregoing recitals; and WHEREAS, the City Council of the City of Vernon held a hearing on said application for a variance on April 17, 2002; and NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. - 3 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 2: Section 26.4.2-8(b) of the Comprehensive Zoning Ordinance, requiring covenant recordation and full compliance with the lComprehensive Zoning Ordinance at the time of any expansion of use. SECTION 3: The variance from the requirement of Section 26.4.2-8(b) is granted subject to the following conditions: a) The facility shall be operated in accordance with all current codes, rules, and regulations and subject to permit fees as adopted by the City of Vernon. b) The facility shall be operated in a manner that will prevent unsanitary conditions, odors or other nuisances. c) United Alloys shall repair any broken, cracked or displaced sidewalk, curbs or gutters adjoining the site. d) Upon any expansion or structural alteration of the building, or prior to August 19, 2009, the entire site shall be made to conform to all truck and automobile parking requirements and all truck loading requirements, pursuant to section 26.4.6-4 (b) of the Comprehensive Zoning Ordinance, unless a variance is granted by the Vernon City Council. e) This variance shall automatically expire at the time of any expansion or structural alteration of the building, or on August 19, 2009, whichever occurs first, at which time the use of the parking, access or loading area(s) allowed by this variance shall be discontinued unless brought into compliance with all applicable standards for parking, access and loading areas set forth in the Comprehensive Zoning Ordinance. It is the intent of the City Council that said parking, access or loading area(s) be treated in the same manner as a legal nonconforming use subject to Section 26.4.E-4(b). - 4 - x 1 f) Upon any change in use or occupancy of all or a portion of the 2 site, the entire site shall be made to conform to all truck 3 and automobile parking requirements and all truck loading 4 requirements. 5 g) All parking and loading areas necessary for United Alloys 6 Operations shall be paved with a hard durable surface material 7 and shall be adequately drained, and kept free of dust, mud, 8 trash and weeds. Where parking or maneuvering areas adjoin 9 the public street, a barrier wall or landscaping shall be 10 maintained to meet City standards. Adequate on -site parking 11 shall be maintained so that off-street parking will not occur. 12 h) The project shall be maintained substantially in compliance 13 with the site plan submitted, as part of this variance 14 application. 15 i) If United Alloys' lease with Package Advantage Corporation for 16 the subject parking lot should expire or terminate for any 17 reason then the subject shelving units shall be demolished and 18 required automobile parking restored at 3398 Leonis Boulevard. 19 j') The Package Advantage Corporation parcel of land being leased 20 to United Alloys shall be paved and striped in an acceptable 21 manner to the Director of Community Services & Water and shall 22 provide an adequate number of parking stalls so that the 23 building at 3398 Leonis Boulevard is in full conformance with 24 City of Vernon's automobile parking standards. 25 k) Noncompliance with the conditions shall constitute sufficient 26 grounds for the City Council of the City of Vernon to void 27 this variance and require United Alloys to comply with the 28 automobile parking requirements of the Comprehensive Zoning 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Ordinance. SECTION 4: Noncompliance with these conditions shall constitute sufficient grounds for the City Council of the City of Vernon to void this variance and require the strict application of Section 26.4.2-8(b) of the Comprehensive Zoning Ordinance. SECTION 5: The City Clerk of the City of Vernon shall certify to the passage of this resolution, and thereupon and thereafter the same shall be in full force and effect. APPROVED AND ADOPTED this 17th day of April, 2002. ATTEST: BRUCE V. MALKENHORST, City Clerk EONIS C. MA4BURG, M16Lyor - 6 - 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STATE OF CALIFORNIA ) ) ss COUNTY OF LOS ANGELES ) I, BRUCE V. MALKENHORST, City Clerk of the City of Vernon, do hereby certify that the foregoing Resolution, being Resolution No. 7948, was duly adopted by the City Council of the City of Vernon at a regular meeting of the City Council duly held on Wednesday, April 17, 2002, and thereafter was duly signed by the Mayor of the City of Vernon. (SEAL) BRUCE V. MALKENHORST, City Clerk - 7 - m SUPPORTING DOCUMENTS OFFICE OF THE CITY ADMINISTRATOR/CITY CLERK INTER -OFFICE MEMORANDUM DATE: April 18, 2002 TO: ' Kevin Wilson, Director of Community Services & Water 04 FROM: Nelly Giron, Assistant Chief Deputy City Clerk RE: Resolution No. 7948 Granting a Variance to United Alloys, Inc. Transmitted herewith is a copy of the above referenced approved by the City Council on April 17, 2002. GJO:mt "t" CITY COUNCIL LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro-Tem WM. 'BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL MCCORMICK Councilman BRUCE V. MALKENHORST City Administrator/City C`� FAX (323) 826-1� r CITY HALL r D 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 C� TELEPHONE (323) 583-8811 April 11, 2002 Honorable City Council City of Vernon 4305 Santa Fe Avenue Vernon, CA 90058 Gentlemen: / s (/DUARDO OLIVO City Attorney FAX: (562) 869-1883 KEVIN WILSON Director of Community Services & Water FAX: (323) 826-1435 KENNETH J. DeDARIO Director of Municipal Utilities FAX: (323) 8z6-1425 STEVEN E. PARKER Fire Chief FAX: (323) 826-1407 BRUCE W. OLSON Police Chief FAX: (323) 826-1481 United Alloys, Inc. located at 3398 -Leonis Boulevard in the City of Vernon has requested a variance from Section 26.4.2-8(b) of the Comprehensive Zoning Ordinance, Development Standards location.. United Alloys, Inc. seeks a temporary reduction in the number of required automobile parking spaces on its property in order to accommodate the installation of storage racks. United Alloys, however, has obtained a lease for the requisite number of parking spaces from an adjacent property owner. The variance is to allow the applicant to provide required automobile parking spaces in a leased portion of Packaging Advantage Corporation (PAC) in compliance with Section 26.4.2-8(b) of the Comprehensive Zoning Ordinance without tying the properties with a covenant as required by Section 26.4.2-8(b) of said ordinance. The property site for which a variance is sought is located at 3398 Leonis Boulevard in the City of Vernon. After review of the application by the Community Services Department, it is recommended that the variance application permit be granted. Herewith for your consideration are the following supporting documents: 1. Staff Report. 2. Request for variance application permit and information supporting the application. Honorable City Council -2- April 11, 2001 3. Notice of Public Hearing, copies of notification letters to owners and tenants in the area and affidavits of posting and mailing. The project is categorically exempt from CEQA because it is an existing facility as described in Section 15301. Therefore, it is recommended that the City Council determine: 1. That the project is consistent with the General Plan as adopted by the City of Vernon. 2. That the project will not have a significant effect on the environment. 3. That the project will not individually or cumulatively have an adverse effect on wildlife resources. Further, it is recommended that the variance application permit be granted subject to the following conditions: a) The facility shall be operated in accordance with all current codes, rules, and regulations and subject to permit fees as adopted by the City of Vernon. b) The facility shall be operated in a manner that will prevent unsanitary conditions, odors or other nuisances. c) United Alloys shall repair any broken, cracked or displaced sidewalk, curbs or gutters adjoining the site. d) Upon any expansion or structural alteration of the building, or prior to August 19, 2009, the entire site shall be made to conform to all truck and automobile parking requirements and all truck loading requirements, pursuant to section 26.4.6-4 (b) of the Comprehensive Zoning Ordinance, unless a variance is granted by the Vernon City Council. e) This variance shall automatically expire at the time of any expansion or structural alteration of the building, or on August 19, 2009, whichever occurs first, at which time the use of the parking, access or loading area(s) allowed by this variance shall be discontinued unless brought into compliance with all applicable standards for parking, access and loading areas set forth in the Comprehensive Zoning Ordinance. It is the intent of the City Council that said parking, access or loading area(s) be treated in the same manner as a legal nonconforming use subject to Section 26.4. 6-4 (b) . f) Upon any change in use or occupancy of all or a portion of the site, the entire site shall be made to conform to all truck and automobile parking requirements and all truck loading requirements. Honorable City Council -3- April 11, 2001 g) All parking and loading areas necessary for united Alloys operations shall be striped in an acceptable manner to the Director of Community Services & Water and shall be paved with a hard durable surface material and shall be adequately drained, and kept free of dust, mud, trash and weeds. Where parking or maneuvering areas adjoin the public street, a barrier wall or landscaping shall be maintained to meet City standards. Adequate on -site parking shall be maintained so that off-street parking will not occur. h) The project site shall be maintained substantially in compliance with the site plan submitted, as part of this variance application. i) If United Alloys' lease with Packaging Advantage Corporation for the subject parking lot should expire or terminate for any reason, then the temporary storage shelving units at 3398 Leonis Boulevard shall be demolished and required automobile parking restored. j) The Packaging Advantage Corporation parcel of land being leased to United Alloys shall be paved and striped in an acceptable manner to the Director of Community Services & Water and shall provide an adequate number of parking stalls so that the building at 3398 Leonis Boulevard is in full conformance with City of Vernon's automobile parking standards. k) Noncompliance with the conditions shall constitute sufficient grounds for the City Council of the City of Vernon to void this variance and require United Alloys to comply with the automobile parking requirements of the Comprehensive Zoning Ordinance. Reiel fully bmitted, Kevin Wilson, P.E. Director of Community Services & Water SKW:sc Attachments C: City Attorney IF STANDARD INDUSTRIAL/COMMERCIAL MULTI -TENANT LEASE -GROSS AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION 1. Basic Provisions ("Basic Provisions"). 1A Parties: This Lease ("Lease"), dated for reference purposes only December 11, 2000 and between . Packaging Advantage Corp ("PAC") and. United Alloys Aircrdit Metals. Inc. Is made by ("Lessor") ("Lessee"), (collectively the "Parties", or individually a "Party"). 1.2(a) Premises: That certain portion of the Project (as defined below), including all improvements therein or to be provided by Lessor under he terms of this Lease, commonly known by the street address of . 4633 Downey Road located in the ;tty of Vernon County of Los Angeles Mate of California with zip code 90058 , as outlined on Exhibit A attached hereto ("Premises") ind generally described as (describe briefly the nature of the Premises): ten (10) parking spaces n addition to Lessee's rights to use and occupy the Premises as hereinafter specified, Lessee shall have non-exclusive rights to the Common Areas (as lefined in Paragraph 2.7 below) as hereinafter specified, but shall not have any rights to the roof, exterior walls or.utility raceways of the building containing he Premises ("Building") or to any other buildings in the Project. The Premises, the Building, the Common Areas, the land upon which they are located, along with all other buildings and improvements thereon, are herein collectively referred to as the "Project." (See also Paragraph 2.) 1.2(b) Parking: unreserved vehicle parking spaces ("Unreserved Parking Spaces"); and eserved vehicle parking spaces ("Reserved Parking Spaces"). (See also Paragraph 2.6.) 1.3 Term: 0 years and 1 months ("Original Term") commencing December 15, 2000 'Commencement Date") and ending . January 15, 2001 ("Expiration Date"). (See also Paragraph 3.11 A1S0 ;She • Adde . 1.5 Base Rent: $ 2150. &D per month ("Base Rent"), payable on the 15th , day of each month ommencing December 15, 2000 (See also Paragraph 4.) 1 If this box is checked, there are provisions in this Lease for the Base Rent to be adjusted. 1.6 Lessee's Share of Common Area Operating Expenses: 1.7 Base Rent and Other Monies Paid Upon Execution: percent ( %) ("Lessee's Share"). (a) Base Rent: $ for the period (b) Common Area Operating Expenses: $ for the period (c) Security Deposit: $ ("Security Deposit"). (See also Paragraph 5.) (d) Other: $ for (e) Total Due Upon Execution of this Lease: $ 1.8 Agreed Use: Parking of standard size passenger vehicles from the hours. of 7:00 A.M. to 4:30 P.M. on normal working days, Monday through Friday. 1.9 insuring Party. Lessor is the "Insuring Party". (See also Paragraph 8.) (See also Paragraph 6.) (a) Representation: The following real estate brokers (the "Brokers") and brokerage relationships exist in this n (chew )plicable boxes): l represents Lessor exclu ' essor's Broker"); i represe a exclusively ("Lessee's Broker"); or _ represents both Lessor and Lessee ("Dual Agency"). (b) Payment to Brokers: Upon execution ry of this Lease by both Parties, Lessor shall pay to the Brokers e brokerage fee agreed to in a separate writte ent (or if there is no such agreement, the sum of tal Base Rent for the brokerage endered by the Brokers). or % of the 1.11 rantor. The obligations of the Lessee under this Lease are to be guaranteed by 1.12 Addenda and Exhibits. Attached hereto is an Addendum or Addenda consisting of Paragraphs 50 through 51 and chibit/ A —+ _ all of which constitute a part of this Lease. Premises. 2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Premises, for the term, at the rental, and upon all the terms, covenants and conditions set forth in this Lease. Unless otherwise provided herein, any statement of size set forth in this Lease, or that may ive been used in calculating Rent, is an approximation which the Parties agree is reasonable and any payments based thereon are not subject to revision iether or not the actual size is more or less. 2.2 Condition. AS S Where 1 bras on the Commencement Date or the Early Possession Date, whichever first occurs ("Start Date"), and, so long as the re contracts scribed in Paragraph 7.1(b) below are obtained by Lessee and in effect within thirty days following the Start D at the existing electrical, tmbing, fire sprinkler, lighting, heating, ventilating and air conditioning systems ("HVAC"), loadi I ny, and all other such elements in the Unit, ier than those constructed by Lessee, shall be in good operating condition o n that the structural elements of the roof, bearing waits and mdation of the Unit shall be free of material defects. if a n - with such warranty exists as of the Start Date, or if one of such systems or -ments should malfunction or fail within the arranty period, Lessor shall, as Lessor's sole obligation with respect to such matter, except as ierwise provided in this y after receipt of written notice from Lessee setting forth with specificity the nature and extent of such n-complia ion or failure, rectify same at Lessor's expense. The warranty periods shall be as follows: (1) 6 months as to the HVAC systems, 1998 - American Industrial Real Estate Association Page 1 of 12 Qt s REVISED FORM MTG-2-11198E warranty period, correction of any such non-compliance, malfunction or failure shall be the obligation of Lessee at Lessee's sole cost and expense (except for the repairs to the fire sprinkler systems, roof, foundations, and/or bearing walls - see Paragraph 7). 2.3 Compliance. Lessor warrants that the improvements on the Premises and the Common Areas comply with the building codes that were ln.effecj at the tirpe that each such improvement, or portion thereof, was constructed, and also with all applicable laws, covenants or restrictions of record, regulations, and ordinances in effect on the Start Date ("Applicable Requirements"). Said warranty does not apply to the use to which Lessee will put the Premises or to any Alterations or Utility Installations (as defined in Paragraph 7.3(a).) made or to be made by Lessee. NOTE: Lessee is responsible for determining whether or not the zoriing Is appropriate for Lessee's intended use, and acknowledges that past uses of the Prefises may no longer be allowed. If the Premises do not comply with said warranty, Lessor shall, except as otherwise provided, promptly after receipt of written notice from Lessee setting forth with specificity the nature and extent of such non-compliance, rectify the same at Lessor's expense. If Lessee does not give Lessor written notice of a non-compliance with this warranty within 6 months following the Start Date, correction of that non-compliance shall be the obligation of Lessee at Lessee's sole cost and expense. If the Applicable Requirements are hereafter changed so as to require during the term of this Lease the construction of an addition to or an alteration of the Unit, Premises and/or Building, the remedtation of any Hazardous Substance, or the reinforcement or other physical modification of the Unit, Premises and/or Building ("Capital Expenditure"), Lessor and Lessee shall allocate the cost of such work as follows: (a) Subject to Paragraph 2.3(c) below, if such Capital Expenditures are required as a result of the specific and unique use of the Premises by Lessee as compared with uses by tenants in general, Lessee shall be fully responsible for the cost thereof, provided, however, that if such Capital Expenditure is required during the last 2 years of this Lease and the cost thereof exceeds 6 months' Base Rent, Lessee may Instead terminate this Lease unless Lessor notifies Lessee, in writing, within 10 days after receipt of Lessee's termination notice that Lessor has elected to pay the difference between the actual cost thereof and the amount equal to 6 months' Base Rent. if Lessee elects termination, Lessee shall immediately cease the use of the Premises which requires such Capital Expenditure and deliver to Lessor written notice specifying a termination date at least 90 days thereafter. Such termination date shall, however, in no event be earlier than the last day that Lessee could legally utilize the Premises without commencing such Capital Expenditure. (b) If such Capital Expenditure is not the result of the specific and unique use of the Premises by Lessee (such as, governmentally mandated seismic modifications), then Lessor and Lessee shall allocate the obligation to pay for the portion of such costs reasonably attributable to the Premises pursuant to the formula set out In Paragraph 7.1(d); provided, however, that if such Capital Expenditure is required during the last 2 years of this Lease or if Lessor reasonably determines that it is not economically feasible to pay its share thereof, Lessor shall have the option to terminate this Lease upon 90 days prior written notice to Lessee unless Lessee notifies Lessor, in writing, within 10 days after receipt of Lessor's termination notice that Lessee will pay for such Capital Expenditure. If Lessor does not elect to terminate, and fails to tender its share of any such Capital Expenditure, Lessee may advance such funds and deduct same, with Interest, from Rent until Lessor's share of such costs have been fully paid. If Lessee is unable to finance Lessor's share, or if the balance of the Rent due and payable for the remainder of this Lease is not sufficient to fully reimburse Lessee on an offset basis, Lessee shall have the right to terminate this Lease upon 30 days written notice to Lessor. (c) Notwithstanding the above, the provisions concerning Capital Expenditures are intended to apply only to non -voluntary, unexpected, and new Applicable Requirements. If the Capital Expenditures are instead triggered by Lessee as a result of an actual or proposed change in use, change in intensity of use, or modification to the Premises then, and in that event, Lessee shall be fully responsible for the cost thereof, and Lessee shall not have any right to terminate this Lease. 2.4 Acknowledgements. Lessee acknowledges that: (a) it has been advised by Lessor and/or Brokers to satisfy Itself with respect to the condition of the Premises (' and their suitability for Lessee's intended use, (b) Lessee has made such investigation as it deems necessary with reference to such matters and assumes all responsibility therefor as the same relate to its occupancy of the Premises, and (c) neither Lessor, Lessor's agents, nor Brokers have made any oral or written representations or warranties with respect to said matters other than as set forth in this Lease. Wiv is tw1M t 2.6 Vehicle Parking. Lessee shall be entitled to use the number of Unreserved Parking Spaces and Reserved Parking Spaces specified in Paragraph 1.2(b) on those portions of the Common Areas designated from time to time by Lessor for parking. Lessee shall not use more parking spaces than said number. Said parking spaces shall be used for parking by vehicles no larger than full-size passenger automobiles or pick-up trucks, herein called "Permitted Size Vehicles." Lessor may regulate the loading and unloading of vehicles by adopting Rules and Regulations as provided in Par No vehicles other than Permitted Size Vehicles may be parked • a (a) Lessee shall not permit or allow any vehicles that belong to or are controlled by Lessee or Lessee's employees, asn customers, contractors or invitees to be loaded, unloaded, or parked in areas other than those designated by Lessor for such activities. suppliers, shipper (b) Lessee shall not service or store any vehicles in the Common Areas. (c) If Lessee permits or allows any of the prohibited activities described in this Paragraph 2.6, then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor. 2.7 Common Areas - Definition. The term "Common Areas" Is defined as all areas and facilities outside the Premises and within the =xterior boundary line of the Project and interior utility raceways,and Installations within the Unit that are provided and designated by the Lessor from time to Jme for the general non-exclusive use of Lessor, Lessee and other tenants of the Project and their respective employees, suppliers, shippers, customers, :ontractors and invitees, including parking areas, loading and unloading areas, trash areas, roadways, walkways, driveways and landscaped areas. :ontractors, customers and Invitees, during the term of this Lease, the non-exclusive right to use, in common with others 4reas as they exist from time to time, subject to any rights, powers, and privileges reserved b Less o a Common and regulations or restrictions governing the use of the Project. Under no cir y ereof or under the terms of any rules o include the right to store an p y p e right herein granted to use the Common Areas be deemed y property, ,Lem oraril n e Common Areas. Any such storage shall be permitted only by the prior written :onsent of Lessor or Lessor's d w ich consent may be revoked at any time. in the event that any unauthorized storage shall occur, then .essor s without notice, In addition to such other rights and remedies that it may have, to remove the property and charge the cost to 2.9 Common Areas - Rules and Regulations. Lessor or such other person(s) as. Lessor may appoint shall have the exclusive control and nanagement of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable rules and regulations "Rules and Regulations") for the management, safety, care, and cleanliness of the grounds, the parking and unloading of vehicles and the preservation of food order, as well as for the convenience of other occupants or tenants of the Building and the Project and their invitees. Lessee agrees to abide by and :onform to all such Rules and Regulations, and to cause its employees, suppliers, shippers, customers, contractors and invitees to so abide and confor .essor shall not be responsible to Lessee for the non-compliance with said Rules and Regulations by other tenants of the Project. See Addendum #50 2.10 Common Areas - Changes. Lessor shall have the right, in Lessor's sole discretion, from time to time: (a) To make changes to the Common Areas, Including, without limitation, changes In the location, size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas, walkways and utility raceways; available; (b) To close temporarily any of the Common Areas for maintenance purposes so long as reasonable access to the Premises remains (c) To designate other land outside the boundaries of the Project to be a part of the Common Areas; (d) To add additional buildings and improvements to the Common Areas; and (e) To use the Common Areas while engaged in making additional improvements, repairs or alterations to the Project, or any portion thereof; (I) To do and perform such other acts and make such other changes in, to or with respect to the Common Areas and Project as Lessor may, i the exercise of sound business judgment, deem to be appropriate. Term. Also see 3.1 Term. The Commencement Date, Expiration Date and Original Term of this Lease are as specified in Paragraph 1.3. Addendum„ #51 ;ent shall be abated for the period of such early possession. All other terms of this Lease (including but not limited to t f Common Area Operating Expenses, Real Property Taxes and insurance premiums and to essee's Share eriod. Any such early possession shall not affect the Expiration D s s all, however, be in effect during such ee Com3.3 Delay in Possess o use its best commercially reasonable efforts to deliver possession of the Premises to Lessee by m . , espi a said efforts, Lessor is unable to deliver possession as agreed, Lessor shall not be subject to any liability therefor, nor Initials 11998 -American Industrial Real Estate Association Page 2 REVISED MAN FORM MTG-2-11/98E within 10 days after the end of such 60 day period, cancel this Lease, in which event the Parties shall be discharged fr eunder. If such written notice is not received by Lessor within said 10 day period, Lessee's right to cancel shall s o herwise provided, if possession is not tendered to Lessee by the Start Date and Lessee does not termina esard, any period of rent abatement that Lessee would otherwise have enjoyed shad) run from the date of deliv continue for a period equal to what Lessee would otherwise have enjoyed under the terms hereof, but minus used by the acts or omissions of Lessee. If possession of the Premises is not delivered within 4 months after the 3.4 Lessee Compliance. Lessor shall not be required to tender possession of the Premises to Lessee until Lessee complies with its obligation to provide evidence of insurance (Paragraph 8.5). Pending delivery of such evidence, Lessee shall be required to perform all of its obligations under this Lease from and after the Start Date, including the payment of Rent, notwithstanding Lessor's election to withhold possession pending receipt of such evidence of Insurance. Further, if Lessee is required to perform any other conditions prior to or concurrent with the Start Date, the Start Date shall occur but Lessor may elect to withhold possession until such conditions are satisfied. 4. Rent. 4.1. Rent Defined. All monetary obligations of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be rent ("Rent"), (as specified in Paragraph 1.6.) of all Common Area Operating Expenses, as hereinafter defined, during each calendar year of the term of this Lea , in accordance with the following provisions: (a) "Common Area Operating Expenses" are defined, for purposes of this Lease, as all costs incurred by Lessor relating to t wnership and operation of the Project, including, but hot limited to, the following: (e)), of the following: (I) The operation, repair and maintenance, in neat, clean, good order and condition, but not the replacemen ee subparagraph (aa) The Common Areas and Common Area improvements, including parking areas, loadin unloading areas, trash areas, roadways, parkways, walkways, driveways, landscaped areas, bumpers, irrigation systems, Common Area lights acilittes, fences and gates, elevators, roofs, and roof drainage systems, (bb) Exterior signs and any tenant directories. (cc) Any fire sprinkler systems. metered. (ii) The cost of water, gas, electricity and telephone to service the Cc on Areas and any utilities not separately (iii) Trash disposal, pest control services, property management, security se ' s, and the costs of any environmental inspections. (iv) Reserves set aside for maintenance and repair of Commo as, (v) Any increase above the Base Real Property Taxes (as ned in Paragraph 10). (VI) Any "Insurance Cost Increase" (as defined in Para (vit) Any deductible portion of an insured loss conce g the Building or the Common Areas. (vili) The cost of any Capital Expenditure to the ding or the Project not covered under the provisions of Paragraph 2.3 provided; however, that Lessor shall allocate the cost of any such Capital Exp iture over a 12 year period and Lessee shall not be required to pay more -than Lessee's Share of 1/144th of the cost of such Capital Expenditure in an ven month. Expense. (Ix) Any other services to be provid y Lessor that are stated elsewhere in this Lease to be a Common Area Operating (b) Any Common Area Operating Expenses and .I Property Taxes that are specifically attributable to the Unit, the Building or to any other building in the Project or to the operation, repair and mainte ce thereof, shall be allocated entirely to such Unit, Building, or other building. However, any Common Area Operating Expenses and Real Property T s that are not specifically attributable to the Building or to any other building or to the operation, repair and maintenance thereof, shall be equitably all ed by Lessor to all buildings in the Project. (c) The inclusion of the improve s, facilities and services set forth in Subparagraph 4.2(a) shall not be deemed to impose an obligation upon Lessor to either have said Improvement facilities or to provide those services unless the Project already has the same, Lessor already provides the services, or Lessor has agreed elsewhere ' is Lease to provide the same or some of them. (d) Lessee's Share of mon Area Operating Expenses shall be payable by Lessee within 10 days after a reasonably detailed statement of actual expenses Is presented to Le e. At Lessor's option, however, an amount may be estimated by Lessor from time to time of Lessee's Share of annual Common Area Operating Expe and the same shall be payable monthly or quarterly, as Lessor shall designate, during each 12 month period of the Lease term, on the same day as Base Rent is due hereunder. Lessor shall deliver to Lessee within 60 days after the expiration of each calendar year a reasonably detailed sta ent showing Lessee's Share of the actual Common Area Operating Expenses incurred during the preceding year. If Lessee's payments under this ragraph 4.2(d) during the preceding year exceed Lessee's Share as indicated on such statement, Lessor shall credit the amount of such over-paym against Lessee's Share of Common Area Operating Expenses next becoming due. If Lessee's payments under this Paragraph 4.2(d) during the pr ding year were less than Lessee's Share as indicated on such statement, Lessee shall pay to Lessor the amount of the deficiency within 10 days afte Nery by Lessor to Lessee of the statemt ' (e) elevators, en . When a capital component such as the roof, foundations, exterior walls or a Common Area capital improvement, such as the parking lot fences, I etc. requires replacement, rather than repair or maintenance, Lessor shall, at Lessor's expense, be responsible for such 4.3 Payment. Lessee shall cause payment of Rent to be received by Lessor in lawful money of the United States, without offset or deduction (except as specifically permitted In this Lease), on or before the day on which it is due. Rent eof which is for less than one for any period during the term her full calendar month shall be prorated based upon the actual number of days of said month. Payment of Rent shall be made Lessor at Its address stated herein or to such other persons or place as Lessor may from time to time designate in writing. Acceptance of a payment which is less t due shall not be a waiver of Lessor's rights to the balance of such Rent, regardless of Lean the amount then ssor's endorsement of any check so stating. hthe event that any check, draft, or other instrument of payment given by Lessee to Lessor is dishonored for any reason, Lessee agrees to pay to Lessor the sum of $25. 5. Security Deposit. alve obligations under this Lease. If Lessee fails to pay Rent, or otherwise Defaults under this Lease,•Lessor may use, apply or retain all or an said Security Deposit for the payment of any amount due Lessor or to reimburse or compensate Lessor for any liability, expense, loss ge which Lessor ,nay suffer or incur by reason thereof. If Lessor uses or applies all or any portion of the Security Deposit, Lessee shall days after written request therefor deposit monies with Lessor sufficient to restore said Security Deposit to the full amount required by thi f the Base Rent Increases during the term of this Lease, Lessee shall, upon written request from Lessor, deposit additional monies wit so that the total amount of the Security Deposit shall at all times bear the same proportion to the increased Base Rent as the initial Secu ' sit bore to the initial,Base Rent. Should the Agreed Use be amended to accommodate a material change the business of Lessee or to n ate a sublessee or assignee, Lessor shall have the right to increase :he Security Deposit to the extent necessary, in Lessor's reasonable , to account for any increased wear and tear that the Premises may suffer as a •esult thereof. If a change in control of Lessee occur is Lease and following such change the financial condition of Lessee is, in Lessor's easonable judgment, significantly reduced, Le deposit such additional monies with Lessor as shall be sufficient to cause the Security Deposit to be at a commercially reasonable level b such change in financial condition. Lessor shall not be required to keep the Security Deposit separate from its 3eneral accounts. Within after the expiration or termination of this Lease, if Lessor elects to apply the Security Deposit only to unpaid Rent, and rthenvise withi after the Premises have been vacated pursuant to Paragraph 7.4(c) below, Lessor shall return that portion of the Security Deposit riot u plied by Lessor. No part of the Security Deposit shall be considered to be held in trust, to bear interest or to be prepayment for any monies to �. Use. 6.1 Use. Lessee shall use and occupy the Premises only for the Agreed Use, rnd for no other purpose. Lessee shall not use or permit the use of the Premises In a manner that is unlawful, create iisturbs occupants of or causes damage to neighboring premises or ro erties. Lessor nuisance, or that equest for a modification of the Agreed Use, so long as the p P wi hold or delay its consent to any written nechanicai or electrical systems ther ' e structural integrity of the improvements on the Premises or the ni icantly more burdensome to the Premises. If Lessor elects to withhold consent, Lessor shall vithtn 7 da give written notification of same, which notice shall include an explanation of Lessor's objections to the change in the Agreed 6.2 Hazardous.Substances. le Uses Require Consent. The term " Substance" as used in this zardous ;ubstance, or waste( (whose pres nce,ause, manufacture, disposal, transportation, orarelease, either by itself or in combinationLease with othearlmate ipals ex ected'mean anycto Initials 1998 - American Industrial Real Estate Association Page 3 of 12 REVI1SED FORM MTG-2-11f98E 7.2 Lessor's Obligations. Subject to the provisions of Paragraphs 2.2 (Condition), 2.3 (Compliance), 4.2' (Common Area Operating Expenses), 6 (Use), 7.1 (Lessee's Obligations), 9 (Damage or Destruction) and 14 (Condemnation), Lessor, subject to reimbursement pursuant to Paragraph 4.2, shall keep i,n good order, condition and repair the foundations, exterior walls, structural condition of interior bearing walls, exterior roof, fire sprinkler system, Common Area fire alarm and/or smoke detection systems, fire hydrants, parking lots, walkways, parkways, driveways, landscaping, fences, signs and utility systems serving the Common Areas and all parts thereof, as well as providing the services for which there is a Common Area Operating Expense pursuant to Paragraph 4.2. Lessor shall not be obligated to paint the exterior or interior surfaces of exterior walls nor shall Lessor be obligated to maintain, repair or replace windows, doors or plate glass of the Premises. Lessee expressly waives the benefit of any statute now or hereafter In effect to the extent it Is inconsistent with the terms of this Lease, security and fire protection systems, communication systems, lighting fixtures, HVAC equipment, pluWHO mbing, and fencing In or on the Premises. �The rm"Trade Fixtures" shall mean Lessee's machinery and equipment that can be removed without doing material damage to ,the Premises. term"Alterations" shall mean any modification of the improvements, other than Utility Installations or Trade Fixtures, whether by addition or deletio Lessee Owned Alterations and/or Utility installations" are defined as Alterations and/or Utility Installations made by Lessee that are not yet o d by Lessor pursuant to Paragraph 7.4(a). (b) Consent. Lessee shall not make any Alterations or Utility Installations to the Premises without Lessor's prior wr' n consent. Lessee may, however, make non-structural Utility Installations to the interior of the Premises (excluding the roof) without such consent but n notice to Lessor, as long as they are not visible from the outside, do not involve puncturing, relocating or removing the roof or any existing walls, an a cumulative cost thereof during this Lease as extended does not exceed a sum equal to 3 month's Base Rent in the aggregate or a sum equal to one nth's Base Rent in any one year. Notwithstanding the foregoing, Lessee shall not make or, permit any roof penetration1004 /or Install anything o e roof without the prior written approval of Lessor. Lessor may, as a precondition to granting such approval, require Lesseeze a contractor ch n and/or approved by Lessor. Any Alterations or Utility Installations that Lessee shall desire to make and which require the conthe Lessor sh a presented to Lessor In written form with detailed plans. Consent shall be deemed conditioned upon Lessee's: (1) acquiring all apgovernme permits, (it) furnishing Lessor with copies of both the permits and the plans and specifications prior to commencement of the work, ancompiia with all conditions of said permits and other Applicable Requirements in a prompt and expeditious manner. Any Alterations or Utility Instasha a performed in a workmanlike manner with good and sufficient materials. Lessee shall promptly upon completion furnish Lessor with as-builtspecifications. For work which costs an amount in excess of one month's Base Rent, Lessor may condition its consent upon Lessee providing ad completion bond in an amount equal to 150% of the estimated cost of such Alteration or Utility Installation and/or upon Lessee's posting an additionurity Deposit with Lessor. (c) indemnification. Lessee shall pay, when due, all claims for labor als furnished or alleged to have been furnished to or for Lessee at or for use on the Premises, which claims are or may be secured by any in anic's or materialmen's lien against the Premises or any Interest therein. Lessee shall give Lessor not less than 10 days notice prior to the commen ent of any work in, on or about the Premises, and Lessor shall have the right to post notices of non -responsibility. if Lessee shall contest the validit any such lien, claim or demand, then Lessee shall, at its sole expense defend and protect itself, Lessor and the Premises against the same and sh pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof. If Lessor shall require, Lessee shall furnis surety bond in an amount equal to 150% of the amount of such contested lien, claim or demand, indemnifying Lessor against liability for the same. If ssor elects to participate in any such action, Lessee shall pay Lessor's attorneys' fees and costs. 7.4 Ownership; Removal; Surrender; and Res ation. (a) Ownership. Subject to Lessor's ri to require removal or elect ownership as hereinafter provided, all Alterations and Utility Installations made by Lessee shall be the property of Less , but considered a part of the Premises. Lessor may, at any time, elect in writing to be the owner of all or any specified part of the Lessee Owned Alte ons and Utility Installations. Unless otherwise instructed per paragraph 7.4(b) hereof, all Lessee Owned Alterations and Utility Installations shall, at expiration or termination of this Lease, become the property of Lessor and be surrendered by Lessee with the Premises. (b) Removal. By delive o Lessee of written notice from Lessor not earlier than 90 and not later than 30 days prior to the end of the term of this Lease, Lessor may require t any or all Lessee Owned Alterations or Utility Installations be removed by the expiration or termination of this Lease. Lessor may require the remo at any time of all or any part of any Lessee Owned Alterations or Utility installations made without the required consent. (c) Surren , Restoration. Lessee shall surrender the Premises by the Expiration Date or any earlier termination date, with all of the improvements, parts and su es thereof broom clean and free of debris, and in good operating order, condition and state of repair, ordinary wear and tear excepted. "Ordinary w and tear" shall not include any damage or deterioration that would have been prevented by good maintenance practice. Notwithstanding the f oIng, if this Lease is for 12 months or less, then Lessee shall surrender the Premises in the same condition as delivered to Lessee on the Start Date ' NO allowance for ordinary wear and tear. Lessee shall repair any damage occasioned by the installation, maintenance or removal of Trade Fixtures ssee owned Alterations and/or Utility Installations, furnishings, and equipment as well as the removal of any storage tank installed by or for Lessee. Le a shall also completely remove from the Premises any and all Hazardous Substances brought onto the Premises by or for Lessee, or any third party (e pt Hazardous Substances which were deposited via underground migration from areas outside of the Project) even if such removal would require Less o perform or pay for work that exceeds statutory requirements. Trade Fixtures shall remain the property of Lessee and shall be removed by Lessee. T allure by Lessee to timely vacate the Premises pursuant to this Paragraph 7.4(c) without the express written consent of Lessor shall constitute a Insurance; Indemnity. to the Building and/or the Project and required to be carried by Lessor, pursuant to Paragraphs 8.2(b), 8.3(a) and 8.3(b), ("Required I over and above the Base Premium, as hereinafter defined, calculated on an annual basis. Insurance Cost Increase shall include, bu i ed to, requirements of the holder of a mortgage or deed of trust covering the Premises, Building and/or Project, increased valuation ises, Building and/or Project, and/or a general premium rate increase. The term Insurance Cost Increase shall not, however, inc remium increases resulting from the nature of the occupancy of any other tenant of the Building, If the parties Insert a dollar amou ap 1.9, such amount shall be considered the "Base Premium." The Base Premium shall be the annual premium applicable to the period immediately preceding the Start Date. If, however, the Project was not Insured for the entirety of such 12 month period ase Premium shall be the lowest annual premium reasonably obtainable for the Required Insurance as of the Start Date, assu ' s nominal use possible of the Building. in no event, however, shall Lessee be responsible for any portion of the premium cost attrib I ity insurance coverage in excess of $2,000,000 procured under Paragraph 8.2(b). Lessee shall pay any Insurance Cost Increase to Lessor pursuant to Paragraph 4.2. Premiums for policy periods commencing 8.2 Liability Insurance. (a) Carried by Lessee. Lessee shall obtain and keep in force a Commercial General Liability policy of insurance protecting Lessee and Lessor as an additional insured against claims for bodily injury, personal injury and property damage based upon or arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $1,000,000 per occurrence with an annual aggregate of not less than $2,000,000, an "Additional Insured -Managers or Lessors of Premises Endorsement" and contain the "Amendment of the Pollution Exclusion Endorsement" for damage caused by heat, smoke or fumes from a hostile fire. The policy shall not contain any intra-insured exclusions as between insured persons or organizations, but shall include coverage for liability assumed under this Lease as an "Insured contract" for the performance of Lessee's indemnity obligations under this Lease. The limits of said insurance shall not, however, limit the liability of Lessee nor relieve Lessee of any obligation hereunder. All insurance carried by Lessee shall be primary to and not contributory with any similar insurance carried by Lessor, whose insurance shall be considered excess insurance only. 8.3 Property Insurance - Building, Improvements and Rental Value. (a) Building and Improvements. Lessor shall obtain and keep in force a policy or policies of Insurance in the name of Lessor, with loss payable to Lessor, any ground -lessor, and to any Lender Insuring loss or damage to the Premises. The amount of such insurance shall be equal to the full replacement cost of the Premises, as the same shall exist from time to time, or the amount required by any Lender, but in no event more than the commercially reasonable and available insurable value thereof. Lessee Owned Alterations and Utility installation's, Trade Fixtures, and Lessee's personal property shall be insured by Lessee under Paragraph 8.4. If the coverage is available and commercially appropriate, such policy or policies shall insure against all risks of direct physical loss or damage (except the perils of flood and/or earthquake unless required by a Lender), including coverage for debris removal and the enforcement of any Applicable Requirements requiring the upgrading, demolition, reconstruction or replacement of any portion of the Initials ©1998 - American Industrial Real Estate Association Page 5 of 17_ REVISED -2 FORM MTG-2-11/98E Premises'as the result of a covered loss. Said policy or policies shall also contain an agreed valuation provision in lieu of any coinsurance clause, waiver of subrogation, and inflation guard protection causing an increase in the annual property insurance coverage amount by a factor of not less than the adjusted U.S. Department of Labor Consumer Price Index for All Urban Consumers for the city nearest to where the Premises are located. If such insurance coverage has a deductible clause, the deductible amount shall not exceed $1,000 per occurrence. (b) Rental Value. Lessor shall also obtain and keep In force a policy or policies in the name of Lessor with loss payable to Lessor and any Lender, insuring the loss of the full Rent for one year with an extended period of Indemnity for an additional 180 days ("Rental Value insurance"). Said Insurance shall contain an agreed valuation provision in lieu of any coinsurance clause, and the amount of coverage shall be adjusted annually to reflect the projected Rent otherwise payable by Lessee, for the next 12 month period. (c) Adjacent Premises. Lessee shall pay for any increase in the premiums for the property insurance of the Building and for the Common Areas or other buildings in the Project if said increase is caused by Lessee's acts, omissions, use or occupancy of the Premises. (d) Lessee's Improvements. Since Lessor Is the Insuring Party, Lessor shall not be required to insure Lessee Owned Alterations and Utility Installations unless the item in question has become the property of Lessor under the terms of this Lease. 8.4 Lessee's Property; Business Interruption Insurance. (a) Property Damage. Lessee shall obtain and maintain insurance coverage on all of Lessee's personal property, Trade Fixtures, and Lessee Owned Alterations and Utility Installations. Such insurance shall be full replacement cost coverage with a deductible of not to exceed $1,000 per occurrence. The proceeds from any such insurance shall be used by Lessee for the replacement of personal property, Trade Fixtures and Lessee Owned Alterations and Utility Installations. Lessee shall provide Lessor with written evidence that such insurance is in force. (b) Business interruption. Lessee shall obtain and maintain loss of income and extra expense insurance in amounts as will reimburse Lessee for direct or indirect loss of earnings attributable to all perils commonly insured against by prudent lessees in the business of Lessee or attributable to prevention of access to the Premises as a result of such perils. (c) No Representation of Adequate Coverage. Lessor makes no representation that the limits or forms of coverage of insurance specified herein are adequate to cover Lessee's property, business operations or obligations under this Lease. 8.5 Insurance Policies. Insurance required herein shall be by companies duly licensed or admitted to transact business In the state where the Premises are located, and maintaining during the policy term a "General Policyholders Rating" of at least B+, V, as set forth in the most current issue of "Best's insurance Guide", or such other rating as may be required by a Lender. Lessee shall not do or permit to be done anything which Invalidates the required insurance policies. Lessee shall, prior to the Start Date, deliver to Lessor certified copies of policies of such Insurance or certificates evidencing the existence and amounts of the required insurance. No such policy shall be cancelable or subject to modification except after 30 days prior written notice to Lessor. Lessee shall, at least 30 days prior to the expiration of such policies, furnish Lessor with evidence of renewals or "insurance binders" evidencing renewal thereof, or Lessor may order such insurance and charge the cost thereof to Lessee, which amount shall be payable by Lessee to Lessor upon demand. Such policies shall be for a term of at least one year, or the length of the remaining term of this Lease, whichever is less. If either Party shall fait to procure and maintain the insurance required to be carried by it, the other Party may, but shall not be required to, procure and maintain the same. 8.6 Waiver of Subrogation. Without affecting any other rights or remedies, Lessee and Lessor each hereby release and relieve the other, and waive their entire right to recover damages against the other, for loss of or damage to its property arising out of or Incident to the perils required to be insured against herein. The effect of such releases and waivers is not limited by the amount of insurance carried or required, or by any deductibles applicable hereto. The Parties agree to have their respective property damage Insurance carriers waive any right to subrogation that such companies may have against Lessor or Lessee, as the case may be, so long as the insurance is not invalidated thereby. 8.7 Indemnity. Except for Lessor's gross negligence or willful misconduct, Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessor and its agents, Lessor's master or ground lessor, partners and Lenders, from and against any and all claims, loss of rents and/or damages, liens, judgments, penalties, attorneys' and consultants' fees, expenses and/or liabilities arising out of, involving, or in connection with, the use and/or occupancy of the Premises by Lessee. If any action or proceeding is brought against Lessor by reason of any of the foregoing matters, Lessee shall upon notice defend the same at Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not have first paid any such claim in order to be defended or indemnified. 8.8 Exemption of Lessor from Liability. Lessor shall not be liable for injury or damage to the person or goods, wares, merchandise or other property of Lessee, Lessee's employees, contractors, invitees, customers, or any other person in or about the Premises, 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, fire sprinklers, wires, appliances, plumbing, HVAC or lighting fixtures, or from any other cause, whether the said injury or damage results from conditions arising upon the Premises or upon other portions of the Building, or from other sources or places. Lessor shall not be liable for any damages arising from any act or neglect of any other tenant of Lessor nor from the failure of Lessor to enforce the provisions of any other lease in the Project. Notwithstanding Lessor's negligence or breach of this Lease, Lessor shall under no circumstances be liable for injury to Lessee's business or for any loss of income or profit therefrom. 9. Damage or Destruction. Alterations and Utility Installations, which can reasonably be repaired in 3 months or less from the date of the damage or destruction, and the cost t eof does not exceed a sum equal to 6 month's Base Rent. Lessor shall notify Lessee in writing within 30 days from the date of the damage or desas to whether or not the damage is Partial or Total. tru (b) "Premises Total Destruction" shall mean damage or destruction to the Improvements on the Premises, other th essee Owned Alterations and Utility Installations and Trade Fixtures, which cannot reasonably be repaired In 3 months or less from the date of the age or destruction and/or the cost thereof exceeds a sum equal to 6 month's Base Rent. Lessor shall notify Lessee in writing within 30 days from t ate of the damage or destruction as to whether or not the damage is Partial or Total. (c) "Insured Loss" shall mean damage or destruction to improvements on the Premises, other than Les Owned Alterations and Utility Installations and Trade Fixtures, which was caused by an event required to be covered by the insurance described in agraph 8.3(a), irrespective of any Jeductibie amounts or coverage limits involved. (d) "Replacement Cost" shall mean the cost to repair or rebuild the improvements owned b ssor at the time of the occurrence to their. -ondition existing immediately prior thereto, including demolition, debris removal and upgrading required b e operation of Applicable Requirements, and Nithout deduction for depreciation. (e) "Hazardous Substance Condition" shall mean the occurrence or disc ry of a condition involving the presence of, or a :ontamination by, a Hazardous Substance as defined in Paragraph 6.2(a), in, on, or under the Pr ses. 9.2 Partial Damage - Insured Loss. If a Premises Partial Damage that is nsured Loss occurs, then Lessor shall, at Lessor's expense, epair such damage (but not Lessee's Trade Fixtures or Lessee Owned Alterations and i ity Installations) as soon as reasonably possible and this Lease ;hall continue in full force and effect; provided, however, that Lessee shall, at Lessor' ection, make the repair of any damage or destruction the total cost to epair of which is $5,000 or less, and, in such event, Lessor shall make any appI' le insurance proceeds available to Lessee on a reasonable basis for that wrpose. Notwithstanding the foregoing, if the required insurance was not ' orce or the Insurance proceeds aresnot sufficient to effect such repair, the: nsuring Party shall promptly contribute the shortage in proceeds as and en required to complete said repairs. in the event, however, such shortage was iue to the fact that, by reason of the unique nature of the improve is, full replacement cost insurance coverage was not commercially reasonable and rvailable, Lessor shall have no obligation to pay for the shortage ' insurance proceeds or to fully restore the unique aspects of the Premises unless Lessee >rovides Lessor with the funds to cover same, or adequate a rance thereof, within 10 days following receipt of written notice of such shortage and request herefor. If Lessor receives said funds or adequate assu ce thereof within said 10 day period, the party responsible for making the repairs shall complete hem as soon as reasonably possible and this Le shall remain in full force and effect. If such funds or assurance are not received, Lessor may ievertheless elect by written notice to Lessee wi '10 days thereafter to: (t) make such restoration and repair as is commercially reasonable with Lessor laying any shortage in proceeds, in which c his Lease shall remain in full force and effect, or (►t) have this Lease terminate 30 days thereafter. Lessee :hall not be entitled to reimbursement of unds contributed by Lessee to repair any such damage or destruction. Premises Partial Damage due to flood or !arthquake shall be subject to Paragr 9.3, notwithstanding that there may be some insurance coverage, but the net proceeds of any such insurance shall ,e made available for the repairs i ade by either Party. 9.3 Partial D ge - Uninsured Loss. If a Premises Partial Damage that is not an Insured Loss occurs, unless caused by a negligent or 1111ful act of Lessee (in w event Lessee shall make the repairs at Lessee's expense), Lessor may either: (1) repair such damage as soon as reasonably ossibie at Lessor's a nse, in which event this Lease shall continue In full force and effect, or (ii) terminate this Lease by giving written notice to Lessee fithin 30 days afte cetpt by Lessor of knowledge of the occurrence of such damage. Such termination shall be effective 60 days following the date of such otice. In the nt Lessor elects to terminate this Lease, Lessee shall have the right within 10 days after receipt of the termination notice to give written otice to L or of Lessee's commitment to pay for the repair of such damage without reimbursement from Lessor. Lessee shall provide Lessor with said rnds atisfactory assurance thereof within 30 days after making such commitment. In such event this Lease shall continue In full force and effect, and e r shall proceed to make such repairs as soon as reasonably possible after the required funds are available. If Lessee does not make the required 9.4 Total Destruction. Notwithstanding any. other provision hereof, if a Premises Total Destruction occurs, this Lease shall terminate 60 Initials 1998 -American Industrial Real EstateAssociation Page 6 of 12 REVISED An FORM MTG-2-11/98E Jays following such Destruction. If the damage or destruction was caused by the gross negligence or willful misconduct of Lessee, Lessor shall have the -fight to recover Lessor's damages from Lessee, except as provided in Paragraph 8.6. 9.5 Damage Near End of Term. If at any time during the last 6 months of this Lease there is damage for which the cost to repair exceeds me month's Base Rent, whether or not an Insured Loss, Lessor may terminate this Lease effective 60 days following the date of occurrence of such damage 7y giving'a written termination notice to Lessee within 30 days after the date of occurrence of such damage. Notwithstanding the foregoing, if Lessee at that ime has an exercisable option to extend this Lease or to purchase the Premises, then Lessee may preserve this Lease by, (a) exercising such option and (b) )roviding Lessor with any shortage in insurance proceeds (or adequate assurance thereof) needed to make the repairs on or before the,.earlier of (1) the date vhich is 10 days after Lessee's receipt of Lessor's written notice purporting to terminate this Lease, or (11) the day prior -to the date upon which such option axpires. if Lessee duty exercises such option during such period and provides Lessor with funds (or adequate assurance thereof) to cover any shortage in nsurance proceeds, Lessor shall, at Lessor's commercially reasonable expense, repair such damage as soon as reasonably possible and this Lease shall :ontinue in full force and effect. If Lessee fails to exercise such option and provide such funds or assurance during such period, then this Lease shall erminate on the date specified in the termination notice and Lessee's option shall be extinguished. 9;6 Abatement of Rent; Lessee's Remedies. (a) Abatement. in the event of Premises Partial Damage or Premises Total Destruction or a Hazardous Substance Condition for which .essee is not responsible under this Lease, the Rent payable by Lessee for the period required for the repair, remediation or restoration of such damage shall fie abated in proportion to the degree to which Lessee's use of the Premises is impaired, but not to exceed the proceeds received from the Rental Value nsurance. All other obligations of Lessee hereunder shall be performed by Lessee, and Lessor shall have no liability for any such damage, destruction, emediation, repair or restoration except as provided herein. (b) Remedies. If Lessor shall be obligated to repair or restore the Premises and does not commence, in a substantial and meaningful vay, such repair or restoration within 90 days after such obligation shall accrue, Lessee may, at any time prior to the commencement of such repair or estoration, give written notice to Lessor and to any Lenders of which Lessee has actual notice, of Lessee's election to terminate this Lease on a date not less lan 60 days following the giving of such notice. If Lessee gives such notice and such repair or restoration is not commenced within 30 days thereafter, this .ease shall terminate as of the date specified in said notice. If the repair or restoration is commenced within.such.30 days, this Lease shall continue in full )rce and effect. "Commence" shalt mean either the unconditional authorization of the preparation of the required plans, or the beginning of the actual work n the Premises, whichever first occurs. 9.7 Termination; Advance Payments. Upon termination of this Lease pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable djustment shall be made concerning advance Base Rent and any other advance payments made by Lessee to Lessor. Lessor shall, in addition, return to essee so much of Lessee's Security Deposit as has not been, or is not then required to be, used by Lessor. 9.8 Waive Statutes. Lessor and Lessee agree that the terms of this Lease shall govern the effect of any damage to or destruction of the 'remises with respect to the termination of this Lease and hereby waive the provisions of any present or future statute to the extent inconsistent herewith. 0. Real Property Taxes. 10.1 Definitions. (a) "Real Property Taxes." As used herein, the term "Real Property Taxes" shall include any form of assessment; real estate, general, pecial, ordinary or extraordinary, or rental levy or tax (other than inheritance, personal income or estate taxes); Improvement bond; and/or license fee nposed upon or levied against any legal or equitable interest of Lessor in the Project, Lessor's right to other income therefrom, and/or Lessor's business of lasing, by any authority having the direct or indirect power to tax and where the funds are generated with reference to the Project address and where the roceeds so generated are to be applied by the city, county or other local taxing authority of a jurisdiction within which the Project is located. The term "Real roperty Taxes" shall also include any tax, fee, levy, assessment or charge, or any increase therein, imposed by reason of events occurring during the term 'this Lease, including but not limited to, a change in the ownership of the Project or any portion thereof or a change in the improvements thereon. (b) "Base Real Property Taxes." As used herein, the term "Base Real Property Taxes" shall be the amount of Real Property Taxes, hich are assessed against the Premises, Building, Project or Common Areas in the calendar year during which the Lease is executed. In calculating Real roperty Taxes for any calendar year, the Real Property Taxes for any real estate tax year shall be included in the calculation of Real Property Taxes for such alendar year based upon the number of days which such calendar year and tax year have In common. 10.2 Payment of Taxes. Lessor shall pay the Real Property Taxes applicable to the Project, A 7 10.3 Additlonal Improvements. Common Area Operating Expenses shall not include Real Property Taxes specified in the tax assessor's cords and work sheets as being caused by additional improvements placed upon the Project by other lessees or by Lessor for the exclusive enjoyment of ich other lessees. Notwithstanding Paragraph 10.2 hereof, Lessee shall, however, pay to Lessor at the time Common Area Operating Expenses are iyabie under Paragraph 4.2, the, entirety of any increase in Real Property Taxes if assessed solely by reason of Alterations, Trade Fixtures or Utility stallations placed upon the Premises by Lessee or at Lessee's request. 10.4 Joint Assessment. If the Building Is not separately assessed, Real Property Taxes allocated to the Building shall be an equitable oportion of the Real Property Taxes for all of the land and Improvements included within the tax parcel assessed, such proportion to be determined by !ssor from the respective valuations assigned in the assessor's work sheets or such other information as may be reasonably available. Lessor's reasonable termination thereof, in good faith, shall be conclusive. 10.5 Personal Property Taxes. Lessee shall pay prior to delinquency all taxes assessed against and levied upon Lessee Owned Alterations d Utility Installations, Trade Fixtures, furnishings, equipment and all personal property of Lessee contained in the Premises. When possible, Lessee shall use its Lessee Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all other personal property to be assessed and billed paratety from the real property of Lessor. If any of Lessee's said property shall be assessed with Lessor's real property, Lessee shall pay Lessor the taxes ributabie to Lessee's property within 10 days after receipt of a written statement setting forth the taxes applicable to Lessee's property. lether with any taxes thereon. Notwithstanding the provisions of Paragraph 4.2, if at any time in Les Ing a disproportionate amount of water, electricityor o rmmes that Lessee is tuire an in , or a Lessee is generating such a large volume of trash as to n or an increase in the number of times per month that the dumpster is emptied, then Lessor may Increase Assignment and Subletting. 12.1 Lessor's Consent Required. (a) Lessee shall not voluntarily or by operation of law assign, transfer, mortgage or encumber (collectively, "assign or assignment") or )let all or any part of Lessee's interest in this Lease or in the Premises ' ire of the voting control of Lessee shall constitute a change in control for this purpose. 00— (c) The involvement of Lessee or its assets in any transaction, or series of transactions (by way of merger, sale, acc . n, financing, nsfer, leveraged buy-out or otherwise), whether or not a formal assignment or hypothecation of this Lease or Lessee's assets o which results or will uit in a reduction of the Net Worth of Lessee by an amount greater than 25% of such Net Worth as it was represented ime of the execution'of this rase or at the time of the most recent assignment to which Lessor has consented, or as it exists immediate) o said transaction or transactions istituting such reduction, whichever was or Is greater, shall be considered an assignment of this Lease c Lessor may withhold its consent. "Net )rth of Lessee" shall mean the net worth of Lessee (excluding any guarantors) established under y accepted accounting principles. icurable Breach without assignment subletting hout thene essity of anynwithoutefauft curable after noce otticeand grace period. If Lessor eis option eat such unapproved ssignment per Paragraph subletting as a nonou able tach, Lessor may either: (1) terminate this Lease, or (ii) upon 30 days writ ice, increase the monthly Base Rent to 110% of the Base Rent then in act. Further, in the event of such Breach and rental adjustment, t urchase price of any option to purchase the Premises held by Lessee shall be rject to similar adjustment to 110% of the price previously in , and (11) all fixed and non -fixed rental adjustments scheduled during the remainder of the ise term shall be increased to 110% of the schedule ed rent. (e) Lessee's remedy for an of Paragraph 12.1 by Lessor shall be limited to compensatory damages and/or injunctive relief. 12.2 Terms and Conditto pticabie to Assignment and Subletting. (a) Regardles lessors co :h assignee or -.see for the pa a nment. iitials nsent, any assignment or subletting shall not: (i) be effective without the express written assumption by ubless ne obligations of Lessee under this Lease, @) release Lessee of any obligations hereunder, or (Ili) alter the primary liability of Rent or for the performance of any other obligations to be performed by Lessee. (b) Lessor may accept Rent or. performance of Lessee's obligations from any person other than Lessee pending approval or disapproval Neither a delay in the approval or disapproval of such assignment nor the acceptance of Rent or performance shall constitute a waiver or i"—s. FORM MTG-2-11/98E 1998 - American Industrial Real Estate Association Page 7 of 12 REVISED (d) In the event of any Default or Breach by Lessee, Lessor may proceed directly against Lessee, any Guarantors or a`nyon jWse responsible for the performance of Lessee's obligations under this Lease, including any assignee or sublessee, without first exhausting Lasso' emedies against any other person or entity responsible therefore to Lessor, or any security held by Lessor. (e) Each request for consent to an assignment or subletting shall be in writing, accompanied by informatio ' event to Lessor's determination as to the financial and operational responsibility and appropriateness of the proposed assignee or sublessee, inc g but not ted to the intended use and/or required modification of the Premises, if any, together with a fee of $1,000 or 10% of the current mon ase Rent applicable to he portion of the Premises which is the subject of the proposed assignment or sublease, whichever.is greater, as consi ion for.L.essoes considering and processing said request. Lessee agrees to provide Lessor with such other or additional information and/or docume on as may be reasonably requested. (f) Any assignee of, or sublessee under, this Lease shall, by reason of accepting such nment or entering into such sublease, be deemed to have assumed and agreed to conform and comply with each and every term, covenant, dition and obligation herein to be observed or, performed by Lessee during the term of said assignment or sublease, other than such obligation are contrary to or inconsistent with provisions of an assignment or sublease to which Lessor has specifically consented to in writing. 1'2.3 Additional Terms and Conditions Applicable to Subletting. Th owing terms and conditions shall apply to any subletting by Lessee of all or any part of the Premises and shall be deemed Included in all subsea rider this Lease whether or not expressly incorporated therein: (a) Lessee hereby assigns and transfers to Lessor all of L e's interest in all Rent payable on any sublease, and Lessor may collect such Rent and apply same toward Lessee's obligations under this Lease- vided, however, that until a Breach shall occur inthe performance of Lessee's obligations, Lessee may collect said Rent. Lessor shall not, by reaso he foregoing or any assignment of such sublease, nor by reason of the collection of Rent, be deemed liable to the sublessee for any failure of Less perform and comply with any of Lessee's obligations to such sublessee. Lessee hereby irrevocably authorizes and directs any such sublessee, receipt of a written notice from Lessor stating that a Breach exists In the performance of Lessee's obligations under this Lease, to pay to Less Rent due and to become due under the sublease. Sublessee shall rely upon any such notice from Lessor and shall pay all Rents to Lessor without obligation or right to Inquire as to whether such Breach exists, notwithstanding any claim from Lessee to the contrary. (b) in the event o reach by Lessee, Lessor may, at its option, require sublessee to attorn to Lessor, in which event Lessor shall undertake the obligations of the essor under such sublease from the time of the exercise of said option to the expiration of such sublease; provided, however, Lessor shall not be a for any prepaid rents or security deposit paid by such sublessee to such sublessor or for any prior Defaults or Breaches of such sublessor. Any matter requiring the consent of the sublessor under a sublease shall also require the consent of Lessor. (d) No sublessee shall further assign or sublet all or any part of the Premises without Lessor's prior written consent. (e) Lessor shall deliver a copy of any notice of Default or Breach by Lessee to the sublessee, who shall have the right to cure the Default of ee within the grace period, if any, specified in such notice. The sublessee shall have a right of reimbursement and offset from and against Lessee for 13. Default; Breach; Remedies. 13.1 Default; Breach. A "Default" is defined as a failure by the Lessee to comply with or perform any of the terms, covenants, conditions or Rules and Regulations under this Lease. A "Breach" is defined as the occurrence of one or more of the following Defaults, and the failure of Lessee to cure such Default within any applicable grace period: (a) The abandonment of the Premises; or the vacating of the Premises without providing a commercially reasonable level of security, or where the coverage of the property insurance described in Paragraph 8.3 is jeopardized as a result thereof, or without providing reasonable assurances to minimize potential vandalism. (b) The failure of Lessee to make any payment of Rent or any Security Deposit required to be made by Lessee hereunder, whether to Lessor or to a third party, when due, to provide reasonable evidence of insurance or surety bond, or to fulfill any obligation under this Lease which endangers or threatens life or property, where such failure continues for a period of 3 business days following written notice to Lessee. (c) The failure by Lessee to provide (i) reasonable written evidence of compliance with Applicable Requirements, (ii) the service -ontracts, (Ili) the rescission of an unauthorized assignment or subletting, (iv) an Estoppel Certificate, (v) a requested subordination, (vi) evidence concerning any guaranty and/or Guarantor, (vii) any document requested under Paragraph 41 (easements), or (viii) any other documentation or information which Lessor nay reasonably require of Lessee under the terms of this Lease, where any such failure continues for a period of 10 days following written notice to Lessee. (d) A Default by Lessee as to the terms, covenants, conditions or provisions of this Lease, or of the rules adopted under Paragraph 2.9 hereof, other than those described in subparagraphs 13.1(a), (b) or (c), above, where such Default continues for a period of 30 days after written notice; )rovided, however, that if the nature of Lessee's Default is such that more than 30 days are reasonably required for its cure, then it shall not be deemed to be a Breach if Lessee commences such cure within said 30 day period and thereafter diligently prosecutes such cure to completion. (e) . The occurrence of any of the following events: (1) the making of any general arrangement or assignment for the benefit of :reditors; (ii) becoming a "debtor" as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within 60 days); (Ili) the appointment of a trustee or receiver to take possession of substantially all of Lessee's assets located at the 'remises or of Lessee's interest in this Lease, where possession is not restored to Lessee within 30 days; or (iv) 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 30 Pays; provided, however, in the event that any provision of this subparagraph (e) is contrary to any applicable law, such provision shall be of no force or affect, and not affect the validity of the remaining provisions. (0 The discovery that any financial statement of Lessee or of any Guarantor given to Lessor was materially false. (g) if the performance of Lessee's obligations under this Lease is guaranteed: (1) the death of a Guarantor, (ii) the termination of a 3uarantor's liability with respect to this Lease other than in accordance with the terms of such guaranty, (III) a Guarantor's becoming insolvent or the subject if a bankruptcy filing, (iv) a Guarantor's refusal to honor the guaranty, or (v) a Guarantor's breach of its guaranty obligation on an anticipatory basis, and _essee's failure, within 60 days following written notice of any such event, to provide written alternative assurance or security, which, when coupled with the hen existing resources of Lessee, equals or exceeds the combined financial resources of Lessee and the Guarantors that existed at the time of execution of his Lease. 13.2 Remedies. if Lessee fails to perform any of its affirmative duties or obligations, within 10 days after written notice (or in case of an . !mergency, without notice), Lessor may, at its option, perform such duty or obligation on Lessee's behalf, including but not limited to the obtaining of easonably required bonds, insurance policies, or governmental licenses, permits or approvals. The costs and expenses of any such performance by Lessor hall be due and payable by Lessee upon receipt of invoice therefor. If any check given to Lessor by Lessee shall not be honorep by the bank upon which it s drawn, Lessor, at its option, may require all future payments to be made by Lessee to be by cashier's check. in the event of a Breach, Lessor may, with or rithout further notice or demand, and without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of such Breach: (a) Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee hall immediately surrender possession to Lessor. In such event Lessor shall be entitled to recover from Lessee: (i) the unpaid Rent which had been. earned t the time of termination; (11) the worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the me of award exceeds the amount of such rental loss that the Lessee proves could have been reasonably avoided; (Ili) the worth at the time of award of the mount by which the unpaid rent for the balance of the term after the time of award exceeds the amount of such rental loss that the Lessee proves could be nsonably avoided; and (iv) any other amount necessary to compensate Lessor for all the detriment proximately caused by the Lessee's failure to perform its bligations under this Lease or which In the ordinary course of things would be likely to result therefrom, including but not limited to the cost of recovering ossession of the Premises, expenses of reletting, including necessary renovation and alteration of the Premises, reasonable attorneys' fees, and that portion f any leasing commission paid by Lessor in connection with this Lease applicable to the unexpired term of this Lease. The worth at the time of award of the mount referred to in provision (Ili) of the immediately preceding sentence shall be computed by discounting such amount at the discount rate of the Federal :eserve Bank of the District within which the Premises are located at the time of award plus one percent. Efforts by Lessor to mitigate damages caused by essee's Breach of this Lease shall not waive Lessor's right to recover damages under Paragraph 12. If termination of this Lease is obtained through the rovisional remedy of unlawful detainer, Lessor shall have the right to recover in such proceeding any unpaid Rent and damages as are recoverable therein, r Lessor may reserve the right to recover all or any part thereof in a separate suit. if a notice and grace period required under Paragraph 13.1 was not reviously given, a notice to pay rent or quit, or to perform or quit given to Lessee under the unlawful detainer statute shall also constitute the notice required y Paragraph 13.1. In such case, the applicable grace period required by Paragraph 13.1 and the unlawful detainer statute shall run concurrently, and the iilure of Lessee to cure the Default within the greater of the two such grace periods shall constitute both an unlawful detainer and a Breach of this Lease. ntitling Lessor to the remedies provided for in this Lease and/or by said statute. (b) Continue the Lease and Lessee's right to possession and recover the Rent as it becomes due, in which event Lessee may sublet or ssign, subject only to reasonable limitations. Acts of maintenance, efforts to relet, and/or the appointment of a receiver to protect the Lessor's interests, tali not constitute a termination of the Lessee's right to possession. (c) Pursue any other remedy now or hereafter available under the laws or judicial decisions of the state wherein the Premises are located. 'he expiration or termination of this Lease and/or the termination of Lessee's right to possession shall not relieve Lessee from liability under any Indemnity Initials 1998 -American industrial Real Estate Association Page 8 of 12 REVISED FORM MTG-2-11198E provisions of this Lease as to matters occurring or accruing during the term hereof or by reason of Lessee's occupancy of the Premises. 13.3 Inducement Recapture. Any agreement for free or abated rent or other charges, or for the giving or paying' by Lessor to or for Lessee of any cash or other bonus, inducement or consideration for Lessee's entering into this Lease, all of which concessions are hereinafter referred to as "Inducement Provisions", shall be deemed conditioned upon Lessee's full and faithful performance of all of the terms, covenants and conditions of this -Lease. Upon Breach of this Lease by Lessee, any such inducement Provision shall automatically be deemed deleted from this Lease and of no further force or effect, and any rent, other charge, bonus, inducement or consideration theretofore abated, given or paid by Lessor under such an Inducement Provision shall be immediately due and payable by Lessee to Lessor, notwithstanding any subsequent cure of said Breach by Lessee. The acceptance by Lessor of rent or the cure of the Breach which initiated the operation of this paragraph shall not be deemed a waiver by Lessor of the provisions n this paragraph unless specifically so stated in writing by Lessor at the time of such acceptance. 13.4 Late Charges. Lessee hereby acknowledges that late payment by Lessee of Rent will cause Lessor 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 upon Lessor by any Lender. Accordingly, if any Rent shall not be received by Lessor within 5 days after such amount shall be due, then, without any requirement for notice to Lessee, Lessee shall pay to Lessor a one-time late charge equal to 10% of each such overdue amount or $100, whichever is greater. The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Lessor will incur by reason of such late payment. Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee's Default or Breach with respect to such overdue amount, nor prevent the exercise of any of the other rights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for 3 consecutive installments of Base Rent, -then notwithstanding any provision of this Lease to the contrary, Base Rent shall, at Lessor's option, become due and payable quarterly in advance. 13.5 Interest. Any monetary payment due Lessor hereunder, other than late charges, not received by Lessor, when due as to scheduled payments (such as Base Rent) or within 30 days following the date on which it was due for non-scheduled payment, shall bear interest from the date when due, as to scheduled payments, or the 31 st day after it was due as to non-scheduled payments. The interest ("Interest") charged shall be equal to the prime rate reported in the Wall Street Journal as published closest prior to the date when due plus 4%, but shall not exceed the maximum rate allowed by law. Interest is payable in addition to the potential late charge provided for in Paragraph 13.4. 13.6 Breach by Lessor. (a) Notice of Breach. Lessor shall not be deemed in breach of this Lease unless Lessor fails within a reasonable time to perform an obligation required to be performed by Lessor. For purposes of this Paragraph, a reasonable time shall in no event be less than 30 days after receipt by Lessor, and any Lender whose name and address shall have been furnished Lessee in writing for such purpose, of written notice specifying wherein such obligation of Lessor has not been performed; provided, however, that if the nature of Lessor's obligation is such that more than 30 days are reasonably required for its performance, then Lessor shall not be in breach if performance is commenced within such 30 day period and thereafter diligently pursued to completion. (b) Performance by Lessee on Behalf of Lessor. In the event that neither Lessor nor Lender cures said breach within 30 days after receipt of said notice, or if having commenced said cure they do not diligently pursue it to completion, then Lessee may elect to cure said breach at Lessee's expense and offset from Rent an amount equal to the greater of one month's Base Rent or the Security Deposit, and to pay an excess of such expense under protest, reserving Lessee's right to reimbursement from Lessor. Lessee shall document the cost of said cure and supply said documentation to Lessor. 14. Condemnation. if the Premises or any portion thereof are taken under the power of eminent domain or sold under the threat of the exercise of said power (collectively "Condemnation"), this Lease shall terminate as to the part taken as of the date the condemning authority takes title or possession, whichever first occurs. If more than 10% of the floor area of the Unit, or more than 25% of Lessee's Reserved Parking Spaces, is taken by Condemnation, Lessee may, at Lessee's option, to be exercised in writing within 10 days after Lessor shall have given Lessee written notice of such taking (or in the absence of such notice, within 10 days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority takes such possession. if Lessee does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the Base Rent shall be reduced in proportion to she reduction in utility of the Premises caused by such Condemnation. Condemnation awards and/or payments shall be the property of Lessor, whether s:1ch award shall be made as compensation for diminution in value of the leasehold, the value of the part taken, or for severance damages; provided, howe,.er, that Lessee shall be entitled to any compensation for Lessee's relocation expenses, loss of business goodwill and/or Trade Fixtures, without regard tc whether or not this Lease is terminated pursuant to the provisions of this Paragraph. All Alterations and Utility Installations made to the Premises by Lessf e, for purposes of Condemnation only, shall be considered the property of the Lessee and Lessee shall be entitled to any and all compensation which is pay...ble therefor. in the event that this Lease is not terminated by reason of the Condemnation, Lessor shall repair any damage to the Premises caused by such ondemnation. otherwise agree in writing, Lessor agrees that: (a) if Lessee exercises any Option, (b) if Less.:,: acquires from Lessor any rights to the Premises or r premises owned by Lessor and located within the Project, (c) if Lessee remains in possession of .he Premises, with the consent of Lessor, after the iration of this Lease, or (d) if Base Rent is increased, whether by agreement or operation of an escaation clause herein, then, Lessor shall pay B rs a fee in accordance with the schedule of the Brokers in effect at the time of the execution of this Lease. 15.2 Assumption of Obligations. Any buyer or transferee of Lessor's interes- in this Lease shall be deemed to a assumed Lessor's obligation hereunder. Brokers shall be third party beneficiaries of the provisions of Paragraphs 1.10, 15, 22 and 31. If Les ails to pay to Brokers any amounts due as and for brokerage fees pertaining to this Lease when due, then such amounts shall accrue Interest. i ition, if Lessor fails to pay any amounts to Lessee's Broker when due, Lessee's Broker may send written notice to Lessor and Lessee of such failur d if Lessor fails to pay such amounts within 10 days after said notice, Lessee shall pay said monies to its Broker and offset such amounts agairis nt. In addition, Lessee's Broker shall be deemed to be a third party beneficiary of any commission agreement entered into by and/or between. Le and Lessor's Broker for the limited purpose of collecting any brokerage fee owed. 15.3 Representations and Indemnities of Broker Relationships. Lessee an ssor each represent and warrant to the other that it has had no dealings with any person, firm, broker or finder (other than the Brokers, if any) in c ection with this Lease, and that no one other than said named Brokers is entitled to any commission or finder's fee in connection herewith. Lessee essor do each hereby agree to indemnify, protect, defend and hold the other harmless from and against liability for compensation or charges which be claimed by any such unnamed broker, finder or other similar party by reason of any dealings or actions of the indemnifying Party, including any c expenses, attorneys' fees reasonably incurred with respect thereto. 16. Estoppel Certificates. (a) Each Party (as "Responding Party" ail within 10 days after written notice from the other Party (the "Requesting Party") execute, acknowledge and deliver to the Requesting Party a st ent in writing -in form similar to the then most current "Estoppel Certificate" form published by the American Industrial Real Estate Association, pl uch additional information, confirmation and/or statements as may be reasonably requested by the Requesting Party. (b) if the Respondi arty shall fail to execute or deliver the Estoppel Certificate within such 10 day period, the Requesting Party may execute an Estoppel Certificate s g that: (i) the Lease is in full force and effect without modification except as may be represented by the Requesting Party, (H) there are no uncur efaults in the Requesting Party's performance, and (III) if Lessor is the Requesting Party, not more than one month's rent has been paid in advance, spective purchasers and encumbrancers may rely upon the requesting Party's Estoppel Certificate, and the Responding Party shall be estopped denying the truth of the facts contained in said Certificate. (c) if Lessor desires to finance, refinance, or sell the Premises, or an y part potentla der or purchaser designated by Lessor such ssee and all Guarantors shll deliver to any financial statements as may be reasonably rrequiredeby such ender or pu chaseraincluding but not thereof, L' lint to Lessee's financial statements for the past 3 years. All such financial statements shall be received by Lessor and such lender or purchaser in Ply ;00 17. Definition of Lessor. The term "Lessor" as used herein shall mean the owner or owners at the time in question of the fee title to the Premises, or, if this is a sublease, of the Lessee's interest in the prior lease. In the event of a transfer of Lessor's title or interest in the Premises or this Lease; Epssor_,:: shall deliver to the transferee or assignee (in cash or by credit) any unused Security Deposit held by Lessor. Except as provided in Paragraph 15, upon such transfer or assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor shall be relieved of all liability with respect to the obligation'g and/or-'!' covenants under this Lease thereafter to be performed by the Lessor. Subject to the foregoing, the obligations and/or covenants -in 'this Lease to be performed by the Lessor shall be binding only upon the Lessor as hereinabove defined. Notwithstanding the above, and subject to the provisions of Paragraph 20 below, the original Lessor under this Lease, and all subsequent holders of the Lessor's interest in this Lease shall remain liable and responsible.. with regard to the potential duties and liabilities of Lessor pertaining. to Hazardous Substances as outlined in Paragraph 6.2 above. 18. Severability. The invalidity of any provision of this Lease, as determined by a court of any other provision hereof. competent jurisdiction, shall in noway affect the validity of IInitials I D 1998 - American Industrial Real Estate Association Page 9 of 12 REVISED FORM MTG-2-11198E 19. Days. Unless otherwise specifically indicated to the contrary, the word "days" as used in this Lease shall mean and refer to calendar days 20. Limitation on Liability. Subject to the provisions of Paragraph 17 above, the obligations of Lessor under this Lease shall not constitute personal obligations 'of Lessor, the individual partners of Lessor or its or their individual partners, directors, officers or shareholders, and Lessee shall look to the Premises, and to no other assets of Lessor, for the satisfaction of any liability of Lessor with respect to this Lease, and shall not seek recourse against the individual partners of Lessor, or its or their individual partners, directors, officers or shareholders, or any of their personal assets for such satisfaction. 21. Time of Essence. Time is of the essence with respect to the performance of all obligations to be performed or observed by the Parties under this Lease. 22. No Prior or Other Agreements; Broker Disclaimer. This Lease contains all agreements between the Parties with respect to any matter mentioned herein, and no other prior or contemporaneous agreement or understanding shall be effective. Lessor and Lessee each represents and warrants to the Brokers that it has made, and is relying solely upon, its own investigation as to the nature, quality, character and financial responsibility of the other Party to this Lease and as to the use, nature, quality and character of the Premises. Brokers have no responsibility with respect thereto or with respect to any default or breach hereof by either Party. The liability (including court costs and attorneys' fees), of any Broker with respect to negotiation, execution, delivery or performance by either Lessor or Lessee under this Lease or any amendment or modification hereto shall be limited to an amount up to the fee received by such Broker pursuant to this Lease; provided, however, that the foregoing limitation on each Broker's liability shall not be applicable to any gross negligence or willful misconduct of such Broker. 23. Notices. 23.1 Notice Requirements. All notices required or permitted by this Lease or applicable law shall be in writing and may be delivered in person (by hand or by courier) or may be sent by regular, certified or registered mail or U.S. Postal Service Express Mail, with postage prepaid, or by facsimile transmission, and shall be deemed sufficiently given if served in a manner specified in this Paragraph 23. The addresses noted adjacent to a Party's signature on this Lease shall be that Party's address for delivery or mailing of notices. Either Party may by written notice to the other specify a different address for notice, except that upon Lessee's taking possession of the Premises, the Premises shall constitute Lessee's address for notice. A copy of all notices to Lessor shall be concurrently transmitted to such party or parties at such addresses as Lessor may from time to time hereafter designate in writing. 23.2 Date of Notice. Any notice sent by registered or certified mail, return receipt requested; shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. If sent by regular mail the notice shall be deemed given 48 hours after the same is addressed as required herein and mailed with postage prepaid. Notices delivered by United States Express Mail or overnight courier that guarantee next day delivery shall be deemed given 24 hours after delivery of the same to the Postal Service or courier. Notices transmitted by facsimile transmission or similar means shall be deemed delivered upon telephone confirmation of receipt (confirmation report from fax machine is sufficient), provided a copy is also delivered via delivery or mail. If notice is received on a Saturday, Sunday or legal holiday, it shall be deemed received on the next business day. 24. Waivers. No waiver by Lessor of the Default or Breach of any term, covenant or condition hereof by Lessee, shall be deemed a waiver of any other term, covenant or condition hereof, or of any subsequent Default or Breach by Lessee of the same or of any other term, covenant or condition hereof. Lessor's consent to, or approval of, any act shall not be deemed to render unnecessary the obtaining of Lessor's consent to, or approval of, any subsequent or similar act by Lessee, or be construed as the basis of an estoppel to enforce the provision or provisions of this Lease requiring such consent. The acceptance of Rent by Lessor shall not be a waiver of any Default or Breach by Lessee. Any payment by Lessee may be accepted by Lessor on account of monies or damages due Lessor, notwithstanding any qualifying statements or conditions made by Lessee in connection therewith, which such statements and/or conditions shall be of no force or effect whatsoever unless specifically agreed to in writing by Lessor at or before the time of deposit of such payment. 26. understand what type of agency relationship or representation it has with the agent or agents in the transaction. Lessor andLess e acknowle eing advised by the Brokers in this transaction, as follows: ent er a agent or subagent has the following affirmative obligations: To the Les or: Afiduc ary duty f utmost careement with the ore integr ty, honesty cts as the agent } and or a Less in dealin— with the Lessor. Tot Lessee and the Lessor. a. Diligent exercise of reasonable skills and care in performance of the agent's dutie . A duty of honest and fair dealing and good faith. c. A duty to disclose all facts known to the agent materially affecting the value or desirability of th operty that are not known to, or within the diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any c ential information obtained from the other Party which does not involve the affirmative duties set forth above. (if) - Lessee's Agent. An agent can agree to act as agent for the Lessee only. ese situations, the agent is not the Lessor's agent, even if by agreement the agent may receive compensation for services rendered, either in fu in part from the Lessor. An agent acting only for a Lessee has the following affirmative obligations. To the Lessee: A fiduciary duty of utmost car egrity, honesty, and loyalty in dealings with the Lessee. To the Lessee and the Lessor: a. Diligent exercise Of reasonable skills and care in perfo ce of the agent's duties. b. A duty of honest and fair dealing and good faith. c. A duty to disclose all facts known to the agent materially affectin value or desirability of the property that are not known to; or within the diligent attention and observation of, the Parties. An agent is not obligated eveal to either Party any confidential information obtained from the other Party which does not involve the affirmative duties set forth above. (iii) A ent Re resentin Both Lessor and ee. A real estate agent, either acting directly or through one or more associate licenses, can legally be the agent of both the Lessor and the L e in a transaction, but only with the knowledge and cows ent of both the Lessor and the Lessee. in a dual agency situation, the agent has the folio ' affirmative obligations to both the Lessor and the Lessee: a. A fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with either sor or the Lessee. b. Other duties to the Lessor and the Lessee as stated above in subparagraphs (i) or (if). In representing both Lessor and Lessee agent may not without the express permission of the respective Party, disclose to the other Party that the Lessor will accept rent in an amount les an that indicated in the listing or that the Lessee is willing to pay a higher re^t than that offered. The above duties of the agent in a real estate tra lion do not relieve a Lessor or Lessee from the responsibility to protect their owr, interests. Lessor and Lessee should carefully read all agreeme o assure that they adequately express their understanding of the transaction. A real e:;tate agent is a person qualified to advise about real estate. I ai or tax advice is desired, consult a competent professional. (b) Bro have no responsibility with respect to any default or breach hereof by either Party. The liability (including court costs and attorneys' fees), o Broker with respect to any breach of duty, error or omission relating to this Lease shall not exceed I;ie fee received by such Broker pursuant to . ease; provided, however, that the foregoing limitation on each Broker's liability shall not be applicable to any gross negligence or willful miscond of such Broker. (c) Buyer and Seller agree to identify to Brokers as "Confidential" any communication or information given Br ,'cers that is considered by such Lease. In the event that Lessee holds over, then the Base Rent shall be increased to 26. No Right To Holdover. Lessee has no right to retain possession of the Premises or any part thereof beyond the .xpiration or termination of this 150% 1of the Base Rent applicable imm:+.lately preceding the expiration r termination. Nothing contained herein shall be construed as consent by Lessor to any holding over a Lessee. 27. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possi?: , ,, be cumulative with all other 'emedies at law or in equity. 28. Covenants and Conditions; Construction of Agreement. All provisions of this Lease to be observed or rformed by Lessee are both :Ovenants and conditions. in construing this Lease, all headings and titles are for the convenience of the Parties only and ":all -not be considered a part of his Lease. Whenever required by the context, the singular shall include the plural and vice versa. This Lease shall not be cr.:.strued as if prepared by one of he Parties, but rather according to its fair meaning as a whole, as if both Parties had prepared it. !9. Binding Effect; Choice of Law. This Lease shall be binding upon the parties, their personal representatives, s ;ccessors and assigns and be loverned by the laws of the State in which the Premises are located. Any litigation between the Parties hereto conceming this Lease shalt be initiated in the :ounty in which the Premises are located. 1 10. Subordination; Attornment; Non -Disturbance. 30.1 Subordination. This Lease and any Option granted hereby shall be subject and subordinate to any ground lease, mortgage, deed of Initials I) 1998 - American Industrial Real Estate Association Page 10 of 12 REVISED OhlFls FORM MTG-2-11/98E trust, orother hypothecation or security device (collectively, "Security Device'7, now or hereafter placed upon the Premises, to any and all advances made • `on the security thereof, and to all renewals, modifications, and extensions thereof. Lessee agrees that the holders of any such Security Devices (in this Lease together referred to as "Lender") shall have no liability or obligation to perform any of the obligations of Lessor under this Lease. Any Lender may elect to have this Lease and/or any Option granted hereby superior to the lien of its Security Device by giving written notice thereof to Lessee, whereupon this Lease and Such Options shall be deemed prior to such Security Device, notwithstanding the relative dates of the documentation or recordation thereof. m 30.2 Attornment. Subject to the non -disturbance provisions of Paragraph 30.3, Lessee agrees to attoto a Lender or any other party who closure of a Security Device, and that in the event of such foreclosure, such new owner shall not: (a) acquires ownership of the Premises by reason of a fore be liable for any act or omission of any prior lessor or with respect to events occurring prior to acquisition of ownership; (b) be subject to any offsets or defenses which Lessee might have against any prior lessor, (c) be bound by prepayment of more than one month's rent, or (d) be liable for the return of any security deposit paid to any prior lessor. 30.3 Non -Disturbance. With respect to Security Devices entered into by Lessor after the execution of this Lease, Lessee's subordination of this Lease shall be subject to receiving a commercially reasonable non -disturbance agreement (a "Non -Disturbance Agreement") from the Lender which Non -Disturbance Agreement provides that Lessee's possession of the Premises, and this Lease, including any options to extend the term hereof, will not be disturbed so long as Lessee is not in Breach hereof and attorns to the record owner of the Premises. Further, within 60 days after the execution of this Lease, Lessor shall use its commercially reasonable efforts to obtain a Non -Disturbance Agreement from the holder of any pre-existing Security Device which Is secured by the Premises. In the event that Lessor is unable to provide the Non -Disturbance Agreement within said 60 days, then Lessee may, at Lessee's option, directly contact Lender and attempt to negotiate for the execution and delivery of a Non -Disturbance Agreement. 30.4 Self -Executing. The agreements contained in this Paragraph 30 shall be effective without the execution of any further documents; provided, however, that, upon written request from Lessor or a Lender in connection with a sale, financing or refinancing of the Premises, Lessee and Lessor shall execute such further writings as may be reasonably required to separately document any subordination, attomment and/of Non -Disturbance Agreement provided for herein. 31. Attorneys' Fees. If any Party or Broker brings an action or proceeding involving the Premises whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys' fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision or judgment. The term, "Prevailing Party" shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claim or defense. The attorneys' fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys' fees reasonably incurred. in addition, Lessor shall be entitled to attorneys' fees, costs and expenses incurred in the preparation and service of notices of Default and consultations in connection therewith, whether or not a legal action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation). 32. Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's agents shall have the right to enter the Premises at any time, in the case of an emergency, and otherwise at reasonable times for the purpose of showing the same to prospective purchasers, lenders, or tenants, and making such alterations, repairs, improvements or additions to the Premises as Lessor may deem necessary. All such activities shall be without abatement of rent or liability to Lessee. Lessor may at any time place on the Premises any ordinary "For Sale" signs and Lessor may during the last 6 months of the term hereof place on the Premises any ordinary "For Lease" signs. Lessee may at any time place on the Premises any ordinary "For Sublease" sign. 33. Auctions. Lessee shall not conduct, nor permit to be conducted, any auction upon the Premises without Lessor's prior written consent. Lessor shall not be obligated to exercise any standard of reasonableness in determining whether to permit an auction. 34. Signs. without Lessor's prior written consent. All signs must comply with all Applicable Requirements: Lessee shall not place any sign upon the Project 35. Termination; Merger. Unless specifically stated otherwise in writing by Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual termination or cancellation hereof, or a termination hereof by Lessor for Breach by Lessee, shall automatically terminate any sublease or lesser estate in the Premises; provided, however, that Lessor may elect to continue any one or all existing subtenancies. Lessor's failure within 10 days following any such event to elect to the contrary by written notice to the holder of any such lesser interest, shall constitute Lessor's election to have such event constitute the termination of such interest. 36. Consents. Except as otherwise provided herein, wherever in this Lease the consent of a Party is required to an act by or for the other Party, such consent shall not be unreasonably withheld or delayed. Lessor's actual reasonable costs and expenses (including but not .limited to architects', attorneys', engineers' and other consultants' fees) incurred in the consideration of, or response to, a request by Lessee for any Lessor consent, including but not limited to consents to an assignment, a subletting or the presence or use of a Hazardous Substance, shall be paid by Lessee upon receipt of an invoice and supporting documentation therefor. Lessor's consent to any act, assignment or subletting shall not constitute an acknowledgment that no Default or Breach by Lessee of this Lease exists, nor shall such consent be deemed a waiver of any then existing Default or Breach, except as may be otherwise specifically stated in writing by Lessor at the time of such consent. The failure to specify herein any particular condition to Lessor's consent shall not preclude the imposition by Lessor at the time of consent of such further or other conditions as are then reasonable with reference to the particular matter for which consent is being given. In the event that either Party disagrees with any determination made by the other hereunder and reasonably requests the reasons for such determination, the determining party shall furnish its reasons in writing and in reasonable detail within 10 business days following such request. 37. Guarantor. 37.1 Execution. The Guarantors, if any, shall each execute a guaranty in the form most recently published by the American Industrial Real Estate Association, and each such Guarantor shall have the same obligations as Lessee under this Lease. 37.2 Default. It shall constitute a Default of the Lessee if any Guarantor fails or refuses, upon request to provide: (a) evidence of the execution of the guaranty, including the authority of the party signing on Guarantor's behalf to obligate Guarantor, and in the case of a corporate Guarantor, a certified copy of a resolution of its board of directors authorizing the making of such guaranty, (b) current financial statements, (c) an Estoppel Certificate, or. ;d) written confirmation that the guaranty is still in effect. 38. Quiet Possession. Subject to payment by Lessee of the Rent and performance of all of the covenants, conditions and provisions on Lessee's part ,o be observed and performed under this Lease, Lessee shall have quiet possession and quiet enjoyment of the Premises during the term hereof. 39.1 Definition. "Option" shall mean: (a) the right to extend the term of or renew this Lease or to extend or renew any lease that m other property of Lessor; (b) the right of first refusal or first offer to lease either the Premises or other property of Lessor; (c) the right to 'ight of first refusal to purchase the Premises or other property of Lessor. 39.2 Options Personal To Original Lessee. Any Option granted to L or the assi. al Lsee, and cannot be gned or exercised by anyone other than said original Lessee and only while the original Lessee sensfull pos esnai tot the Premises and, if requested by .essor, with Lessee certifying that Lessee has no intention of thereafter assigning or subletting. 39.3 Multiple Options. In the event that Lessee has any multiple Options to exten new this Lease, a later Option cannot be exercised iniess the prior Options have been validly exercised. 39.4 Effect of Default on Options. (a) Lessee shall have no right to exercise an Optio uring the period commencing with the giving of any notice of Default and ;ontinuing until said Default is cured, (ii) during the period of tim ent is unpaid (without regard to whether notice thereof is given Lessee), (III) during the me Lessee is in Breach of this Lease, or (iv) in the eve essee has been given 3 or more notices of separate Default, whether or not the Defaults are ured, during the 12 month period immediately ng the exercise of the Option. (b) The period of t' in which an Option may be exercised shall not be extended or enlarged by reason of Lessee's inabilit to xercise an Option because of visions of P uch ny r aragraph 39.4(a). - y (c on shall terminate and be of no further force or effect, notwithstanding Lessee's due and timely exercise of the Option, if, after for to the commencement of the extended term, (i) Lessee fails to pay Rent for a period of 30 days after such Rent becomes due (without of Lessor to give notice thereof), (ii) Lessor gives to Lessee 3 or more notices of separate Default during any 12 month period, whether or not Security Measures. Lessee hereby acknowledges that the Rent payable to Lessor hereunder does not include the cost of guard service or other 0 Initials 1998 - American industrial Real Estate Association Page 11 of 12 REVISED FORM MTG-2-11/98E I security *measures, and that Lessor shall have no obligation whatsoever to provide same. Lessee assumes all responsibility for the protection of the .Premi€es, Lessee, its agents and invitees and their property from the acts of third parties. 41. Reservations. Lessor reserves the right: (1) to grant, without the consent or joinder of Lessee, such easements, rights and dedications that Lessor deems. necessary, (ii) to cause the recordation of parcel maps and restrictions, and (iii) to create and/or install new utility raceways, so long as such easements, rights, dedications, maps, restrictions, and utility raceways do not unreasonably interfere with the use of the Premises by Lessee. Lessee agrees to sign any documents reasonably requested by Lessor to effectuate such rights. 42. Performance Under Protest. If at any time a dispute shall arise as to any amount or sum of money to be paid by one Party to the other under the provisions hereof, the Party against whom the obligation to pay the money is asserted shall have the right to make payment "under protest" and such payment shall not be regarded as a voluntary payment and there shall survive the right on the part of said Party to institute suit for recovery of such sum. if it shall be adjudged that there was no legal obligation on the part of said Party to pay such sum or any part thereof, said Party shalt be entitled to recover such sum or so much thereof as it was not legally required to pay. 43• Authority. If either Party hereto is a corporation, trust, limited liability company, partnership, or similar entity, each individual executing this Lease on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Lease on its behalf, Each party shall, within 30 days after request, deliver to the other party satisfactory evidence of such authority. 44. Conflict. Any conflict between the printed provisions of this Lease and the typewritten or handwritten provisions shall be controlled by the typewritten or handwritten provisions, 45. Offer, Preparation of this Lease by either party or their agent and submission of same to the other Party shall not be deemed an offer to lease to the other Party. This Lease is not intended to be binding until executed and delivered by all Parties hereto. 46. Amendments. This Lease may be modified only in writing, signed by the Parties in interest at the time of the modification. As long as they do not materially change Lessee's obligations hereunder, Lessee agrees to make such reasonable non -monetary modifications to this Lease as may be reasonably required by a Lender in connection with the obtaining of normal financing or refinancing of the Premises. 47, Multiple Parties. If more than one person or entity is named herein as either Lessor or Lessee, such multiple Parties shall have joint and several responsibility to comply with the terms of this Lease. 48. Waiver of Jury Trial. The Parties hereby waive their respective rights to trial by jury in any action or proceeding involving the Property or arising out of this Agreement. 49. Mediation and Arbitration of Disputes. An Addendum requiring the Mediation and/or the Arbitration of all disputes between the Parties and/or Brokers arising out of this Lease ❑ is (9is not attached to this Lease. LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES. ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY THE AMERICAN INDUSTRIAL REAL ESTATE ASSOCIATION OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO: 1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE. 2• RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PREMISES, THE STRUCTURAL INTEGRITY, THE CONDITION OF THE ROOF AND OPERATING SYSTEMS, COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT AND THE SUITABILITY OF THE PREMISES FOR LESSEE'S INTENDED USE, WARNING: IF THE PREMISES ARE LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PREMISES ARE LOCATED. The parties hereto have executed this Lease at the place and on the dates specified above their respective signatures. Executed at: Vernon, CA on: December 11, 2000 By LESSOR: PACKAGING ADVANTAGE CORP 3y:'`� Vame Printed: Edward M. Zolla Executed at: V Q r n r C on: By LESSEE: UNITED ALLOYS AIRCRAFT METALS, INC. By: Q `4 A t Name Printed: U(j Av i s A• J �c h h J cs y, title: CEO Title: V 3y: flame Printed: "life: address: ! .633 Downey Road Los Angeles, CA 90058 elephone: ( 32� 589-8181 acsimile: ( 32$ 771-1469 ederal ID No. 95-4513363 By: Name Printed: Title: Address: 3398 Leonis Blvd. Vernon CA 90058 Telephone: (32_� 264-5101 Facsimile: (32 262_1172 Federal ID No. I S _ r'1l -L hese forms are often modified to meet changing requirements of law and needs of the industry. Always write or call to make sure you are tilizing the most current form: American Industrial Real Estate Association, 700 South Flower Street, Suite 600, Los Angeles, CA 90017. (213) 87-8777. (c)Copyright 1998 By American Industrial Real Estate Association. All rights reserved. No part of these works may be reproduced in any form without permission in writing. Multi Tenent Less-Groan/J - Initials 1998 -American Industrial Real Estate Association Page 12 of 12 REVISED FORM MTG-2-11198E ADDENDUM TO LEASE DATED 12/11/00 BETWEEN PACKAGING ADVANTAGE CORP (LESSOR) AND UNITED ALLOYS AIRCRAFT METALS, INC. (LESSEE) 51. Lease may be terminated by either party giving ten (10) days written notice. 52. Lessee must register each vehicle and driver with Lessor's Chief of Security prior to that vehicle or driver's use of any parking space covered under this Lease. UNTD-ALLOYS. LEASEADDNDUM City of Vernon NOTICE OF PUBLIC HEARING 4305 Santa Fe Avenue Vernon, California 90058 • (323) 583-8811 The City of Vernon will conduct a Public Hearing, which you may attend. Place: Vernon City Hall City Council Chambers 4305 Santa Fe Avenue Vernon, CA 90058 Time: Wednesday, April 17, 200:2 at 5:00 p.m. Applicant: United Alloys, Inc. The purpose of the hearing is to obtain testimony from affected and/or interested persons regarding this application. The public is also invited to submit written comments regarding the request prior to the Hearing. Request: Grant a variance to allow the applicant to temporarily reduce their automobile parking spaces within the existing facility per Section 26.4.2-6 of the Comprehensive Zoning Ordinance Property Involved: 3398 Leonis Boulevard In the City of Vernon (See reverse side) Review of the file: The application, maps, and supporting information are available in the office of Community Services, Vernon City Hall, 4305 Santa Fe Avenue, between the hours of 7:15 a.m. and 5:15 p.m. Monday through Thursday. If you challenge the granting of this Variance or any provisions thereof in court, you may be limited to raising only those issues you or someone else raised at the hearing described in this notice or in written correspondence delivered to the City of Vernon at, or prior to, the meeting. city Raministrator/City Clerk I. CITY COUNCIL LEONIS C. MALBURG Mayor THOMAS A. YBARRA Mayor Pro -Tern WM. 'BILL" DAVIS Councilman H. "LARRY" GONZALES Councilman W. MICHAEL MCCORMICK Councilman BRUCE V. MALKENHORST City Administrator/City Clerk FAX (323) 826-1438 CITY HALL 4305 SANTA FE AVENUE, VERNON, CALIFORNIA 90058 TELEPHONE (323) 583-8811 March 12, 2002 Interested parties or property owners: EDUARDO OLIVO City Attorney FAX: (562) 869-1883 KEVIN WILSON Director of Community Services & Water FAX: (323) 826-1435 KENNETH J. DeDARIO Director of Municipal Utilities FAX: (323) 826-1425 STEVEN E. PARKER Fire Chief FAX: (323) 826-1407 BRUCE W. OLSON Police Chief FAX: (323) 826-1481 Enclosed herewith for your information is a Notice of Public Hearing to consider an application for a variance for the property located at 3398 Leonis Boulevard in the City of Vernon. The applicant, United Alloys, is requesting a variance from Section 26.4.2-6, automobile parking requirements, to allow the applicant to temporarily reduce their automobile parking spaces to install freestanding shelving units to be placed in the current parking lot within the existing facility per Section 26.4.2-6 of the Comprehensive Zoning Ordinance. A copy of the application and supporting evidence is available for public review at my office between the hours of 7:15 a.m. and 5:15 p.m. Monday through Thursday. You are welcome to attend the meeting on April 17, 2002 or to send written comments prior to the meeting if you so desire. This notice is intended for interested parties or property owners within the project area. If you are no longer a property owner in this area, please forward this notice to the new property owner. Ver/t/r urs Sar6vin lson, P.E. Director of Community Services & Water SKW:sc Enclosure AFFIDAVIT OF MAILING I, Sergio Canales, declare as follows: 1. That I am employed in the Community Services Department in the position of Engineering Aide. 2. That on March 12, 2002 I mailed a copy of NOTICE OF PUBLIC HEARING to be held on April 17, 2002 along with the attached letter regarding a Variance application for United Alloys, Inc. to allow the applicant at 3398 Leonis Boulevard to provide required automobile parking spaces in a leased portion of the Packaging Advantage Corporation property leased as part of their compliance with the Comprehensive Zoning Ordinance without tying the properties with a covenant as required by Section 26.4.2-8(b) of said ordinance, to the owners, tenants and interested parties on the attached lists, by United States Mail with postage prepaid. AFFIDAVIT OF POSTING STATE OF CALIFORNIA ) COUNTY OF LOS ANGELES ) ss. CITY OF VERNON ) I, Sergio Canales, Engineering Aide of the City of Vernon, do hereby certify that I did, on the 12th day of March, 2002, post three (3) copies of: NOTICE OF PUBLIC HEARING, to be held April 17, 2002, (See attached copies) regarding a Variance application for United Alloys, Inc. to allow the applicant to provide required automobile parking spaces in a leased portion of Packaging Advantage Corporation as part of their compliance with the Comprehensive Zoning Ordinance without tying the properties with a covenant as required by Section 26.4.2-8(b) of said ordinance. One in each of the following places to wit: At the northwest corner of 38th Street and Santa Fe Avenue; the northeast corner of Leonis Boulevard and Pacific Boulevard; and on the bulletin board in the lobby of the City Hall of the City of Vernon, located at 4305 Santa Fe Avenue, all in said City, there being no newspaper of general circulation printed and published in the City of Vernon. Date: March 12, 2002 io (lAnales, Engineering Aide State of California ) ss. County �of/ Los Angeles ) On `Tl �before me,-tP�� C�l!/"6Zj Notary Public, personally appeared Sergio Canales, personally known to me (er 1CHqre;.,in #--- tee —en thebasis ef a'-; sfaetei- ; donee` to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and o ficial seal 2 MANUELA G1rA F2ptV Commission # 1329374 [ Notary Public - Califomia Los Angeles County My Comm. ExPhN Nov 4, 2005 I., STAFF REPORT UNITED ALLOYS, INC. 3398 LEONIS BOULEVARD VARIANCE APPLICATION April 10, 2002 United Alloys, Inc. (hereinafter referred to as "United Alloys") has requested a variance from Section 26.4.2-8(b) of the Comprehensive Zoning Ordinance, Development Standards. United Alloys seeks a temporary reduction in the number of required automobile parking spaces on its property in order to accommodate the installation of storage racks. United Alloys, however, has obtained a lease for the requisite number of parking spaces from an adjacent property owner. The property site for which a variance is sought is located at 3398 Leonis Boulevard in the City of Vernon. This site is located in the M-Zone. BACKGROUND United Alloys was formed in 1971 as a manufactured and distributor of wrought titanium, nickel base alloys and PH grades of stainless steel. United Alloys in-house capabilities include a complete horizontal and vertical band sawing department, numerous lathes, milling machines, and shearing and precision polishing services to meet customers requirements. This capability in conjunction with their multi -million dollar inventory allows United Alloys to supply customers with a full line of round and rectangular bars, plate and forged blocks, and cut -to -length -1- pieces ready to insert in their machine tools on a quick turnaround basis. United Alloys is an intermediate producer of forged and rolled bar, block, plate, discs and rolled rings, in titanium, high temperature alloy and PH grades of stainless steel. They also produce bars to 18" cross section, disc forgings to 48" diameter and seamless rolled rings to 70" diameter. This enables United Alloys to remain at the leading edge of quality and service. REASON FOR VARIANCE United Alloys uses its property for industrial and manufacturing purposes. Section 26.4.2-8(b) of the Comprehensive Zoning Ordinance, allows parking to be provided on a separate lot within one thousand (1,000) feet from the main building. The code requires a covenant to be recorded restricting the property to parking for the benefit of the subject lot. The requested variance would allow United Alloys to locate required automobile parking spaces on a separate lot without tying the properties with a covenant as set forth by Section 26.4.2-8(b) of the Comprehensive Zoning Ordinance. As mentioned above, United Alloys is a manufacturer and distributor of wrought titanium, nickel base alloys, and PH grades of stainless steel. They are proposing to reduce their automobile parking spaces within the existing facility. They are -2- requesting approval of their variance to allow them to install freestanding shelving units, to be placed in the current parking lot removing ten required automobile parking stalls. United Alloys proposes to provide replacement parking on leased land within 1,000 feet of the site. The leased land will be located at 4633 Downey Road, Packaging Advantage Corporation ("PAC"). United Alloys is also proposing to place the storage racks outside due to space constraints within the existing facility. They have considered relocating the existing shelving to either a new location or increasing the existing shelving height. Both options would be very costly and timely and would cause an unreasonable hardship to the applicant. VARIANCE METHODOLOGY United Alloys is requesting a variance from the covenant recordation requirement of Section 26.4.2-8(b) of the Comprehensive Zoning Ordinance. Section 26.4.2-8(b) specifies the restrictions for required parking located on the same or separate lots from the project site. Section 26.4.2-8(b) states that all required parking shall be provided on the same parcel or lot as the use or occupancy or on a separate lot or parcel if a covenant is recorded restricting the use of the separate property for parking. United Alloys is proposing to use a separate parcel, owned by PAC for the location of required automobile parking. PAC will not execute a covenant restricting the use of its property -3- to parking. United Alloys has indicated that if it loses its lease with PAC, then United Alloys is prepared to acquire additional land for parking as required, either on or off -site or remove the racks and restore the parking. PARKING ANALYSIS The site is a preexisting site that has not been vacant for a continuous period of more than one year and is not undertaking any structural alterations. Therefore, it is not required to come into complete compliance with the truck parking, truck loading, maneuvering requirements of the current City of Vernon Comprehensive Zoning Ordinance at this time. Upon approval of this variance the site will maintain its legal non -conforming status and is only required to comply with the automobile parking requirements of the Comprehensive Zoning Ordinance not otherwise addressed by a grant of a variance at this time. Section 26.4.2- 8(b) of the Comprehensive Zoning Ordinance, allows parking to be provided on a separate lot within one thousand (1,000) feet from the main building. The code requires a covenant to be recorded restricting the property to parking for the benefit of the subject lot. United Alloys has entered into an agreement to lease parking on the separate lot. The owner of the property that will provide the parking spaces, PAC, does not want to record a covenant. ex"M CEQA REVIEW The proposed site is surrounded by industrial uses compatible with the proposed use. No potentially significant impacts are expected to result from noise, odor, dust, smoke, light or glare from the project. The project is categorically exempt under Section 15301 of the California Environmental Quality Act because it is an existing facility with no expansion of use. A Notice of Exemption will be prepared and filed with the County Clerk. STAFF FINDING AND CONDITIONS Staff proposes the following findings as required by Section 26.5.1-6, of the City of Vernon Comprehensive Zoning Ordinance: a) As previously mentioned United Alloys is proposing to place the storage racks outside due to space constraints within the existing facility. United Alloys has been unable to acquire additional land for parking but has been able to lease separate lot for parking. Strict compliance with the City's automobile parking requirements would force United Alloys to remodel portions of its existing facility in order to provide additional required parking spaces. Alternatively, Section 26.4.2-8(b) of the Comprehensive Zoning Ordinance permits the use of a separate parcel for required automobile parking if the parcel or lot is within 1,000 feet of the main building or use, a covenant restricting parking -5- be recorded or evidence of the parking restriction be provided to the City so long as the use exists. United Alloys has considered relocating the existing shelving to either a new location or increasing the existing shelving height. Both options would cause a significant financial hardship to the applicant. United Alloys proposes to use a separate parcel for required automobile parking. The separate parcel United Alloys will use is within 1,000 feet of the main building. The separate lot is owned by PAC and they will not record a covenant restricting the land for parking use. United Alloys will enter into lease agreement for the property and agrees to use the land for automobile parking. United Alloys also agrees to obtain parking and comply with the automobile parking requirements in the event it should lose its lease. Granting United Alloys a variance from the covenant recordation requirement of Section 26.4.2-8(b) is appropriate given the unique circumstances and the hardship of following strict compliance with the automobile parking requirements. b) A variance relieving United Alloys from the covenant recordation requirement will not adversely affect the interest of the public or the interest of other residents and property owners within the vicinity of the premises because this variance is a mechanism of ensuring the automobile parking requirements are met. United Alloys has agreed to obtain parking on a separate lot -6- and shall obtain other automobile parking if it should lose its lease. c) With the approval of this variance Section 26.4.2-8(b), United Alloys will bring its nonconforming automobile parking spaces into compliance and its facility will then meet the number of automobile parking spaces required by the City of Vernon Comprehensive Zoning Ordinance. The operation is in conformance with the Comprehensive Zoning Ordinance and the General Plan. Therefore it is recommended that the variance be granted with the following conditions imposed on the permit to adequately protect the public interests: a) The facility shall be operated in accordance with all current codes, rules, and regulations and subject to permit fees as adopted by the City of Vernon. b) The facility shall be operated in a manner that will prevent unsanitary conditions, odors or other nuisances. c) United Alloys shall repair any broken, cracked or displaced sidewalk, curbs or gutters adjoining the site. d) Upon any expansion or structural alteration of the building, or prior to August 19, 2009, the entire site shall be made to conform to all truck and automobile parking requirements and all truck loading requirements, pursuant to section 26.4.6-4 (b) of the Comprehensive Zoning Ordinance, unless a variance is granted by the Vernon City Council. -7- e) This variance shall automatically expire at the time of any expansion or structural alteration of the building, or on August 19, 2009, whichever occurs first, at which time the use of the parking, access or loading area(s) allowed by this variance shall be discontinued unless brought into compliance with all applicable standards for parking, access and loading areas set forth in the Comprehensive Zoning Ordinance. It is the intent of the City Council that said parking, access or loading area(s) be treated in the same manner as a legal nonconforming use subject to Section 26.4.E-4(b). f) Upon any change in use or occupancy of all or a portion of the site, the entire site shall be made to conform to all truck and automobile parking requirements and all truck loading requirements. g) All parking and loading areas necessary for United Alloys operations shall be striped in an acceptable manner to the Director of Community Services & Water and shall be paved with a hard durable surface material and shall be adequately drained, and kept free of dust, mud, trash and weeds. Where parking or maneuvering areas adjoin the public street, a barrier wall or landscaping shall be maintained to meet City standards. Adequate on -site parking shall be maintained so that off-street parking will not occur. h) The project site shall be maintained substantially in compliance with the site plan submitted, as part of this variance application. i) If United Alloys' lease with Packaging Advantage Corporation for the subject parking lot should expire or terminate for any reason, then the temporary storage shelving units at 3398 Leonis Boulevard shall be demolished and required automobile parking restored. j) The Packaging Advantage Corporation parcel of land being leased to United Alloys shall be paved and striped in an acceptable manner to the Director of Community Services & Water and shall provide an adequate number of parking stalls so that the building at 3398 Leonis Boulevard is in full conformance with City of Vernon's automobile parking standards. k) Noncompliance with the conditions shall constitute sufficient grounds for the City Council of the City of Vernon to void this variance and require United Alloys to comply with the automobile parking requirements of the Comprehensive Zoning Ordinance. Page 1 of 4 APPLICATION FOR VARIANCE Application is hereby made to the City of Vernon, petitioning for a variance for the following described property: Lecral description (give exact legal description):* �(E C hT prc HE jA a em General location (give street address)LSO N I S'k-0- C-QERUUEJ! ®F_ L_EQf\J1'S -4- Name D—f—Applicant (s) • UN)\-V1E_'b \wc-- (print or type name of business) Mailing address .:Y�,R% LE:W\J�S_�L-VD, VEPMOW C-A Phone No. Cl o04;7s Record Owner (s) of property: Name 17 E: C) (_0 Mailing Address 33flCA L-EC)rol S t LVDiVER,"OW Q-A Phone No. Property Owner(s) representative: Name Mailing address Phone No. relationship to owner(s) (engineer, contractor, attorney, purchaser, lessor) attached. Written consent of owner(s) must be Present use of property: M X-N 1-0 U F A CT U_Zj N Q > —Present Zoning: Proposed use of property: MPi ro 0 F r+C-r U 12 k W 6 How long has owner held title to this property? Are there any easements controlling the use of this property? No G) describe Pt-0-T PLPkv SHT1 Expiration date Are there any private or deed restrictions controlling use of this property? No Yes, describe Page 2 of 4. Variance applied for .(described in detail the nature and purpose of this'request.for which the premises are to be' -used attach additional sheet (a) if necessary: To allow a temporary reduction in auto parking spaces per comprehensive zoning ordinancor the purpose of allowing temporary free standing shelving units to be. placed in the parking lot. Due to space constraint's within the existing structure rOhich • we are trying to remedy by relocating the existing shelving to either a new location or increasing the existing shelving height. Both options are costly and require time. NOTICE TO APPLICANT• In the variance procedure it shall be shown',hat the following five (5) conditions exist in reference to" the propert, being considered.' The applicant should answer the following; statements If you have difficulty :finding. reasonable answers to t:he statements contained in this. application it may be, 31 an indication that; your request has insufficient. factors to justify approval. (Attech additional sheet(s) if necessary. (3) That special :conditions .and circumstances exist which arri pecuZfar< to the land . structure, or building invol�red and. which are not'' enerall g. Y..,applieable to othex lands, a structures, ,or buildings in the: :..same vi�nit _ _ E _ , The lot size and structure are small for the general area. There is also a existing Rail Road Spur, fire hydrant, propane tank and boiler area in the existing open space. These conditions, which exist only on this site and are not applicable to other lands in this vicinity, make it impossible to develop this site as a typical industrial development. (2) That literal interpretation of the provisions of .this ordinance would deprive the applicant of rights commonly enjoyed by other propertied in the same vicinity .and zone in which the property is located, under the terms,of this Chapter. The literal interpretation of the code would deprive the applicant of being able to develop a viable project, as other property owners in the area have been able to O z`t -- I Page 3 of 4 (3) That the special conditions and circumstances do not result from actions of the applicant: These_special conditions do_not_result from actions of the applicant. --- (4) T�iat granting die varIance reques e� wa at con ems: on applicant any special privilege that is.denied-by this Chapter to other lands, structures, or buildings in the same vicinity and. zone in which the property is located; The granting of this variance will -allow the applicant time to develop the. property to the same degree as neighboring properties have been developed_ . There will be no special privilege to the applicant. (5) That the *� -ggrantin of .such . variance will be in harmony and not: adverse affect the Comprehensive General PI an.s This project is in conformance with the General Plan. Granting of the variance will have no adverse affect on the General Plan. NOTE: Non -conforming use of neighboring lands, structures, or buildings, shall not be considered grounds for the issuance of a variance. Are the required site and design plot plans showing the area covered in the legal descr•ption and all existing and proposed improvements attached? No/z Are the required three (31 area maps attached? No(/Yes,'' Page 4 of 4 Is there a certified list attached of names and mailing addresses of all property owners within 300' of the exterior boundaries of the property in this application? No,-e; Is the required fee enclosed? No/es Make check or money order payable to e City of Vernon. I declare under penalty of perjury that to the best of my knowledge and belief the foregoing is true, complete, and accurate. Signed- Date Aprope owner(s) or o presentative NORTH 328 346 AVE. 325 329 v vm N N MAGNOLIA AVE, Instruction for preparing radius maps for zoning case applications in the City of Vernon, California. The following information is required for all radius maps. 1._ Prepare the map to a scale of 1°=100,. Show all properties within a 300 foot radius from the exterior boundaries of the subject property. This map shall include information shown on the sample map, including: Streets Street names Lot lines Street address 2. Locate subject property and cross -hatch as shown on sample map. 3. Draw a 300 foot radius from each corner of subject property. 4. Mark each property within the 300 foot radius with a number in a. circle as shown on sample map. These numbers must correspond to the names on the required property owners list prepared from the tax roll. S. Show a north point. PROPERTY OWNERS LIST STATEMENT The undersigned has duly prepared the attached "Property Owners List". This list includes all of the names, and respective addresses, of persons being owners of property any part of which is within 300 feet of the outer boundaries of the property in subject zoning case. This information is to be obtained from the latest available Los Angles County Tax Assessment Roll. This list was prepared on from the Tax Roll maintained at !!� ®O W 'f" m p LG !ST (ZZ ET Room 2 n�; _ (name and location of office) It is understood that the accuracy and completeness of this list' is the responsibility of the applicant. Sighed: t) (person who prepared list) On this day of 19 undersigned. a Notary Public in -and for said personally appeared known to me or -5etore me the y and State, proven instrument. to me to be the perso at executed the within WITNESS my hand and official s Notary P is in and for said County and State M ommission expires: Signed: �ev�i f;�ate� (Applicant) CHECK LIST FOR PREPARATION OF DEVELOPMENT/PLOT PLANS ZONE VARIANCE Note: Show all of the following data in detail on the Development/Plot Plans submitted. 1. Site address, north arrow and scale (no less than 1"=301).. 2. Overall dimensions of entire property. 3. Location, by dimension, and proper labeling of all: (a) Buildings (existing and proposed); (b) parking and loading areas, including layout and size of parking stalls and maneuvering areas; (c) driveways, alleys and accessways, including entrances to and from public streets; (d) site drainage; (e) all existing or proposed public or private easements; (f) floor plan if applicable of the buildings or buildings showing interior features affected by the variance; (g) circulation plan,.if the application requests variation of parking, loading or related features, showing the location and width of ingress and egress points to the site, the location and dimensions and turning radii of all parking -and loading areas. -1 W c31 A W N N j O w 0 m m 0 m m O W O O O M 0 0 0 0 W W W W W W W w w w W W w w W w W 6J W W O 0000000 00000000000 W W W W A A A w W W A A A A A W w W W rn rnrnrn.iv-4rn rnwoo0o0Doo0Dcocococo N -iW N01-00 CA) .PUt CA) -N►jOAroM W 0) 2) OZCD 0 D� 0 avi 0Do D� C� w � A- � �« N� n Z n A 0 cn 0 cc _ CD 0 Q. 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(on Dcon_con 42 000 - C�D0 00 nD>nDDcoDMDD v i O O O coO A� 0 0 W C031 r O cJi M -4 OOw�A CJIN NN .p cn O N 0)W ..► _a j A m co 0 0 '0 D O m -0 D 0 m r 0 Z m M VJ m D v v m CD CD s CD D --I m N GJ W c0 00 r m 0 (A v m m 0 0 D '0 L) m 1 0 DO 0 m DO S0 m m' r CD ■ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of Lm On I2_ Q, -v Date personally appeared JENNIFER A SALGADO Comm. No. 1289601 0 NOTARYPUBLIC CALIFORNIA p V LOS ANGELES COUNTY —. ss. rvarnets) of aignmts) ❑ personally known to me .L�proved to me on the basis of satisfactory evidence to be the person( whose name( is/are— subscribed to the within instrument and acknowledged to me that he/s4@At;ey executed the same in his/her -weir authorized capacity(i961, and that by his/he-'*�.l;e signatureon the instrument the person('; or the entity upon behalf of which the person( acted, executed the instrument. My Comm Exp January 6, 2005 WITNESS m han a ici seal. Place Notary Seal Above Signature of Nota Pu c OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ❑ Individual ❑ Corporate Officer — Title(s): ❑ Partner — ❑ Limited ❑ General ❑ Attorney in Fact ❑ Trustee ❑ Guardian or Conservator ❑ Other: Signer Is Representing: Number of Pages: RIGHT THUMBPRINT OF SIGNER .p of thumb here 0 1999 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.nationalnotary.org Prod. No. 5907 Reorder: Call Toll -Free 1-800-876-6827 FIRST IN SERVICE Q Q UNITED ALLOYS AIRCRAFT METALS, INC. 3398 Leonis Blvd. Vernon, CA 90058 Phone (323) 264-5101 (800)624-8073 Fax (323) 262-1172 www.unitedalloysair.com PACKAGING ADVANTAGE CORP. 1/23/02 4633 DOWNEY RD. VERNON, CA 90058 ATTN: MR. JOHN PHILLIPP- CEO RE: TEN LEASED PARKING SPACES THIS LETTER IS TO ACKNOWLEDGE THE CONTINUATION OF OUR LEASE AGREEMENT WITH PACKAGING ADVANTAGE CORP. FOR 10 PARKING SPACES. THE ORIGINAL LEASE SIGNED ON 12/11/00 IS STILL IN EFFECT AND WILL CONTINUE INDEFINATELY UNTIL WRITTEN NOTICE OF TERMIANATION OF SAID LEASE. RESPECTFULLY, GEN MGR @ UNITED ALLOYS AIRCRAFT METALS, INC. GING ADVANTAGE CORP. ACKAGING DVAWAGE ORP 4633 Downey Road, Los Angeles, CA 90058-2511 Tel: 323 • 589 • 8181 A Fax 323 • 771 • 1469 December 12, 2000 Bart Hall Operations Manager UNITED ALLOYS AIRCRAFT METALS, INC. 3398 Leonis Blvd. Vernon, CA 90058 Dear Bart: Per your request, enclosed please find two (2) original signed copies of a Standard Industrial/Commercial Multi -Tenant Lease form. Please return one (1) signed copy along with a list of the persons who will be utilizing the ten (10) rented parking spaces, copies of their driver's licenses, car descriptions, and vehicle license numbers and the liability insurance certificate required. And, of course, your check for $250.00. Upon 71eipt of all of the above, we will "open our gates for you". Sing6rely Edward M. Zolla Chief Executive cc: Hector Martinez Don Gorton Emy Celis Gloria Fernandez B HALL-UAAMINC.AGREELTR.121200 PACKAGING ADVANTAGE CORP Inter -Office Memorandum VIA FAX TO: Bart Hall — United Alloys FROM: Ed Zoll SUBJECT: REQUEST FOR PARKING SPACES DATE: November 27, 2000 Thank you for your interest in renting parking spaces. PAC is -generally agreeable to renting you ten (10) spaces on a month -to -month basis subject to the following: 1. Rent Is $250 per month. 2. Rental agreement is terminable on ten (10) days notice by either party. 3. You provide a certificate of insurance to PAC for liability, etc., in- the amount of at least $1, 000.000. 4. The use of the spaces will be limited toA.M. 4:30 P.M.; Mondat �, y through ug Friday. 5. Persons using the spaces agree to abide by all PAC rules including traffic rules. 6. Parties execute a Standard AIR Form Rental/Lease Agreement 7. The spaces to be used will be designated by PAC as per Exhibit A attached. 8. Persons using the spaces must register themselves and their vehicles with PAC Security and provide notification information in case of emergency. cc: Hector Martinez Gabriel Adler PARKING-SPAcES•UALLOYS,112700 0 � � ------- ' Sl rK _ �ONG— ts ~ Z� � '= O;a MARSH USA INC. CERTIFICATE OF INSURANCE CERTIFICATE NUMBER 'PRODUCER Marsh Risk & Insurance Services 777 South Figueroa Street License No. 0437153 - Los Angeles, CA 90017 _ LOS-000168996-00 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER OTHER THAN THOSE PROVIDED IN THE POLICY. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES DESCRIBED HEREIN. COMPANIES AFFORDING COVERAGE 34025 -UNITE-00- COMPANY A PACIFIC EMPLOYERS INSURANCE COMPANY INSURED Reliance Steel &Aluminum Co. DBA: United Alloys Aircraft Metals, Inc. 3398 Leonis Blvd Vernon, CA 90058 COMPANY B N/A COMPANY C COMPANY D COVERAGES This certificate supersedes and're faces ari THIS IS TO CERTIFY THAT POLICIES OF INSURANCE DESCRIBED HEREIN HAVE BEEN ISSUED STO THE INSUREDssued CNtAMED HEREIN FOR THE POLICY PERIOD INDICATED NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THE CERTIFICATE MAY BE ISSUED OR MA PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, CONDITIONS AND EXCLUSIONS OF SUCH POLICIES. LIMITS SHOWNY MAY HAVE BEEN REDUCED BY PAID CLAIMS. Co LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPIRATION DATE (M„ IDONY) DATE (MM/DDNY) LIMITS A GENERALLIABILITY COMMERCIAL GENERAL LIABILITY HDO G19890119 09/01/00 09/01/01 GENERAL AGGREGATE $ $2,000,000 x PRODUCTS - COMP/OP AGG $ $2,000,000 COCCUR OWNERR''S S&&CONTRACTOR'S PROT PERSONAL&ADVINJURY $ $1,000,000 EACH OCCURRENCE $ $1,000,000 FIRE DAMAGE (Any one fire) $ $1,000,000 MED EXP (Any one erson $ 10,000 AUTOMOBILE LIABILITY $ ANY AUTO COMBINED SINGLE LIMIT ALL OWNED AUTOS SCHEDULED AUTOS BODILY INJURY (Per person) $ HIRED AUTOS NON-OWNEDAUTOS BODILY INJURY (Per accident) $ PROPERTY DAMAGE $ -L GARAGE LIABILITY ANY AUTO AUTO ONLY -EA ACCIDENT $ -OTHER THAN AUTO ONLY: EACH ACCIDENT $ AGGREGATE $ EXCESS LIABILITY $ X UMBRELLA FORM OTHER THAN UMBRELLA FORM WORKERS COMPENSATION AND EMPLOYERS'UA.BILITY EACH OCCURRENCE AGGREGATE $ A TORYLIMITSOTH- ER $ EL EACH ACCIDENT $ THE PROPRIETOR/ INCL PARTNERS/EXECUTIVE OFFICERS ARE: EXCL OTHER EL DISEASE -POLICY LIMIT $ EL DISEASE -EACH EMPLOYEE $ ESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/SPECIAL ITEMS (LIMITS MAY BE SUBJECT TO DEDUCTIBLES OR RETENTIONS) vidence of Liability Insurance ERTIFICATE HOLDER. CANCELLATION SHOULD ANY OF THE POLICIES DESCRIBED HEREIN BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, 4633 Downey Rd. Packaging Advantage Corp. 633 D THE INSURER AFFORDING COVERAGE WLL ENDEAVOR TO MAIL In DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED HEREIN, BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR Los Angeles, CA 90058 LIABILITY OF ANY KIND UPON THE INSURER AFFORDING COVERAGE, ITS AGENTS OR REPRESENTATIVES. MARSH USA INC. BY: John F Wesley MM1(9/99) °VALID AS OF, 12/05/00 I March 7, 2002 TO: Bruce V. Malkenhorst, City Administrator 41) FROM: Samuel Kevin Wilson, Director of Community Services & Water SUBJECT: VARIANCE - United Alloys, Inc. at 3398 Leonis Boulevard United Alloys, has submitted a complete application for a variance from Section 26.4.2-6 of the Comprehensive Zoning Ordinance; it states that adequate off-street parking and loading space shall provide for each use, development or property, or for each building, to accommodate all automobiles or similar vehicles of the officers, employees, vendors, salesmen, visitors, and other persons normally transacting business at such enterprise or building. United Alloys is a manufacturer and distributor of wrought titanium, nickel base alloys, and PH grades of stainless steel. They are proposing to temporarily reduce their automobile parking spaces within the existing facility per the Comprehensive Zoning Ordinance. They are requesting approval of their variance to allow them to temporarily install freestanding shelving units to be placed in the current parking lot. Replacement parking is proposed by United Alloy to be provided on leased land within 1,000 feet of the site. It is recommended that you receive this application and that a public hearing for this application be set for April 17, 2002. SKW:sc NOTICE OF PUBLIC HEARING The City of Vernon will conduct a Public Hearing, which you may attend. Place: Vernon City Hall City Council Chambers 4305 Santa Fe Avenue Vernon, CA 90058 Time: Wednesday, April 17, 2002 at 5:00 p.m. Applicant: United Alloys, Inc. The purpose of the hearing is to obtain testimony from affected and/or interested persons regarding this application. The public is also invited to submit written comments regarding the request prior to the Hearing. Request: Grant a variance to allow the applicant to temporarily reduce their automobile parking spaces within the existing facility per Section 26.4.2-6 of the Comprehensive Zoning Ordinance Property Involved: 3398 Leonis Boulevard In the City of Vernon (See reverse side) Review of the file: The application, maps, and supporting information are available in the office of Community Services, Vernon City Hall, 4305 Santa Fe Avenue, between the hours of 7:15 a.m. and 5:15 p.m. Monday through Thursday. If you challenge the granting of this Variance or any provisions thereof in court, you may be limited to raising only those issues you or someone else raised at the hearing described in this notice or in written correspondence delivered to the City of Vernon at, or prior to, the meeting. BRUCE V. MALKENHORCST City Administrator/City Clerk