96-030 DACA lease
4.03.
4.04.
4.05.
ARTICLE 5.
5.01.
5.02.
5.03.
5.04.
ARTICLE 6.
6.01.
6.02.
6.03.
6.04
6.05.
6.06.
6.07.
ARTICLE 7.
7.01.
7.02.
7.03.
7.04.
PC/CISIC 112800
Utility Costs
Taxes
Additional Rent
MAINTENANCE AND USE OF COMMON AREAS
Maintenance and Control
"Common Areas" Defined
Tenant's Right to Use Common Area
Tenant Parking
CONSTRUCTION AND REPAIRS
City Construction/Condition of Premises
Tenant Construction
Alterations and Improvements By city
Inability of the Tenant to Utilize the Leased Premises
Due to City Construction, Alteration Maintenance, or Repair
Alterations and Improvements By Tenant
Repairs to Premises
Ownership of Improvements
DESTRUCTION OF LEASED PREMISES OR SPORTS CENTER
Notice of Damage
Damage or Destruction From Insured Casualty
Right to Terminate Lease
Payment of Insurance Proceeds
2
ARTICLE 8.
8.01.
8.02.
8.03.
8.04.
8.05.
ARTICLE 9.
9.01.
9.02.
9.03.
9.04.
ARTICLE 10.
10.01.
10.02.
10.03.
10.ü4.
10.05.
ARTICLE 11.
11.01.
11.02.
11.03.
PC/CISIC 112800
USE OF LEASED PREMISES
Business Hours
Prohibited Actions
Compliance with Laws
Advertising and Signs
Assignment and Sublease
INDEMNITY AND INSURANCE
Indemnity
Insurance by Tenant
Subrogation Waiver
Proceeds
CONDEMNATION
Termination of Lease
Continuation of Lease
Option to Terminate Lease
Condemnation Award
Waiver
DEFAULT AND TERMINATION
"Default" Defined
Termination of Lease and Recovery of Damages
City's Right to Continue Lease in Effect
SPORTS CENTER LEASE
This Lease is entered into on
2001, by and between
the City of Cupertino, a California municipality ("City") and De Anza Cupertino
Aquatics, hereinafter referred to as DACA, a non-profit corporation, organized under the
laws of the state of California ("Tenant").
ARTICLE 1. LEASED PREMISES
Agreement to Lease
1.01.
In consideration of the agreements and covenants contained in this Lease
to be kept and performed by both City and Tenant, City leases to Tenant and Tenant
leases from City the premises described in Paragraph 1.02. of this Lease.
"Leased Premises" Defined
1.02.
"Leased Premises" means that certain space which includes the pool,
detached Men's and Women's locker rooms, mechanical room, and storage/office area of
the building known as the Cupertino Sports Center located at 21111 Stevens Creek Blvd.,
Cupertino, California.
Right to Use Common Areas
1.03.
Except as specifically stated in subsection 503 (a), Tenant has the non-
exclusive right to use, in common with others, and subject to the restrictions and
conditions contained in the Lease, the Common Areas of the Sports Center. The term
"Common Area" is defined in Paragraph 5.02. of this Lease.
PC/C/SIC 112800
ARTICLE 2. Tenant's Business UselNon-Competition
Permitted Business Use
2.01.
Subject to the restrictions and conditions contained in Paragraph 2.02. of
this Lease, Tenant is leasing the leased premises for the sole purpose of operating and
conducting the business of providing a swim instruction program. Tenant may not use
the leased premises or permit the leased premises to be used for any unrelated purpose,
unless agreed upon in writing by the City.
ARTICLE 3. TERM OF THE LEASE
Commencement Date and Term
3.01.
The original term of this Lease shall be for a period of five years
beginning on the Commencement Date. The Commencement Date is April I, 2001.
Preliminary and Original Term
3.02.
The period beginning on the date of the execution of this Lease and ending
on the day immediately preceding the Commencement Date shall be the "Preliminary
Term" of this Lease. The period beginning on the Commencement Date and continuing
until the expiration date or earlier termination of this Lease shall be the "Original Term"
of this Lease. Unless otherwise specified, references in this Lease to the "Term of This
Lease" include both the Preliminary Term and the Original Term. Tenant's obligation to
pay rent and/or other monetary amounts required under this Lease shall be abated during
the Preliminary Term; otherwise, all provisions, covenants, and conditions ofthis Lease
shall apply to Tenant during the Preliminary Term.
Confirmation of Term
3.03.
Following the determination of the Commencement Date and Termination
PC/C/s/C 112800
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Date of the Original Term of this Lease, City and Tenant shall each execute, at the option
of City, a written statement prepared by City confirming those dates.
ARTICLE 4. RENT AND OTHER CHARGES
Rent
4.01. Beginning on the Commencement Date and continuing throughout the
term of the Lease, Tenant shall pay a monthly rent to City as follows:
April I, 2001 - March 31,2002
April 1, 2002 - March 31,2003
April 1, 2003 - March 31,2004
April 1, 2004 - March 31, 2005
April 1, 2005- March 31, 2006
$2,844
$2,958
$3,076
$3,199
$3,317
Said rent shall be paid to City without deductions or offsets at the address
set forth in this Lease for giving notices to City.
Maintenance and Repair Costs
4.02. City shall be responsible, at its sole cost, for maintaining the Leased
Premises, including doorways, windows, sidewalks, and halls adjacent to the Leased
Premises in good repair and sanitary order, condition, and repairs, normal wear and tear
excepted; provided, however, Tenant shall be responsible for any maintenance or repair
of any damage to the Leased Premises or to the Cupertino Sports Center caused by the
intentional or negligent conduct of Ten ant, Tenant's employees, customers, or guests.
Any costs incurred by City for any maintenance or repair of any damage caused by
Tenant, its employees, customers, or guests described above shall be charged and
collected by the City as additional rent.
Utility Costs
4.03. Beginning on the commencement date, DACA shall be responsible for
PC/CIS/C 112800
payment of all utility costs applicable to the Leased Premises, including water, electricity,
gas, garbage collection, janitorial, and daily pool maintenance. With respect to electrical
and water utilities, in lieu of separate metering, Tenant shall pay to City, as additional
rent, the following monthly sums for electrical and water utilities:
April 1, 2001 - March 31, 2002
Apri11, 2002 - March 31, 2003
April I, 2003 - March 31, 2004
April 1, 2004 - March 31, 2005
April 1, 2005- March 31, 2006
$333.00
$346.00
$360.00
$374.00
$384.00
Tenant shall be responsible for its own telephone service, and shall provide its
own office equipment, furnishings, and cleaning services.
The City reserves the right to meet as needed with the Executive Director of
DACA to review utility costs associated with DACA's use of the pool, cabana lockers,
office, and mechanical room. As utility costs fluctuate, DACA will still be responsible
for 100% of the utility costs associated with their operation.
Taxes
4.04. -Beginning on the commencement date, Tenant shall pay all applicable
taxes associated with its tenancy including, but not limited to, any possessory interest
property tax and business license tax levied by any governmental entity.
Additional Rent
4.05.
In addition to the Rent payable by Tenant under this Lease, any other
monetary sum required to be paid under this Lease to be paid by Tenant to City or to
others is deemed under this Lease to be additional rent payable by Tenant under this
PC/C/s/C 112800
ARTICLE 5. MAINTENANCE AND USE OF COMMON AREAS
Maintenance and Control
5.01.
All common areas (defined in Paragraph 5.02. of this Lease) of the
Cupertino Sports Center are subject to the exclusive control of the City. City may
construct, maintain, operate, illuminate, and manage the common areas in a manner
determined appropriate by City in its sole discretion. Subject to the provisions of Article
6 of this Lease (regarding construction and repairs), City reserves the right from time to
time during the term of this Lease to 1) reduce or change the number, size, type, location,
and use of any facilities in the common area, (2) to construct new improvements,
buildings, or facilities, or (3) remove existing improvements, buildings, or facilities in the
common areas. City may employ and discharge all personnel hired in connection with
the common areas; police, and maintain security services for, the common areas for any
purpose; regulate parking by Tenant, its employees, customers and guests; establish,
modify, and enforce rules and regulations for the common areas and subject to the
provisions of Article 6 of this Lease, close the common areas when necessary to make
repairs, changes, or alterations to the common areas. In the event of a temporary closure
of the common areas or the alteration, rearrangement, or other changes in the facilities of
the common areas (I) City shall not be liable to Tenant for any resulting loss or damage
(2) Tenant shall not be entitled to any abatement ofrent or other compensation; and (3)
the closure, alteration, rearrangement or other change shall not constitute an actual or
constructive eviction of Tenant or other grounds for Tenant to terminate this Lease.
PC/C/SIC 112800
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"Common Areas" Defined
5.02.
"Common Areas" means those areas, facilities, space and equipment
made available by City for common and joint use and benefit of City, Tenant and other
users of the Cupertino Sports Center, including their respective employees, customers
and guests. "Common Areas" includes only the following, to the extent provided by
City: parking areas, driveways, access roads, landscaped areas, truck service ways,
loading facilities, restrooms, ramps, sidewalks, pool, pool deck and detached poolside
locker rooms, mechanical room, and storage/office area.
Tenant's Right to Use Common Area
5.03. (a) Subject to the provisions of Articles 5 and 6 of this Lease, Tenant and its
employees shall have the exclusive use of the swimming pool, pool deck and detached
poo1side locker rooms, mechanical room and storage/office area from September 1
through May 31 of each year of the term of this lease.
5.03 (b) Subject to the provisions in Articles 5 and 6 of this Lease, City, during
the term of this lease, grants to Tenant and its employees, customers and guests, the non-
exclusive right in common with City and all others to whom the City has or may grant the
right, to use the Common Areas subject to Tenant's compliance with any rules and
regulations enacted or modified by City that govern the use of the Common Areas.
Tenant agrees to abide by and to use its best effort to cause its employees, customers and
guests to abide by City's rules and regulations for the Common Areas.
PCIC/S/C 112800
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Tenant Parking
5.04. Notwithstanding Tenant's right to the non-exclusive use of the parking
area at the Cupertino Sports Center, City reserves the right, should the available parking
not be sufficient to meet the demands of all users of the Sports Center, to designate no
more than 20 parking spaces for Tenant's exclusive use. In the event of said designation,
Tenant shall insure that Tenant, its employees, customers and guests shall park only in
those spaces designated for Tenant's use. Notwithstanding the above, Tenant's
employees, contractors, consultants are required to park behind tennis courts #2 through
#5. on the premises.
ARTICLE 6. CONSTRUCTION AND REPAIRS
City Construction/Condition of Premises
6.0 1.(b) Tenant has at the time of execution of this lease inspected the leased
premises and accepts it in its "as is" condition. If significant changes negatively impact
the "as is" condition of the leased space after the time of the execution of the lease but
before commencement, the City will restore the leased space to the original "as is"
condition.
Tenant Construction
6.02.(a) Tenant assumes all liability for personal injury or property damage in
any way arising out of the performance of Tenant's Work. Further" Tenant agrees to
defend, indemnify, and hold harmless City against all damages, liabilities, or other costs
or expenses (including legal fees and costs) that City may pay as a result of any claim or
lawsuit arising from Tenant's Work.
PCIC/S/C 112800
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Alterations and Improvements by City
6.03.
City may, at any time with thirty (30) days prior written notice to Tenant,
make additions or alterations to the Cupertino Sports Center, including the Leased
Premises. City may also construct additional improvements or buildings in the Cupertino
Sports Center, expand or reduce the size of the Cupertino Sports Center, and enclose any
open areas of the Center. Further, City may at any time use any part of the exterior walls,
roof, or airspace above finished ceiling of the Leased Premises to carry out any
construction described in this paragraph or any repairs described in Paragraph 6.06. or
Article 7.
Inability of the Tenant to Utilize the Leased Premises
Due to City Construction, Alteration Maintenance, or Repair
6.04
In the event that the City's construction, alterations, maintenance or
repairs of the Cupertino Sports Center (as described in Paragraphs 5.01 and 6.03 of this
Lease) result in the inability of the Tenant to use the Leased Premises for its swim
instruction program, the rent described in Paragraph 4.01 of this Lease shall be abated
during said period of inability. In the event that said inability continues for a period of 90
consecutive days, or more, Tenant, upon written notice to the City, may terminate this
Lease prior to its expiration without further obligation or duty on the part of either party.
The remedies contained in this subsection constitute the sole remedies available to the
Tenant should it be unable to use the Leased Premises due to City's construction,
alteration, maintenance, or repair of the Cupertino Sports Center. Neither the City nor its
officers or employees will be liable to for any damages or loss caused by the Tenant's
inability to utilize the Leased Premises under the above-described conditions. Except as
PC/C/SIC 112800
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described herein, the construction, alteration, maintenance or repair which causes the
Tenant to be unable to utilize the Leased Premises shall not constitute an actual or
constructive eviction of Tenant or other grounds for Tenant to terminate this Lease. City
shall provide tenant with a minimum of 90 days written notice prior to undertaking
construction alterations, maintenance or repairs ofthe Cupertino Sports Center which will
result in the tenant's inability to use the Leased Premises.
Alterations and Improvements by Tenant
6.05.
Except for Tenant's Work described in Paragraph 6.02., Tenant may not
make any major alterations or improvements including installation of storage units to the
Leased Premises during the term of this Lease without first obtaining written consent of
City. City's consent to any such alterations or improvements shall not be unreasonably
withheld. Any alterations or improvements approved by City shall be performed
pursuant to plans and specifications previously approved by City for specific alterations
and improvements shall not in any way interfere with normal operations of the Cupertino
Sports Center, and in all respects shall comply with the requirements for Tenant's Work
described in Paragraph 6.02. of this Lease.
Repairs to Premises
6.06.
City shall, at its sole cost, maintain and keep in good order, condition, and
repair the Leased Premises. City's obligation for repairs under this Paragraph extends
only to damage not caused by Tenant or Tenant's employees, customers and guests. City
is not obligated to make any repair, except in the case of emergency, until it receives
written notice from Tenant of the necessity for the repair. In making any repairs, City
shall use its best efforts to perform the work with a minimum of disruption to Tenant's
PC/CISIC 112800
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Ownership of Improvements
6.07.
All alterations, additions, and improvements, except for Tenant's stock in
trade, trade fixtures, furniture and furnishings or storage units, made or placed in or on
the Leased Premises by Tenant or any other person shall on expiration or earlier
termination of this Lease, become the property of City and remain on the Leased
Premises. City shall have the option, however, on expiration or termination of this Lease,
of requiring Tenant to remove any or all such alteration, additions, and improvements
from the Leased Premises.
ARTICLE 7. DESTRUCTION OF PREMISES OR CUPERTINO SPORTS
CENTER
Notice of Damage
7.01.
Within 24 hours of its occurrence, Tenant shall notify City of any damage
or accident occurring on the Leased Premises.
Damage or Destruction From Insured Casualty
7.02.
Subject to the limitations set forth in this Paragraph; if at any time during
the term of this Lease, the Premises are damaged or destroyed by fire or any other
casualty covered by City's fire and extended coverage insurance, City shall promptly
repair, rebuild, or restore the Premises to substantially the same condition as was
originally delivered to Tenant under this Lease. Notwithstanding the foregoing, City
shall not be obligated to expend for repairs or rebuilding an amount in excess of the net
insurance proceeds for damage to the Premises recovered by it. "Net Insurance
Proceeds" means the total amount of proceeds recovered and attributable to the Premises,
PC/C/SIC 112800
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less any expenses incurred by City in recovering the proceeds. City shall commence
repair, restoration, or rebuilding work, as appropriate, not later than 60 days after the
occurrence of the event causing damage or destruction, and shall cause construction to be
completed not later than 6 months after the occurrence of the event causing damage or
destruction. If City does not commence or complete construction within the time periods
described in this Paragraph, Tenant shall have the right to terminate the Lease by giving
City written notice within 10 days after expiration of the applicable time period.
Right to Terminate Lease
7.03. Notwithstanding Paragraph 7.02. of this Lease, City shall have the right to
terminate this Lease and shall have no obligation to repair, restore, or rebuild the
Premises or the Cupertino Sports Center, as the case may be, under any of the following
circumstances:
(a)
The leased Premises are damaged or destroyed by a casualty not
covered by City's insurance.
(b)
The pool in the leased Premises is damaged or destroyed by any
cause (whether or not the damage or destruction actually includes the Premises), and the
cost of repair, restoration, or rebuilding exceeds a total offorty-five (45%) percent of the
then-replacement cost of the pool.
If City elects to terminate this Lease under any of the above circumstances, City
shall give written notice to Tenant not later than 30 days after occurrence of the casualty.
This notice shall set forth the date on which the termination is to be effective. That date
shall be not less than 30 days nor more than 60 days after the date of the termination
notice.
PC/c/s/C 112800
17
Payment of Insurance Proceeds
7.04.
All insurance proceeds payable with respect to the Premises shall belong
to and be payable to City. If City does not elect to terminate this Lease, the insurance
proceeds, shall be disbursed in the following order: first, to City's cost of rebuilding or
restoration; second, to Tenant's cost of rebuilding or restoration, excluding costs covered
by Tenant's insurance.
ARTICLE 8. USE OF PREMISES
Business Hours
8.01.
Beginning on the commencement date, Tenant shall maintain an office
facility at all times during its normal hours of operation. Tenant shall determine its own
hours of operation provided that said hours are between 8:00 a.m. and 9:30 p.m. Monday
through Friday arid 8:00 a.m. through 3:30 p.m. Saturday through Sunday.
Prohibited Actions
8.02.
Tenant may not do any of the following on the Leased Premises:
a)
Permit or commit any waste.
b)
Operate, cause, or permit to be operated any catalogue, mail, or telephone
order sales in or from the Premises, except for the incidental sale of merchandise that
Tenant is permitted to sell on the Leased Premises to customers, except as otherwise
approved in writing by the City.
c)
Permit or conduct any public or private auction on the Leased Premises or
any sale, that would or would tend to indicate that Tenant is going out of business, is
bankrupt, or has lost its lease.
PCIC/S/C 112800
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d)
Place or permit the placement of any pay telephone, vending machines, or
amusement or video games on the Leased Premises.
e)
Use or permit the Common Areas adjacent to the Leased premises to be
used for the display or sale of merchandise for any other business purpose unless
consented to in writing by City.
f)
Permit the making of any noise or sounds that carry beyond the boundaries
of the Leased Premises, whether through loudspeakers, other types of electronic devices,
or otherwise.
g)
Conduct or permit any type of unlawful conduct on the Leased Premises.
h)
Other than for daily maintenance, store or use of hazardous substances or
materials on the Leased Premises must follow City, State, and Federal law.
Compliance with Laws
8.03.
At its sole expense, Tenant shall comply with all governmental laws, rules,
regulations, orders, and ordinances relating to the Leased Premises and to the use and
occupancy of the Leased Premises. Tenant shall also maintain and keep in force all
licenses and permits required by government authorities and shall comply with all
requirements, recommendations, and regulations of City's and Tenant's insurance
companies.
Advertising and Signs
8.04.
(a)
Tenant shall include the name of Cupertino Sports Center in any
advertising of its swim lesson instruction business, except that permitted signs located on
the Leased Premises or at the Cupertino Sports Center need not contain the name of the
Center.
PCICIS/C 112800
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(b)
Tenant shall not place, install, or maintain any sign, awning,
canopy, advertising, or other matter on the exterior of the Leased Premises (whether out
of doors or indoors), including any window or door, unless it obtains prior approval of
City. Tenant shall maintain all signs and other items described in the Paragraph in good
condition and repairs.
Assignment and Sublease
8.05.
(a) Tenant shall not do any of the following without first obtaining written
consent of City: assign, sell, mortgage, or in any other manner transfer this lease or any
interest of Tenant in the Lease; sublet the whole or any part of the Leased Premises; or
permit all or any part ofthe Leased Premises to be occupied by others (whether through
the grant of a concession, license, or otherwise). Any consent requested from City may
be given or withheld by City as City in its sole discretion determines. Any consent given
by City under this Paragraph applies only to the specific transfer transaction for which it
is given, and City's consent to a specific transfer transaction does not relieve or excuse
Tenant from the requirement that Tenant obtain the prior written consent of City for any
subsequent transaction. Any transfer described in this Paragraph, whether made with or
without City's prior written consent, does not relieve Tenant of applicable terms and
covenants under this Lease (including the payment of rent), unless City executes a written
agreement for a specific transfer that provides otherwise. The prohibition against transfer
described in this Paragraph includes any transfer transaction described above that occurs
by operation of law, legal process, receivership, bankruptcy or otherwise, whether
voluntary or involuntary.
(b)
Without in any way waiving its right to approve or disapprove any transfer
PCIC/S/C 112800
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transaction described in this Paragraph, City may (I) collect rent from any assignee,
Subtenant, user, or occupant of the Leased Premises following any transfer described in
this Paragraph, whether or not City gave its prior written consent for the transfer, and (2)
apply the collected amount to the rent due from Tenant under this Lease.
(c)
The transfer of corporate shares of the corporate Tenant by assignment,
sale, bequest, inheritance, operation oflaw, or their disposition shall not be considered a
prohibited transfer transaction under this Lease if it results in the individual Tenant
remaining as the authorized representative of the corporate Tenant for purposes of the
agreement.
ARTICLE 9. INDEMNIFICATION AND INSURANCE
Indemnity
9.01.
Tenant agrees to indemnify and hold harmless City, its officers,
employees, and elected officials, boards, and commissions from all suits, actions, claims,
causes of action, costs, demands, judgments and liens arising out of Tenant's performance
under the Lease, including Lessee's failure to comply with or carry out any of the
provisions of this Lease.
Insurance by Tenant
9.02.
(a)Tenant shall, at its own cost and expense procure and maintain during
the entire term of this Lease the following insurance coverage:
1 )
Comprehensive general public liability insurance insuring
against the risks of bodily injury, property damage, and personal injury liability occurring
on the Leased Premises or arising out of Tenant's use or occupancy of the Premises and
the Cupertino Sports Center, with a combined single limit of liability of at least
PC/C/S/C 112800
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$2,000,000.00 including, but not limited to, coverage for Premises' operations, broad
form blanket contractual coverage, and standard personal injury coverages A, B, and C.
2)
Fire and extended coverage insurance, and vandalism and
malicious mischief insurance, insuring Tenant's fixtures, goods, wares, and merchandise
in or on the Leased Premises for 100% of their insurable and replacement cost, without
deduction for depreciation.
3)
Business interruption insurance, payable in the event of a
loss covered by fire and extended coverage or vandalism and malicious mischief
insurance Tenant is required to maintain, in an amount not less than the amount of
Tenant's Rent for a twelve month period following any damage or destruction.
4)
Worker's compensation insurance as required by the laws
of the State of California.
(b)
Any insurance policy Tenant is required to procure and maintain
under this Lease shall be issued by a responsible insurance company or companies
licensed to do business in the State of California. Further, each such policy shall provide
that it may not be canceled, terminated, or changed except after 30 days prior written
notice to City. Tenant may maintain all or part of the insurance required under this Lease
by means of a blanket insurance policy so long as the provisions of this Article are
satisfied. Tenant must deliver to City duplicate originals or certificates of all insurance
policies procured by Tenant.
(c)
Tenant may not do, omit to do, permit to be done, or keep anything
in or on the Leased Premises that will violate the provisions of City's fire and extended
coverage insurance policy or otherwise adversely affect the premiums paid by City or
PC/C/S/C 112800
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City's ability to maintain the insurance in effect. If any such act or omission by Tenant
results in an increase in City's premiums for any policies on the Premises or the
Cupertino Sports Center, Tenant shall pay the amount of the increase. City may also, at
City's option, rectify the condition causing the increase if Tenant fails to do so. In that
case, on demand of City, the amount expended by City shall be immediately due and
payable by Tenant as Additional Rent.
(d)
If during the term of this Lease Tenant fails to secure or maintain
the insurance required under this Lease, City may obtain the insurance for the Premises in
Tenant's name or as the agent of Tenant, and Tenant shall compensate City for the cost of
the insurance premiums. Tenant shall reimburse City the full amount paid no later than
30 days from the date written notice is received that the premiums have been paid. A
failure by Tenant to make reimbursement within the time required under this
Subparagraph shall be considered a default under this Lease.
Subrogation Waiver
9.03.
City and Tenant agree that in the event ofloss due to any of the perils for
which they have agreed to provide insurance, each party shall look solely to its insurance
for recovery. City and Tenant hereby grant to each other, on behalf of any insurer
providing insurance to either of them with respect to the Premises, a waiver of any right
of subrogation that any such insurer of one party may acquire against the other by virtue
of payment of any loss under that insurance.
Proceeds
9.04.
Except as otherwise provided in this Lease, proceeds from any policy or
policies shall be payable to the party responsible for the payment of insurance premiums.
PCICIS/C 112800
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ARTICLE 10. CONDEMNATION
Termination of Lease
10.01. If at any time during the term of this Lease, title and possession of all of
the Premises or of 10 percent or more of the gross floor area of the Leased Premises is
taken under the power of eminent domain by any public or quasi-public agency or entity,
this Lease shall terminate as of 12.01 A.M. of the date actual physical possession of the
leased Premises is taken by the agency or entity exercising the power of eminent domain.
Thereafter, both City and Tenant shall be released from all obligations under this Lease,
subject to the provisions of Paragraph 10.04. of this Lease.
Continuation of Lease
10.02. If the portion of the leased Premises taken under the power of eminent
domain is less than 10 percent of the gross floor area of the leased Premises, the
following will occur:
(a)
This Lease shall terminate as to the portion taken as of 12:01 A.M.
of the day actual physical possession of that portion of the Premises is taken by the
agency or entity exercising the power of eminent domain (the "date oftaking").
(b)
This Lease shall continue in effect for the remainder of the
Premises not taken. Beginning on the day and at the time described in Subparagraph (a)
of this Paragraph, the Fixed Rent payable by Tenant under this Lease shall be reduced by
the same proportion that the gross floor area taken bears to the gross floor area of the
Premises prior to the taking. Promptly after the taking described above, City shall, at
City's expense, restore the Premises not taken by eminent domain to a condition making
the Premises tenantable by Tenant for the uses permitted by this Lease; and Tenant shall,
PC/C/S/C 112800
24
at Tenant's expense, make all necessary repairs to Tenant's fixtures, equipment, and
furnishings.
Option to Terminate Lease
10.03. City shall have the right to terminate this Lease if title and possession of
the following is taken under the power of eminent domain, whether or not the taking
includes any portion ofthe leased Premises:
(a)
More than 50 percent of the pool area containing the Leased
Premises;
(b)
More than 25 percent of the Common Areas
of the Cupertino Sports Center;
(c)
All or a portion of the parking area of the Cupertino Sports Center,
provided the taking causes the Center to violate the requirements of the then-applicable
zoning law governing the size, location, layout, or other features of the parking area.
Notwithstanding the foregoing, this Lease shall continue in full force and effect if City,
immediately after the agency or entity exercising the power of eminent domain takes
actual physical possession of the parking area, commences to correct the circumstances
giving rise to the right to terminate this Lease, either through obtaining a variance or an
exception to the then-applicable zoning law or by providing additional substitute parking
areas. This action must be at City's sole cost and expense.
City may exercise the foregoing right to terminate this Lease by giving written
notice to Tenant at least 30 days prior to the termination date, which shall be the date
actual physical possession of the Premises is taken by the agency or entity exercising the
power of eminent domain.
PC/C/S/C 112800
25
Condemnation Award
10.04. If at any time during the term of this Lease, title and possession of all or
any portion of the Premises or the Cupertino Sports Center is taken under the power of
eminent domain, the compensation or damages for the taking shall be awarded to and be
the sole property of City, and Tenant shall have no right or claim to that compensation or
damages.
Waiver
10.05. City and Tenant each agree that this Lease shall govern the respective
rights and obligations of each party in the event of a taking by eminent domain. City and
Tenant each hereby waives any right either may have at law to petition the court for
termination of this Lease in the event of a partial taking of the leased Premises.
ARTICLE 11. DEFAULT AND TERMINATION
"Default" Defined
11.01. The occurrence of any of the following constitutes a default and breach of
this Lease by Tenant:
(a)
Any failure by Tenant to pay the rent or to make any other
payment required to be made by Tenant under this Lease, when the failure continues for
10 or more days after written notice from City to Tenant.
(b)
The abandonment of the Premises by Tenant. For these purposes,
the absence of Tenant from or the failure by Tenant to conduct business on the Premises
for a period in excess of 30 consecutive days after the commencement date shall
constitute an abandonment.
(c)
A failure by Tenant to observe or perform any other provision of
PC/C/S/C 112800
26
this Lease to be observed or performed by Tenant when the failure continues for 30 days
or more after written notice of Ten ant's failure is given by City to Tenant; provided,
however, that if the default cannot reasonably be cured within the 30 day cure period,
Tenant shall not be deemed to be in default if Tenant commences the cure within the 30
day cure period and thereafter completes the curative action within a reasonable time.
(d)
The making by Tenant of any general assignment for the benefit of
creditors; the filing by or against Tenant of a petition to have Tenant adjudged a bankrupt
or of a petition for reorganization or arrangement under any law relating to bankruptcy
the appointment of a trustee or receiver to take possession of substantially of all Tenant's
assets located at the premises or of Tenant's interest in this Lease, when possession is not
restored to Tenant within 30 days; or the attachment, execution, or other judicial seizure
of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this
Lease, when that seizure is not discharged within 30 days.
Termination of Lease and Recovery of Damages
11.02. In the event of any default by Tenant under this Lease, in addition to any
other remedies available to City at law or in equity, City shall have the right to terminate
this Lease and all rights of Tenant under this Lease by giving written notice of the
termination. No act of City shall be construed as terminating this Lease except written
notice given by City to Tenant advising Tenant that City elects to terminate the Lease. In
the event City elects to terminate this Lease, City may recover the following from
Tenant:
(a)
The worth at the time of award of any unpaid rent that had been
earned at the time of termination of the Lease;
PCICISIC 112800
27
(b)
The worth at the time of award of the amount by which the unpaid
rent that would have been earned after termination of the Lease until the time of award
exceeds the amount of rental loss that Tenant proves could have been reasonably
avoided;
(c)
The worth at the time of award of the amount by which the unpaid
rent for the balance of the term of this Lease after the time of award exceeds the amount
of rental loss that Tenant proves could be reasonably avoided; and
(d)
Any other amount necessary to compensate compensation
detriment approximately caused by Tenant's failure to perform its obligations under this
Lease.
The term "rent" as used in this Paragraph shall mean the Rent, the
Percentage Rent, and all other sums required to be paid by Tenant pursuant to the terms
of this Lease. As used in Subparagraphs (a) and (b) ofthis Paragraph, the "worth at the
time of award" is computed by allowing interest at the rate of 10 percent per year. As
used in Subparagraph (c) of this Paragraph, the "worth at the time of award" is computed
by discounting the amount at the discount rate of the Federal Reserve Bank of San
Francisco at the time of award plus 1 percent.
City's Right to Continue Lease in Effect
11.03. If Tenant breaches this Lease and abandons the Premises before the
natural expiration of the term of this Lease, City may continue this Lease in effect by not
terminating Tenant's right to possession of the Premises, in which event City shall be
entitled to enforce all its rights and remedies under this Lease, including the right to
recover the rent specified in this Lease as it becomes due under this Lease. No act of
PCIC/S/C 112800
28
City (including an entry on the Premises, efforts to relet the Premises, or maintenance of
the Premises) shall be construed as an election to terminate this Lease unless a written
notice oftermination is given to Tenant or the termination of this Lease is decreed by a
court of competent jurisdiction.
City's Right to Relet
11.04. In the event Tenant breaches this Lease, City may enter on and relet the
Premises or any part ofthe Premises to a third party for any term, at any rental, and on
any other terms and conditions that City in its sole discretion may deem advisable, and
shall have the right to make alterations and repairs to the Premises. Tenant shall be liable
for all of City's costs in reletting, including remodeling costs required for the reletting. In
the event City relets the premises, Tenant shall pay all rent due under and at the times
specified in this Lease, less any amount or amounts actually received by City from the
reletting.
City's Right to Cure Tenant Defaults
11.05. If Tenant reaches or fails to perform any of the covenants or provisions of
this Lease, City may upon written notice, but shall not be required to, cure Tenant's
breach. Any sum expended by City, with the then-maximum legal rate of interest, shall
be reimbursed by Tenant to City with the next due rent payment under this Lease.
Cumulative Remedies
11.06. The remedies granted to City in this Article shall not be exclusive but
shall be cumulative and in addition to all remedies now or hereafter allowed by law or
provided in this Lease.
PCIC/SIC 112800
29
Waiver of Breach
11.07. The waiver by City of any breach by Tenant of any of the provisions of
this Lease shall not constitute a continuing waiver or a waiver of any subsequent breach
by Tenant either of the same or another provisions of this Lease.
Surrender on Termination
11.08. On expiration of the term ofthis Lease or the earlier termination of this
Lease, Tenant agrees to surrender the Premises in good order and condition (reasonable
wear and tear excepted). Further, Tenant shall, at Tenant's expense, remove all of its
merchandise, inventory, and trade fixtures, and repair any damage caused by the removal.
City shall also have the right to require Tenant, at Tenant's expense, to remove any
improvements made to the Premises by Tenant and to repair any damage caused by the
removal.
Holdover Tenancy
11.09. If Tenant remains in possession of the Premises after expiration of the
term of this Lease without renewing or extending this Lease or entering into new lease
with City, Tenant's continued occupancy of the Premises, at City's option, shall be
considered a month-to-month tenancy that may be terminated by either party on 30 days'
prior notice to the other. All terms of this Lease shall be fully applicable to the month-to-
month tenancy insofar as consistent with a month-to-month tenancy, except that Tenant
must pay 110 percent of the Fixed Rent, proportionate share of Common Areas
Maintenance Costs and Taxes, and any Additional Rent provided for under this Lease.
PCIC/S/C 112800
30
Attorneys' Fees
11.10. If any litigation is commenced between the parties to this Lease
concerning the Premises, this Lease, or the rights and duties of either in relation to the
Premises or the Lease, the party prevailing in that litigation shall be entitled, in addition
to any other relief that may be granted in the litigation, to a reasonable sum as and for its
attorneys' fees in the litigation, which shall be determined by the court in that litigation or
in a separate action brought for that purpose.
ARTICLE 12. MISCELLANEOUS
Landlord-Tenant Relationship
12.01 This Lease establishes a Landlord-Tenant relationship between the parties.
It shall not be construed or deemed to create any other type of relationship between them,
including one of agency, partnership, or joint venture.
City's Right of Entry
12.02. At any time Tenant is open for business or is required by this Lease to be
open for business, City shall have the right to enter the Premises to inspect the Premises;
show the Premises to a third party; or perform any repairs City is permitted or required to
make under this Lease, whether to the Premises, adjoining premises, or the building
containing the Premises. For any entry made while Tenant is open for business, City
shall use its best efforts to minimize interference with the conduct of Tenant's business.
Repairs required or permitted to be made by City may, at City's option, be scheduled for
times when Tenant's business is not open, provided prior written notice is given to
Tenant. In the case of an emergency, City may enter the Premises at any time without
prior notice to Tenant, but shall notify Tenant promptly afterwards of its emergency
PCICIS/C 112800
31
entry-
Interest on Obligations
12.03. The payment of any sum due to City under this Lease, however
designated, shall be due promptly as provided for in this Lease. Any payment that is not
paid promptly shall bear interest from its due date until paid at the then-maximum legal
rate of interest.
Notices
12.04. Except as otherwise expressly provided by law, any and all notices or
other communications required or permitted by this Lease or by law to be served on or
given to either party to this Lease by the other party to this Lease shall be in writing and
shall be deemed duly served and given when personally delivered to the party to whom
they are directed or any managing employee of that party, or in lieu of personal service,
within forty-eight (48) hours when deposited in the United States mail, first-class postage
prepaid, addressed to City at 10300 Torre Avenue, Cupertino, Califor¡1Ìa 95014 or to
- WI'?,-'Õ'AJD I eft 2!Þ11
Tenant at ~111t S;-¡$v¡f:¡l.J (.(t'-'/< ¡:r"¡¡,-J . . Either party may change
its address for purposes of this Paragraph by giving written notice ofthat change to the
other party in the manner provided in this Paragraph.
Binding on Heirs and Successors
12.05. This Lease shall be binding on and shall inure to the benefit ofthe heirs,
executors, administrators, successors, and assigns of City and Tenant, but nothing in this
Paragraph shall be construed as a consent by City to any assignment of this Lease or any
interest in this Lease by Tenant.
PC/CISIC 112800
32
Time of Essence
12.06. Time is expressly declared to be of the essence in this Lease.
Sole and Only Agreement
12.07. This Lease, together with the Exhibit described in Paragraph 1.02. of this
Lease, constitutes the sole and only agreement between City and Tenant respecting the
Premises, the leasing of the Premises to Tenant, or the lease term created under this
Lease, and correctly sets forth its date. Any agreements or representations respecting the
premises or their leasing by City to Tenant not expressly set forth in this instrument are
null and void. This Lease may be modified or amended only by an instrument in writing
signed by both City and Tenant.
Invalidity or Unenforceability
12.08. If any provision of this Lease is held by a court of competent jurisdiction
to be either invalid, void, or unenforceable, the remaining provisions ofthis Lease shall
remain in full force and effect.
Waivers
12.09. No waiver of any term, condition, or covenant of this Lease shall be
presumed or implied. Any such waiver must be expressly made in writing by the party
waiving the term, condition, or covenant. The acceptance by City from Tenant of any
amount paid for any reason under this Lease in a sum less than what is actually owing
shall not be deemed a compromise, settlement, accord and satisfaction, or other final
disposition of the amount owing unless City agrees otherwise in writing.
PC/CISIC 112800
33
RESOLUTION NO. 01- 078
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CUPERTINO
AUTHORIZING EXECUTION OF AN EXCLUSIVE LEASE AGREEMENT WITH DE
ANZA CUPERTINO AQUATICS FOR USE OF THE CUPERTINO SPORTS CENTER POOL
AND OTHER RELATED FACILITIES
WHEREAS, there has been presented to the City Council a lease agreement between De
Anza Cupertino Aquatics and the City of Cupertino for lease of certain space which includes the
pool, detached Men's and Women's locker rooms, mechanical room, and storage/office area of
the building known as the Cupertino Sports Center located at 21111 Stevens Creek Boulevard;
and
WHEREAS, the lease has been approved by De Anza Cupertino Aquatics as evidenced
by the tenants signature on the least, dated 2-26-01; and
WHEREAS, the provisions, terms, and conditions of the aforementioned agreement have
been reviewed and approved by the City Attorney and the Director of Parks and Recreation.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Cupertino
hereby authorizes the Mayor and the City Clerk to execute said agreement on behalf of the City
of Cupertino.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 19th day of March 2001, by the following vote:
Vote
Members of the City Council
AYES:
NOES:
ABSENT:
ABSTAIN:
Chang, Lowenthal, James
Burnett
ATTEST:
APPROVED:
/sl Kimberly Smith
City Clerk
Is/ Sandra James
Mayor, City of Cupertino