DRAFT LEASE AMENDMENT

Transcription

1 AMENDMENT TO LEASE This Amendment to Lease ( Amendment ) is entered into as of, 20, ( Effective Date ) by and between the COUNTY OF ORANGE, a political subdivision of the State of California ( COUNTY or LESSOR ), and ( TENANT ). COUNTY and TENANT are sometimes hereinafter individually referred to as Party or jointly referred to as the Parties. R E C I T A L S A. COUNTY leased to TENANT by that certain Lease dated, 20, ( Lease ) that certain retail space comprised of square feet located at Golden Lantern, Dana Point, CA ( Premises ) as more fully described in Exhibit A and illustrated in Exhibit B, both of which exhibits are attached hereto and by this reference made a part hereof. B. As of the date of this Amendment, the Lease is scheduled to expire June, 2015, and TENANT has one remaining five-year option to extend the term of the Lease. C. COUNTY has developed a Revitalization Plan (the Revitalization Plan ) that conceptually is designed to unify under a single design theme, to cluster businesses, shops and services that complement each other, and to provide enhanced parking and open space for the service and convenience of the general public. D. In addition to other acknowledgements made under the Lease, the Parties acknowledged that COUNTY is under no obligation to TENANT with regard to timing and completion of the improvements contemplated under the Revitalization Plan; that COUNTY has made no commitments or representations to individual tenants, including the TENANT, regarding the square footage that may be available for their business operations upon completion of the Revitalization Plan, and that construction activities conducted under the Revitalization Plan may cause interruption of business, noise and dust; possible relocation of some businesses, temporarily reduced parking, traffic circulation problems and temporary limitations on use of common areas within Dana Point Harbor. E. TENANT has expressed concern regarding the impact construction under the Revitalization Plan may have on TENANT S business, and whether it is prudent to exercise the remaining option to extend the term of the Lease. F. As more fully set forth herein, the Parties wish to amend the Lease to include a definition of the term Construction Commencement Date, and a revision of the term Director, the deletion of language in the Lease allowing COUNTY to modify the square footage and footprint of the Premises, a revision to the Limitation of the Leasehold provision, a five-year extension of the term of the Lease, the removal of the remaining option to extend the term of the Lease, the allowance of reduction in rent during the construction period of the Revitalization Plan, the addition of a first right of refusal to lease space in the Revitalized premises, the addition of a Lease termination provision and the deletion of any requirement that TENANT make any cosmetic 1 Page 1 of 9

2 improvements to the Premises during the five-year extension of the Lease as provided in this Amendment. NOW, THEREFORE, for good and valuable consideration, the receipt of which is hereby acknowledged, it is agreed that as of the Effective Date of this Amendment, said Lease shall be and the same is hereby modified and amended as follows: 1. TENANT hereby verifies that the Premises described in the Lease and the exhibits attached to the Lease remain in full force and effect as of the Effective Date, except as amended herein. 2. TENANT hereby verifies the Minimum Annual Rent pursuant to Clause 9(A) of the Lease is $ as of the Effective Date and is subject to periodic adjustments pursuant to Clause 11 of the Lease. 3. TENANT hereby verifies that the Security Deposit pursuant to Clause 16 of the Lease is $ as of the Effective Date, and is subject to periodic adjustments pursuant to that Clause TENANT hereby verifies that the Common Area Charges pursuant to Clause 22(C) of the Lease is $ per month as of the Effective Date and is subject to periodic adjustments pursuant to that Clause 22(C). 5. Clause 1. DEFINITIONS (PMA2.1N) is hereby amended to add the following: Construction Commencement Date means the date that the footings in the new parking deck of the landside improvements of the Harbor Revitalization Plan are installed. Director means the Director, OC, County of Orange, or designee, or upon written notice to TENANT, such other person or entity as shall be designated by the County Executive Officer or the Board of Supervisors. 6. Clause 2. PREMISES (PMA3.1 S) is hereby deleted in its entirety and replaced with the following: 2. PREMISES (PMA3.1 N) COUNTY leases to TENANT that certain property located at Golden Lantern, Dana Point, CA composed of approximately square feet, hereinafter referred to as Premises, described and shown in Exhibit A which exhibit is attached hereto and by reference made a part hereof. The insertion of the Commercial Center map into Exhibit B is for the purposes of identifying TENANT S Premises location within the Commercial Center. 7. Clause 4.B. of the LIMITATION OF THE LEASEHOLD provision is hereby deleted in its entirety and replaced with the following: B. In October 2011, the California Coastal Commission voted unanimously to take the final step to certify the Local Coastal Program Amendment ( LCPA ) for the Revitalization of 2 Page 2 of 9

3 . The LCPA replaces sections in the City of Dana Point Specific Plan relevant to with a new Land Use Plan and Implementation Plan. The LCPA provides specifically for the upgrade of existing buildings, the addition of buildings for restaurant/retail, a parking structure, a stacked boat storage facility and related upgrades and improvements. COUNTY and TENANT agree that COUNTY is under no obligation to TENANT with regard to timing and completion of the improvements contemplated by the LCPA or Revitalization Plan within or outside of the Premises. COUNTY makes no commitments or representations to individual Commercial Center tenants regarding their ability to acquire additional square footage for their business operations. In some cases a mandatory reduction of square footage may be required. When making modifications to leasehold premises, it is the intent of COUNTY to use its best efforts to accommodate the needs of Commercial Center tenants while acting in the best interests of the Commercial Center in entirety and with consideration of service to the public. 8. Clause 7. TERM (PMB2.1 S), is hereby deleted in its entirety and replaced with the following: 7. TERM (N) A. The Term of this Lease shall commence (insert date of Lease) and shall expire June 30, B. TENANT shall not be required to replace, renovate or add any improvements to the Premises for the period commencing with the the Effective Date of the Amendment to this LEASE and continuing throughout the expiration or sooner termination of the LEASE. Notwithstanding the foregoing, TENANT shall not be relieved from repairing or replacing any portion of the Premises as may be required to maintain the Premises in a safe and sanitary condition consistent with this LEASE and/or as may be required by any governmental authority. 9. Clause 8. OPTION TO EXTEND TERM (N), is hereby deleted in its entirety. 10. Clause 9(E). Rent During Construction is deleted in its entirety and replaced with the following: E. Rent During Construction. The extent of interruption or disruption to TENANT S business operation resulting from LESSOR s Revitalization Plan is difficult to determine or estimate. Consequently, in the event TENANT provides the Director with written notice, and supporting documentation satisfactory to Director, that TENANT S gross receipts for two full and consecutive calendar months following the Construction Commencement Date are at least ten percent (10%) less than the same two-month period of the previous year, TENANT S Minimum Annual Rent or base rent of $ shall be reduced by twenty percent (20%) commencing with the first day of the calendar month following the satisfactory written notice to Director described above and such reduction in the base rent shall remain in effect through the expiration or sooner termination of this LEASE and Amendments. 3 Page 3 of 9

4 Upon the implementation of Clause 9(E). Rent During Construction then Clause 11. Revision of Rent shall be deleted in its entirety by this Amendment. 11. The address for notices to COUNTY pursuant to Clause 33 NOTICES is hereby amended as follows: OC Drive Dana Point, CA Attn: Real Property Officer Phone: Fax: with copy to: CEO/Real Estate 333 West Santa Ana Blvd., 3 rd Floor Santa Ana, CA Attn: Chief Real Estate Officer Phone: Fax: 12. EXHIBIT ADDENDUM is hereby deleted in its entirety. 13. The following Clause is hereby added to and made part of the Lease: 35. RIGHT TO LEASE (N) TENANT shall have the right to negotiate a new lease for a space in the new retail/commercial core area constructed under the Revitalization Plan, under the terms and conditions of a new lease for designated retail/commercial space and a tenant improvement plan to be presented to TENANT (the Lease Packet ) no later than one hundred eight (180) days following the Construction Commencement Date. TENANT shall have ninety (90) days following receipt of the Lease Packet to return two fully executed copies of the new lease to Director. Failure to return the signed lease to the Director within said 90-day period shall be deemed an absolute rejection of the offer to lease, and Director may without further notice or obligation to TENANT pursue a lease of the space offered to TENANT, to a third party. 14. The following Clause 36 is hereby added to and made a part of the Lease: 36. TERMINATION (N) In the event that TENANT does not return a new signed lease to the Director as required by Clause 35 above, then this Lease shall terminate upon completion of construction of the new 4 Page 4 of 9

5 retail/commercial core area of the Revitalization Plan, and COUNTY and TENANT shall have no further rights or obligations to each other except for those that specifically survive the termination of this Lease. Director will provide sixty (60) days prior written notice to TENANT of the completion of construction of the new retail/commercial core area of the Revitalization Plan TENANT confirms that there is no current default under the Lease terms by either Parties and no event has occurred that with the passage of time will be a default pursuant to the Lease terms. 16. The Lease is in full force, has not been terminated, and is enforceable in accordance with its terms. Neither COUNTY nor TENANT is in breach of or default under the Lease. COUNTY has performed all obligations required of COUNTY under the Lease; no offsets, counterclaims, or defenses of TENANT under the Lease exist against COUNTY; and no events have occurred that, with the passage of time or the giving of notice, would constitute a basis for offsets, counterclaims, or defenses against COUNTY. No breach or violation exists of any provisions of the Lease granting exclusive uses to TENANT or prohibiting or restricting uses of other TENANTs at the Premises. 17. TENANT has accepted and is currently occupying the leased Premises. Construction of all improvements required of COUNTY under the Lease, if any, has been satisfactorily completed by COUNTY. All required contributions by COUNTY to TENANT on account of TENANT s improvements, if any, have been received. 18. TENANT is presently open and conducting business with the public in the leased Premises. Neither TENANT nor COUNTY has commenced any action with respect to termination of the Lease. TENANT has no intention to vacate the Premises or terminate the Lease. 19. TENANT has no option, right of first refusal, right of first offer, or other right to purchase all or any portion of the Premises or all or any portion of the Harbor. TENANT has not transferred, assigned or sublet any portion of the Premises, nor entered into any license or concession agreements with respect thereto. 20. TENANT does not now and has not at any time since the commencement of the Lease used the Premises for the generation, manufacture, refining, transportation, treatment, storage or disposal of any hazardous substance or waste. 21. Whenever a conflict in the terms or conditions of this Amendment and the Lease exists, the terms and conditions of the this Amendment shall prevail. 22. In all other respects, the terms and conditions of the Lease not specifically changed by this Amendment shall remain in full force and effect. All of the terms and provisions herein shall be binding upon and shall inure to the benefit of the heirs, executors administrator or assigns of the respective Parties hereto. // 5 Page 5 of 9

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7 IN WITNESS WHEREOF, the Parties have executed this Amendment as of the day and year first hereinabove written. TENANT By: Name: Title: Approved as to Form Office of the County Counsel Orange County, California By: Deputy County Counsel COUNTY COUNTY OF ORANGE a political subdivision of the State of California By: Chairman, Board of Supervisor Orange County, California Signed and certified that a copy of this document has been delivered to the Chair of the Board per G.C. Sec , Reso ATTEST: Susan Novak Clerk of the Board of Supervisors Orange County, California 7 Page 7 of 9

8 Exhibit A Lease Amend. Page 8 of 9

9 Exhibit B Lease Amend. Page 9 of 9