CAFÉ LEASE AGREEMENT BETWEEN
THE TOWN OF ATHERTON AND MADEMOISELLE COLETTE, INC.
This Cafe Lease ("Lease") is made and entered into as of this 29 day of June, 2022 ("Effective Date"), by and between the Town of Atherton, a municipal corporation ("Landlord") and Mademoiselle Colette, Inc., a California Corporation ("Tenant").
RECITALS
Landlord is the owner of certain real property located at 94 Ashfield Road.
Atherton, California, inclusive of an approximately 1,815 square feet building commonly referred to as the "Historic Town Hall" (the "Property").
Tenant desires to lease from Landlord and Landlord desires to lease to Tenant portion of the Property, consisting of an approximately 260 square feet enclosed space (the "Café"), with an additional non-exclusive use of 1,100 square feet of outdoor deck area (the "Deck"), as shown in Exhibit A, attached hereto and incorporated herein (collectively, the "Premises").
C. Tenant may apply for a liquor license from the California Department of Alcoholic Beverage Control ("ABC") to sell wine, sparkling wine and beer, along with food items from its Premises. If Tenant applies for and obtains a liquor license, Tenant shall comply with the specific terms of use and insurance requirements in connection therewith that are set forth herein. Tenant shall not sell alcohol without accompanying food service as further detailed in Section 6.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows:
AGREEMENT
LEASE OF PREMISES. Landlord hereby leases to Tenant and Tenant hereby leases from Landlord for the Term, at the rental rate, and upon the covenants and conditions set forth herein, the Premises, including nonexclusive rights to use the Common Areas as provided for in this Lease, and depicted in Exhibit A. Tenant acknowledges and agrees that while it will have primary use of the Deck for its patrons, due to the Deck's proximity to the entrance of the Property and the Atherton Library, it is anticipated that Town and Library employees and the general public will be walking through and using the Deck. In addition, it is anticipated and agreed that the Landlord, Library, and the general public will regularly use the Deck. If usage of the Deck by Town and Library employees prohibits Tenant from using the Deck due to programmed events, Landlord will take reasonable measures and cooperate with Tenant to locate alternate seating.
1.1 Landiord Improvements. This Lease includes certain Leasehold Improvements, as described in Section 5.1 herein, previously installed by Landlord on the Premises.
1.2 Landlord's Personal Property. This Lease includes Tenant's lease of certain furniture (including tables and chairs), Café equipment (as detailed in Exhibit B, attached hereto and incorporated herein (the "Café Equipment"), and fire extinguishers, all owned by Landlord and located on the Premises ("Landlord's Property").
Parking. Tenant's employees shall park across the street in the Town Hall parking lot as designated by Landlord.
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LEASE TERM.
2.1 Term. The term of this Lease (the "Term") shall commence on the date on which Landlord makes the Premises available to Tenant, which is anticipated to be July 1, 2022 (the "Commencement Date"). The Term of this Lease shall be five (5) years and shall terminate on June 30, 2027 (the "Termination Date"). The Term may be extended for one (1) additional five (5) year period upon mutual agreement, unless sooner terminated pursuant to any provision hereof, or unless the parties mutually agree to extend the Lease Term. If the parties agree to extend the Lease Term, the extension shall be deemed the "Renewal Term" , and all terms and conditions of this Lease shall remain in full force and effect upon such renewal, except for Monthly Rent for the Renewal Term, which shall be paid in accordance with Section 3.1 below.
Early Possession and Termination. If Tenant occupies the Premises prior to the Commencement Date, such occupancy shall be subject to all provisions of this Lease. However, such occupancy shall not advance the Termination Date. Either party may terminate this Lease for any reason by providing one-hundred and eighty (180) days' advance written notice to the other party; provided, however, Landiord shall not terminate the Lease without cause within the first eighteen (18) months.
3. RENT.
Monthly Rent. Tenant agrees to pay to Landlord, without notice or demand, monthy rent worthy Rent in the anon e monthly rent ("Monthly Rent") in the amount of 4% of gross receipts generated in the previous month of operations. Such payment shall be on or before the fifteenth (15") day of each successive calendar month. Notwithstanding Tenant's immediate use of the Premises, and in consideration for Tenant expending approximately one hundred and fifty-thousand ($150,000) dollars towards Tenant Improvements, Tenant's obligation to pay Monthly Rent shall not commence until July 1, 2023. Said Monthly Rental shall be paid to Landlord without deduction or offset, in lawful money of the United States of America and at such place as Landlord may from time-to-time designate in writing. The Monthly Rent amount shall be submitted to the following address:
Atherton Finance Department
80 Fair Oaks Lane
Atherton CA 94027
Monthly Rent during the initial Term shall be capped at thirty-five thousand ($35,000) dollars per year. Monthly Rent during the Renewal Term shall be 4% of gross receipts generated in the previous month of operations and the rent cap shall increase by 3% annually, with an overall cap of fifty thousand ($50,000) dollars annually.
Operating Expenses. Included within the Monthly Rent is Tenant's share of utilities and other Operating Expenses. Therefore, Tenant shall not be responsible for paying any additional costs for utilities or other Operating Expenses for the Property, the Building, or the Premises. Landlord shall be responsible for the costs and expenses incurred for the operation, repair, replacement, management, and maintenance, in neat, clean, good order and condition of the Property, including, but not limited to, the following: (A) roof, plaza areas, parking areas, roadways, sidewalks, walkways, parkways, landscaped areas, Common Areas, lighting facilities, fences and gates, plantings and landscaping; (B) air conditioning, electricity, heating, and basic plumbing systems and all other utilities; (C) basic trash disposal services; (D) fire detection 2 2199280.3 14537-002
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systems, including sprinkler system maintenance and repair; (E) any other service to be provided by Landlord that is elsewhere in this Lease stated to be an "Operating Expense," (F) the cost of water, gas, and electricity to service the Common Areas (collectively, the "Operating Expenses").
Operating Expenses shall not include internet service, custodial services to the Cafe, plumbing services beyond what has been provided at the commencement of the Lease, or any specialized services or needs for operating a café.
SECURITY DEPOSIT. Tenant shall be required to provide Landlord with a Security Deposit in the amount of ($10,000) ten thousand dollars.
5. IMPROVEMENTS AND PROPERTY
Landlord Improvements. The Landlord is providing the Premises in an As-ls condition which is clean and sanitary, and is not intending any additional improvements to the Premises in support of the Lease. Tenant has requested, and Landlord has agreed, not to install the ceiling to the 260 square feet enclosed space, comprising the Café.
Tenant Improvements. Tenant shall be responsible for providing, at its own cost, any finishes to the 260 feet enclosed Café space, including, but not limited to, the ceiling, flooring and paint (collectively, the "Real Property Fixtures"). Tenant shall also install, at its own cost, all fixtures, trade furnishings, signage, and any other machinery, equipment, or appliances necessary for Tenant's use of the Premises as a café (collectively, the "Trade Fixtures"). Such improvements shall be made in accordance with the terms set forth in Section 10.3 herein, and prior to construction, the Tenant and its contractor shall provide Landlord proof of insurance and indemnification in amounts required by Landlord.
USE.
6.1 Use of Premises.
Use Restriction. The Premises shall be used and occupied only as a café, selling light meals and drinks, and for no other purposes. (b) Menu and Permits. Landlord shall approve a menu for the Café on the Premises (the "Approved Menu") prior to the date on which the Café opens for business which menu shall be consistent with the menu at Tenant's other locations. Tenant shall be entitled to change the menu for the Café from time to time to remain consistent with the menu for Tenant's other locations. Tenant agrees to provide Landlord with a copy of the most current menu and will continue to do so upon request of Landlord. If any governmental license or permit shall be required for the proper and lawful conduct of Tenant's business or other activity carried on in the Premises, or if a failure to procure such a license or permit might or would, in any way, affect Landlord, the Property, or the ability of Tenant to operate its businesses, then Tenant, at Tenant's expense, shall, at all times, obtain and comply with the requirements of each such license or permit. (c) Trade Name. Tenant agrees that it will conduct business in the Premises under the "Trade Name" of Mademoiselle Colette. If Tenant desires to change such Trade Name, Tenant will notify Landlord in writing of such change in Trade Name, and Landlord agrees not to unreasonably withhold its approval thereto.
Use of Liquor License. Tenant may apply for a liquor license from the California Department of Alcoholic Beverage Control (ABC) to sell wine, sparkling wine, and/or beer from its Premises. It is the understanding of Landlord and Tenant from ABC that only one 3 2199280.3 14537-002 DF
liquor license will be given for a particular address location, and therefore only one liquor license will be allowed at the Premises at any one time to sell alcohol. If Tenant applies for and obtains a liquor license, Tenant shall comply with the specific terms of use and insurance requirements in connection therewith that are set forth herein. Tenant shall further ensure that adequate signage and safety protocols are in place to prevent the sale and consumption of alcohol beyond designated areas. No off-site alcohol shall be sold.
6.2 Compliance with Law.
(a) Landlord warrants to Tenant that the Premises, in the state existing on the Commencement Date, but without regard to the use for which Tenant will occupy the Premises, does not violate any covenants or restrictions of record, or any applicable building code, regulation, or ordinance in effect on the Commencement Date, including, but not limited to, the Americans with Disabilities Act. In the event it is determined that this warranty has been violated, then it shall be the obligation of the Landlord, after written notice from Tenant, to promptly, at Landlord's sole cost and expense, rectify any such violation. In the event Tenant does not give to Landlord written notice of the violation of this warranty within three (3) months from the Commencement Date, the correction of the violation shall be the obligation of the Tenant at Tenant's sole cost. The warranty contained in this Section 6.2(a) shall be of no force or effect if, priorto the date of this Lease, Tenant was an occupant of the Premises and, in such event, Tenant shall correct any such violation at Tenant's sole cost.
Except as provided in Section 6.2(a), Tenant shall, at Tenant's expense, comply with all applicable statutes, ordinances, rules, regulations, orders, covenants, and restrictions of record and requirements of any fire insurance underwriters or rating bureaus, including, but not limited to, the Americans with Disabilities Act, now in effect or which may hereafter come into effect, whether or not they reflect a change in policy from that now existing, during the Term or any part of the Term hereof, relating in any manner to the occupation and use by Tenant of the Premises, and of the Common Areas. Tenant shall not use or permit the use of the Premises or the Common Areas in any manner that will tend to create waste or a nuisance, or shall tend to disturb other occupants of the Property or neighbors. (C) Tenant at all times shall keep the Premises and Common Areas free of Hazardous Materials (as hereinafter defined). Tenant shall not use, generate, manufacture, store, release, or dispose of Hazardous Materials in, on, or about the Premises or the Common Areas. "Hazardous Materials" shall include, but not be limited to, substances defined as "hazardous substances," "hazardous materials," or "toxic substances" in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended, 42 United States Code Annotated sections 9601, et seq.; the Resource Conservation and Recovery Act, 42 United States Code Annotated sections 6901, et seq.; and those substances defined as "hazardous wastes" in section 25117 of the California Health & Safety Code or as "hazardous substances" in section 25316 of the California Health & Safety Code; and in the regulations adopted and publications promulgated pursuant to said laws. Landlord warrants to Tenant that, as of the Commencement Date, the Premises are free from Hazardous Materials and Landlord agrees that Tenant shall have no responsibility to remedy or remediate any Hazardous Materials upon the Premises as of the Commencement Date. Should the Premises contain any Hazardous Materials as of the Commencement Date, Landlord shall remove or remediate the same as may be required at Landlord's sole cost and expense.
6.3 Condition of Premises.
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(a) Delivery by Landlord. Landlord shall deliver the Premises to Tenant clean and free of debris on the Commencement Date, and as set forth in Section 5.1.
Acceptance by Tenant. Except as otherwise provided in this Lease, Tenant hereby accepts the Premises in the condition existing as of the Commencement Date or the date that Tenant takes possession of the Premises, whichever is earlier, subject to all applicable zoning, municipal, county and state laws, ordinances, and regulations governing and regulating the use of the Premises, and any covenants or restrictions of record, and accepts this Lease subject thereto, and to all matters disclosed thereby, and by any exhibits attached hereto. Tenant acknowledges that neither Landlord nor Landlord's agent has made any representation or warranty as to the present or future suitability of the Premises for the conduct of Tenant's business. Tenant agrees to keep the Premises in a safe, clean, and sanitary condition.
COMMON AREAS.
Definition of Common Areas. The term "Common Areas" as used herein means all areas and facilities outside the Premises and within the exterior boundary line of the Property that are provided and designated by Landlord from time-to-time for the general nonexclusive use of Landlord, Tenant, and of other tenants of the Property and their respective employees, suppliers, shippers, customers, and invitees, including parking areas, loading and unloading areas, trash areas, roadways, sidewalks, walkways, parkways, driveways, and landscaped areas. For purposes of this Lease, the Common Areas consist of the Deck.
Common Areas - Tenant's Rights. Landlord hereby grants to Tenant, for the benefit of Tenant and its employees, suppliers, shippers, customers, and invitees, during the Term of this Lease, the non-exclusive right to use, in common with others entitled to such use, the Common Areas as they exist from time-to-time, subject to any rights, powers, and privileges reserved by Landlord under the terms hereof or under the terms of any rules and regulations or restrictions governing the use of the Property. Under no circumstances shall the right herein granted to use the Common Areas be deemed to include the right to store any property, temporarily or permanently, in the Common Areas. Any such storage shall be permitted only by the prior written consent of Landiord or Landlord's designated agent, which consent may be revoked at any time. In the event that any unauthorized storage shall occur, then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and store the property, or dispose of the property in the manner in which Landlord deems suitable, and charge the cost of the removal and storage, or disposition, as applicable, to Tenant, which cost shall be immediately payable upon demand by Landlord.
Landlord shall designate a portion of the Common Areas for Tenant's exclusive use for storage of Tenant's trash bin(s). Tenant shall not store its trash bin(s) in any portion of the Common Areas other than such designated area.
7.3 Common Areas - Rules and Regulations. Landlord, or such other person(s) as Landlord may appoint, shall have the exclusive control and management of the Common Areas, and shall have the right, from time-to-time, to establish, modify, amend, and enforce reasonable rules and regulations with respect thereto. Tenant agrees to abide by and conform to all such rules and regulations, and to cause its employees, suppliers, shippers, customers, and invitees to so abide and conform. Landlord shall not be responsible to Tenant for the noncompliance with said rules and regulations by other tenants of the Property.
7.4 Vehicle Parking.
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(a) Tenant staff shall park in the public parking spaces along the Caltrain rail corridor, or other parking spaces designated by the Landlord. Tenant visitors, guests, and invitees may park in the Civic Center parking lot subject to the conditions set forth herein. (b) Tenant shall not permit or allow any vehicles that belong to, or are controlled by Tenant or Tenant's employees, suppliers, shippers, customers, or invitees to be loaded, unloaded, or parked in areas other than those designated by Landlord for such activities, or to leave such vehicles parked overnight.
(C) If Tenant permits or allows any of the prohibited activities described in subsection (a) above, then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away any vehicles involved, and charge the cost to Tenant, which cost shall be immediately payable upon demand by Landlord. (d) Tenant, in the use of the Common Areas, agrees to comply with such reasonable rules, regulations for parking as the Landlord may adopt from time-to-time for the orderly and proper operation of the Common Areas. Such rules may include, but shall not be limited to, the following: (i) the restricting of employee parking to an area or areas designated by Landiord, and (ii) the regulation of the removal, storage, and disposal of Tenant's refuse and other rubbish at the sole cost and expense of Tenant.
7.5 Common Areas - Changes. Landlord shall have the right, in Landlord's sole discretion, from time-to-time, as long as it will not unreasonably interfere with Tenant's use of the Premises and the accessibility of the public to the Premises:
(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, and walkways;
to close temporarily any of the Common Areas for maintenance purposes so long as reasonable access to the Premises remains available; (c) to designate other land outside the boundaries of the Property to be a part of the Common Areas;
(d) to add additional improvements to the Common Areas; to use the Common Areas while engaged in making additional improvements, repairs, or alterations to the Property or any portion thereof; and to do and perform such other acts and make such other changes in, to, or with respect to the Common Areas and Property as Landlord may, in the exercise of sound business judgment, deem to be appropriate.
ACCESS. For purposes of this Section 8, the business hours of the Building ("Business Yours") shall be 8:00 a.m. to 5:00 p.m., Monday through Friday; with nationally recognized Town holidays as exceptions. These hours are subiect to change at Landlord's discretion. Landlord shall grant Tenant access to the Premises as necessary to serve the functions of this Lease.
8.1 Minimum Hours of Café Operation.
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The Café shall be open the following minimum hours: Monday through (a)
Friday from 8:00 a.m. to 4:00 p.m. Tenant shall post its hours of operation in a prominent area for the public. Tenant shall notify Landlord if the Café will be closed for any reason during the minimum hours of operation. In such an event, Tenant shall post signs notifying the public of the closure of the Café and include the Tenant's phone number for any comments or concerns.
If the Tenant desires to modify the Café's hours of operation, Tenant shall submit the request in writing to the Landlord for Landlord's approval in its reasonable discretion.
8.2 All entrance doors in the Premises shall be left locked when the Premises are not in use, and all doors opening to public corridors shall be kept closed except for normal ingress and egress from the Premises. If Tenant is open for business during the building's non-Business Hours, Tenant shall make sure all patrons have left the Café, restrooms, and Common Areas of the Building prior to Tenant leaving the Building, and Tenant shall lock all entrance and restroom doors to the Building upon leaving the Building
8.3 Landlord shall not be liable to Tenant or any other person or entity for direct or consequential damages resulting from the admission to, or exclusion from, the Building or Property of any person, and Tenant acknowledges that Landlord's provision of security cameras strikes, lockouts, or other circumstances rendering such action advisable in Landlord's sole opinion, Landlord will have the right to prevent access to the Building or Property during the continuance of the same by such means as Landlord, in its sole discretion, may deem appropriate, including, without limitation, locking doors and closing parking areas and other Common Areas. reserves the right to prevent access to the Building or the Property during the Landlord
protection of property in the building, and the Building. Landlord will not be liable for damages to continuance of the same by closing of the doors or otherwise, for the safety of the tenants and person or property or for injury to, or interruption of, business for any discontinuance permitted under this Section, nor will such discontinuance in any way be construed as an eviction of Tenant or cause an abatement of Monthly Rent or operate to release Tenant from any of Tenant's obligations under this Lease.
UTILITIES AND SERVICES.
9.1 Service to Premises. Provided that Tenant is not in default hereunder beyond any applicable notice and cure period, Landlord shall furnish (i) heating, air conditioning, electric current, sewer service, and domestic water service in reasonable amounts as required for the normal use and occupancy of the Premises, in Landlord's reasonable judgment, during the Business Hours set forth in Section 8, subject to the rules and regulations of the Building; and (ii) trash disposal services. Tenant shall be responsible for its data and telephone service.
Common Area Service. Landlord shall have the right to control and operate the Common Areas and public portions of the building, the public facilities, and the heating and air conditioning, as well as facilities furnished for the common use of the Tenant.
9.3 Interruption in Service. Landlord reserves the right temporarily to discontinue such services at such times as may be necessary by reason of accident, repairs, alterations or improvements, strikes, lockouts, riots, acts of God, acts of terrorism, governmental preemption in connection with a national or local emergency, any rule, order or regulation of any governmental agency, conditions of supply and demand which make any product unavailable, Landlord's 7 2199280.3 14537-002
compliance with any mandatory governmental energy conservation or environmental protection consent or acquiescence of Tenant, or any other happening beyond the control of Landlord program, or any voluntary governmental energy conservation program at the request of or with reason of Landlord's failure to furnish any of the utility services when such failure is caused by Landlord shall not be liable for, and Tenant shall not be entitled to, any reduction of rental by Landlord shall not be liable under any circumstances for a loss of or injury to property, however the above, or by any other cause, similar or dissimilar, beyond the reasonable control of Landlord.
Further, Landlord shall not be in default hereunder or be liable for any damages directly or occurring, through or in connection with or incidental to failure to furnish any of the foregoing. indirectly resulting from, nor shall the Monthly Rent be abated by reason of (i) the installation, use or interruption of use of any equipment in connection with the furnishing of any sewer, water, where such failure or delay is caused by accident or any condition or event beyond the reasonable garbage, gas, and electricity services, (i) failure to furnish or delay in furnishing any such services Building or Premises, or (ii) the limitation, curtailment or rationing of, or restrictions on, use of control of Landlord, or by the making of necessary repairs or improvements to the Property, Landlord shall not be liable under any circumstances for a loss of or injury to property or business, water, electricity, gas or any other form of energy serving the Property, Building or Premises. however occurring, through or in connection with or incidental to failure to furnish any such services. Notwithstanding the foregoing, if (i) utility services are unavailable to the Premises for interferes with Tenant's ability to operate within the Premises and (iii) Landlord is responsible for a period of five (5) or more consecutive days, (i) the unavailability of such utilities materially said utility services are available to the Premises. restoring said services, then Monthly Rent hereunder shall abate as outlined in Section 16.1 until
9.4 apparatus or device in the Premises, which consumes more electricity than is usually furnished Overloading. Tenant shall not, without the written consent of Landlord, use any or supplied for the use of Premises as a café, as determined by Landlord. Tenant shall not connect any apparatus with electric current except through existing electrical outlets in the Premises.
Wherever heat generating machines or equipment are used in the Premises which significantly affect the temperature otherwise maintained by the air conditioning system, Landlord reserves including the cost of installation, and the cost of operation and maintenance thereof, shall be paid the right to install supplementary air conditioning units in the Premises and the cost thereof, by Tenant to Landlord upon demand by Landlord.
10. MAINTENANCE, REPAIRS, ALTERATIONS, AND COMMON AREA SERVICES.
10.1 Landlord's Obligations.
6 (Use), 10.2 (Tenant's Obligations) and 16 (Damage or Destruction) and except for damage In General. Subject to the provisions of Sections 3.2 (Operating Expenses), caused by any negligent or intentional act or omission of Tenant, Tenant's employees, suppliers, expense. Landlord, at Landlord's expense, shall keep in good condition and repair, the Building's shippers, customers, or invitees, in which event Landlord shall repair the damage at Tenant's sole and air conditioning, electrical, heating, ventilating, mechanical, and plumbing systems, as well roof, foundations, and exterior walls, structural condition of interior bearing walls of the Premises, (including the Café Equipment listed in Exhibit B), and utility installations of the Common Areas as the parking lots, walkways, driveways, landscaping, fences, signs, Landlord's Property and all parts thereof (collectively the "Landlord Obligations"). Landlord's Obligations include 8 2199280.3 14537-002
maintaining the fire extinguishers, providing pest control services for the Premises, and providing nightly custodial services in adjacent restrooms, but not within the Café.
No Obligation. Landlord shall have no obligation to make repairs under this Section 10.1 until a reasonable time after receipt of written notice from Tenant of the need for such repairs. Tenant expressly waives the benefits of any statute now or hereafter in effect which would otherwise afford Tenant the right to make repairs at Landlord's expense or to terminate this Lease because of Landlord's failure to keep the Premises in good order, condition, and repair.
Landlord shall not be liable for damages or loss of any kind or nature by reason of Landlord's failure to furnish any Common Area services when such failure is caused by accident, breakage, repairs, strikes, lockout, or other labor disturbances or disputes of any character, or by any other cause beyond the reasonable control of Landlord
10.2 Tenant's Obligations.
(a) In General. Subject to the provisions of Sections 6 (Use), 10.1 (Landlord's Obligations), and 16 (Damage or Destruction), Tenant, at Tenant's expense, shall keep in good order, condition, and repair the Premises and every part thereof (whether or not a damaged portion of the Premises or the means of repairing the same are reasonably or readily accessible to Tenant) including, without limiting, the generality of the foregoing, electrical and lighting facilities and equipment within the Premises, fixtures, interior walls, and interior surfaces of exterior walls, ceilings, windows, doors, located within the Premises. Tenant shall complete all maintenance and herein, any personal property purchased by Tenant as a replacement for any of Landlord's Property shall become the property of Landlord, and Tenant shall have no right to remove said personal property upon the expiration or sooner termination of this Lease. (b) Refuse. During Café hours, Tenant shall promptly collect and remove any rubbish or garbage from the Premises and the surrounding areas used by Café patrons. Upon daily closing of the Café, Tenant shall remove all refuse from the Premises and place it in the designated dumpster provided by the Landlord. Tenant shall comply with all Town standards concerning refuse and recycling. Tenant shall comply with all state, county, and Town requirements concerning food waste recovery.
(c) Grease Disposal Systems. There is currently no grease disposal system installed in the Premises. Tenant agrees that Tenant SHALL NOT dispose of any type of food waste down the sink. Tenant agrees to place all food waste in appropriate receptacles and dispose in accordance with Senate Bill 1383. If a grease disposal system is ever installed, Tenant agrees to maintain and repair the grease disposal system, including, but not limited to, indoor and/or outdoor grease trap / grease interceptor and roof top exhaust fan system (if any) associated with the Premises. Tenant agrees to clean and maintain grease storage containers in a sanitary condition at all times, and in a manner that reduces odors and leaks, and to dispose of grease in accordance with health department regulations. Tenant agrees to replace grease container on a commercially reasonable basis, and upon reasonable request of Landlord. Tenant further agrees to comply with the Town's food recovery ordinance, and in compliance with Senate Bill 1383.
(d) Events. The Building, Deck, and Property may not be used for private events, catering, or other special events without express written consent by Landlord. If Tenant caters an event in the Building, Deck or other areas on Property, Tenant shall immediately after 9 2199280.3 14537-002
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completion of the event, remove all catering supplies and equipment, and clean the rooms and other spaces used for the event.
(e) Entry Upon Failure to Perform. If Tenant fails to perform Tenant's obligations under this Section 10.2 or under any other section of this Lease, Landlord may enter upon the Premises after ten (10) days' prior written notice to Tenant (except in the case of emergency, in which case no notice shall be required), perform such obligations on Tenant's behalf and put the Premises in good order, condition, and repair, and the cost thereof, together with interest thereon, at the maximum rate then allowable by law shall be due and payable as additional rent to Landlord together with Tenant's next Monthly Rent installment.
10.3 Alterations and Additions.
(a) Tenant shall not make any additions, alterations or improvements to the Premises or any part thereof without Landlord's prior written consent which shall not be unreasonably withheld. Approval, however, may be conditioned upon the receipt by Landlord of a set of plans and specifications for the alterations no later than thirty (30) days prior to the scheduled construction of the alterations. Landiord may impose any conditions and requirements to any consent as Landlord shall in its discretion deem to be necessary or advisable, including, without limitation, the hours when work may be performed and the implementation of safety measures while the construction is being performed. Tenant shall acquire any necessary permits from appropriate governmental agencies and all work shall be done in a good and workmanlike manner in compliance with all building codes. Any additions to or alterations or improvements to the Premises, including, but not limited to, carpeting, cabinetry, permanent partitions, and fixtures of any kind, shall become at once a part of the realty and belong to Landlord if they cannot be removed without damage to the surface to which it is attached. Carpentry and cabinetry shall be deemed an improvement of the Premises and not moveable trade fixtures, regardless of how or where affixed, and shall become and remain property of the Landlord from the time of installation.
Unattached and moveable trade fixtures placed in the Premises by Tenant may be removed. All alterations are to be made at Tenant's own cost. Landlord may condition its approval to additions, alterations or improvements on Tenant's agreement to remove any such additions, alterations or improvements at the expiration of the Lease Term, and restore the Premises to its original condition; provided that Tenant shall not be required to remove its initial alterations to the Premises.
b) Tenant shall pay, when due, all claims for labor or materials furnished or alleged to have been furnished to, or for Tenant at, or for use in, the Premises, which claims are or may be secured by any mechanics' or materialmen's lien against the Premises, or the Property, or any interest therein. Tenant shall give Landlord not less than twenty (20) days' notice prior to the commencement of any work in the Premises, and Landlord shall have the right to post notices of non-responsibility in or on the Premises as provided by law. If Tenant shall, in good faith, contest the validity of any such lien, claim, or demand, then Tenant shall, at its sole expense, defend itself and Landlord against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon, before the enforcement thereof, against Landlord or the Premises, or the Property, upon the condition that if Landlord shall require, Tenant shall furnish to Landlord a surety bond satisfactory to Landlord in an amount equal to such contested lien claim or demand indemnifying Landlord against liability for the same, and holding the Premises and the Property free from the effect of such lien or claim. In addition, Landlord may require Tenant to pay Landlord's attorney's fees and costs in participating in such action if Landlord shall decide it is to Landlord's best interest to do so.
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10.4 Utility Additions. Landlord reserves the right to install new or additional utility facilities throughout the Building and the Common Areas for the benefit of Landlord or Tenant, or any other tenant of the Building, including, but not by way of limitation, such utilities as plumbing, electrical systems, security systems, communication systems, and fire protection and detection systems, so long as such installations do not unreasonably interfere with Tenant's use of the Premises.
NUISANCE. Tenant shall not commit, suffer or permit any waste or nuisance on the Property or the Premises, or any acts to be done thereon in violation of any law or ordinance, and shall permit Landlord and its agents to enter the Premises at reasonable times to inspect the same. Tenant shall not conduct its business in such a manner as to interfere with or deprive neighboring owners and tenants of the quiet enjoyment of their property, including without limitation, making excessive noise or production of unpleasant odors.
12. RULES AND REGULATIONS. Tenant shall faithfully observe and comply with the rules and regulations that Landlord shall from time-to-time promulgate. Landlord reserves the right from time-to-time to make all reasonable modifications to said rules and agrees to provide Tenant ten (10) days' notice for implementation of such modifications.
13. INSURANCE.
13.1 Liability Insurance - Tenant. Tenant shall, at Tenant's expense, obtain and keep in force during the Term of this Lease, insurance as set forth herein.
13.2 Leasehold Improvements. During the Term, Tenant shall maintain in full force and effect on all of its leasehold improvements, interior and exterior signage, trade fixtures, merchandise, and other personal property from time-to-time in, on or upon the Premises, fire and extended coverage insurance in the amount of the full replacement value thereof, containing sprinkler leakage, replacement cost, and inflation endorsements. All proceeds from the insurance required pursuant to this subsection shall be used for the repair or replacement of the property damaged or destroyed unless this Lease shall cease and terminate under the provisions of Section 16 hereof. Both Landlord and Tenant shall be named as co-insureds as to coverage of leasehold improvements and alterations, though not as to Tenant's personal property.
13.3 Insurance Policies.
Tenant shall not commence any work before obtaining and shall maintain in force at all times during the duration and performance of this Lease, the policies of insurance specified herein. Such insurance must have the approval of the Landlord as to limit, form, and amount, and shall be placed with insurers with a current A.M. Best's rating of no less than A- VII (an NR rating is acceptable for Worker's Compensation insurance written with the State Compensation Insurance Fund of California).
Prior to execution of this Lease and prior to commencement of any work, the Tenant shall furnish the Landlord with certificates of insurance and copies of endorsements providing evidence of coverage for all policies required by the Lease. Tenant shall, at its expense, maintain in effect at all times during the performance of operations under the Lease not less than the following coverage and limits of insurance, which shall be maintained with insurers and under forms of policy satisfactory to the Landlord.
C. Commercial General Liability Insurance.
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1. Tenant shall maintain commercial general liability insurance with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than two million dollars $2,000,000) per occurrence for bodily injury, personal injury, and property damage, including, without limitation, blanket contractual liability. If a general aggregate limit applies, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit.
Tenant's general liability policies shall be primary and shall not seek contribution from the Landlord's coverage, and be endorsed using Insurance Services Office form CG 20 10 (or equivalent) to provide that Landlord and its officers, officials, employees and agents shall be additional insureds under such policies. Coverage shall contain a waiver of subrogation in favor of the City. The insurance policy required by this Section shall include dram shop liability insurance if alcohol is sold on the Premises.
2. Business Automobile Liability. Tenant shall provide auto liability coverage for owned, non-owned, and hired autos using ISO Business Auto Coverage form CA 00 01 (or equivalent) with a limit of no less than one million dollars ($1,000,000) per accident Workers' Compensation and Employers' Liability. Tenant shall maintain Workers' Compensation Insurance and Employer's Liability Insurance with limits of at least one million dollars ($1,000,000). Tenant shall submit to Landlord, along with the certificate of insurance, a waiver of subrogation endorsement in favor of Landlord, its officers, agents, employees, and volunteers.
4. All Coverages.
Each insurance policy required by this Lease shall be endorsed to state that coverage shall not be suspended, voided, cancelled, or reduced in limits except after thirty (30) days' prior written notice has been given to the Landlord, except that ten (10) days' prior written notice shall apply in the event of cancellation for nonpayment of premium. b. All self-insurance, self-insured retentions, and deductibles must be declared to, and approved by the Landlord.
C. Evidence of Insurance - Prior to commencement of work, the Tenant shall furnish the Landlord with certificates, additional insured endorsements, and waivers of subrogation evidencing compliance with the insurance requirements above. Any deductibles or self-insured retentions in excess of $10,000 must be declared to, and approved by the Landlord.
D. The requirement as to types, limits, and the Landlord's approval of insurance coverage to be maintained by Tenant are not intended to, and shall not in any manner, limit or qualify the liabilities and obligations assumed by Tenant under the Lease.
13.4 Tenant's Obligation to Insure Alterations. If Tenant shall make any alterations, additions, or improvements to the Premises pursuant to the terms and provisions of this Lease and advance written approval of Landlord, Tenant agrees to carry fire and extended coverage insurance upon such alterations, additions, or improvements. In addition, Tenant shall carry or cause to be carried all legally requisite liability coverage, including workers' compensation insurance. It is expressly understood and agreed that Landlord shall not be required to insure any of such alterations, additions, or improvements under such insurance as Landlord may carry upon the Premises, and that Landlord shall not be required under the provisions relating to 12 2199280.3 14537-002
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reconstruction of the Premises, or under any other circumstances whatsoever, to repair, reconstruct, or reinstall any such alterations, improvements, or additions.
13.5 Tenant's Failure to Maintain Insurance. In the event that Tenant fails, for any reason whatsoever, to secure and maintain any of the insurance policies Tenant is required to maintain pursuant to this Section 13, Landiord may, but shall not be obligated to, secure and maintain such insurance policies. Upon demand and presentation of a bill therefor, Tenant shall immediately pay the cost of such policies to Landlord.
13.6 Landlord's Insurance. Landlord shall obtain and keep in force during the term of this Lease a policy or policies of insurance for the benefit of Landlord covering loss or damage to the Property but excluding coverage of merchandise, fixtures, equipment and leasehold improvements of Tenant, in the amount of the full replacement value thereof, providing protection against all perils included within the classification of fire and vandalism.
14. INDEMNITY. Tenant shall indemnify and hold harmless Landlord, its officers, officials, employees and agents (the "Landlord") from and against any and all claims arising from Tenant's use, occupancy, and enjoyment of the Premises or any other portion of the Property, or from the conduct of Tenant's business or from any activity, work, or things done, permitted, or suffered by Tenant in or about the Premises or elsewhere and shall further indemnify and hold harmless Landlord from and against any and all claims arising from any breach or default in the performance of any obligation on Tenant's part to be performed under the terms of this Lease, or arising from any act or omission of Tenant, or any of Tenant's agents, contractors, or employees, and from and against all costs, attorney's fees, expenses, and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon; and in case any action or proceeding be brought against Landlord by reason of any such claim, Tenant upon notice from Landlord shall defend the same at Tenant's expense by counsel reasonably satisfactory to Landlord, and Landlord shall cooperate with Tenant in such defense. Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property of Tenant in, upon, or about the Premises arising from any cause and Tenant hereby waives all claims in respect thereof against Landlord.
15. EXEMPTION OF LANDLORD FROM LIABILITY. Except for the sole negligence or willful misconduct of Landlord, its agents, contractors, and employees, Tenant, as a material part of the consideration to Landlord, hereby assumes all risk of damage to property of Tenant or injury to persons, in, upon or about the Premises arising from Tenant or by other persons claiming through Tenant, including Tenant's patrons, guests, and invitees, and Tenant hereby waives all claims in respect thereof against Landlord. Tenant, as a material part of the consideration to Landlord, hereby acknowledges that there is a risk of harm to Tenant's property and injury to persons in, upon or about the Premises arising from any such cause or event, and Tenant agrees to assume all such risks of harm and Tenant hereby waives all claims in respect thereof against Landlord Tenant hereby agrees that except for the sole negligence or willful misconduct of Landlord, its agents, contractors, and employees, Landlord shall not be liable for injury to Tenant's business or any loss of income therefrom, or for loss of, or damage to, the goods, wares, merchandise or other property of Tenant, Tenant's employees, invitees, customers, or any other person in or about the Premises, nor shall Landlord be liable for injury to the person of Tenant, Tenant's employees, agents or contractors. Landlord shall not be liable for any damages arising from any act or negligence of any other tenant, occupant or user of the Property, nor from the failure of Landlord to enforce the provisions of any other lease of any other tenant of any building on the Premises.
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16. DAMAGE OR DESTRUCTION. If the Premises shall be totally or partially destroyed or rendered wholly or partly uninhabitable by fire or other casualty, Landlord shall promptly proceed to take all steps necessary to begin reconstruction and to promptly and diligently commence the repair or replacement of the Premises to substantially the same condition as is required to be maintained in pursuant to this Lease, so long as such repair or replacement does not exceed the amount of the insurance proceeds received in connection with such casualty. If the cost to repair or restore the Premises exceeds the value of the insurance proceeds received in connection with such casualty, Landlord may elect to terminate this Lease and both parties shall have no further obligations hereunder, except where expressly provided herein. All proceeds of insurance with respect to loss or damage to the Premises shall be payable to Landlord.
16.1 Abatement of Rent; Tenant's Remedies. In the event of damage or destruction for which Tenant is not legally responsible, and in the event Landlord repairs or restores the Premises pursuant to the provisions of this Section 16, the rent payable hereunder for the period during which such damage, repair, or restoration continues shall be abated in proportion to the degree to which Tenant's use of the Premise is impaired. Except for abatement of rent, if any, Tenant to the useable portion of the Premises shall remain in full force and effect.
Waiver. Landlord and Tenant waive the provisions of any statute which relate to termination of leases when leased property is destroyed and agree that such event shall be governed by the terms of this Lease.
17. TAXES.
17.1 Possessory Interest Taxes. In the event, that pursuant to Revenue and Taxation Code section 107.6, there will be possessory interest taxes imposed on Tenant's possession or right to possession to the Premises, Tenant shall be responsible for the payment of possessory interest taxes imposed on Tenant's possession or right to possession to the Premises pursuant to this Lease, and of any other special assessments or taxes imposed on the Premises during the course of this Lease. Tenant shall pay all such taxes and assessments on or before the date on which they are due.
17.2 Personal Property Taxes. Tenant shall pay, prior to delinquency, all taxes assessed against and levied upon trade fixtures, furnishings, equipment, and all other personal property of Tenant contained in the Premises or elsewhere. When possible, Tenant shall cause said trade fixtures, furnishings, equipment, and all other personal property to be assessed and billed separately from the real property of Landlord.
18. ASSIGNMENT AND SUBLETTING.
18.1 Landlord's Consent Required. Tenant shall not voluntarily or by operation of law assign, transfer, mortgage, sublet, or otherwise transfer or encumber all or any part of Tenant's interest in the Lease or in the Premises, without Landlord's prior written consent. Any attempted assignment, transfer, mortgage, encumbrance, or subletting without such consent shall be void, and shall constitute a breach of this Lease without the need for notice to Tenant under Section
20.1. Any sale or other transfer, including by consolidation, merger, or reorganization, of a majority of the voting stock of Tenant, if Tenant is a corporation, or any sale or other transfer of a majority of the partnership interest in Tenant, if Tenant is a partnership, shall be an assignment for purposes of this Section 18.1.
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If Tenant desires Landlord's consent to a transfer of all or any portion of the Premises, Tenant shall submit to Landlord (a) the proposed sublease or assignment or other transfer agreement, and (b) all other information which Landlord may reasonably request including, without limitation, sufficient information to enable Landiord to determine the character, quality, type of business, and financial responsibility of the proposed transferee. Landlord shall respond to Tenant's request for consent hereunder in a timely manner.
18.2 Terms and Conditions of Assignment. Regardless of Landlord's consent, no assignment shall release Tenant of Tenant's obligation hereunder or alter the primary liability of Tenant to pay the Monthly Rent, and to perform all other obligations to be performed by Tenant hereunder. Landlord may accept rent from any person other than Tenant pending approval or disapproval of such assignment. Neither a delay in the approval or disapproval of such assignment, nor the acceptance of rent shall constitute a waiver or estoppel of Landiord's right to exercise its remedies for the breach of any of the terms or conditions of this Section 18 or this Lease. Consent to one assignment shall not be deemed consent to any subsequent assignment.
In the event of default by any assignee of Tenant or any successor of Tenant, in the performance of any of the terms hereof, Landlord may proceed directly against Tenant without the necessity of exhausting remedies against said assignee. Landlord may consent to subsequent assignments of this Lease or amendments or modifications to this Lease with assignees of Tenant, without notifying Tenant, or any successor of Tenant, and without obtaining its or their consent thereto, and such action shall not relieve Tenant of liability under this Lease.
19. NON-DISCRIMINATION. Tenant or its employees shall not discriminate because of race, age, religion, color, ancestry, sex, physical disability, mental disability, medical condition, sexua orientation, or national origin, against any person by refusing to furnish such person any accommodation or facility offered to the general public. Nor shall Tenant or its employees publicize the accommodations or facilities in any manner that would directly or inferentially reflect upon or question that acceptability of the patronage of any person because of race, age, religion, color, ancestry, sex, physical disability, mental disability, medical condition, sexual orientation, or national origin. In the performance of this Lease, Tenant shall not discriminate against any employee or applicant for employment, because of race, age, color, religion, ancestry, sex, physical disability, mental disability, medical condition, sexual orientation, or national origin.
Tenant will take affirmative action to ensure that applicants are employed and that the employees are treated during employment without regard to their race, color, religion, age, ancestry, sex, physical disability, mental disability, medical condition, sexual orientation, or national origin. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer; recruitment, advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship.
20. DEFAULT; REMEDIES.
20.1 Default. The occurrence of any one or more of the following events shall constitute a material default of this Lease by Tenant:
(a) The vacating or abandonment of the Premises by Tenant for five (5) consecutive business days.
The failure by Tenant to make any payment of rent or any other payment required to be made by Tenant hereunder, as and when due, where such failure shall continue for a period of ten (10) days after written notice thereof from Landlord to Tenant. 15 2199280.3 14537-002
(c) The failure by Tenant to observe or perform any of the covenants, conditions, or provisions of this Lease to be observed or performed by Tenant, other than the payment of sums due hereunder, where such failure shall continue for a period of thirty (30) days after written notice thereof from Landlord to Tenant; provided, however, that if the nature of Tenant's default is such that more than thirty (30) days are reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said thirty (30) day period and thereafter, Tenant diligently prosecutes such cure to completion.
The failure by Tenant to provide Landlord with reasonable evidence of insurance or surety bond required under this Lease, or the failure of Tenant to fulfill any obligation under this Lease which endangers or threatens life or property, where such failure continues for a period of three (3) days following written notice thereof by or on behalf of Landlord to Tenant. (e) The failure by Tenant to provide Landlord with reasonable written evidence (in duly executed original form, if applicable) of (i) compliance with governmental requirements, (i) any inspection, maintenance and service contracts, or (ili) any other documentation or information which Landlord may reasonably require of Tenant under the terms of this Lease, where any such failure continues for a period of twenty (20) days following written notice by or on behalf of Landlord to Tenant.
The occurrence of any of the following events: (i) the making by Tenant of any general arrangement or general assignment for the benefit of creditors; (i) Tenant becoming a "debtor" as defined in 11 United States Code Annotated section 101 or any successor statute where possession is not restored to Tenant within thirty (30) days; or (iv) the attachment, execution, or other judicial seizure of substantially all of Tenant's assets located at the Premises or of Tenant's interest in this Lease, where such seizure is not discharged within thirty (30) days; provided however, in the event that any provision of this Section 20.1(f) is contrary to any applicable law, such provision shall be of no force and effect. (g) The discovery by Landlord that any financial statements or other documents given to Landlord by Tenant, any assignee of Tenant, or any successor-in-interest of Tenant, was materially false at the time given.
20.2 Remedies. In the event of a default by Tenant, Landlord, at its option, without further notice or demand, shall have the right to any one or more of the following remedies in addition to all other rights and remedies provided at law or in equity, or elsewhere herein:
(a) Terminate Tenant's right to possession of the Premises by any lawful means, in which case this Lease and the Term hereof, shall terminate, and Tenant shall immediately surrender possession of the Premises to Landlord, in which case Landlord shall be entitled to recover from Tenant all damages incurred by Landlord by reason of Tenant's default including, but not limited to, the cost of recovering possession of the Premises; expenses of reletting, including necessary renovation and alteration of the Premises, reasonable attorney's fees, and any real estate commission actually paid; the worth at the time of award of the amount by which the unpaid rent for the balance of the Term after the time of such award exceeds the amount of such rental loss for the same period that Tenant proves could be reasonably avoided; and of any leasing commission paid by Landlord applicable to the unexpired Term of this Lease. 16 2199280.3 14537-002
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For purposes of this subsection, "worth at the time of award" shall be computed by allowing interest at a per annum rate of ten percent (10%).
(b) Maintain Tenant's right to possession in which case this Lease shall continue in full force and effect, whether or not Tenant shall have vacated or abandoned the Premises. in such event, Landlord shall be entitled to enforce all of Landlord's rights and remedies under this Lease, including the right to recover the rent and any additional charges as they become due hereunder.
(c) Pursue any other remedy now or hereafter available to Landlord under the laws or judicial decisions of the state wherein the Premises is located. (d) The expiration or termination of this Lease and/or the termination of Tenant's right to possession shall not relieve Tenant from liability under any indemnity provisions of this Lease as to matters occurring or accruing during the Term hereof, or by reason of Tenant's occupancy of the Premises.
if Tenant fails to perform any affirmative duty or obligation of Tenant under this Lease within ten (10) days after written notice to Tenant (or in case of an emergency, without notice), Landlord may at its option (but without obligation to do so), perform such duty or obligation on Tenant's behalf, including, but not limited to, the obtaining of reasonably required bonds, insurance policies, or governmental licenses, permits or approvals. The costs and expenses of any such performance by Landlord shall be due and payable by Tenant to Landlord upon invoice therefore.
20.3 Default by Landlord. Landlord shall not be in default unless Landlord fails to perform obligations required of Landlord within a reasonable time, but in no event later than thirty (30) days after written notice by Tenant to Landlord, specifying wherein, Landlord has failed to perform such obligation; provided, however, that if the nature of Landlord's obligation is such that more than thirty (30) days are required for performance, then Landlord shall not be in default if Landlord commences performance within such thirty (30) day period, and thereafter, diligently prosecutes the same to completion.
20.4 Late Charges. Tenant hereby acknowledges that late payment by Tenant to Landlord of Monthly Rent or other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain.
Such costs include, but are not limited to, processing and accounting charges, and late charges which may be imposed on Landlord by the terms of any mortgage or trust deed covering the Property. Accordingly, if any installment of Monthly Rent or any other sum due from Tenant shall not be received by Landlord or Landlord's designee within ten (10) days after such amount shall be due, then without any requirement for notice to Tenant, Tenant shall pay to Landlord a late charge equal to five percent (5%) of such overdue amount. The parties hereby agree that such late charges represent a fair and reasonable estimate of the costs Landlord will incur by reason of late payment by Tenant. Acceptance of such late charge by Landlord shall in no event constitute a waiver of Tenant's default with respect to such overdue amount, nor prevent Landlord from exercising any of the other rights and remedies granted hereunder. In the event that Tenant fails to pay any amount of Rent, or any other monetary obligations owed to Landlord hereunder within (30) days of the date that such amounts are due and payable, Tenant shall pay to Landlord, in addition to such amounts, interest thereon at an annual rate of ten percent (10%). In the event that a late charge is payable hereunder, whether or not collected, for three (3) consecutive installments of any of the aforesaid monetary obligations of Tenant, then Monthly Rent shall 17 2199280.3 14537-002
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automatically become due and payable quarterly in advance, rather than monthly, notwithstanding Sections 3.1 or any other provision of this Lease to the contrary.
21. ESTOPPEL CERTIFICATE
21.1 Tenant shall at any time upon not less than ten (10) days' prior written notice from Landlord execute, acknowledge, and deliver to Landlord a statement in writing:
(a) certifying that this Lease is unmodified and in full force, or if modified stating the nature of the modification and certifying that this Lease, as so modified, is in full force; (b) stating the date to which the rent and other charges are paid in advance, if any;
acknowledging that there are not, to the certifying party's knowledge, any uncured defaults on the part of any party, or if there are uncured defaults, specifying the nature of the defaults, and
(d) certifying any other information about the Lease as may be reasonably required by the requesting party.
Any such statement may be conclusively relied upon by any prospective purchaser or encumbrancer of the Property.
21.2 At the Landlord's option, the failure to deliver such statement within such time shall be a material default of this Lease by the Tenant, without any further notice to such party, or it shall be conclusive upon such party that (i) this Lease is in full force and effect without modification except as may be represented by the Landlord, (ii) there are no uncured defaults in Landlord's performance under the Lease, and (iii) not more than one month's rent has been paid in advance.
21.3 If Landiord desires to finance, refinance, or sell the Property or any part thereof, Tenant hereby agrees to deliver to any lender or purchaser designated by Landlord such financial statements of Tenant as may be reasonably required by such lender or purchaser. Such statements shall include the past three (3) years financial statements of Tenant. All such financial statements shall be received by Landlord and such lender or purchaser in confidence, and shall be used only for the purposes herein set forth.
22. TENANT'S RIGHT TO SIGNS. Tenant shall not have the right to place, construct, or maintain any sign, advertisement, awning, banner or other exterior decoration without Landlord's prior written consent and in compliance with the sign ordinance of the Town.
LANDLORD'S ENTRY ON THE PROPERTY. Landlord and its authorized representatives shall have the right to enter the Premises at all reasonable times for any reasonable purpose determined by Landlord. Landlord shall not be liable in any manner for any inconvenience, disturbance, loss of business, nuisance, or other damage arising out of Landlord's entry on the Property as provided in this Section, except damages resulting from acts or omissions of Landlord or its authorized representatives. Tenant agrees to provide Landlord a copy of the key to the Premises for emergency use only. Landlord may, at any time during the last 180 days of the Term of this Lease, place on or about the Premises "For Lease" signs.
SURRENDER. On the last day of the Term hereof, or on any sooner termination, Tenant shall surrender the Premises to Landlord in the same condition as received, ordinary wear and 18 2199280.3 14537-002
tear excepted, clean and free of debris. Any damage or deterioration of the Premises shall not be deemed ordinary wear and tear if the same could have been prevented by good maintenance practices. Tenant shall repair any damage to the Premises occasioned by the installation or removal of Tenant's trade fixtures, alterations, furnishings, and equipment. Notwithstanding anything to the contrary otherwise stated in this Lease, Tenant shall leave the air lines, power panels, electrical distribution systems, lighting fixtures, heaters, air conditioning, plumbing or Real Property Fixtures on the Premises in good operating condition. If Tenant terminates the Lease earlier than eighteen (18) months, Landlord shall have the option to keep the Trade Fixtures. If Tenant terminates the Lease after eighteen months have passed, then Tenant shall keep the Trade Fixtures and remove them from the Premises without sustaining any damage to the Premises. Any personal property Tenant leaves on the Premises at termination or expiration of the Lease shall be disposed of in accordance with state law.
25. SEVERABILITY. The invalidity of any provision of this Lease as determined by a court of competent jurisdiction shall in no way affect the validity of any other provision hereof.
INTEREST ON PAST-DUE OBLIGATIONS. Except as expressly herein provided, any amount due to Landlord not paid when due shall bear interest at the maximum rate then allowable by law from the date due. Payment of such interest shall not excuse or cure any default by Tenant under this Lease; provided, however, that interest shall not be payable on late charges incurred by Tenant or on any amounts upon which late charges are paid by Tenant.
27. TIME OF ESSENCE. Time is of the essence with respect to the obligations to be performed under this Lease.
28. ADDITIONAL RENT. All monetary obligations of Tenant to Landlord under the terms of this Lease shall be deemed to be rent.
29. ENTIRE AGREEMENT; AMENDMENT. This Lease sets forth all the covenants, promises, agreements, conditions, and understandings between Landiord and Tenant concerning the Premises, and there are no covenants, promises, agreements, conditions, or understandings, either oral or written, between them, other than those expressly set forth herein. All negotiations and oral agreements have been merged into and are included herein, it being understood that this Lease supersedes and cancels any and all previous negotiations, arrangements, agreements, understandings, representations, and brochures, and none thereof shall be used to interpret or construe this Lease. This Lease may be modified in writing only, signed by the parties in interest at the time of the modification.
NOTICES. All notices, demands, consents, requests or other communications required to or permitted to be given pursuant to this Lease shall be in writing, shall be addressed to the parties in the manner set forth below, and shall be conclusively deemed to have been properly delivered (i) upon receipt when hand delivered, (i) upon receipt when sent by facsimile to the number set forth below (so long as evidence can be presented by the sending party of receipt by the receiving party), (iii) upon the day of delivery if the notice has been deposited in an authorized receptacle of the United States Postal Service as first-class, registered or certified mail, postage prepaid, with a return receipt requested (provided that, the sender has in its possession, the return receipt to prove actual delivery), or (iv) upon actual delivery if deposited with any commercially- recognized overnight carrier that routinely issues receipts (provided that, the sending party receives a confirmation of actual delivery from the courier). Either party may by written notice to the other specify a different address for notice purposes except that upon Tenant's taking possession of the Premises, the Premises shall constitute Tenant's address for notice purposes.
A copy of all notices required or permitted to be given to Landlord hereunder shall be concurrentiy 19 2199280.3 14537-002
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transmitted to such party or parties at such addresses as Landlord may from time-to-time hereafter designate by notice to Tenant. The addresses of the parties to receive notices are as follows:
If to Tenant: Debora Ferrand, CEO
Mademoiselle Colette, Inc.
816 Santa Cruz Avenue
Menlo Park, CA 94025
If to Landlord: Town of Atherton
80 Fair Oaks Lane
Atherton CA 94027
If any notice is refused, the notice shall be deemed to have been delivered upon such refusal. Any notice delivered after 5:00 p.m. (recipient's time) or on a non-business day shall be deemed delivered on the next business day. A party may change or supplement the addresses given above, or designate additional addressees, for purposes of this Section by delivering to the other party written notice in the manner set forth above.
WAIVERS. No waiver by Landlord of any provision hereof shall be deemed a waiver of any other provision hereof or of any subsequent breach by Tenant of the same or any other provision. Landlord's consent to, or approval of, any act shall not be deemed to render unnecessary the obtaining of Landlord's consent to or approval of any subsequent act by Tenant.
The acceptance of rent hereunder by Landlord shall not be a waiver of any preceding breach by Tenant of any provision hereof, other than the failure of Tenant to pay the particular rent so accepted, regardless of Landlord's knowledge of such preceding breach at the time of acceptance of such rent.
HOLDING OVER. If Tenant, with Landlord's consent, remains in possession of the Premises or any part thereof after the expiration of the Term hereof, such occupancy shall be a tenancy from month-to-month upon all the provisions of this Lease pertaining to the obligations of Tenant, but all Options, if any, granted under the terms of this Lease shall be deemed terminated and be of no further effect during said month-to-month tenancy. During the holding over period, Tenant shall pay Landlord a Monthly Rent in an amount equal to 150% of the Monthly Rent being paid by Tenant upon expiration of this Lease.
33. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed exclusive, but shall, wherever possible, be cumulative with all other remedies at law or in equity.
34. COVENANTS AND CONDITIONS. Each provision of this Lease performable by Tenant shall be deemed both a covenant and a condition.
35. BINDING EFFECT; CHOICE OF LAW. Subject to any provisions hereof restricting assignment or subletting by Tenant and subject to the provisions of Section 16, this Lease shall bind the parties, their personal representatives, successors, and assigns: This Lease shall be governed by the laws of the State of California with venue in San Mateo County.
36. SUBORDINATION
36.1 This Lease shall be subordinate to any ground lease, mortgage, deed of trust, or any other hypothecation, or security now or hereafter placed upon the Property and to any and all advances made on the security thereof, and to all renewals, modifications, consolidations, 20 2199280.3 14537-002
IF
replacements, and extensions thereof. Notwithstanding such subordination, Tenant's right to quiet possession of the Premises shall not be disturbed if Tenant is not in default and so long as Tenant shall pay the rent, and observe, and perform all of the provisions of this Lease, unless this Lease is otherwise terminated pursuant to its terms. In the event of foreclosure or deed-in-lieu of foreclosure pursuant to any deed of trust encumbering the Property, Tenant shall attorn to the successor-in-interest of Landlord and recognize such successor-in-interest as Landlord under this Lease. If any mortgage, trustee, or ground landlord shall elect to have this Lease prior to the lien of its mortgage, deed of trust, or ground lease, and shall give written notice thereof to Tenant, this Lease shall be deemed prior to such mortgage, deed of trust, or ground lease, whether this Lease is dated prior or subsequent to the date of said mortgage, deed of trust, or ground lease or the date of recording thereof.
36.2 Tenant agrees to execute and deliver any additional documents required to effectuate an attornment or a subordination or to make this Lease priorto the lien of any mortgage, deed of trust, or ground lease, as the case may be, in the form requested by Landlord. Tenant's failure to execute such documents within ten (10) days after written demand shall constitute a material default by Tenant hereunder without further notice to Tenant, or at Landlord's option, Landlord shall execute such documents on behalf of Tenant as Tenant's attorney-in-fact. Tenant does hereby make, constitute, and irrevocably appoint Landlord as Tenant's attorney-in-fact to execute such documents in accordance with this Section 36.2.
ATTORNEY FEES. If either party brings an action to enforce the terms hereof or declare rights hereunder, the prevailing party in any such action shall be entitled to reasonable
38. AUTHORITY. The individuals executing this Lease on behalf of Landlord represent and warrant to Tenant that they are fully authorized and legally capable of executing this Lease on behalf of Landlord, and that such execution is binding upon all parties holding an ownership interest in the Property. If Tenant is a corporation, trust, or general or limited partnership, 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 behalf of said entity. If Tenant is a corporation, trust, or partnership, Tenant shall, within thirty (30) days after execution of this Lease, deliver to Landlord evidence of such authority satisfactory to Landlord.
39. COMPLIANCE WITH LAWS. Tenant shall comply with all applicable federal, state and local laws, including, but not limited to, the Town's Building Code, reusable food-ware ordinance, and Senate Bill 1383 (Short lived climate pollutant/food waste recovery programs).
40. DISPLAYS. Tenant may not display or sell merchandise outside of the defined exterior walls and permanent doorways of the Premises. Tenant agrees not to install any exterior lighting, amplifiers, or similar devices or to use in or about the Premises any advertising medium which may be heard or seen outside the Premises, such as flashing lights, searchlights, loudspeakers, phonographs, signs held by hand (i.e., sign-spinners), or radio broadcasts. Tenant further agrees not to install any window displays which may be offensive to other tenants or customers of the Property.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date first set forth above.
LANDLORD: TENANT:
Town of Atherton, Mademoiselle Colette, Inc.
a California municipal corporation a California Corporation 21 2199280.3 14537-002
IF
Dly
By: _ By:
George Rodericks, City Manager Debora Ferrand, CEO
APPROVED AS TO FORM:
Hon
By:
Mona G. Ebrahimi, City Attorney
ATTEST:
"Ath
By:
Anthony Suber, City Clerk
22 2199280.3 14537-002
:..
Exhibit A
(See Attached Map of Premises)
2199280.3 14537-002 Exhibit A
Exhibit B
(List of Café Equipment)
2199280.3 14537-002 Exhibit B
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