SITE LEASE AGREEMENT AND ENCROACHMENT AGREEMENT
r
This Site Lease and Encroachment Agreement the Agreement is entered into this day of
4 UV iJ 2004 between FLORENTINES TUSCANY CLUB LESSEE and the CITY OF
FULLERTON LESSOR
For good and valuable consideration the receipt and sufficiency of which is hereby acknowledged the parties hereto agree
as follows
1 Premises LESSOR is the owner of public right of way located at the intersection of Harbor Boulevard and Commonwealth Avenue the Property in the City of Fullerton County of Orange State of California commonly known as the sidewalk adjoining 100 N Harbor Blvd Fullerton California The Property is more particularly described in Exhibit A attached hereto LESSOR hereby leases to LESSEE and LESSEE leases from LESSOR approximately 302 quare feet of the Property and necessary access and utility licenses if any the Premises as described in Exhibit B attached hereto 2 Use
a This Agreement is subject to existing easements covenants conditions and regulations as well as normal processing and approval of all required permits
b The Premises may be used by the LESSEE solely for the purpose of maintenance of enclosed atrium patio bar adjoining LESSEEs leasehold interest in 100 N Harbor Blvd Fullerton California the Facilities specifically as shown on Exhibit C attached hereto LESSEE may use the Premises for any
lawful activity in connection with the following business by the LESSEE Tuscany Club Any alterations improvements or construction on the Premises will require prior written consent of LESSOR unless expressly authorized hereunder LESSOR agrees to reasonably cooperate with LESSEE at LESSEEs expense in making application for and obtaining all licenses permits and any and all other necessary approvals that may be required for LESSEEs intended use of the Premises Nothing herein constitutes a discretionary approval or precommits LESSOR to any discretionaryapproval of the required permits if any and LESSOR shall have no obligation to alter influence or otherwise modify any permitting procedure which LESSOR ordinarily administers pursuant to its permitting authority c LESSEE has the right to maintain the atrium patio bar previously installed on the encroachment area as further described on Exhibit C In connection therewith LESSEE has the right in accordance with the approved plans to do all work necessary to prepare maintain and alter the Premises for LESSEES business All of LESSEES construction and installation work shall be performed at LESSEEs sole cost and expense and in a good and workmanlike manner
3 Encroachment LESSOR hereby grants LESSEE anonexclusive right of encroachment over a portion of the public rightofway easement on Commonwealth Avenue from the back of the Harbor Boulevard sidewalk on the northeast corner of Commonwealth Avenue and Harbor Boulevard to a point feet east the Encroachment more particularly shown on the sketch marked Exhibit B The Encroachment is for the sole purpose of constructing andor maintaining the Facilities approved above for LESSEES benefit Said improvements are more particularly shown on the drawings marked as Exhibit C 1 of 1
4 Term The term of this Agreement shall be five 5 years commencing on the date of execution of this Agreement Commencement Date and terminating on the fifth 5t anniversary of the Commencement Date the Term unless otherwise terminated as provided in Paragraph 12 Termination LESSEE shall have the option to renew the lease term for twelve 12 additional two 2 year terms each a Renewal Term 180 one hundred eighty days prior to Agreement termination date 5 Rent
a On the Commencement Date and on the first day of each calendar month thereafter LESSEE shall pay to LESSOR as rent 27180 Two Hundred Seventy One and 80100s US DOLLARS per month Rent Rent for any fractional month at the beginning or at the end of the Term or Renewal Term shall be prorated Rent shall be payable to City of Fullerton 303 West Commonwealth Avenue Fullerton CA 92832 Attn Accounts Receivable
b Annually the Rent as set forth above shall be subject to the greater of either a 3 three percent increase or an automatic Annual Adjustment in proportion to the percentage change in the Consumer Price Index CPI All Items for All Urban Consumers in the Los AngelesAnaheimRiverside Area for the preceding year whichever is greater promulgated by the Bureau of Labor Statistics of the United States Department of Labor In no event shall the Annual Adjustment to the Rent be less than three percent 3 or more than five percent 5 in any adjustment period
The Annual Adjustments shall commence on the first anniversary of the Commencement Date and shall continue every year thereafter on the same date The Annual Adjustment shall be calculated by means of the following formula
A B x CD
A Adjusted Rent
B Rent as originally set in Paragraph 5a above
C Monthly index for the third month prior to anniversary of the Commencement Date of each year in which each rental rate adjustment is to become effective D Monthly index for the month of the Execution Date of this Lease In the event that the CPI is not issued or published for the period for which the Annual Adjustment is computed hereunder or in the event that the Bureau of Labor Statistics of the United States Department of Labor should cease to publish said index figures then any similar index published by any other branch or department of the United States Government shall be used If none is so published then another index generally recognized as authoritative shall be agreedupon by LESSOR and LESSEE c In the event that an appraisal indicates that the CPI increase called for herein is insufficient to ensure that market rates are being paid for the enroachment right granted hereunder andor if there is increase in the lease rates being paid by LESSEE for the adjoining leasehold property at 100 N Harbor Blvd Fullerton California LESSORs may in its sole discretion upon sixty 60 days notice increase the Rent by
an amount greater than the automatic Annual Adjustment
d At the end of the Term the Rent may be subject to renegotiation by the LESSOR with a minimum increase of a percentage of the Rent at the time of renegotiation equivalent to the CPI at the time Rent is renegotiated
as shown in Paragraph 5b above Nothing in this Agreement should be construed to 2of13
provide for a maximum rate of Rent increase The minimum automatic increase as set forth above shall not be construed to limit the rights of the parties to renegotiatethe Rent amount upon renewal of this Agreement
6 Facilities Utilities
a All items that are permanently affixed to the Premises or to the Encroachment are considered fixtures and LESSOR may at its sole discretion retain possession of any or all of the fixtures Upon termination of this Agreement and any agreedupon extensions thereof upon LESSORs demand LESSEE will remove any or all fixtures At any time that LESSEE removes a fixture at the behest of LESSOR LESSEE shall restore the Premises andor the Encroachment to its original condition or better LESSEE may not remove any fixtures during the Term of the Agreement without prior written permission of LESSOR
b LESSEE shall pay for the electricity it consumes in its operations at the rate charged by the servicing utility company LESSEE shall provide for separate utility service from any utility company that will provide service to the Premises LESSOR agrees to sign such documents or licenses as may be reasonably required by said utility companies to provide such service to the Premises including the grant to LESSEE or to the servicing utility company at no cost to LESSOR or such company of any license in over across or through the Premises andor Encroachment as may be required to provide utility services
Any license necessary for such power or other utilities will be at a location acceptable to LESSOR and the servicing utility company All licenses granted hereunder will terminate upon termination of this Agreement In no event may LESSEE grant any utility company an easement over the Premises or the Encroachment Any such easement is null and void
c LESSEE shall obtain regular and customary land use approval and the necessary permits including without limitation conditional use permits if otherwise necessary for any and all uses of the Premises by LESSEE and nothing herein shall constitute a waiver of discretionary approval on the part of the LESSOR of any action which requires discretionary approval pursuant to otherwise applicable law d LESSOR shall maintain the Premises and the Encroachment in good condition and repair in the sole judgment of LESSOR and will keep the entire area free from debris trash and any other deleterious or undesirable materials
7 LESSORs Right of Access LESSEE agrees that LESSOR and its authorized representatives have the right to enter Premises without notice to LESSEE twentyfour 24 hours a day seven 7 days a week subject to reasonable public safety rules and site security considerations LESSOR will provide notice of access to LESSEE only when it is reasonably practicable to do so LESSOR shall endeavor to minimize any interference with LESSEEs business on the Premises which may be occasioned by such entry 8 ReFairs ImFrovements
a LESSEE shall not be required to make any repairs to the Premises the Property the Encroachment or to any improvements thereon other than those installed by LESSEE unless such repairs are necessitated by reason of the default or neglect of LESSEE Except as set forth in Paragraph 6a Facilities Utilities upon expiration or termination of the Agreement LESSEE shall restore the Premises andor Encroachment to the condition in which they existed upon execution hereof reasonable wear and tear and loss by casualty or other causes
beyond LESSEEs control excepted
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b Solely at LESSORs election any improvements made to the Premises may revert back to LESSOR at the termination or expiration of the Agreement For the duration of the Term and of the Renewal Term if applicable LESSEE will be responsible for repairing and maintaining the Facilities in a proper operating and reasonably safe condition provided however that if any such repair or maintenance is required due to the sole act of LESSOR its agents or employees not otherwise authorized by this Agreement LESSOR shall reimburse LESSEE for the reasonable costs incurred by LESSEE to restore the damaged areas to their prior condition LESSOR will maintain and repair all other portions of the Premises the Encroachment and any improvements thereon in a
proper operating and reasonably safe condition
9 Encroachment Alterations and Maintenance
a Should LESSOR prior to the termination or expiration of this Agreement elect to i alter the grade of the street sidewalk or curb and gutter or relocate sewer storm drain or water lines or other facilities with which the Encroachment interferes ii alter the width of the public rightofway or the highway andor iii effect construction alterations or improvements that will require LESSORs use of any or all of the Encroachment upon notice of at least sixty 60 daysfrom LESSOR the LESSEE shall remove reconstruct or relocate the Encroachment at LESSEEs sole expense b The Encroachment shall be constructed installed andor maintained by LESSEE at no cost or expense to LESSOR
c If LESSEE does not remove or relocate the Encroachment as requested in accordance with section 9a above when LESSEE is required to or in cases of emergency then LESSEE will not hold the LESSOR or
any utility company responsible for any damage caused to the Encroachment that may occur as a result of accessing repairing relocating or maintaining a utility or other existing improvement owned by the LESSOR
10 Conditions of Construction andor Improvements
a LESSEE at its sole expense shall upon completion of the construction andor of fixtures and improvements or upon removal of such ensure that the Premises are returned to the condition of the Premises prior to installation except as set forth in Paragraphs 6a Facilities and 8b Repairs Improvements This includes but is not limited to landscaping grade lighting and utilities hookup Installation and removal shall not disrupt or interfere with the normal and customary use of LESSORs property
b Subsequent to the installation of the LESSEES Facilities LESSEE shall coordinate any other construction activities with LESSOR so as to minimize any disturbance to activities on the Property c LESSEE shall provide a construction completion bond in the full amount of construction cost guaranteeing all work in a form and from a
company approved by the City Attorney to be completed to the reasonable satisfaction of the LESSOR and within the defined timelines This bond shall be posted at the time of the issuance of the building permits
d Prior to any work commencing within the LESSORs public rightofway LESSEE shall first obtain a permit from LESSORs Director of Engineering and shall comply with all construction and traffic control conditions contained therein Any concrete pavement parkway or any other facility public or 4of13
private disturbed shall be replaced repaired and restored to as good or better condition than it was prior to being disturbed If requiredby the City Engineer the existingstreet trees within the public right of way along Harbor Boulevard or Commonwealth Avenue adjacent to the Encroachment shall be removed the sidewalk repaired and new street trees and tree wells installed as approved by the Director of Engineering 11 Hazardous Substances
a LESSEE agrees that it will not use generate store or dispose of any Hazardous Material on under about or within the Premises in violation of any law or regulation If LESSOR becomes aware of a release of Hazardous Materials on the Premises unless said release is by LESSEE LESSOR shall i notify LESSEE of such release of Hazardous Materials and ii promptly take any remedial action required by the appropriate government authorities LESSOR will not and will not permit to the best of its ability any third party to use generate store or dispose of any Hazardous Material on under about or within the Property in violation of any law or regulation
b LESSEE at its sole cost and expense shall comply with all applicable laws relating to the storage use and disposal of hazardous toxic or radioactive matter used stored brought onto handled generated or removed from the Premises by LESSEE including without limitation those materials identified in Sections 66680 through 66685 in Title 22 of the California Adlnuiistrative Code Division 4 chapter 30 Title 22 as amended from timetotime collectively the Hazardous Materials and including but not limited to those laws and regulations promulgated pursuant to CERCLA RCRA OSHA Cal OSHA Proposition 65 the Hazardous Waste Control Act the Underground Storage of Hazardous Materials Release Act the Hazardous Materials Release Response Plans and Inventory Act the Hazardous Substance Account Act the Porter Cologne Water Quality Control Act and implementing regulations published by the Environmental Protection Agency Water Resources Control Board and Department of Health Services On the Commencement Date and annually thereafter at LESSORs request LESSEE shall provide to LESSOR an itemized list of categories of Hazardous Materials if any currently in use by LESSEE in connection with its operations on the Premises LESSEE shall conduct all monitoring activities required by applicable federal state and local laws or regulations with respect to LESSEEs use of Hazardous Materials on the Premises and shall at its own cost and expense comply with all posting requirements of Proposition 65 or any other similarly enacted law ordinance or regulation applicable to LESSEEs use of the Premises In addition in the event of any complaint or governmental inquiry which is attributable to acts or omissions of LESSEE on the Premises LESSOR may require LESSEE at LESSEEs sole cost and expense to conduct specific but reasonable monitoring or testing activities with respect to Hazardous Materials stored generated used or brought onto the Premises by LESSEE provided however that LESSEE shall be required to perform only those monitoring andor testing activities which are required by applicable federal state and local laws LESSEEs monitoring programs shall be in compliance with such applicable laws LESSEE shall be solely responsible for and shall defend indemnify and hold LESSOR and LESSORs agents and employees free and harmless from and against all claims costs and liabilities including reasonable attorney fees and costs arising solely out of LESSEEs storage use or disposal of Hazardous Materials on the Premises
12 Taxes If personal property taxes are assessed for the leasehold interest in the Premises or any facilities constructed thereon LESSEE shall pay any portion of such taxes that are directly and solely attributable to the leasehold interest in the Premises and the Facilities LESSEE shall pay all real property taxes assessments and deferred taxes levied on the Premises or any possessory interest held by LESSEE relative thereto This provision constitutes notice to LESSEE pursuant to Revenue and Taxation Code section 1076 regarding the creation of a potential possessory interest LESSOR will pay or cause to be paid 5of13
when due all other real estate taxes and assessments attributable to the Property if any LESSEE shall also pay
as additional rent any increases in real property taxes and assessments levied against the Property solely as a result of the improvements constructed by LESSEE on the Premises LESSEEs responsibility hereunder is limited to the taxes allocated to LESSEE Taxes assessed for tax periods during the Term and any Renewal Term prorated for any partial tax periods during such time LESSEE shall pay any such Taxes assessed to LESSOR within sixty 60 days after receipt of satisfactory documentation indicatingthe calculation of LESSEEs share of such Taxes and payment of the Taxes by LESSOR 13 Waiver of LESSORs Lien
a LESSOR waives any lien rights it may have concerning any of LESSEEs property that is not a fixture and LESSEE has the right to remove the same at any time with LESSORs consent b LESSOR acknowledges that LESSEE may from time to time enter into financing arrangements including promissory notes and financial and security agreements for the financing of the Facilities the Collateral with a third party financing entity and may in the future enter into additional financing arrangements with other financing entities In connection therewith LESSOR i consents to the installation of the Collateral ii disclaims any interest in the Collateral except upon termination of this Agreement as provided herein as fixtures or otherwise and iii agrees that the Collateral shall be exempt from execution foreclosure sale levy attachment or distress for any Rent due or to become due and that such Collateral may be removed at any time without recourse to legal proceedings except as otherwise provided herein
14 Termination
a In addition to any other termination rights set forth in this Agreement this Agreementmay be terminated without further liability on thirty 30 days prior written notice as follows i by LESSEE if it does not obtain or maintain any license permit or other approval or
any easement necessary for the
construction and operation of the Facilities provided the LESSEE utilized due care in seeking such license permit or other approval ii by LESSEE if LESSEE is unable to occupy and utilize the Premises due to a change in federal state or local law or iii by LESSEE if LESSEE for any other reason in its sole discretion determines that it will be unable to use the Premises Upon termination pursuant to this or any other paragraph of this Agreement LESSOR will promptly refund to LESSEE any prepaid Rent applicable to periods after the date of termination unless such termination is a result of LESSEEs default b At its sole discretion with reasonable cause LESSOR may terminate this Agreement at any time prior to the end of the Term upon sixty 60 days written notice to LESSEE or LESSEEs agents or representatives Reasonable cause shall not require a breach by LESSEE of any condition of this Agreement but shall be limited to LESSORs need to restore the public right of way to the public use rehabilitate or widen the roadway or sidewalk adjacent to or to include the encroached upon area LESSEEs material breach of the Agreement the existence of a dangerous condition of public property which requires access to or use of the encroachment area to correct etc c In the event of termination or expiration for any reason LESSEE shall remove any or all the Facilities at its sole cost and expense by the date of termination of this Agreement at LESSORs sole discretion under paragraphs 6a Facilities Utilities and 8b Repairs Improvements LESSEE shall restore the Property andor Encroachment to their original condition or better as may be reasonably required by LESSOR
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15 Destruction or Condemnation If the Premises or Facilities are damaged destroyed condemned or transferred in lieu of condemnation by any public entity other than the City of Fullerton or the Fullerton Redevelopment Agency LESSEE may elect to terminate this Agreement effective as the date of the damage destruction condemnation or transfer in lieu of condemnation by giving notice to LESSOR or its successor not later than thirty 30 days following the date of such damage destruction condemnation or transfer in lieu of condemnation Nothing in this Agreement provides LESSEE with any condemnation or relocation rights against the City of Fullerton or the Fullerton Redevelopment Agency and termination of this Agreement for any reason by LESSOR shall not constitute a taking or condemnation 16 Insurance
a LESSEE shall procure and maintain throughout the duration of this Agreement insurance against claims for injuries to persons or damagesto property which may arise from or in connection with the LESSEEs operations occupancy of and use of the leased premises in an amount to be determined by the LESSORs Risk Manager LESSEE shall provide current evidence of the required insurance in a form acceptable to the LESSOR and shall provide replacement evidence for any required insurance which expires prior to the completion expiration or termination of this Agreement b Nothing in this section shall be construed as limiting in any way the Indemnification and Hold Harmless clause contained herein in Paragraph 15 Indemnities or the extent to which LESSEE may be held responsible for payments of damages to persons or property c LESSEE shall maintain commercial general liability insurance coverage in a form at least as broad as ISO Form CG 001 ED 11 88 with a limit of not less than 2000000 each occurrence If such insurance contains a general aggregate limit it shall apply separately to the Agreement or shall be twice the required occurrence limit Any deductible or selfinsured retention must be declared to and approved by the LESSOR
The required insurance policies shall contain or be endorsed to contain the following provisions i The LESSOR its elected or appointed officials officers employees and volunteers are to be covered as insureds with respect to liability arising out of LESSEEs operation or the ownership occupancy maintenance or use of the leased premises or with respect to liability arising out of automobiles owned leased hired or borrowed by or on behalf of the LESSEE The coverage shall contain no special limitations on the scope of its protection afforded to the LESSOR its officials officers employees and volunteers
ii This insurance shall be the primary insurance with respect to the LESSOR its officers employees and volunteers and shall apply separately to each insured against whom a suit is brought or a claim is made Any insurance or selfinsurance maintained by the LESSOR its officers employees and volunteers shall be in excess of this insurance and shall not contribute with it iii The policy required by this clause shall be endorsed to state that coverage shall not be canceled except after thirty 30 days prior written notice by certified mail return receipt requested has been given to the LESSOR
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d All required insurance shall be placed with insurers acceptable to the LESSOR with current BESTS ratings of no less than B Class All insurers shall be licensed by or hold admitted status in the State of California At the sole discretion of the LESSOR insurance provided by nonadmitted or surplus carriers with a minimum BESTS rating of no less than A Class X may be accepted if LESSEE evidences the requisite need to the sole satisfaction of the LESSOR e LESSEE shall furnish the LESSOR with certificates of insurance which bear original signatures of authorized agents and which reflect insurers names and addresses policy numbers coverage limits deductibles and selfinsured retentions Additionally LESSEE shall furnish certified copies of all policy endorsements required herein All certificates and endorsements must be received and approved by LESSOR before LESSEE occupies premises The LESSOR reserves the right to require at any time complete certified copies of any or all required insurance policies and endorsements In addition the LESSOR reserves the right to amend any of these insurance requirements during the term of this lease but not more often than every two 2 years
17 Indemnities
a Hold Harmless As a material inducement and in consideration of this Agreement and permission herein granted LESSEE agrees to defend indemnify and hold harmless LESSOR its elected officials officers agents volunteers and employees from any claims of liability for personal injury or damage to property to the extent that such claims arise out of the activities and operations of LESSEE or its officers agents or employees on LESSORs Property whether such activities or operations are authorized by this Agreement or not Further LESSEE shall pay for any and all damage loss or theft to the Premises or adjacent property to the extent such damage loss or theft arises out of the activities and operations of LESSEE or its officers agents and employees on the Premises LESSOR shall not be responsible for any loss or damage to any fixtures or personal property owned or controlled by LESSEE that is situated on the Property The provisions of this Article do not apply to any claims of liability for personal injury or damage to personal property to the extent such claims are attributable to the sole negligence or willful misconduct of LESSOR or any of its elected officials officers agents volunteers or employees b Adjacent Property LESSEE agrees to indemnify defend and hold LESSOR harmless from any and all damagesof any nature to improvements within or about the Premises or the Encroachment including adjacent public or private property to the extent resulting from or arising out of any construction undertaken or use made by LESSEE upon
or to the Premises and Encroachment
18 Assignments and Subletting Assignees and sublettees shall enter a separate agreements with LESSOR on rent terms and conditions which may or may not be consistent with this Agreement LESSEE may not assign or otherwise transfer all or any part of its interest in this Agreement or in the Premises without the prior written consent of LESSOR which consent shall not be unreasonably withheld provided however that LESSEE may sublease or assign its interest to its parent company any subsidiary or affiliate or to any successorininterest or entity acquiring fiftyone percent 51 or more of its stock or assets subject to any financing entitys interest if any in this Agreement as set forth in Paragraph 13 Lien above LESSOR may assign this Agreement upon written notice to LESSEE subject to the assignee assuming all of LESSORs obligations herein including but not limited to those set forth in Paragraph 13 above LESSEE may assign mortgage pledge hypothecate or otherwise transfer without consent its interest in this Agreement only to a financing entity or agent on behalf of any financing entity to whom LESSEE a has obligations for borrowed money or in respect of guaranties thereof b has obligations 8of13
evidenced by bonds debentures notes or similar instruments or c has obligations under or with respect to letters of credit bankers acceptances and similar facilities or in respect of guaranties thereof 19 Warranty of Title and Quiet Enjoyment LESSOR warrants that a LESSOR has full right to make and perform this Agreement and b LESSOR covenants and agrees with LESSEE that upon LESSEE paying the Rent and observing and performing all the terms covenants and conditions of the Agreement LESSEE may peacefully and quietly enjoy the Premises subject to LESSORs termination and entry rights LESSOR agrees to indemnify and hold harmless LESSEE from any and all claims on LESSEEs leasehold interest
20 LESSEE Defaults
a Defaults The occurrence of any one or more of the following events shall constitute a material default and breach of this Agreement by LESSEE sometimes referred to herein as an Event of Default
i The vacating or abandonment of the Premises by LESSEE ii The failure by LESSEE to make any payment of Rent or any other payment required to be made by LESSEE hereunder as and when due where such failure shall continue for a period of fifteen 15 days after written notice thereof is sent to LESSEE by LESSOR In the event that LESSOR serves LESSEE with a Notice to Pay Rent or Quit pursuant to the applicable Unlawful Detainer Statutes such Notice to Pay Rent or Quit shall also constitute the notice required by this subparagraph
iii The failure by LESSEE to observe or perform any of the covenants conditions or provisions of this Agreement and other than in the event of a default in the payment of Rent where such failure shall continue for a period of thirty 30 daysafter written notice thereof is sent to LESSEE by LESSOR
iv A The making by LESSEE of any generalarrangement or assignment for the benefit of creditors B LESSEE becomes a debtor as defined in 11 USC 101 or any successor statute thereto unless in the case of a petition filed againstLESSEE the same is dismissed within sixty 60 days C the appointment of a trustee or receiver to take possession of substantially all of LESSEEs assets located at the Premises or of LESSEEs interest in this Agreement where possession is not restored to LESSEE within sixty 60 days or D the attachment execution or other judicial seizure of substantially all of LESSEEs assets located at the Property or of LESSEEs interest in this Agreement where such seizure is not discharged within sixty 60 days Provided however in the event that any provision of this Paragraph20aiv is contrary to any applicable law such provisions shall be of no force or effect Notwithstanding the foregoing any appointment attachment or other transaction allowed pursuant to the provisions of Paragraphs13 and 18 Assignments and Subletting shall not constitute default of this Agreement b Remedies Except
as otherwise provided in this Agreement in the event of any such material default or breach by LESSEE LESSOR may at any time thereafter with or without notice or demand and without limiting LESSOR in the exercise of any right or remedy which LESSOR may have by reason of
such default or breach
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i Terminate LESSEEs right to possessionof the Premises by any lawful means in which case this Agreement shall terminate and LESSEE shall immediately surrender possessionof the Premises to LESSOR In such event LESSOR shall be entitled to recover from LESSEE all damagesincurred by LESSOR by reason of LESSEEs default including but not limited to the cost of recovering possession of the Premises expenses of reletting the Property reasonable attorney fees and any real estate commission actually paid the worth at the time of award by the court having jurisdiction thereof 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 LESSEE proves could be reasonably avoided
ii Maintain LESSEEs right to possession in which case this Agreement shall continue in effect whether or not LESSEE shall have abandoned the Premises In such event LESSOR shall be entitled to enforce all of LESSORs rights and remedies under this Agreement including the right to recover the Rent as it becomes due hereunder
iii Pursue any other remedy now or hereafter available to LESSOR under the laws or judicial decisions of the State wherein the Premises are located Unpaid installments of Rent and other unpaid monetary obligations of LESSEE under the terms of this Agreementshall bear interest from the date due at the maximum rate then allowable by law to nonexempt lenders c In the Event of Default by LESSEE LESSOR shall not have the right prior to the termination of this Agreement by a court of competent jurisdiction to reenter the PremisesEncroachment andor remove
persons or property from the PremisesEncroachment
21 LESSOR Default
a LESSOR shall not be in default unless LESSOR fails to perform obligationsrequired of LESSOR within a reasonable time but in no event later than thirty 30 daysafter written notice by LESSEE to LESSOR specifying wherein LESSOR has failed to perform such obligations provided however that if the nature of LESSORs obligation is such that more than thirty 30 days are required for performance then LESSOR shall not be in default if LESSOR commences performance within
such thirtyday 30 period and thereafter diligently prosecutes the same to completion Such default by LESSOR is also sometimes referred to herein as an Event of Default b Remedies In the event of a LESSOR default LESSEE may avail itself of any remedies available to it at law andor equity including without limitation the right to terminate this Agreement 22 Late Charges LESSEE hereby acknowledges that late payment by LESSEE to LESSOR of Rent and other sums due hereunder will cause LESSOR to incur costs not contemplated by this Agreement the exact amount of which will be extremely difficult to ascertain Such costs include but are not limited to processing and accounting charges Accordingly if any installment of Rent or any other sum due from LESSEE shall not be received by LESSOR or LESSORs designee within fifteen 15 business days after such amount shall be due then not later than five 5 business days after LESSEEs receipt of notice from LESSOR LESSEE shall pay to LESSOR a late charge equal to six percent 6 of such overdue amount The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs LESSOR will incur by reason of late payment by LESSEE Acceptance of such late charge by LESSOR shall in no event constitute a waiver of LESSEES default with respect to such overdue amount nor prevent LESSOR from exercising any of the other rights and remedies granted hereunder In the event that a late 10 of 13
charge is payable hereunder whether or not collected for three 3 consecutive installments of Rent then upon notice thereof from LESSOR to LESSEE Rent shall automatically become due and payable quarterly in advance rather than monthly as provided for in Paragraph 5 above 23 Miscellaneous
a This Agreement constitutes the entire agreement and understanding between the parties and supersedesall offers negotiations and other agreements concerning the subject matter contained herein No verbal or oral agreements promises or understandingsshall or will be binding upon either LESSOR or LESSEE and any amendments to this Agreement shall be void unless made in writing and executed by both parties
b If any provision of this Agreement is invalid or unenforceable with respect to any party the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law c This Agreement shall be binding on and inure to the benefit of the successors and permitted assigneesof the respective parties
d Any notice or demand required to be given herein shall be made by certified or registered mail return receipt requested or reliable overnight courier to the address of the respective parties set forth below
LESSOR Director of Engineering CC
City of Fullerton
303 W Commonwealth Ave
Fullerton CA 92832
LESSEE Intimitate Inns of California CC
Joseph B Florentine President
102 North Harbor Blvd
Fullerton CA 92831
LESSOR or LESSEE may from time to time designate any other address for this purpose by written notice to the other party All notices hereunder shall be deemed received upon actual receipt e This Agreement shall be governed by the internal laws of the State of California and any legal action relating to this Agreement shall be brought in the Courts of the County of Orange California f LESSOR acknowledges that a Memorandum of Agreement in the form annexed hereto as Exhibit G will be recorded by LESSEE in the official records of the County of Orange where the Premises are located In the event the Property is encumbered by a mortgage or deed of trust LESSOR agrees to obtain and furnish to LESSEE anondisturbance and attornment instrument in a form reasonably acceptable to LESSEE for each such mortgage or deed of trust 11 of 13
g In any
case where the approval or consent of one
party hereto is required requested or
otherwise to be given under this Agreement such party shall not unreasonably delay condition or withhold its approval or consent
h All Exhibits annexed hereto form material parts of this Agreement i This Agreement may be executed in duplicatecounterparts each of which shall be deemed an original
j This Agreement contains all agreements promises and understandings between LESSOR and LESSEE and supercedesany prior oral or written agreements promises or understandings between the parties as to its subject matter
j The parties agree that all of the provisions hereof shall be construed as both covenants and conditions the same as if the words importing such covenants and conditions had been used in each separate paragraph
k The language of all of the parts of this Agreement shall be construed simply and according to its fair meaning and this Agreement shall not be construed either for or against either party If either party institutes any action or proceeding in court to enforce any provisions hereof or any action for damagesby reason of any alleged breach of any of the provisions hereof then the prevailing party in any such action or proceedingshall be entitled to receive from the losing party such amount as the court may adjudge to be reasonable attorneys fees for the services rendered to the prevailing party together with other reasonable litigation costs and expenses m In addition to the other remedies provided for in this Agreement LESSOR and LESSEE shall be entitled to immediate restraint by injunction of any violation of any of the covenants conditions or provisions herein contained if deemed appropriate by a court of competent jurisdiction n The captions of the paragraphs of this Agreement are for convenience of reference only and shall not affect the interpretation of this Agreement or limit or amplify any of its terms or provisions o This Agreement is not and shall not be binding
on either party until and unless it is fully
executed by both parties
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IN WITNESS WHEREOF the parties have executed this Agreement as of the date first above written LESSOR
L
B
u
Y
Title
Date G
LESSEE
Title LJ
Date
By
Title
Date
Tax ID c L
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Order Na 9753068
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PARCE1
ORTION OF LOT 2 OF THE SCHULTE BROS SIJBDIVISigN
ItGE CITY
aF
ALL THAY P
FULLERTON AS SHAWN ON A MAP THEREOF RECORDE
LINTYpESCRiBEDAS
MtSCELLANE0U5MAPS RECORDS DF SAtD GRANGE CO
FOLLOWS
pT A PG1NT iNWIC1 lS DISTANT SOUTH 00042WEST TERLYCU NER D
BEGINNING
DISANT NdRTH 895646 WEST 23QC1 FEET FRCJNI
TyTHEREDRECORDED IN BDC7K
OF LOY 50 OF TRACT ND 1 BZ7 AS SHOWN
PS RECORDS OF SAID ORANC3E COUNTY
5B PAGES 12 AND 13 MISCELLAIUEOUSMA
OM SAID PttNT aF BEGINNING SCtUTH DDQ2 VIIEST
P9Rfi64E6 WE5TTyENCE FR
THE EASTERLY LthfE OF SAID LT 2 24300 FEET
THEE TH N E NORTH
17100 FtrET THENCE NORTH Qp0 4Z
ERTHO 4002 EAST 85p0 FEET TliENCE
21 4913 EAST 2592 FEEi THEtriCE NQ
44Z6 EAST 1766 FEET THENCE SCIUTH 89664f EAST 92Oa FEET TO NDCTH 42
THE PAINT DF BEGINNING
PTfNG THEREFRQM THE 1NEST 10000 FEET OF THE EAST 1
p SCHULT BRTC7SEXCE
NdRTH 50oD FEET QF THE SOUTH 350o FEET of LOT 2 OF s
SUBDIVI510N
PARCEL 2
ENTS FOR INGRESS AND EGRE55 ANA PARKING ON AND
OVERCtJRDEDAPRILEA5EM AS pRIVICIED IN PARKING gGREEM61T ADQINtNG SAID PARCEL 1
IN ppl F Tli6
Z3l 1956 IN RCQK 5464r pAtE 9r 11CIAl CPDA5 AMNCE EY GfMNT COUNTY RECORDIR C SAID aRAtVE
CDUNE412OFEtCIAL RECCRdS IN TIE
RECORDED NIAY 13 1980 ttV BOCIK 5242
p GRANGE COUNTY
aFFICE DF THE COUNTY RECORDER OF SA
Assessors Parcel No 07224212
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