BLUE FOLDER ITEM
Blue folder items are additional back up material to administrative reports and/or public comments received after the printing and distribution of the agenda packet for receive and file.
CITY COUNCIL MEETING
Date
H.14. ADOPT BY TITLE ONLY RESOLUTION NO. CC-2308-086, A RESOLUTION OF
THE CITY COUNCIL OF THE CITY OF REDONDO BEACH, CALIFORNIA, LEASING
CERTAIN PROPERTY TO REDONDO BEACH MARINA GROUP, LLC DBA CAPTAIN KIDD’S FISH MARKET AND RESTAURANT
APPROVE THE LEASE WITH REDONDO BEACH MARINA GROUP, LLC DBA CAPTAIN KIDD’S FISH MARKET AND RESTAURANT FOR THE PREMISES AT 209
NORTH HARBOR DRIVE, REDONDO BEACH, CA FOR A MONTHLY MINIMUM RENT OF $16,000 AND THE TERM SEPTEMBER 1, 2023 THROUGH FEBRUARY 28, 2034.
Attachment(s): Revised Lease (Revisions to Section 28 on page 26) CONTACT: GREG KAPOVICH, WATERFRONT AND ECONOMIC DEVELOPMENT
DIRECTOR
508246406v.2
LEASE
BETWEEN
CITY OF REDONDO BEACH,
A CHARTERED MUNICIPAL CORPORATION
LANDLORD
AND
REDONDO BEACH MARINA GROUP, LLC,
A CALIFORNIA LIMITED LIABILITY COMPANY,
D/B/A CAPTAIN KIDD’S FISH MARKET & RESTAURANT
TENANT
DATED AS OF
AUGUST __, 2023
REDONDO BEACH, CALIFORNIA 90277
508246406v.2
TABLE OF CONTENTS
Page
1. Parties .................................................................................................................................. 1
2. Summary of Basic Lease Terms ......................................................................................... 1
3. Demise and Term ................................................................................................................ 3
4. Possession ........................................................................................................................... 3
4.1 Delivery of Possession ............................................................................................ 3
4.2 Delays Caused by Tenant ........................................................................................ 3
5. Condition of Premises ......................................................................................................... 3
5.1 Condition of Premises ........................................................................................... 43
6. Rent; Books and Records .................................................................................................... 4
6.1 Monthly Rent .......................................................................................................... 4
6.2 Additional Rent ....................................................................................................... 4
6.3 Books and Records ................................................................................................. 4
7. Security Deposit .................................................................................................................. 5
8. Operating Expenses; Common Areas ................................................................................. 6
9. Use of Premises................................................................................................................... 6
9.1 Permitted Use .......................................................................................................... 6
9.2 Restrictions on Use ............................................................................................... 76
10. Compliance with Laws ....................................................................................................... 7
10.1 Compliance with Laws ........................................................................................... 7
10.2 Nondiscrimination................................................................................................... 7
10.3 Employment Records ............................................................................................ 87
10.4 Hazardous Materials ............................................................................................. 87
11. Alterations and Additions ................................................................................................... 9
11.1 Landlord’s Consent ................................................................................................. 9
11.2 Ownership and Surrender of Alterations .............................................................. 10
11.3 Liens ...................................................................................................................... 10
11.4 Additional Requirements .................................................................................. 1110
11.5 Prevailing Wages .................................................................................................. 11
12. Repairs .............................................................................................................................. 12
13. Services and Utilities .................................................................................................... 1312
14. Entry by Landlord ......................................................................................................... 1312
15. Tenant’s Insurance ............................................................................................................ 13
15.1 Property Insurance ................................................................................................ 13
15.2 Commercial General Liability Insurance .......................................................... 1413 508246406v.2
15.3 Workers’ Compensation Insurance ................................................................... 1413
15.4 Other Insurance ................................................................................................. 1413
15.5 Policy Requirements ............................................................................................. 14
15.6 Tenant’s Failure to Deliver Policies ................................................................. 1514
16. Damage or Destruction; Eminent Domain .................................................................... 1514
16.1 Restoration ........................................................................................................ 1514
16.2 Eminent Domain ............................................................................................... 1514
16.3 Business Interruption ............................................................................................ 15
16.4 Waiver ................................................................................................................... 15
17. Assignment and Subletting ............................................................................................... 15
17.1 Landlord’s Consent Required ............................................................................... 15
17.2 Consent by Landlord ......................................................................................... 1615
17.3 Entity Transactions ........................................................................................... 1716
17.4 No Release of Tenant ........................................................................................ 1716
17.5 Transfer Premium .............................................. Error! Bookmark not defined.16
17.6 Additional Terms .................................................................................................. 17
18. Quiet Enjoyment ............................................................................................................... 18
19. Mortgagee Protection .................................................................................................... 1918
19.1 Subordination .................................................................................................... 1918
19.2 Mortgagee’s Liability........................................................................................ 1918
19.3 Mortgagee’s Right to Cure .................................................................................... 19
20. Estoppel Certificates ......................................................................................................... 19
21. Default........................................................................................................................... 2019
22. Remedies for Default .................................................................................................... 2120
22.1 General .............................................................................................................. 2120
22.2 Redemption ........................................................................................................... 22
22.3 Performance by Landlord ..................................................................................... 22
22.4 Post-Judgment Interest ...................................................................................... 2322
22.5 Tenant’s Waiver ................................................................................................ 2322
23. Holding Over ................................................................................................................ 2322
24. Indemnification and Exculpation ...................................................................................... 23
24.1 Indemnification ..................................................................................................... 23
24.2 Damage to Persons or Property............................................................................. 23
24.3 Satisfaction of Remedies .................................... Error! Bookmark not defined.24
25. Intentionally Omitted .................................................................................................... 2524
26. Taxes ............................................................................................................................. 2524
26.1 Real Property Taxes .......................................................................................... 2524
26.2 Possessory Interest ................................................................................................ 25
26.3 Payment................................................................................................................. 25 508246406v.2
27. Brokers .......................................................................................................................... 2625
28. Parking .......................................................................................................................... 2625
29. Authority to Enter into Lease ............................................................................................ 26
30. General Provisions ............................................................................................................ 26
30.1 Joint Obligation ..................................................................................................... 26
30.2 Marginal Headings ................................................................................................ 26
30.3 Time ...................................................................................................................... 26
30.4 Successors and Assigns ..................................................................................... 2726
30.5 Recordation ....................................................................................................... 2726
30.6 Late Charges ..................................................................................................... 2726
30.7 Prior Agreements; Amendment, Waiver ........................................................... 2726
30.8 Inability to Perform ............................................................................................... 27
30.9 Legal Proceedings ................................................................................................. 27
30.10 Conveyance of Premises ................................................................................... 2827
30.11 Name ................................................................................................................. 2827
30.12 Severability ........................................................................................................... 28
30.13 Cumulative Remedies ........................................................................................... 28
30.14 Choice of Law ....................................................................................................... 28
30.15 Signs ...................................................................................................................... 28
30.16 Presumptions ..................................................................................................... 2928
30.17 Exhibits ............................................................................................................. 2928
30.18 Submission of Lease ......................................................................................... 2928
30.19 Meaning of Terms ............................................................................................. 2928
30.20 Notices .............................................................................................................. 2928
30.21 Intentionally Omitted ........................................................................................ 2928
30.22 CASp Inspection ................................................................................................... 29
30.23 Reservations .......................................................................................................... 29
30.24 Financial Statements ......................................................................................... 3029
30.25 Patriot Act ......................................................................................................... 3029
31. Saltwater Pump ............................................................................................................. 2630
32. Existing Lease .............................................................................................................. 2631 List of Exhibits
Exhibit “A” – Description of Premises
Exhibit “B” – Depiction of Premises
Exhibit “C” – Common Areas
Exhibit “D” – Tenant Parking Lot
Exhibit “E” - Parking Fee Schedule
Exhibit “F” – Intentionally Omitted
Exhibit “G” - Memorandum of Lease
1 508246406v.2
RESTAURANT & RETAIL LEASE - NET
1. Parties.
This Lease (“Lease”) is made and entered into by and between the City of Redondo Beach, a Chartered Municipal Corporation (“Landlord” or “City”), and Redondo Beach Marina Group, LLC, a California limited liability company, d/b/a Captain Kidd’s Fish Market & Restaurant (“Tenant”), as of August __, 2023.
2. Summary of Basic Lease Terms. As used in this Lease, the following basic terms shall have the meanings set forth below, subject to the specific Lease language, additional Lease terms and definitions, qualifications, adjustments and exceptions set forth elsewhere in this Lease. In the event of a conflict between the terms of this Summary of Basic Lease Terms and the terms elsewhere in this Lease, the terms elsewhere in this Lease shall prevail. (a) Premises: The space is located at 209 North Harbor Drive, Redondo Beach, CA 90277, consisting of approximately 6,593 gross square feet as shown on the plan attached hereto as Exhibit “B”, together with that certain area on the northwest boundary of the Land (as defined below) between the parking rows that divide the Land and the Common Areas (as defined below), which area currently serves as an exterior dining area (the “Exterior Dining Area”). The real property upon which the Premises is located is sometimes referred to herein as the “Land”, and the building currently located on the Land is sometimes referred to herein as the “Building”.
(b) Permitted Use: Restaurant and other food services, alcohol services and supporting offices and consumer space, to the extent each of the foregoing uses are in compliance with Laws, and for no other use.
(c) Lease Term: 126 months (10.5 years) from Commencement Date. (d) Commencement Date: September 1, 2023.
(e) Expiration Date: February 28, 2034.
(f) Intentionally Omitted
(g) Monthly Rent: During each calendar month of the Lease Term, Monthly Rent shall be equal to the greater of (i) the sum of eight percent (8%) of Gross Retail Sales and two percent (2%) of Wholesale Market Sales for such month, or (ii) the Monthly Base Rent (as such terms are defined below).
Monthly Base Rent: $16,000.00 per month.
Gross Retail Sales and Wholesale Market Sales:
“Gross Retail Sales” means the gross selling price of all sales (including fish, snack bar, delicatessen, on and off Premises alcohol and sundry sales), goods, tickets, memberships, wares and services sold in or from the Premises by Tenant, its permitted subtenants, 2 508246406v.2
licensees, agents or concessionaires, whether for cash or on credit (whether collected or not), including the gross amount received by reason of orders taken on the Premises although filled elsewhere, and whether made by any of the foregoing parties or vending machines. “Wholesale Market Sales” means the gross selling price of all fish and other goods and services sold wholesale in or from the Premises by Tenant, its permitted subtenants, licensees, agents or concessionaires, whether for cash or on credit (whether collected or not), including the gross amount received by reason of wholesale orders taken on the Premises although filled elsewhere. For avoidance of doubt, there shall be no duplication of Gross Retail Sales and Wholesale Market Sales. Gross Retail Sales and Wholesale Market Sales do not include, or if included there will be deducted (but only to the extent they have been included), the following: (i) cash or credit refunds to customers; (ii) goods returned to sources or transferred to other locations owned by or affiliated with Tenant when such exchange is not made for the purpose of consummating a sale made in, at, or from the Premises; (iii) refundable deposits and gift certificates or similar vouchers except as converted into by a sale by redemption; (iv) sales of fixtures, machinery, equipment, or other property which are not for sale or trade in the ordinary course of Tenant’s business; (v) sums or credits received in settlement of claims for loss or damage to Tenant’s goods; and (vi) taxes of whatever nature imposed on the sale of goods or services. If Tenant’s Gross Retail Sales and/or Wholesale Market Sales are required to be reported on any federal, state or municipal sales tax return or any other similar form of return, and the Gross Retail Sales and/or Wholesale Market Sales as reported on such return exceed the Gross Retail Sales and/or Wholesale Market Sales reported by Tenant for the same time period, then the Gross Retail Sales and/or Wholesale Market Sales, as applicable, for the applicable time period shall be the higher figure reported on the return, except to the extent the difference is attributable to items that are excluded from the definition of “Gross Retail Sales” and/or “Wholesale Market Sales”, as applicable, set forth above. If, after audit, any governmental authority increases the Gross Retail Sales and/or Wholesale Market Sales reported by Tenant on any tax return, then Tenant shall notify Landlord promptly of such increase and at that time shall pay any additional Monthly Rent due. If Tenant reports sales from more than one location on any such tax return, only the portion of the reported Gross Retail Sales or Wholesale Market Sales that relates to the Premises shall be included in the term “Gross Retail Sales” or “Wholesale Market Sales”, respectively.
(h) Parking: Parking shall be at such rates and terms set by Landlord from time to time in accordance with Article 28 and Exhibit “E”. Employee or member passes will be billed at $10 per parking pass per month for Mon-Fri access during regular business hours or $35 per parking pass per month for Mon-Sun 24/7 access.
(i) Security Deposit: $8,000.00
(j) Intentionally Omitted
(k) Landlord’s Address for Notices: 107 W. Torrance Blvd., Suite #200, Redondo Beach, CA 90277
3 508246406v.2
(l) Tenant’s Addresses for Notices: 1820 South Elena Ave., Suite L, Redondo Beach, CA, 90277, Attn: Chris Bredesen.
(m) Tenant’s Affiliates: All affiliates, directors, officers, shareholders, partners, agents, employees, invitees, customers, successors and assigns of Tenant. (n) Landlord’s Affiliates: All officers, employees, elected and appointed officials, volunteers, invitees, successors, vendors and assigns of the City. (o) Liabilities: All losses, damages, expenses, claims, demands, causes of action, lawsuits (whether at law, equity, or both), proceedings, injuries, liabilities, judgments, and costs (including, but not limited to, attorneys’ fees and costs, and expert witness fees), and penalties, and liens of every nature (whether or not suit is commenced, or judgment entered).
(p) Landlord’s Broker: Brian Campbell Lic. 01004406 of BC Urban LLC. (q) Tenant’s Broker: N/A
3. Demise and Term. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Landlord hereby leases the Premises to Tenant and Tenant hereby leases the Premises from Landlord, subject to all of the terms, covenants and conditions in this Lease. The Premises are leased for the Lease Term, which, subject to Article 4 below, shall commence on the Commencement Date and shall expire on the Expiration Date, unless sooner terminated under the provisions of this Lease.
4. Possession.
4.1 Delivery of Possession. The Premises shall be delivered to Tenant in its current “AS-IS” condition. If Landlord cannot deliver possession of the Premises to Tenant by the Commencement Date this Lease will not be void or voidable, nor will Landlord be liable to Tenant for any loss or damage resulting from such delay. Notwithstanding anything to the contrary contained herein, Landlord will not be obligated to deliver possession of the Premises to Tenant until Landlord has received from Tenant all of the following: (i) a copy of this Lease fully executed by Tenant; (ii) the Security Deposit, if any, and the first installment of Monthly Basic Rent; and (iii) copies of policies of insurance or certificates thereof as required under Article 15 of this Lease.
4.2 Delays Caused by Tenant. Notwithstanding anything to the contrary in Article 4.1, if Landlord’s failure to deliver possession of the Premises results from Tenant and/or Tenant’s Affiliates’ acts or omissions (including delays caused by Tenant’s failure to supply the items referred to in Article 4.1), then the Commencement Date shall be the date stated in Article 2(d) of this Lease notwithstanding Tenant and/or Tenant’s Affiliates’ delay. In no event shall the Lease Term be extended by any such delay. Tenant shall owe the amount of the Monthly Rent and Additional Rent from the Commencement Date.
5. Condition of Premises.
4 508246406v.2
5.1 Condition of Premises. Tenant hereby agrees and warrants that it has investigated and inspected the condition of the Premises, Building, and their suitability for Tenant’s purposes, and Tenant does hereby waive and disclaim any objection to, cause of action based upon, or claim that its obligations hereunder should be reduced or limited because of the condition of the Premises, the Building, or the suitability of same for Tenant’s purposes. Tenant acknowledges that neither Landlord nor Landlord’s Affiliates has made any representations or warranty with respect to the Premises, the Building, their condition, or with respect to the suitability for Tenant’s business. Tenant hereby agrees that the Premises shall be taken “AS-IS”, “with all faults”, without any warranty or representation of any kind, and Landlord shall have no obligation to alter, remodel, improve, repair, decorate or paint the Premises or any part thereof.
Tenant, at its sole expense, shall keep the Premises and every part thereof in good condition and repair and shall, upon the expiration or sooner termination of the Lease Term, surrender the Premises to Landlord in good condition and as otherwise required pursuant to the terms of this Lease.
6. Rent; Books and Records.
6.1 Monthly Rent. Tenant shall pay to Landlord as rent for the Premises the Monthly Rent as set forth in Article 2(g). The Monthly Rent shall be payable in advance on or before the first day of the first full calendar month of the Lease Term and on or before the first day of each successive calendar month thereafter during the Lease Term, except that the Monthly Rent for the first full calendar month of the Lease term and any prorated term shall be paid upon the execution of this Lease; provided that, if Monthly Rent for any calendar month is equal to the sum of eight percent (8%) of Gross Retail Sales and two percent (2%) of Wholesale Market Sales, Monthly Rent for such calendar month shall be payable on or before the tenth day of such calendar month.
The Monthly Rent for any period during the Lease Term which is for less than one (1) month shall be prorated based on the actual number of days in such month. The Monthly Rent and all other rent hereunder shall be paid without prior notice or demand, without deduction or offset in lawful money of the United States of America which shall be legal tender at the time of payment, at the office of the Building or to another person or at another place as Landlord may from time to time designate in writing.
6.2 Additional Rent. The term “Additional Rent” means all other amounts payable by Tenant under this Lease (whether or not designated as Additional Rent), including without limitation, taxes, insurance and repairs. The term “Rent” shall mean Monthly Rent and Additional Rent. Landlord shall be entitled to exercise the same rights and remedies upon default in the Additional Rent payments as Landlord is entitled to exercise with respect to defaults in Monthly Rent payments.
6.3 Books and Records. Tenant shall keep and maintain on the Premises, or at such other place as Landlord may approve in writing, complete and accurate books, records and accounts of all purchases and receipts of merchandise, inventories and all sales and other transactions from which Gross Retail Sales and Wholesale Market Sales at or from the Premises can be determined, in accordance with generally accepted accounting principles consistently applied, and otherwise in form and detail reasonably acceptable to Landlord. Tenant shall record all sales, at the time each sale is made, whether for cash or credit, in a point of sale system 5 508246406v.2
containing adequate internal controls with cumulation capacity reasonably acceptable to Landlord.
Tenant shall keep original, daily dated point of sale transaction back-up, mail and telephone orders, merchandise return records, duplicate bank deposit slips and bank statements, sales and occupation tax returns for the business at the Premises and such other records as would normally be required to be kept by Tenant and examined by an independent accountant in accordance with generally accepted auditing practices in performing an audit of Gross Retail Sales and Wholesale Market Sales.
Tenant’s books, records and accounts, and certified copies of all tax returns filed by Tenant, shall be available during normal business hours for inspection and copying by Landlord or Landlord’s representative or agent, upon reasonable notice from Landlord (which may be oral or written), for a period of at least three (3) years after the filing of the tax return for which such documents apply.
If at any time Tenant shall cause an audit of Tenant’s business at the Premises to be made by a certified public accountant, Tenant shall, without cost or expense to Landlord, cause such accountant to furnish Landlord, within thirty (30) days after the completion of such audit, with a copy of such audit certified to Landlord by the accountant, and a certificate of Gross Retail Sales and Wholesale Market Sales for the period covered by such audit. During the Lease Term, Tenant shall furnish to Landlord, within thirty (30) days after the end of each calendar quarter from and after the Commencement Date, a written statement of Gross Retail Sales and Wholesale Market Sales for such quarter, certified by a responsible officer of Tenant as being true and complete in all material respects, and in form and detail reasonably acceptable to Landlord. Tenant shall submit to Landlord, within sixty (60) days after the expiration of each calendar year and the expiration or termination of this Lease, a written statement, certified by a responsible officer of Tenant as being true and complete in all material respects, showing the Gross Retail Sales and Wholesale Market Sales made at or from the Premises for the prior calendar year, in form and detail reasonably acceptable to Landlord.
Acceptance by Landlord of payments of Monthly Rent shall be without prejudice to Landlord’s right to verify the amount of annual Gross Retail Sales and Wholesale Market Sales made at or from the Premises and to make appropriate adjustments in the Monthly Rent due. At any reasonable time, upon twenty (20) days’ prior written notice to Tenant, Landlord may cause a complete audit to be made of Tenant’s business affairs and records relating to the Premises, at Landlord’s expense. If there is any discrepancy between the Gross Retail Sales and/or Wholesale Market Sales disclosed by any audit and the Gross Retail Sales and/or Wholesale Market Sales reported by Tenant, any deficiency in the payment of Monthly Rent shall become immediately due and payable upon Tenant’s receipt of notice of the deficiency from Landlord. The amount of such deficiency shall bear interest at the maximum rate permitted by Law from the date when payment of such amount should have been made until such payment is made. If any audit discloses that Tenant’s Gross Retail Sales and/or Wholesale Market Sales for the period covered by the audit have been underreported by two percent (2%) or more, Tenant shall pay to Landlord, together with the payment of the deficiency and interest, the cost of such audit.
7. Security Deposit. If required, upon the execution of this Lease, Tenant shall deposit the Security Deposit with Landlord as set forth in Article 2(i) above. The Security Deposit shall be held by Landlord as security for the performance of all of Tenant’s obligations during the Lease Term. Upon any default by Tenant under this Lease, Landlord may, but shall not be obligated to, use, apply or retain all or any part of the Security Deposit for the payment of any Rent in default, or any other Liabilities which Landlord may incur as a result of or in connection with Tenant’s default. In this regard, Tenant hereby waives any restriction on the uses to which the Security Deposit may be applied as contained in Section 1950.7(c) of the California Civil Code and/or any 6 508246406v.2
similar or successor statute. Landlord shall not be deemed a trustee of the Security Deposit. If Landlord transfers the Building during the Lease Term, Landlord may pay the Security Deposit to any subsequent owner in conformity with the provisions of Section 1950.7 of the California Civil Code and/or any successor Law, in which event the transferring landlord shall be released from all liability for the return of the Security Deposit. In no event shall the Security Deposit or any portion thereof, be considered prepaid rent. If any portion of the Security Deposit is so used or applied, Tenant shall, within five (5) days after written demand therefore, deposit cash with Landlord in an amount sufficient to restore the Security Deposit to its previous amount. Landlord shall not be required to keep the Security Deposit separate from its general funds, and Tenant shall not be entitled to receive interest on the Security Deposit. If Tenant complies with all of the provisions of this Lease and is not then in default hereunder, the unused portion of the Security Deposit shall be returned to Tenant within sixty (60) days after the expiration or sooner termination of the Lease Term and surrender of the Premises to Landlord in the condition required hereunder (and Tenant hereby waives the provisions of California Civil Code Section 1950.7 to the contrary).
8. Operating Expenses; Common Areas. It is the intent of Landlord for Tenant and other tenants and occupants in the vicinity of the Premises to each pay their proportionate and equitable share of Operating Expenses (as defined below). Landlord and Tenant hereby acknowledge and agree that Tenant shall not be required to pay for its proportionate and equitable share of Operating Expenses upon the commencement of the Lease Term; provided that, upon Landlord’s written request in the future, Landlord and Tenant shall reasonably cooperate in good faith to modify this Lease to incorporate the payment by Tenant of its proportionate and equitable share of Operating Expenses. “Operating Expenses” means all costs and expenses incurred by Landlord in operating, maintaining and repairing the Common Areas (as defined below), including, but not limited to: insurance premiums for all insurance policies deemed necessary by Landlord; deductible amounts under such insurance policies; wages of Landlord’s employees engaged in the operation, maintenance and repair of the Common Areas, including all customary employee benefits, Worker’s Compensation and payroll taxes; the cost of security services; the cost of services and utilities; reasonable management fees or, if no managing agent is retained for the Common Areas, a reasonable sum in lieu thereof which is not in excess of the prevailing rate for management services charged by professional management companies for the operation of similar common areas; legal, accounting and other consulting fees; and supplies, materials, equipment and tools; provided that, (i) Operating Expenses shall not include any such costs or expenses that would be capitalized under generally accepted accounting principles, and (ii) the amount of Operating Expenses for any period of time shall be offset by the amount of parking lot revenue actually received by Landlord for such period of time for the use of the parking lot within the Common Areas. “Common Areas” means that certain real property more particularly defined and depicted on Exhibit “C” attached hereto and made a part hereof.
9. Use of Premises.
9.1 Permitted Use. Tenant shall use the Premises only for the Permitted Use set forth in Article 2(b) (the “Permitted Use”) and for no other use or purpose, unless first approved in writing by Landlord, which approval Landlord may withhold in its sole discretion. Tenant shall open for business and operations for the Permitted Use no later than 10 days following the Commencement Date, and thereafter Tenant shall operate the Premises for the Permitted Use during normal business hours. Tenant shall operate its business at the Premises in an efficient and 7 508246406v.2
first class manner, including maintenance of an adequate staff and sufficient inventory, and shall otherwise use its best efforts to operate its business at the Premises in a manner that will enhance the reputation and attractiveness of the Building. Tenant shall conduct its business at the Premises under the following trade name: Captain Kidd’s Fish Market & Restaurant.
9.2 Restrictions on Use. Tenant agrees that it shall not cause or permit any of the following in or about the Premises.
(a) Increase the existing rate of, cause the cancellation of or otherwise adversely affect any casualty or other insurance for the Building or any part thereof or any of its contents; (b) Impair the proper and economic maintenance, operation and repair of the Building or any portion thereof;
(c) Cause any nuisance in or about the Premises or the Building; or (d) Commit or allow any waste to be committed to the Premises or the Building.
Tenant shall not use or allow any part of the Premises to be used for any unlawful purpose.
10. Compliance with Laws.
10.1 Compliance with Laws. Tenant shall not use the Premises or permit anything to be done in or about the Premises, the Building or the Land which will in any way conflict with any valid and applicable law, statute, ordinance, code, rule, plan, regulation, requirement, license, permit, certificate, judgment, decree, order or direction of any governmental or quasigovernmental authority, agency, department, board, commission, panel or court now in force or which may hereafter be enacted or promulgated, or any covenants, conditions and restrictions, private agreements, easements, and any other recorded documents or instruments affecting the use of the Premises, Building or Land (singularly and collectively “Laws”). Tenant shall also comply with all safety, fire protection and evacuation procedures and regulations established by Landlord or any governmental agency. Tenant shall, at its sole expense and cost, promptly comply with all Laws and with the requirements of any board of fire insurance underwriters or other similar bodies now or hereafter constituted, relating to or affecting the condition, use or occupancy of the Premises.
Tenant shall obtain and maintain in effect during the Lease Term all licenses and permits required for the proper and lawful conduct of Tenant’s business in the Premises and shall at all times comply with such licenses and permits. The judgment of any court of competent jurisdiction or the admission of Tenant in any action or proceeding (whether Landlord is a party or not) that Tenant has violated any Laws shall be conclusive of that fact as between Landlord and Tenant.
10.2 Nondiscrimination. Tenant hereby certifies and agrees that, in all matters affecting this Lease, it will comply with all applicable federal, State, and local laws and regulations prohibiting discrimination of any kind, including but not limited to, the Federal Civil Rights Act of 1964, Unruh Civil Rights Act, Cartwright Act, State Fair Employment Practices Act, and Americans with Disabilities Act.
8 508246406v.2
10.3 Employment Records. All employment records shall be open for inspection and reinspection by Landlord at any reasonable time during the term of this Lease for the purpose of verifying the practice of nondiscrimination by Tenant in the areas heretofore described.
10.4 Hazardous Materials.
(a) Tenant shall not cause or permit any Hazardous Material(s) (as defined in this Article) to be brought, kept or used in or about the Land or Building by Tenant or Tenant’s Affiliates, contractors, employees, agents or representatives, provided Tenant may use and store normal quantities of products used for the Permitted Use as long as the same are used in compliance with applicable Laws. Tenant indemnifies Landlord and Landlord’s Affiliates from and against any breach by Tenant of the obligations stated in the preceding sentence, and agrees to defend and hold Landlord and Landlord’s Affiliates harmless from and against any and all claims, judgments, damages, penalties, fines, costs, liabilities, or losses (including, without limitation, diminution in value of the Building, and sums paid in settlement of claims, attorneys’ fees, consultant fees, and expert fees) which arise or accrue during, or are attributable to, the term of this Lease as a result of such breach. This indemnification of Landlord and Landlord’s Affiliates by Tenant includes without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal, or restoration work required by any federal, state, or local governmental agency or political subdivision because of Hazardous Material(s) present in the soil or ground water on or under the Building. Without limiting the foregoing, if the presence of any Hazardous Material(s) on the Building caused or permitted by Tenant and/or Tenant’s Affiliates results in any contamination of the Building, Tenant shall promptly take all actions at its sole expense as are necessary to return the Building to the condition existing prior to the introduction of any such Hazardous Material(s) and the contractors to be used by Tenant must be approved by Landlord, which approval shall not be unreasonably withheld so long as such actions would not potentially have any material adverse long-term or short-term effect on the Building and so long as such actions do not materially interfere with the use and enjoyment of the Building by any other tenants thereof; provided however, Landlord shall also have the right, by notice to Tenant, to directly undertake such mitigation efforts with regard to Hazardous Material(s) in or about the Building due to Tenant’s breach of its obligations pursuant to this Article, and to charge Tenant, as Additional Rent, for the costs thereof. In no event shall Tenant be permitted to conduct any invasive or destructive environmental tests of the Land, Building or Premises. Upon termination or expiration of the Lease Term, Tenant at its sole expense shall cause all Hazardous Materials placed in or about the Premises, the Building and/or the Land to be removed therefrom and transported for use, storage or disposal in accordance and compliance with all Laws and other applicable requirements respecting Hazardous Materials. (b) It shall not be unreasonable for Landlord to withhold its consent to any proposed Transfer under Article 17 if (i) the proposed Transferee’s anticipated use of the Premises involves the generation, storage, use, treatment, or disposal of Hazardous Material(s); (ii) the proposed Transferee or any of its affiliates has been required by any prior landlord, lender, or governmental authority to take remedial action in connection with Hazardous Material(s) contaminating a property if the contamination resulted from such proposed Transferee’s (or any of its affiliates’) actions or use of the Property in question; or (iii) the proposed Transferee or any of its affiliates is subject to an enforcement order issued by any governmental authority in connection with the use, disposal, or storage of a Hazardous Material(s).
9 508246406v.2
(c) As used herein, the term “Hazardous Material(s)” mean any hazardous or toxic substance, material, or waste which is or becomes regulated by any local governmental authority, the State of California or the United States Government. The term “Hazardous Material(s)” include, without limitation, any material or substance which is (i) defined as “Hazardous Waste,” “Extremely Hazardous Waste,” or “Restricted Hazardous Waste” under Sections 25115, 25117 or 25122.7, or listed pursuant to Section 25140, of the California Health and Safety Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law), (ii) defined as a “Hazardous Substance” under Section 25316 of the California Health and Safety Code, Division 20, Chapter
6.8 (Carpenter-Presley-Tanner Hazardous Substance Account Act), (iii) defined as a “Hazardous Material,” “Hazardous Substance,” or “Hazardous Waste” under Section 25501 of the California Health and Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and Inventory), (iv) defined as “Hazardous Substance” under Section 25281 of the California Health and Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances), (v) petroleum, (vi) asbestos, (vii) regulated by Section 26100 et seq. of the California Health and Safety Code, Division 20, Chapter 18 (Toxic Mold Protection Act of 2001), (viii) listed under Article 9 or defined as Hazardous or extremely hazardous pursuant to Article 11 of Title 22 of the California Administrative Code, Division 4, Chapter 20, (ix) designated as a “Hazardous Substance” pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. § 1317), or (x) defined as a “Hazardous Waste” pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq. (42 U.S.C. § 6903), (xi) defined as a “Hazardous Substance” pursuant to Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. (42 U.S.C. § 9601).
11. Alterations and Additions.
11.1 Landlord’s Consent.
(a) Tenant shall not make or permit to be made any alterations, additions, or improvements (singularly and collectively “Alterations”) to the Land, Building or the Premises or any part thereof without the prior written consent of Landlord in each instance. (b) Landlord will not unreasonably withhold its consent to any Alterations provided and upon the condition that all of the following conditions shall be satisfied: (i) the Alterations do not affect the outside appearance of the Building; (ii) the Alterations are nonstructural and do not impair the strength of the Building or any part thereof; (iii) the Alterations are to the interior of the Premises and do not affect any part of the Land or Building outside of the Premises; (iv) the Alterations do not affect the proper functioning of the heating, ventilating and air conditioning (“HVAC”), mechanical, electrical, sanitary or other utilities, systems and services of the Building; (v) Landlord shall have approved the final plans and specifications for the Alterations and all contractors who will perform them; (vi) Tenant pays to Landlord the reasonable costs and expenses actually incurred by Landlord in reviewing Tenant’s plans and specifications and inspecting the Alterations to determine whether they are being performed in accordance with the approved plans and specifications and in compliance with Laws, including, without limitation, the fees of any architect or engineer employed by Landlord for such purpose; (vii) before proceeding with any Alteration which will cost more than $50,000 (exclusive of the costs of items constituting Tenant’s Property, as defined in Article 11.2), Tenant obtains and delivers to Landlord, at Landlord’s option, 10 508246406v.2
either: (A) a performance bond and a labor and materials payment bond for the benefit of Landlord, issued by a corporate surety licensed to do business in California, each in an amount equal to one hundred twenty-five percent (125%) of the estimated cost of the Alterations and in form reasonably satisfactory to Landlord, or (B) such other security as shall be reasonably satisfactory to Landlord. Unless all of the foregoing conditions are satisfied, Landlord shall have the right to withhold its consent to the Alterations in Landlord’s sole and absolute discretion. (c) Not less than twenty (20) days nor more than thirty (30) days prior to commencement of any Alterations, Tenant shall notify Landlord of the work commencement date, and shall notify Landlord again within one (1) business day after the actual work commencement date, so that Landlord may post notices of non-responsibility about the Premises. All Alterations must comply with all Laws, the other terms of this Lease, and the final plans and specifications approved by Landlord, and Tenant shall fully and promptly comply with and observe the rules and regulations of Landlord then in force with respect to the making of Alterations. Landlord’s review and approval of Tenant’s plans and specifications are solely for Landlord’s benefit. Landlord shall have no duty toward Tenant, nor shall Landlord be deemed to have made any representation or warranty to Tenant, with respect to the safety, adequacy, correctness, efficiency or compliance with Laws of the design of the Alterations, the plans and specifications therefore, or any other matter regarding the Alterations.
(d) Notwithstanding the foregoing to the contrary, Tenant, without Landlord’s prior written consent but upon prior notice to Landlord in accordance with subsection (c) above, shall be permitted to make non-structural Alterations which do not affect Building systems and are not visible from outside the Building, provided that: (i) such Alterations do not exceed $50,000 individually, (ii) Tenant shall have secured the approval of all governmental authorities and all permits required by governmental authorities having jurisdiction over such approvals and permits for such Alterations, (iii) Tenant shall notify Landlord in writing within thirty (30) days of completion of the Alterations, and (iv) Tenant shall, upon Landlord’s request, remove the Alteration at the termination or expiration of this Lease and restore the Land, Building and Premises, as applicable, to their condition prior to such Alteration.
11.2 Ownership and Surrender of Alterations. Upon their installation, all Alterations, including, but not limited to, wall covering, paneling and built-in cabinetry, but excluding movable furniture, trade fixtures and office equipment (“Tenant’s Property”), shall become a part of the realty and belong to Landlord and shall be surrendered with the Premises. However, upon the expiration or sooner termination of the Lease Term, at Tenant’s expense, Tenant shall remove all of Tenant’s Property and repair any damage to the Premises caused by such removal, reasonable wear and tear excepted, and upon written demand by Landlord, at Tenant’s expense, immediately remove any Alterations made by Tenant which are designated by Landlord to be removed and repair any damage to the Premises caused by such removal, reasonable wear and tear excepted.
11.3 Liens. Tenant shall pay when due all claims for labor, materials and services furnished by or at the request of Tenant or Tenant’s Affiliates. Tenant shall keep the Premises, the Building and the Land free from all liens, security interests and encumbrances (including, without limitation, all mechanic’s liens and stop notices) created as a result of or arising in connection with the Alterations or any other labor, services or materials provided for or at the request of Tenant or Tenant’s Affiliates, or any other act or omission of Tenant or Tenant’s 11 508246406v.2
Affiliates, or persons claiming through or under them. Such liens, security interests and encumbrances singularly and collectively are herein called “Liens.” Tenant shall not use materials in connection with the Alterations that are subject to any Liens. Tenant shall indemnify Landlord and Landlord’s Affiliates for and hold Landlord and Landlord’s Affiliates harmless from and against: (a) all Liens; (b) the removal of all Liens and any actions or proceedings related thereto; and (c) all Liabilities incurred by Landlord or Landlord’s Affiliates in connection with the foregoing. If Tenant fails to keep the Premises, the Building and the Land free from Liens, then, in addition to any other rights and remedies available to Landlord, Landlord may immediately take any action necessary to discharge such Liens, including, but not limited to, payment to the claimant on whose behalf the Lien was filed, without any duty to investigate the validity thereof, and all sums, costs and expenses, including reasonable attorneys’ fees and costs, incurred by Landlord in connection with such Lien shall be deemed Additional Rent under this Lease and shall immediately be due and payable by Tenant. Tenant shall indemnify Landlord and Landlord’s Affiliates for, and hold Landlord and Landlord’s Affiliates harmless from and against, all Liabilities so incurred by Landlord, without regard to any defense or offset that Tenant may have had against the claimant.
Neither Landlord’s curative action nor the reimbursement of Landlord by Tenant shall cure Tenant’s default in failing to keep the Premises, the Building and the Land free from Liens. If any Lien is recorded against Tenant’s interest in this Lease, the Land, Building or Premises, Tenant shall bond against, discharge or otherwise cause such Lien to be entirely released within ten (10) days after the same has been recorded.
11.4 Additional Requirements. Alterations shall comply with all Laws. Tenant, at its sole expense, shall obtain all necessary permits and certificates for the commencement and performance of Alterations and for final approval thereof upon completion, and shall cause the Alterations to be performed in compliance therewith and with all applicable insurance requirements, and in a good, first-class and workmanlike manner. Landlord shall have all rights to review and approve or disapprove all required submittals in accordance with Laws, and nothing set forth in this Lease shall be construed as Landlord’s approval of any or all of the applications or plans for the Alterations. Tenant, at its sole expense, shall diligently cause the cancellation or discharge of all notices of violation arising from or otherwise connected with Alterations, or any other work, labor, services or materials done for or supplied to Tenant or Tenant’s Affiliates, or by any person claiming through or under Tenant or Tenant’s Affiliates. Alterations shall be performed so as not to interfere with any other tenant in the Building, cause labor disharmony therein, or delay or impose any additional expense on Landlord in the construction, maintenance, repair or operation of the Building. Throughout the performance of the Alterations, Tenant, at its expense, shall carry, or cause to be carried the Workers’ Compensation insurance described in Article 15, together with course of construction, commercial general liability and automobile liability insurance, each in an amount and with coverage reasonably satisfactory to Landlord.
Tenant shall furnish Landlord with satisfactory evidence that such insurance is in effect at or before the commencement of the Alterations and, upon request, at reasonable intervals thereafter until completion of the Alterations.
11.5 Prevailing Wages. Tenant shall carry out the construction of all Alterations in conformity with all applicable laws. Although the parties believe that California law does not require the payment of prevailing wages or the hiring of apprentices as a result of this Lease because the parties intend that the Premises is being leased to Tenant at its fair market rental value, and no other subsidies or financial assistance is being provided to Tenant by Landlord hereunder, 12 508246406v.2
Tenant shall be solely responsible for determining and effectuating compliance with such laws, and Landlord makes no representation as to the applicability or non-applicability of any of such laws to the construction of the Alterations. Tenant hereby expressly acknowledges and agrees that Landlord has not previously affirmatively represented to Tenant or its contractor(s) for the construction of the Alterations, in writing or otherwise, in a call for bids or otherwise, whether the Alterations are a “public work,” as defined in Section 1720 of the California Labor Code. If work required performed by or at the request of Tenant is subject to prevailing wage laws, Tenant shall comply (and cause its contractors, employees, agents, and representatives to comply) with the same at its sole cost and expense.
To the maximum extent permitted by law, Tenant shall defend (at Tenant’s expense with counsel reasonably acceptable to Landlord), indemnify and hold harmless Landlord and its officers, employees, elected or appointed officials, volunteers, contractors and agents from and against any and all loss, demand, liability, damage, claim, cost, expense and/or “increased costs” (including reasonable attorneys’ fees, court and litigation costs, and fees of expert witnesses) which, in connection with the construction of the Alterations, including, without limitation, any and all public works (as defined by applicable law), results or arises in any way from any of the following: (1) the noncompliance by Tenant or any of its contractors or subcontractors of any applicable local, state and/or federal law, including, without limitation, any applicable federal and/or state labor laws (including, without limitation, if applicable, the requirement to pay prevailing wages); (2) the implementation of Section 1781 of the California Labor Code, as the same may be amended from time to time, or any other similar or successor law; and/or (3) failure by Tenant or any of its contractors or subcontractors to provide any required disclosure or identification as required by California Labor Code Section 1781, as the same may be amended from time to time, or any other similar or successor law. It is agreed by the parties that, in connection with the construction of the Alterations, including, without limitation, any and all public works (as defined by applicable law), Tenant shall bear all risks of its and its contractors’ and subcontractors’ payment or non-payment of prevailing wages under California law and the implementation of California Labor Code Section 1781, as the same may be amended from time to time, and any other similar or successor law. “Increased costs,” as used in this Article, shall have the meaning ascribed to it in California Labor Code Section 1781, as the same may be amended from time to time. The foregoing indemnity shall survive expiration or termination of this Lease.
12. Repairs. As provided in Article 5, the Premises shall be delivered to Tenant in an “AS IS” and “ALL FAULTS” condition and Landlord shall have no obligation whatsoever to alter, remodel, improve, repair, decorate, or paint the Premises or any part thereof either prior to or during the Lease Term. By accepting possession of the Premises, Tenant shall be deemed to have acknowledged that the Premises are suitable for its purposes and in good condition and repair.
Tenant, at its expense, shall keep the Land, Building and Premises and every part thereof in good condition and repair and shall, upon the expiration or sooner termination of the Lease Term, surrender the Land, Building and Premises to Landlord in good condition and repair and as otherwise required under the terms of this Lease. Tenant acknowledges and agrees that it has inspected the Land, Building and Premises and that Tenant is not relying on any representations or warranties made by Landlord or Landlord’s Affiliates regarding the Premises, the Building, or the Land.
13 508246406v.2
13. Services and Utilities.
(a) Tenant shall be solely responsible for obtaining and shall promptly pay directly to the utility supplier all fees, deposits and charges including use and/or connection fees, hookup fees, standby fees and/or penalties for discontinued or interrupted service, and the like, for HVAC, electricity, gas and water used in or upon or furnished to the Premises, irrespective of whether any of the foregoing are initially paid or advanced by Landlord, or otherwise. If electricity, gas or water service is billed to Landlord, Tenant shall pay to Landlord within ten (10) days after Landlord’s demand, as Additional Rent hereunder, the amount shown thereon. Additionally, if the Premises are not separately metered, Landlord shall have the right to install separate meters. (b) In no event shall Landlord be liable for damages or otherwise for any interruption, reduction, disruption, curtailment or failure in the supply, quality or character of HVAC, electricity, centrally conditioned cold air or any other utility or other service, or if either the quantity, quality or character thereof is changed or is no longer available or suitable for Tenant’s requirements, nor shall any such interruption, reduction, disruption, curtailment, failure or change in quantity, quality or character constitute or be deemed to constitute constructive eviction of Tenant, or excuse or relieve Tenant from its obligations pursuant to this Lease.
14. Entry by Landlord. Landlord shall have the right to enter the Premises during regular business hours in order to: inspect the Premises; post notices of non-responsibility; show the Premises to prospective purchasers, lenders or tenants; perform its obligations and exercise its rights hereunder; and make repairs, improvements, alterations or additions to the Premises or the Building or any portion thereof as Landlord deems necessary or desirable and to do all things necessary in connection therewith, including, but not limited to, erecting scaffolding and other necessary structures. Landlord shall retain (or be given by Tenant) keys to unlock all of the doors to or within the Premises, excluding doors to Tenant’s vaults and files. Landlord shall have the right to use any and all means necessary to obtain entry to the Premises in an emergency.
Landlord’s entry to the Premises shall not, under any circumstances, be deemed to be a forcible or unlawful entry into, or a detainer of, the Premises, or an eviction of Tenant from the Premises or any portion thereof.
15. Tenant’s Insurance.
15.1 Property Insurance. At all times during the Lease Term, Tenant, at its expense, shall maintain in effect policies of casualty insurance covering: (a) the Land, Premises and Building, (b) all alterations made by or for the benefit of Tenant and all leasehold improvements; and (c) all of Tenant’s Property and other Personal Property from time to time in, on or about the Premises, in an amount not less than their full replacement cost (without deduction for depreciation) from time to time during the term of this Lease. Such policies shall provide for protection against any perils normally included within the classification of “All Risks” and shall cover demolition and changes in Laws. Such insurance shall contain an endorsement naming Landlord, Landlord’s Mortgagee and any other parties designated by Landlord as loss payees and an endorsement waiving the insurer’s right to subrogate against Landlord, Landlord’s Mortgagee, and any other loss payee.
14 508246406v.2
15.2 Commercial General Liability Insurance. At all times during the Lease Term, Tenant, at its sole expense, shall maintain Commercial General Liability Insurance with respect to the ownership, maintenance, use, operation and condition of the Premises and the business conducted therein. Such insurance shall at all times have limits of not less than Two Million Dollars ($2,000,000.00) per occurrence and Four Million Dollars ($4,000,000.00) in the aggregate.
Upon mutual agreement in good faith between Landlord and Tenant, these limits shall be increased from time to time during the Lease Term to such higher limits as Landlord and Tenant believe are necessary to protect both Landlord and Tenant’s best interests. Such insurance shall be primary and not contributory with any self-insurance or insurance maintained by Landlord or Landlord’s Mortgagee and shall contain an endorsement naming Landlord and Landlord’s Mortgagee, their elected and appointed officials and employees, and any other parties designated by Landlord, as additional insureds.
15.3 Workers’ Compensation Insurance. At all times during the Lease Term, Tenant at its sole cost shall maintain Workers’ Compensation insurance as required by California law and Employer’s Liability insurance with limits not less than One Million Dollars ($1,000,000) each accident. Such insurance shall contain an endorsement waiving the insurer’s right to subrogate against Landlord, Landlord’s Mortgagee, their elected or appointed officials and employees, and any other parties designated by Landlord.
15.4 Other Insurance. At all times during the Lease Term, Tenant at its sole cost shall maintain business income/extra expense insurance sufficient to pay Rent for a period of not less than twelve (12) months, and if food and/or beverages are distributed, sold and/or consumed within the Premises, to the extent obtainable, coverage for liability arising out of the distribution, sale, use or consumption of food and/or beverages (including alcoholic beverages, if applicable) at the Premises with limits of not less than Two Million Dollars ($2,000,000.00) per occurrence and Four Million Dollars ($4,000,000.00) in the aggregate. Such insurance shall be primary and not contributory with any self-insurance or insurance maintained by Landlord or Landlord’s Mortgagee, and shall contain an endorsement naming Landlord and Landlord’s Mortgagee, their elected and appointed officials and employees, and any other parties designated by Landlord, as additional insureds.
15.5 Policy Requirements. All insurance required to be carried by Tenant hereunder shall be issued by insurers with a current A.M. Best’s rating of no less that A-VII and qualified to do business in the State of California, approved by Landlord and, if required, by Landlord’s Mortgagee. Copies of all certificates and required endorsements shall be delivered to Landlord at least ten (10) days prior to Tenant’s occupancy of the Premises. Each policy shall provide that it may not be canceled or materially changed except after thirty (30) days’ prior written notice to Landlord and Landlord’s Mortgagee. Tenant shall furnish Landlord with renewal certificates or binders of each policy evidencing compliance with those requirements at least thirty (30) days prior to expiration. Tenant shall have the right to provide insurance coverage pursuant to blanket policies obtained by Tenant if the blanket policies expressly afford coverage as required by this Lease and include a per location endorsement. If Landlord or Landlord’s Mortgagee reasonably determines at any time that the amount of coverage set forth in this Article for any policy of insurance Tenant is required to carry pursuant to this Article is not adequate, then Tenant shall increase the amount of coverage for such insurance to such greater amount as Landlord or Landlord’s Mortgagee reasonably deems adequate.
15 508246406v.2
15.6 Tenant’s Failure to Deliver Policies. Upon Landlord’s request, Tenant shall deliver certified copies of all required insurance policies to Landlord. If Tenant fails to deliver required certificates of insurance, required endorsements or requested copies of the insurance policies within the time required pursuant to Article 15.5, Landlord may, but shall not be obligated to, obtain the required insurance, and the cost thereof, shall be payable by Tenant to Landlord as Rent on demand. Nothing in this Article shall be deemed to be a waiver of any rights or remedies available to Landlord under this Lease or at law or in equity if Tenant fails to obtain and deliver the required insurance policies and evidence of payment.
16. Damage or Destruction; Eminent Domain.
16.1 Restoration. If the Building or the Premises are partially damaged or totally destroyed by fire or other casualty, or in the event of a Taking or Appropriation, and provided in any case that this Lease is not terminated pursuant to Article 16.2 below, Tenant shall repair the damage and restore or rebuild the Building or the Premises, including Tenant’s Property and leasehold improvements. Tenant shall use commercially reasonable efforts to make any repairs or restoration promptly. Any award for a Taking or Appropriation shall belong to and be paid to Tenant.
16.2 Eminent Domain. Landlord may terminate this Lease upon written notice to Tenant if twenty-five percent (25%) or more of either the Premises, the Building or the Land is condemned, taken or appropriated by any public or quasi-public authority (collectively “Taking or Appropriation”) under the power of eminent domain, police power or otherwise (or in the event of a sale in lieu thereof). If Landlord elects to terminate this Lease, its notice of termination shall be given within sixty (60) days after the Taking or Appropriation. If such notice is not given or if Landlord notifies Tenant of Landlord’s election not to terminate, this Lease shall continue in full force and effect, except that the Monthly Rent shall be reduced in the proportion that the Premises which is taken bears to the total area of the Premises. Tenant hereby waives any and all rights it might otherwise have pursuant to Sections 1265.120 and 1265.130 of the California Code of Civil Procedure, and the provisions of any successor or similar Law hereinafter enacted.
16.3 Business Interruption. Landlord shall not incur any Liabilities of any type to Tenant, Tenant’s Affiliates, contractors, or guests arising from or in connection with any damage or destruction of the Premises, the Building or the Land, or any Taking or Appropriation thereof, or any repairs or restoration in connection therewith, nor shall Tenant have any right to terminate this Lease as a result thereof.
16.4 Waiver. To the extent permitted under law, Tenant waives the application of any Laws now or hereafter in effect which are contrary to the provisions of this Article in connection with any damage, destruction, Taking or Appropriation (or grant deed or other instrument in lieu) of all or any portion of the Premises, the Building, or the Land, including, without limitation, California Civil Code, Section 1932, and California Civil Code, Section 1933.
17. Assignment and Subletting.
17.1 Landlord’s Consent Required. Tenant shall not voluntarily, involuntarily or by operation of any Laws sell, convey, mortgage, assign, sublet or otherwise transfer or encumber 16 508246406v.2
(collectively “Transfer”) all or any part of Tenant’s interest in this Lease or the Premises without Landlord’s prior written consent in each instance, which consent shall not be unreasonably withheld, conditioned or delayed except as otherwise provided in this Article, and any attempt to do so without this consent shall be null and void. If Tenant desires to Transfer its interest in this Lease to all or any part of the Premises, Tenant shall notify Landlord in writing. This notice shall state and/or be accompanied by: (a) the proposed effective date of the Transfer, which shall not be less than 45 days nor more than 90 days after the date of delivery of the notice, (b) a description of the portion of the Premises to be transferred; (c) a statement setting forth the name and business of the proposed transferee under the Transfer (the “Transferee”); (d) a copy of the proposed Transfer agreement (and any collateral agreements) setting forth all of the terms and the financial details of the Transfer (including, without limitation, the term, the rent and any security deposit, “key money”, calculation of “Transfer Premium” as defined in Article 17.5, and amounts payable for Tenant’s Property and the common use of any personnel or equipment); (e) current financial statements of the proposed Transferee certified by an independent certified public accountant and other information requested by Landlord relating to the proposed Transferee; and (f) any other information concerning the proposed Transfer which Landlord may reasonably request. Transfer made without Landlord’s prior written consent shall be null, void, and of no effect, and constitute a default by Tenant under this Lease.
17.2 Consent by Landlord. Tenant agrees that the withholding of Landlord’s consent shall be deemed reasonable if any of the following conditions are not satisfied:
(a) The proposed Transferee shall use the Premises only for the Permitted Use, and the business of the proposed Transferee is consistent with the other uses and the standards of the Building, in Landlord’s reasonable judgment.
(b) On the date consent is requested, the proposed Transferee is reputable and has a tangible net worth not less than the tangible net worth of Tenant on the execution of this Lease, has a credit rating reasonably acceptable to Landlord, and otherwise has sufficient financial capabilities to perform all of its obligations under this Lease or the proposed sublease, in Landlord’s reasonable judgment.
(c) The proposed Transfer would not cause Landlord to be in violation of another lease or agreement to which Landlord is a party or would not give an occupant of the Building a right to cancel its lease.
(d) The terms of the proposed Transfer will not allow the Transferee to exercise a right of renewal, right of expansion, right of first offer, or other similar right held by Tenant, or occupy space leased by Tenant pursuant to any such right.
(e) Tenant is not in default and has not committed acts or omissions which with the running of time or the giving of notice or both would constitute a default under this Lease. (f) Tenant has complied with the terms of this Article.
The conditions described above are not exclusive and shall not limit or prevent Landlord from considering additional factors in determining if it should reasonably withhold its consent. 17 508246406v.2
17.3 Entity Transactions. If Tenant is an entity, the dissolution, merger, consolidation or other reorganization of the entity, or a transfer (by one or more transactions) of a majority or controlling percentage of the voting stock or equity interests of Tenant, shall each be deemed to be a Transfer of this Lease subject to the provisions of this Article.
17.4 No Release of Tenant. Notwithstanding the granting of Landlord’s consent, no Transfer of this Lease or the Premises shall release or alter Tenant’s primary liability to pay Rent and perform all of its other obligations hereunder; provided that, if Landlord consents to any Transfer that constitutes an assignment of this Lease, and the Tangible Net Worth (as defined below) of the assignee (or such assignee’s guarantor, in the event such assignee provides a guaranty on terms acceptable to Landlord from a guarantor acceptable to Landlord) is equal to or greater than the Tangible Net Worth of Tenant as of the date of this Lease, then the assignor Tenant shall be released from liability hereunder with respect to matters arising or accruing under this Lease after the effective date of the assignment. “Tangible Net Worth” means the excess of total assets over total liabilities, in each case as determined in accordance with generally accepted accounting principles consistently applied, excluding, however, from the determination of total assets, all assets which would be classified as intangible assets under generally accepted accounting principles consistently applied, including goodwill, licenses, patents, trademarks, trade names, copyrights, and franchises. The acceptance of Rent by Landlord from any person other than Tenant shall not be a waiver by Landlord of any provision hereof. Consent to one Transfer shall not be deemed to be consent to any subsequent Transfer. Subject to the first sentence of this section, if any Transferee of Tenant defaults in the performance of any of the terms hereof, Landlord may proceed directly against Tenant without proceeding against or exhausting its remedies against the Transferee. After any Transfer, Landlord may consent to subsequent Transfers, or amendments to this Lease, without notifying Tenant or any other person, without obtaining consent thereto, and without relieving Tenant of liability under this Lease, subject to the first sentence of this section.
17.5 Transfer Premium. If Landlord consents to any Transfer that constitutes an assignment of this Lease or a sublease of all or any portion of the Premises, Tenant shall pay the following to Landlord as Additional Rent:
(a) In the event of an assignment of this Lease, Tenant shall pay to Landlord 10% of any Transfer Premium (as defined below), and in the event of any sublease of all or any portion of the Premises, Tenant shall pay to Landlord 50% of any Transfer Premium. “Transfer Premium” shall mean all rent or other consideration payable by such Transferee specifically pertaining to such Transfer in excess of the Monthly Rent and Additional Rent payable by Tenant under this Lease on a per rentable square foot basis if less than all of the Premises is transferred, after deducting third party, market rate leasing commissions, reasonable legal fees (not to exceed $3,000.00 in the aggregate for any one (1) Transfer) and equipment, fixtures and improvement costs paid by Tenant in connection with the Transfer and previously approved by Landlord in writing. The Monthly Rent used to calculate the Transfer Premium for a sublease shall be the Rent hereunder allocable to the subleased space for any period and shall be equal to the following equation: total Rent accruing during such period, multiplied by rentable square footage of the subleased space / Total rentable square footage of the Premises. (b) This Transfer Premium shall be paid by Tenant to Landlord as and when received by Tenant or, at Landlord’s option, on written notice to the Transferee, Landlord may collect all 18 508246406v.2
or any portion of this Transfer Premium directly from the Transferee. Landlord’s acceptance or collection of this Additional Rent will not be deemed to be consent to any Transfer or a cure of any default under this Article or the rest of the Lease.
17.6 Additional Terms. Within ten (10) days of written demand, Tenant shall pay the reasonable attorney’s fees and other costs and expenses of Landlord in connection with any request for Landlord’s consent to any Transfer in an amount not to exceed $3,000 (whether or not such consent is given).
(a) A sublease will be null and void unless it complies with the rest of this Lease and provides that: (i) it is subject and subordinate to this Lease and that if there is any conflict or inconsistency between the sublease and this Lease, this Lease will prevail; (ii) Landlord may enforce all the provisions of the sublease, including the collection of rent thereunder; (iii) it may not be modified without Landlord’s prior written consent and that any modification without such consent shall be null and void; (iv) if this Lease is terminated or Landlord re-enters or repossesses the Premises, Landlord may, at its option, terminate the sublease, or take over all of Tenant’s right, title and interest as sublessor and, at Landlord’s option, the subtenant shall attorn to Landlord, but Landlord shall not be (v) liable for any security deposit under the sublease, unless Landlord actually receives such security deposit, (w) liable for any previous act or omission of Tenant under the sublease, (x) subject to any existing defense or offset against Tenant, or (y) bound by any previous modification of the sublease made without Landlord’s prior written consent or by any prepayment of more than one month’s rent thereunder; and (z) it is ineffective until Landlord gives its written consent thereto.
(b) An assignment will be null and void unless it complies with the terms of this Lease and provides that: (i) the assignee assumes all of Tenant’s obligations under this Lease and agrees to be bound by all of the terms of this Lease; and (ii) it is ineffective until Landlord gives its written consent thereto.
(c) The sublease or assignment otherwise must exactly match the proposed sublease or assignment initially submitted by Tenant. A sublease or assignment will not be effective until a fully executed counterpart is delivered to Landlord and Landlord delivers its written consent thereto.
(d) This Article is binding on and shall apply to any purchaser, mortgagee, pledgee, assignee, subtenant or other Transferee or encumbrancer, at every level. (e) Notwithstanding anything to the contrary in this Lease, if Tenant or any proposed Transferee of Tenant claims that Landlord has unreasonably withheld or delayed its consent under this Article or otherwise has breached or acted unreasonably under this Article, their sole remedy shall be a declaratory judgment and an injunction for the relief sought without any monetary damages, and Tenant waives all other remedies on its own behalf and, to the extent permitted under all Laws, on behalf of Tenant’s proposed Transferee.
18. Quiet Enjoyment. So long as Tenant pays all Rent and performs all of its other obligations as required hereunder, Tenant shall during the Lease Term, peaceably and quietly have, hold and enjoy the Premises subject to the terms, covenants, conditions, provisions and agreements hereof, 19 508246406v.2
and the terms of any Superior Leases and Mortgages (as defined in Article 19.1), and all other agreements or matters of record or to which this Lease is subordinate without interference by any persons lawfully claiming by or through Landlord. The foregoing covenants are in lieu of any other covenant express or implied.
19. Mortgagee Protection.
19.1 Subordination. Unless provided otherwise herein, this Lease is subject and subordinate to all present and future ground leases, lease-leaseback financing, underlying leases, mortgages, deeds of trust, or other encumbrances, renewals, modifications, consolidations, replacements, extensions thereof, or advances made thereunder, affecting all or any portion of the Premises, the Building, or the Land (collectively, “Superior Leases and Mortgages”). However, in confirmation of such subordination, Tenant shall execute, acknowledge, and deliver any instrument that Landlord or the lessor, mortgagee or beneficiary under any of the Superior Leases and Mortgages may request, within ten (10) days after request. (Each of these lessors, mortgagees or beneficiaries is called a “Landlord’s Mortgagee.”) However, if Landlord, Landlord’s Mortgagee or any other successor to Landlord elects in writing, this Lease shall be deemed superior to the Superior Leases and Mortgages specified, regardless of the date of recording, and Tenant will execute an agreement confirming this election on request. If Landlord’s Mortgagee or its successor or any successor to Landlord succeeds to Landlord’s interests under this Lease, whether voluntarily or involuntarily, Tenant shall attorn to such person and recognize such person as Landlord under this Lease. To the extent permitted under law, Tenant waives the provisions of any current or future statute, rule, or law which may give or purport to give Tenant any right or election to terminate or otherwise adversely affect this Lease and the obligations of the Tenant hereunder in the event of any foreclosure proceeding or sale.
19.2 Mortgagee’s Liability. The obligations and liabilities of each of Landlord or Landlord’s Mortgagees, or their successors, under this Lease shall exist only if and for so long as each of these respective parties owns fee title to the Land and the Building or is the lessee under a ground lease therefore. No Monthly Rent or Additional Rent shall be paid more than thirty (30) days prior to the due date thereof and payments made in violation of this provision shall (except to the extent that such payments are actually received by a Landlord’s Mortgagee) be a nullity as against Landlord’s Mortgagees or their successors and Tenant shall be liable for the amount of such payments to Landlord’s Mortgagees or their successors.
19.3 Mortgagee’s Right to Cure. No act or omission by Landlord which would entitle Tenant under the terms of this Lease or any Laws to be relieved of Tenant’s obligations hereunder, or to terminate this Lease, shall result in a release or termination of such obligations or this Lease unless: (a) Tenant first shall have given written notice of Landlord’s act or omission to Landlord and all Landlord’s Mortgagees whose names and addresses shall have been furnished to Tenant; and (b) Landlord’s Mortgagees, after receipt of such notice, fail to correct or cure the act or omission within a reasonable time thereafter (but in no event less than sixty (60) days). However, nothing contained in this Article shall impose any obligation on Landlord’s Mortgagees to correct or cure any act or omission.
20. Estoppel Certificates. Tenant shall from time to time, within ten (10) days after request by Landlord, execute and deliver to Landlord or any other person designated by Landlord an 20 508246406v.2
estoppel certificate, in form satisfactory to Landlord, which certifies: (a) that this Lease is unmodified and in full force and effect (or, if there have been modifications, describes them); (b) the commencement date and expiration date of the Lease Term and that there are no agreements with Landlord to extend or renew the Lease Term or to permit any holding over (or if there are any such agreements, describes them and specifies the periods of extension or renewal); (c) the date through which the Monthly Rent and Additional Rent have been paid; (d) that Landlord is not in default in the performance of any of its obligations under this Lease (or, if there are any such defaults, describes them); (e) that Tenant is not entitled to any credits, offsets, defenses or deductions against payment of the Rent hereunder (or, if they exist, describes them); and (f) such other information concerning this Lease or Tenant as Landlord or any other person designated by Landlord reasonably shall request. An estoppel certificate issued by Tenant pursuant to this Article shall be a representation and warranty by Tenant which may be relied on by Landlord and by others with whom Landlord may be dealing, regardless of independent investigation. If Tenant fails to execute and deliver an Estoppel certificate as required hereunder, Landlord’s representations concerning the factual matters covered by such Estoppel certificate, as described above, shall be conclusively presumed to be correct and binding on Tenant.
21. Default. The occurrence of any one or more of the following events shall be a default and breach under this Lease by Tenant:
(a) The vacation or abandonment of all or any portion of the Premises by Tenant for thirty (30) consecutive days.
(b) The failure to accept tender of possession of the Premises or any significant portion thereof.
(c) The failure by Tenant to make any payment of Rent or any other payment required to be made by Tenant hereunder for a period of ten (10) days after such payment is due. (d) 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 those described in the other subparagraphs of this Article, where such failure shall continue for a period of fifteen (15) days after written notice thereof by Landlord to Tenant. However, if the nature of these defaults is such that more than fifteen (15) days are reasonably required to cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within the fifteen (15) day period and thereafter diligently completes the cure within a reasonable period of time based upon the nature of the default.
(e) The making by Tenant or any guarantor of this Lease of any general assignment or general arrangement for the benefit of creditors; or the filing by or against Tenant or any guarantor of this Lease of a petition or order for relief under any Laws relating to bankruptcy or insolvency (unless, in the case of a petition filed against Tenant or any guarantor of this Lease, the petition is dismissed within sixty (60) days); or the appointment of a trustee, custodian or receiver to take possession of substantially all of Tenant’s assets or the assets of any guarantor of this Lease or of Tenant’s interest in this Lease where possession is not restored to Tenant within thirty (30) days; or the attachment, execution or judicial seizure of substantially all of Tenant’s assets or of Tenant’s interest in this Lease, unless discharged within thirty (30) days. 21 508246406v.2
(f) The service by Landlord of a three-day notice under California Code of Civil Procedure Section 1161 on three or more occasions if the previous service of the three-day notices did not result in the termination of this Lease.
(g) A sale, conveyance, mortgage, pledge, assignment, sublease or other transfer or encumbrance, or any attempt to do so, in violation of Article 17. (h) Tenant’s failure to deliver the estoppel certificate within the time required under Article 20, or any written instrument required under Article 19 within the time required. (i) A default under or the repudiation of any guaranty of Tenant’s obligations under this Lease.
(j) Tenant’s failure to maintain the insurance policies required hereunder within five (5) business days after written notice is provided by Landlord.
22. Remedies for Default.
22.1 General. In the event of any default or breach by Tenant, Landlord may at any time thereafter, with or without notice or demand, in addition to all other rights and remedies provided by law or in equity or otherwise provided in this Lease, to which Landlord may resort cumulatively, or in the alternative:
(a) Terminate Tenant’s right to possession of the Premises by any lawful means, including but not limited to terminating this Lease, barring the Tenant from reentering the Premises, and removing all persons and property therefrom, which property may be stored by Landlord at a warehouse or elsewhere at risk, expense, and for the account of Tenant. If Landlord elects to terminate this Lease, Tenant shall immediately surrender possession of the Premises to Landlord. In such event Landlord shall be entitled to recover from Tenant all Liabilities incurred by Landlord or Landlord’s Affiliates by reason of Tenant’s default, including but not limited to:
(i) the worth at the time of the award of the unpaid Monthly Rent and Additional Rent which had been earned or was payable at the time of termination; (ii) the worth at the time of the award of the amount by which the unpaid Monthly Rent and Additional Rent which would have been earned or payable after termination until the time of the award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; (iii) the worth at the time of the award of the amount by which the unpaid Monthly Rent and Additional Rent which would have been paid for the balance of the term after the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; and (iv) any other amount necessary to compensate Landlord for all Liabilities proximately caused by Tenant’s failure to perform its obligations under the Lease or which in the ordinary course of things would be likely to result therefrom, including, but not limited to, any costs or expenses incurred by Landlord in maintaining or preserving the Premises, the Building and the Land after such default, the cost of recovering possession of the Premises, advertising expenses incurred, expenses of reletting, including necessary renovation or alteration of the Premises or any portion thereof, whether for the same or different use, and any special concessions made to obtain the new tenant, Landlord’s attorneys’ fees and costs incurred in connection therewith, and any real estate commissions paid or payable. As used in subparts (i) and (ii) above, the “worth at the time of the award” is computed by allowing interest on unpaid 22 508246406v.2
amounts at the rate of ten percent (10%) per annum, or such lesser amount as may then be the maximum lawful rate. As used in subparagraph (iii) above, the “worth at the time of the award” is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award, plus one percent (1%). If Tenant abandons the Premises, Landlord shall have the option of (x) taking possession of the Premises and recovering from Tenant the amount specified in this subparagraph, or (y) proceeding under the provisions of subparagraph (b) below.
(b) Maintain Tenant’s right to possession, in which case this Lease shall continue in effect whether or not Tenant shall have abandoned the Premises. In such event Landlord shall be entitled to enforce all of Landlord’s rights and remedies under this Lease and at law or in equity, including the right to recover the Rent and other sums and charges as they become due hereunder. (c) If Landlord does not terminate this Lease by giving written notice of termination, Landlord may enforce all its rights and remedies under this Lease, including the right and remedies provided by California Civil Code Section 1951.4 (“lessor may continue lease in effect after lessee’s breach and abandonment and recover rent as it becomes due, if lessee has right to sublet or assign, subject only to reasonable limitations”), as in effect on the date of this Lease. (d) Pursuant to California Code of Civil Procedure Section 1161.1, Landlord may accept a partial payment of Rent after serving a notice pursuant to California Code of Civil Procedure Section 1161, and may without further notice to Tenant, commence and pursue an action to recover the difference between the amount demanded in that notice and the payment actually received. This acceptance of such a partial payment of Rent does not constitute a waiver of any rights, including any right Landlord may have to recover possession of the Premises. Tenant agrees that any notice given by Landlord pursuant to Article 21 of this Lease shall satisfy the requirements for notice under California Code of Civil Procedure Section 1161, and Landlord shall not be required to give any additional notice in order to be entitled to commence an unlawful detainer proceeding.
(e) Nothing in this Article 22 shall be deemed to affect Landlord’s right to indemnification for liability or liabilities arising prior to the termination of this Lease under the indemnification clause or clauses contained in this Lease. (f) All rights, powers and remedies of Landlord hereunder and under any other agreement now or hereafter in force between Landlord and Tenant shall be in addition to all rights, powers and remedies given to Landlord by law, and the exercise of one or more rights or remedies shall not impair Landlord’s right to exercise any other right or remedy.
22.2 Redemption. Tenant waives any and all rights of redemption granted by or under any Laws if Tenant is evicted or dispossessed for any cause, or if Landlord obtains possession of the Premises by reason of the violation by Tenant of any of the terms, covenants or conditions of this Lease, or otherwise.
22.3 Performance by Landlord. If Tenant defaults under this Lease, Landlord, without waiving or curing the default, may, but shall not be obligated to, perform Tenant’s obligations for 23 508246406v.2
the account and at the expense of Tenant. Notwithstanding Article 21(d), in the case of an emergency, Landlord need not give any notice prior to performing Tenant’s obligations.
22.4 Post-Judgment Interest. The amount of any judgment obtained by Landlord against Tenant in any legal proceeding arising out of Tenant’s default under this Lease shall bear interest until paid at the maximum rate allowed by law, or, if no maximum rate prevails, at the rate of twelve percent (12%) per annum. Notwithstanding anything to the contrary contained in any Laws, with respect to any damages that are certain or ascertainable by calculation, interest shall accrue from the day that the right to the damages vests in Landlord, and in the case of any unliquidated claim, interest shall accrue from the day the claim arose.
22.5 Tenant’s Waiver. To the extent permitted under law, in the event of any default, breach or violation of Tenant’s rights under this Lease by Landlord which is not cured within thirty (30) days after Landlord’s receipt of written notice therefor from Tenant (or such longer period of time as may be reasonably required), Tenant’s remedies shall be an action for actual damages proximately caused by Landlord’s uncured default (except as and to the extent Tenant has waived its right to damages as provided in this Lease). Tenant hereby waives the benefit of any law granting it the right to perform Landlord’s obligation or to terminate this Lease.
23. Holding Over. Tenant shall not hold over in the Premises after the expiration or sooner termination of the Lease Term without the express prior written consent of Landlord in its sole discretion. Tenant shall indemnify Landlord and Landlord’s Affiliates for, and hold Landlord and Landlord’s Affiliates harmless from and against, any and all Liabilities arising out of or in connection with any delay by Tenant in surrendering and vacating the Premises, including, without limitation, any claims made by any succeeding tenant based on any delay and any Liabilities arising out of or in connection with these claims. If possession of the Premises is not surrendered to Landlord on the expiration or sooner termination of the Lease Term, in addition to any other rights and remedies of Landlord hereunder or at law or in equity, Tenant shall pay to Landlord for each month or portion thereof during which Tenant holds over in the Premises a sum equal to one hundred twenty-five percent (125%) of the then-current Monthly Rent in addition to all other Rent payable under this Lease. If any tenancy is created by Tenant’s holding over in the Premises, the tenancy shall be on all of the terms and conditions of this Lease, except that Rent shall be increased as set forth herein and the tenancy shall be a tenancy-at-sufferance. Nothing in this Article 23 shall be deemed to permit Tenant to retain possession of the Premises after the expiration or sooner termination of the Lease Term.
24. Indemnification and Exculpation.
24.1 Indemnification. In addition to any other indemnities required of Tenant hereunder, Tenant shall indemnify Landlord and Landlord’s Affiliates for, and hold Landlord and Landlord’s Affiliates harmless from, any and all Liabilities arising from or in connection with Tenant’s (including Tenant’s Affiliate or any person claiming under or through any of them), performance and obligations hereunder, or its failure to comply with any current or prospective law, except for such loss or damage caused by the gross negligence or willful misconduct of Landlord, including but not limited to, (a) the use and occupancy of the Premises by Tenant or Tenant’s Affiliates; (b) the conduct of Tenant’s business; (c) any breach or default by Tenant under this Lease; (d) claims by any assignee, subtenant, broker or other person if Landlord declines to consent to any 24 508246406v.2
assignment, sublease or other transfer or encumbrance or terminates this Lease pursuant to Article 17; and (e) any other acts or omissions of Tenant or Tenant’s Affiliates or persons claiming through or under any of them. This indemnification obligation shall survive this Lease and shall not be limited by any term of any insurance policy required under this Lease.
24.2 Damage to Persons or Property. Tenant assumes the risk of all Liabilities it may incur, including, but not limited to, damage or injury to persons, property and the conduct of Tenant’s business (and any loss of revenue therefrom), the loss of use or occupancy of the Premises, and the items enumerated below in this Article, and waives all claims against Landlord and Landlord’s Affiliates in connection therewith. Landlord and Landlord’s Affiliates shall not be liable for any Liabilities incurred by Tenant or Tenant’s Affiliates (including, but not limited to, the Liabilities described above in this Article) arising from or in connection with: (a) explosion, fire, steam, electricity, water, gas or rain, pollution or contamination; (b) the breakage, leakage, obstruction or other defects of plumbing, HVAC, electrical, sanitary, safety, elevator or other utilities and systems of the Building or the failure to furnish any of the foregoing; (c) any work, maintenance, repair, rebuilding or improvement performed by or at the request of Landlord or Landlord’s Affiliates for the Premises, the Building or the Land; (d) any entry by Landlord or Landlord’s Affiliates on the Premises; (e) any defects in the Premises, the Building, the Land or any portions thereof; (f) any interference with light or other incorporeal hereditaments; and (g) any other acts, omissions or causes. Nothing in this Article exempts Landlord for liability caused solely by its gross negligence or willful misconduct, but Landlord shall not be liable under any circumstances for consequential, special, indirect, speculative or punitive damages (including, but not limited to, damage or injury to persons, property and the conduct of Tenant’s business and any loss of revenue therefrom). Tenant immediately shall notify Landlord of any defects in the Premises or the Building or any portion thereof and of any damage or injury thereto or to persons or property in or about the Premises or the Building.
In this regard, Tenant acknowledges that it is fully apprised of the provisions of Law relating to releases, and particularly to those provisions contained in Section 1542 of the California Civil Code, which reads as follows:
“A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Notwithstanding such statutory provision, and for the purpose of implementing a full and complete release and discharge, Tenant hereby (i) waives the benefit of such statutory provision and (ii) acknowledges that, subject to the exceptions specifically set forth herein, the release and discharge set forth in this Article is a full and complete settlement and release and discharge of all claims and is intended to include in its effect, without limitation, all claims which Tenant, as of the date hereof, does not know of or suspect to exist in Tenant’s favor.
24.3 Satisfaction of Remedies. If Tenant or Tenant’s Affiliates acquire any rights or remedies against Landlord or Landlord’s Affiliates (including, but not limited to, the right to satisfy a judgment), these rights and remedies shall be satisfied solely from Landlord’s estate and interest in the Land and the Building (or the proceeds therefrom) and not from any other property 25 508246406v.2
or assets of Landlord or Landlord’s Affiliates. This Article shall be enforceable by Landlord and Landlord’s Affiliates.
25. Intentionally Omitted.
26. Taxes.
26.1 Real Property Taxes. Tenant shall be solely responsible for payment of any and all “Real Property Taxes” levied or assessed against the Premises or Tenant’s interest under this Lease, including without limitation any taxes levied against the Land or Building. “Real Property Taxes” include, but are not limited to: any fees, including license fee, license tax, business license fee, commercial rental tax, levy, charge, assessment, penalty or tax imposed by any taxing authority against the Premises, Land or the Building; any property taxes and assessments levied on Tenant’s possessory interest in the Premises, Land or Building; any tax on Landlord’s right to receive, or the receipt of, rent or income from the Premises, Land or Building; any tax or charge for fire protection, streets, sidewalks, road maintenance, refuse or other services provided to the Premises, Land or the Building; any tax imposed on this transaction or based on a reassessment of the Premises, Land or the Building due to a change in ownership or transfer of all or part of Landlord’s interest in this Lease, the Premises, Land or the Building: and any charge or fee replacing or supplementing any tax previously included within this definition. Real Property Taxes do not include Landlord’s federal or state net income, franchise, inheritance, gift or estate taxes.
26.2 Possessory Interest. In accordance with California Revenue and Taxation Code Section 107.6(a), Landlord hereby informs Tenant that by entering into this Lease a possessory interest in Tenant subject to property taxes may be created, and if so, Tenant or other party in whom the possessory interest is vested may be subject to the payment of property taxes levied on such interest. Tenant shall be solely responsible for payment of any possessory interest tax levied or assessed against the Premises, improvements on the Premises, this Lease, the Land or Building. If at any time Tenant is not separately assessed for its possessory interest and/or improvements on the Premises, Tenant shall, as Additional Rent, pay to Landlord that portion of any assessment levied against or upon the Premises, the improvements on the Premises, the Building or Landlord’s interest therein that represents the value of the Tenant’s leasehold interest and the value of the improvements of the Premises that would have been assessed and levied upon the Premises had it been assessed as such possessory interest in the Premises.
26.3 Payment. The amount of any tax or excise payable by or assessed against Tenant or the Premises including without limitation, Real Property Taxes, shall be paid by Tenant before it becomes delinquent. Tenant shall pay, or cause to be paid, before delinquency, any and all other taxes levied or assessed against Tenant’s Property, Tenant’s possessory interest in the Premises, Land and Building, and any leasehold improvements in the Premises which were made for Tenant or at its request. If any or all of Tenant’s Property or any of these leasehold improvements are assessed and taxed with the Building, Tenant shall pay to Landlord the amount of such taxes within ten (10) days after delivery to Tenant by Landlord of a statement in writing setting forth the amount of such taxes.
26 508246406v.2
27. Brokers. Landlord and Tenant represent and warrant to each other that they have had no dealings with any broker, finder, or similar person who is or might be entitled to a commission or other fee in connection with introducing Tenant to the Building or in connection with this Lease, except for Landlord’s Broker and Tenant’s Broker as may be named in Article 2. Landlord shall pay the commission due to Landlord’s Broker and Tenant’s Broker pursuant to a separate agreement between Landlord and such Brokers. Landlord and Tenant shall indemnify each other for, and hold the other harmless from and against, any and all claims that the indemnified party may have as a result of a breach of the foregoing representation.
28. Parking. Tenant acknowledges that no parking is provided to Tenant pursuant to this Lease, except for that certain parking lot to be used solely for customers of Tenant (the “Tenant Parking Lot”, which for purposes hereof, is comprised of the parking lot and surrounding areas outlined in red (as such parking lot is more particularly depicted on Exhibit “D” attached hereto, outside of the footprint of the restaurant Building); the “Tenant Parking Lot”).provided that, if use of the Tenant Parking Lot or any portion thereof is needed by Landlord to accommodate the potential development by Landlord of a boat launch at Mole D in the future, Landlord, upon notice to Tenant, shall have the right to retake the Tenant Parking Lot or applicable portion thereof.
Tenant, at its sole cost and expense, shall be responsible for repairing and maintaining the Tenant Parking Lot in good condition and repair, and Landlord shall have no responsibility or liability with respect thereto, unless and to the extent Landlord retakes all or any portion of the Tenant Parking Lot in accordance with the preceding sentence.. Tenant may, on a space available basis, purchase parking spaces from the City per the terms of this Lease. Parking rates shall be determined by Landlord at its sole discretion. Landlord at all times shall have the right to designate the particular parking area and spaces, if any, to be used by any or all of such Tenant’s employees, suppliers, customers, visitors, or the like, and any such designation may be changed from time to time. Attached hereto as Exhibit “F” is a copy of the City’s Parking Fee Schedule, which schedule shall be subject to change from time to time by City and/or its parking facility operator.
29. Authority to Enter into Lease. If Tenant is an entity, each individual executing this Lease on behalf of the entity represents and warrants that he or she is duly authorized to execute and deliver this Lease on behalf of such entity, in accordance with a duly adopted resolution of such entity or in accordance with the operational documents of said entity, and that this Lease is binding on the entity in accordance with its terms. Tenant shall, within thirty (30) days of the execution of this Lease, deliver to Landlord, evidence reasonably satisfactory to Landlord authorizing or ratifying the execution of this Lease.
30. General Provisions.
30.1 Joint Obligation. If Tenant consists of more than one person or entity, the obligations of such persons or entities as Tenant shall be joint and several.
30.2 Marginal Headings. The titles to the Articles of this Lease are not a part of this Lease and shall have no effect on the construction or interpretation.
30.3 Time. Time is of the essence for the performance of each and every provision of this Lease.
27 508246406v.2
30.4 Successors and Assigns. Subject to the restrictions contained in Article 17 above, this Lease binds the heirs, executors, administrators, successors and assigns of the parties hereto.
30.5 Recordation. The parties agree to record this Lease or a short form memorandum hereof pursuant to California Government Code Section 37393 by executing, acknowledging and delivering a memorandum of lease in substantially the form of Exhibit G” attached hereto concurrent with each party’s execution and delivery of this Lease. Upon the expiration or earlier termination of this Lease, upon Landlord’s request, the parties shall execute, deliver and record an instrument acknowledging the termination of this Lease which removes such memorandum of record, and Tenant appoints Landlord its attorney-in-fact in its name and behalf for the sole and limited purpose of executing the same if Tenant shall fail to do so within ten (10) business days of Landlord’s request.
30.6 Late Charges. Tenant acknowledges that late payment of Rent will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. These 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 Superior Leases and Mortgages. Accordingly, if any installment of Monthly Rent or Additional Rent due from Tenant is not received by Landlord or Landlord’s designee within ten (10) days after the amount is due, Tenant shall pay to Landlord a late charge equal to six percent (6%) of the overdue amount.
Acceptance of late charges by Landlord shall not constitute a waiver of Tenant’s default with respect to the overdue amount, nor prevent Landlord from exercising any of the other rights and remedies granted hereunder or at law or in equity.
30.7 Prior Agreements; Amendment, Waiver. This Lease contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Lease, and no prior agreements or understanding pertaining to any such matters shall be effective for any purpose. No provision of this Lease may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors in interest. All waivers hereunder must be in writing and specify the breach, act, omission, term, covenant or condition waived, and acceptance of Rent or other acts or omissions by Landlord shall not be deemed to be a waiver. The waiver by Landlord of any breach, act, omission, term, covenant or condition of this Lease shall not be deemed to be a waiver of any other or subsequent breach, act, omission, term, covenant or condition.
30.8 Inability to Perform. Neither Landlord nor Tenant shall be in default hereunder nor shall either be liable to the other for any Liabilities if either party is unable to fulfill any of its obligations, or is delayed in doing so, if the inability or delay is caused by reason of accidents, breakage, strike, labor troubles, pandemic, endemic, bank closure or seizure, public health restrictions, extended electrical or internet outages, acts of God, or any other cause, whether similar or dissimilar, which is beyond the reasonable control of Landlord or Tenant, as applicable; provided that, with respect to the obligations imposed with regard to Rent and other charges to be paid by Tenant pursuant to this Lease, this section shall not apply.
30.9 Legal Proceedings. In any action or proceeding involving or relating in any way to this Lease, the court or other person or entity having jurisdiction in such action or proceeding shall award to the party in whose favor judgment is entered the reasonable attorneys’ fees and costs 28 508246406v.2
incurred. The party in whose favor judgment is entered may, at its election, submit proof of fees and costs as an element of damages before entry of judgment or after entry of judgment in a postjudgment cost bill. Tenant also shall indemnify Landlord for, and hold Landlord and Landlord’s Affiliates harmless from and against, all Liabilities incurred by Landlord and/or Landlord’s Affiliates if Landlord and/or Landlord’s Affiliates becomes or is made a party to any proceeding or action: (a) instituted by Tenant (except to the extent resulting from Landlord’s breach or material default hereunder beyond the expiration of any applicable notice and cure period), or by any third party against Tenant, or by or against any person holding any interest under or using the Premises by license of or agreement with Tenant; (b) otherwise arising out of or resulting from any act or omission of Tenant or such other person; or (c) necessary to protect Landlord’s interest under this Lease in a bankruptcy proceeding, or other proceeding under Title 11 of the United States Code, as amended. In any circumstance where Tenant is obligated to indemnify or hold harmless Landlord or Landlord’s Affiliates under this Lease, Tenant also shall defend Landlord and Landlord’s Affiliates with counsel acceptable to Landlord or, at Landlord’s election, Landlord or Landlord’s Affiliates may employ their own counsel and Tenant shall pay when due all attorneys’ fees and costs therefore.
30.10 Conveyance of Premises. As used herein the term “Landlord” means only the current owner or owners of the fee title to the Building or the lessee under a ground lease of the Land. Upon each conveyance (whether voluntary or involuntary) of the Building, the conveying party shall be relieved of all liability under any and all of its covenants and obligations contained in or derived from this Lease or arising out of any act, occurrence or omission occurring from and after the date of such conveyance. Landlord may sell, assign, convey, encumber or otherwise transfer all or any portion of its interests in this Lease, the Premises, the Building or the Land.
30.11 Name. Tenant shall not use the name of the Building or of the development in which the Building is situated, if any, for any purpose other than as an address of the business to be conducted by Tenant in the Premises.
30.12 Severability. Any provision of this Lease which shall be held invalid, void or illegal shall in no way affect, impair or invalidate any of the other provisions hereof and such other provisions shall remain in full force and effect.
30.13 Cumulative Remedies. No right, remedy or election hereunder or at law or in equity shall be deemed exclusive but shall, wherever possible, be cumulative with all other rights, remedies or elections.
30.14 Choice of Law. This Lease shall be governed by the laws of the State of California applicable to transactions to be performed wholly therein, and without regard for choice of law principles.
30.15 Signs. Tenant shall not place any sign on the Premises or the Building or which is visible from anywhere outside of the Premises, without Landlord’s prior written consent. Upon the expiration or earlier termination of this Lease, Tenant shall, at Tenant’s sole cost and expense, remove all of Tenant’s signage and repair any damage to the Building caused by such removal. 29 508246406v.2
30.16 Presumptions. This Lease shall be construed without regard to any presumption or other rule requiring construction against the party drafting the document. It shall be construed neither for nor against Landlord or Tenant but shall be given reasonable interpretation in accordance with the plain meaning of its terms and the intent of the parties.
30.17 Exhibits. All exhibits and any riders annexed to this Lease are incorporated herein by this reference and made a part hereof.
30.18 Submission of Lease. The submission of this Lease to Tenant or its broker, agent or attorney for review or signature does not constitute an offer to Tenant to lease the Premises or grant an option to lease the Premises. This document shall not be binding unless and until it is executed and delivered by both Landlord and Tenant.
30.19 Meaning of Terms. Whenever required by the context of this Lease, the singular shall include the plural and the plural shall include the singular, and the masculine, feminine and neuter genders shall each include the others, and the word “person” shall include corporations, partnerships or other entities.
30.20 Notices. All notices, demands or communications required or permitted under this Lease (the “Notices”) shall be in writing and shall be personally delivered, sent by overnight courier, or sent by certified mail, return receipt requested, postage prepaid. Notices to Tenant shall be delivered to the address set forth in Article 2. Notices to Landlord shall be delivered to the address set forth in Article 2, or such other address as Landlord may specify in writing to Tenant.
Notices shall be effective upon receipt or refusal to accept delivery.
30.21 Intentionally Omitted.
30.22 CASp Inspection. In accordance with California Civil Code Section 1938, Landlord hereby informs Tenant that as of the date of this Lease, the Premises have not been inspected by a Certified Access Specialist (as defined in California Civil Code Section 55.52(3)).
California Civil Code Section 1938(e) provides: “A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant.
The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.”
30.23 Reservations. Landlord reserves the right from time to time to grant, without the consent or joinder of Tenant, such easements, rights of way and dedications that Landlord deems necessary, and to cause the recordation of parcel maps and restrictions, so long as such easements, rights of way and dedications do not unreasonably interfere with the use of the Premises by Tenant.
Tenant agrees to execute any documents reasonably requested by Landlord to effectuate any such easement rights, dedications, maps or restrictions.
30 508246406v.2
30.24 Financial Statements. Prior to the execution of this Lease and at any time during the Lease Term upon at least ten (10) days’ prior written notice from Landlord (but not more often than once per calendar year unless in connection with a sale or financing of the Building or if Tenant is in default hereunder), Tenant agrees to provide Landlord with a current financial statement (Income and Expense statement and Balance Sheet) for Tenant and financial statements for Tenant for the two (2) years prior to the current financial statement year to the extent not previously delivered to Landlord. Tenant’s financial statements are to be prepared in accordance with generally accepted accounting principles and, if such is the normal practice of Tenant, audited by an independent certified public accountant. Tenant represents and warrants that all such financial statements shall be true and correct statements of Tenant’s financial condition.
30.25 Patriot Act.
(a) Tenant will use its good faith and commercially reasonable efforts to comply with the Patriot Act (as defined below) and all applicable requirements of governmental authorities having jurisdiction over Tenant or the Premises, including those relating to money laundering and terrorism. For purposes hereof, the term “Patriot Act” means the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as the same may be amended from time to time, and corresponding provisions of future laws.
(b) Neither Tenant nor any partner in Tenant or member of such partner nor any owner of a direct or indirect interest in Tenant (i) is listed on any Government Lists (as defined below), (ii) is a person who has been determined by competent authority to be subject to the prohibitions contained in Presidential Executive Order No. 13224 (Sept. 23, 2001) or any other similar prohibitions contained in the rules and regulations of OFAC (as defined below) or in any enabling legislation or other Presidential Executive Orders in respect thereof, (iii) has been previously indicted for or convicted of any felony involving a crime or crimes of moral turpitude or for any Patriot Act Offense (as defined below), or (iv) is currently under investigation by any governmental authority for alleged criminal activity. For purposes hereof, the term “Patriot Act Offense” means any violation of the criminal laws of the United States of America or of any of the several states, or that would be a criminal violation if committed within the jurisdiction of the United States of America or any of the several states, relating to terrorism or the laundering of monetary instruments, including any offense under (A) the criminal laws against terrorism; (B) the criminal laws against money laundering, (C) the Bank Secrecy Act, as amended, (D) the Money Laundering Control Act of 1986, as amended, or (E) the Patriot Act. “Patriot Act Offense” also includes the crimes of conspiracy to commit, or aiding and abetting another to commit, a Patriot Act Offense. For purposes hereof, the term “Government Lists” means (i) the Specially Designated Nationals and Blocked Persons Lists maintained by Office of Foreign Assets Control (“OFAC”), and (ii) any other list of terrorists, terrorist organizations or narcotics traffickers maintained pursuant to any of the Rules and Regulations of OFAC or pursuant to any Executive Order of the President of the United States of America.
31. Saltwater Pump. Landlord shall, using reasonable dispatch and at its own expense, endeavor to obtain all necessary permits and approvals, and upon receipt of all of the same, install a salt water pipe line and discharge line, along with a pumping system, to provide salt water to the Premises for the fish tanks at the Premises existing as of the date hereof. Landlord, at its own 31 508246406v.2
expense, shall be responsible for the repair and maintenance of such pipe lines and pumping system for the first 36 full calendar months following the installation thereof, and thereafter Tenant, at its own expense, shall be responsible for such repair and maintenance. Landlord does not represent or warrant that it shall be able to obtain any or all such permits and approvals, and Landlord’s failure to obtain any of the same, or to install such pipe lines and pumping system as a result of such failure, shall not constitute a default by Landlord hereunder or affect this Lease in any manner.
32. Existing Lease. Effective as of the Commencement Date, that certain Agreement of Sublease dated as of May 27, 1976, which provides Tenant the right to use and occupy the Premises (as amended, modified, assigned, sold and otherwise supplemented from time to time prior to the date hereof, the “Existing Lease”) shall be deemed null and void and of no further force or effect; provided that, any terms and conditions of the Existing Lease that survive the expiration or termination thereof shall so survive.
[SIGNATURES TO FOLLOW ON THE NEXT PAGE]
32 508246406v.2
IN WITNESS WHEREOF, the parties hereto have executed this Lease in Redondo Beach, California, as of August __, 2023.
LANDLORD TENANT
CITY OF REDONDO BEACH REDONDO BEACH MARINA GROUP,
LLC, A CALIFORNIA LIMITED
LIABILITY COMPANY, D/B/A CAPTAIN
KIDD’S FISH MARKET &
RESTAURANT
By:
William C. Brand Name:
Mayor Title:
ATTEST: APPROVED:
By:
Eleanor Manzano Diane Strickfaden, Risk Manager
City Clerk
APPROVED AS TO FORM:
Michael W. Webb
City Attorney
Exhibit A
508246406v.2
EXHIBIT “A”
DESCRIPTION OF PREMISES
The space located at 209 North Harbor Drive, Redondo Beach, CA 90277, consisting of approximately 6,593 gross square feet, as shown on the plan attached herein, together with the Exterior Dining Area.
Exhibit B
508246406v.2
EXHIBIT “B”
DEPICTION OF PREMISES
[Attached]
Exhibit B
508246406v.2
Exhibit C
508246406v.2
EXHIBIT “C”
COMMON AREAS
[Attached]
Exhibit C
508246406v.2
Exhibit C
508246406v.2
Exhibit C
508246406v.2
Exhibit D
508246406v.2
EXHIBIT “D”
TENANT PARKING LOT
[Attached]
Exhibit D
508246406v.2
Exhibit E
508246406v.2
EXHIBIT “E”
PARKING FEE SCHEDULE
Public parking rates are set by Landlord and are subject to change from time to time.
The current parking rates are as follows:
DAILY RATE
Summer (May 1 to September 30)
$2.00 each hour
Winter (October 1 to April 30)
$2.00 each hour
Lost Ticket (Redondo Beach Marina lot only):
$30.00
HOLIDAYS AND SPECIAL EVENTS
4TH of July: Flat fee of $20 payable upon entry
PARKING FOR THE DISABLED
Free with approved placards or license plates.
PIER/BOARDWALK MERCHANT MONTHLY AND YEARLY PASSES
Passes to be purchased by business owners/managers to satisfy employment verification; parking spaces occupied on a first-come, first-served basis; passes do not guarantee a parking space.
Annual Passes (January 1 – December 31):
a. Full-Access Annual Pass - 7 days/week in either parking structure: $280.00 (Purchases after January 31 will be prorated at the rate of $35/month times the number of months remaining in the year.)
b. Limited Access Annual Pass - 7 days/week in the Plaza Parking Structure, also allowed in Pier Parking Structure on non-holiday weekdays: $120.00.
(Purchases after January 31 will be prorated at the rate of $10/month times the number of months remaining in the year.)
Summer Season Passes (May 1 – September 30):
a. Full-Access Summer Pass - 7 days/week in either parking structure: $120.00 (Purchases after May 31 will be prorated at the rate of $35/month times the number of months remaining in the summer.)
Exhibit E
508246406v.2
b. Limited Access Summer Pass - 7 days/week in the Plaza Parking Structure, also allowed in Pier Parking Structure on non-holiday weekdays: $50.00.
(Purchases after May 31 will be prorated at the rate of $10/month times the number of months remaining in the summer.)
REDONDO BEACH MARINA EMPLOYEE MONTHLY AND YEARLY PASSES Passes to be purchased by business owners/managers to satisfy employment verification; parking spaces occupied on a first-come, first-served basis; passes do not guarantee a parking space.
Annual Employee Passes (January 1 – December 31): $280.00 7-days/week in Redondo Beach Marina parking lot
(Purchases after January 31 will be prorated at the rate of $35/month times the number of months remaining in the year).
Summer Season Employee Passes (May 1 – September 30): $120.00 7-days/week in Redondo Beach Marina parking lot
(Purchases after January 31 will be prorated at the rate of $35/month times the number of months remaining in the year).
Boat Slip Tenants:
$25.00 per month
Exhibit F
508246406v.2
EXHIBIT “F”
INTENTIONALLY OMITTED
Exhibit G
508246406v.2
EXHIBIT “G”
MEMORANDUM OF LEASE
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
CITY OF REDONDO BEACH
415 Diamond Street
Redondo Beach, CA 90277
Attention: City Clerk
No Recording Fee
Exempt pursuant to Government Code § 6103
_______________________________________________________________________
MEMORANDUM OF LEASE
This Memorandum of Lease (“Memorandum”) is made and entered into as of ________________, 2023 by and between the CITY OF REDONDO BEACH, a Chartered Municipal Corporation, hereinafter referred to as “Landlord” and REDONDO BEACH MARINA GROUP, LLC, a California limited liability company, d/b/a Captain Kidd’s Fish Market & Restaurant, hereinafter referred to as “Tenant.”
A. Landlord and Tenant have entered in a Lease (hereinafter, “Lease”) with a commencement date of September 1, 2023, for certain premises which are located on real property which is commonly described and depicted in Exhibit A and Exhibit B of the Lease and incorporated herein by reference (the “Premises”). Copies of the Lease are available for public inspection at Landlord’s office at 415 Diamond Street, Redondo Beach, CA 90277.
B. The Lease provides that a short form Memorandum shall be executed and recorded in the official Records of Los Angeles County, California.
NOW, THEREFORE, the parties hereto certify as follows:
1. Purpose of Memorandum of Lease. This Memorandum is prepared for recordation purposes only and it in no way modifies the terms, conditions, provisions and covenants of the Lease. In the event of any inconsistency between the terms, conditions, provisions and covenants of this Memorandum and the Lease, the terms, conditions, provisions, and covenants of the Lease shall prevail.
2. Term. This Lease has a term of 126 months.
3. Counterparts. This Memorandum may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument.
Exhibit G
508246406v.2
IN WITNESS WHEREOF, Landlord and Tenant hereto have executed this Memorandum of Lease in Redondo Beach, California, as of _______________________, 2023.
LANDLORD TENANT
CITY OF REDONDO BEACH REDONDO BEACH MARINA GROUP,
LLC, A CALIFORNIA LIMITED
LIABILITY, D/B/A CAPTAIN KIDD’S
FISH MARKET & RESTAURANT
By:
William C. Brand Name:
Mayor Title:
ATTEST:
Eleanor Manzano
City Clerk
APPROVED AS TO FORM:
Michael W. Webb
City Attorney