Execution copy
COMMERCIAL MULTI-TENANT LEASE- TRIPLE NET
MISSION SQUARE
by and between
THE CITY OF RIVERSIDE
("Landlord")
and
EVERYTABLE, PBC, a Delaware public beuefit corporation
("Tenant")
Execution copy
LEASE AGREEMENT
BASIC LEASE INFORMATION
I. Effect ive Lease Date:
2. Landlord:
3. Landlo rd's Address:
4. Tenant:
5. Tenant's Contact
Person:
6. Tenant ' s Address and E
mail:
--- --, 2022 . The date this Agreement has been
approved by the gove rning body of Landlo rd and is executed by the Part ies ("Effective Date").
The CITY OF RIVER SIDE, a California charter city and
municipal corporation (" Landlord ")
City of Riverside
Riverside Publi c Utilities
3750 University Avenue
Rivers ide, CA 92501
Attn: Teresa Maryanski
Al I not ices sen t to Landlord under this Lease sha ll be sent to the above address, w ith copies to:
C ity of Riverside
Community & Economic Development Department
3900 Main Street
Riverside , CA 92522
Attn: David Welch , Commun ity & Economic Deve lopment
Director
Newma rk Knight Frank
6615 E. Pacific Coast Hwy. , Suite 260
Long Beach, CA 90803
Attn: Cheryl H. Ba1tlo
Telephone: (562) 430-4026 / e-mai l: Cheryl.bartlo@ nmrk.com The City of Riverside/M iss ion Square
c/o Newma rk Knight Frank
500 W. Monroe Street , Suite 2900
Chicago , IL 60661
Everytable, PBC , a Delaware public benefit corporation Mark Seferian , Vice President Real Estate Development
4 700 Boyle Ave.
3rd F loor
Vernon, CA 90058
Attn : Mar k Seferian , VP of Real Esta te Devel opm ent ma rksef@eve ryta ble.co m
Exec ulion copy
7. Premises Square
Footage:
8. Premises Address:
9. Property:
10. Building:
I I. Tenant's Proportionate
Share of Common Area:
12. Length of Term:
13. Delivery Date:
14. Expiration Date:
15. Base Rent:
16. Prepaid Base Rent:
17. Additional Rent:
Attn: Jarrod B. Casteel, Real Estate Counse l
jarrod(ci),everytable.com
With copy to:
Everytab le, PBC
3305 East Vernon Ave.
Vernon, CA 90058
Attn: Mark Seferian, VP of Real Estate Development
Marksef @everytab le.com
Attn: Dirk Sampselle, General Counse l
counse [email protected]
Approximately one thousand two hundred (1,200) rentable square feet located on the first (ground) floor of the Propetty or as measured by Landlord
3750 University Avenue, Suite I 00
Riverside, CA 9250 I
The Property is the real property commonly known as Mission Square Office Building located at 3750 University Avenue, in the City of Riverside, County of Riverside, State of California. The Propetiy includes all buildings, improvements and facilities, now or subsequent ly located on the Property from time to time.
The office building located on the Property, containing approxima tely 125,020 rentable square feet which includes approx imately 20,808 square feet of Ground Floor Retail
0.96% of Building and 5.77% of Ground Floor Retail
Five (5) years with two (2) five (5) year options to extend.
The date upon which Tenant receives any and all necessa ry permits required to construct, open, and operate for the intended use within the Premises or One Hundred Eighty (180) days from the Effective Date, whichever is earlier
Five (5) years after the Comme ncement Date, subject to any applicable extension periods as described in Section 2.2 of this Lease.
$3.00 per month per rentable square footage on a triple net basis, subject to a two percent (2%) increase on each yearly anniversary of the Rent Commencement Date
$3,600 .00 first month's rent and $480.00 first month's CAM charges
Currently estimated at $0.40 per square foot or $480.00 monthly Execution copy
18. Month(s) to which
Prepaid Base Rent will
be Applied:
19. Rent Commencement
Date:
20. Security Deposit:
21. Tenant Allowance:
22. Permitted Use:
23. Parking Spaces:
25. Broker(s):
26. Exhibits:
Month one.
The earlier of (i) sixty (60) days after the Delivery Date, or (ii) the date that Tenant opens for business to the general public. $4,377.00
$25/square foot, plus the mutually agreed upon cost for Tenant to perform Landlord's Work.
Tenant shall use the Premises for the operation of a quick-service food retailer/restaurant, selling grab-n-go cold and re-heatable, pre made meals, including but not limited to, prepared soups, salads, grain bowls, sandwiches, pasta entrees, snacks and beverages, full coffee service and related items including the ancillary sales of branded items such as coffee mugs and T-shirts. Any change in use will require Landlord consent.
One to Five (1 to 5) reserved and/or unreserved parking spaces at current prevailing parking garage rates, which rate is subject to increase from time to time. However, reserved parking spaces can be added at a later date provided that the number of unreserved spaces decreases with the same number of designated reserved parking spaces so that the maximum number of combined reserved and unreserved spaces does not exceed five (5).
Newmark Knight Frank (Landlord's Broker)
Progressive Real Estate Partners (Tenant's Broker)
Exhibit "A"
Exhibit "B"
Exhibit "C"
Exhibit "D"
Exhibit "E"
Exhibit "F"
Description of Premises
Rules and Regulations
Date of Delivery of Possession
Landlord's Work
Landlord Sign Criteria
Tenant's Standard Sign Package
Execution copy
TABLE OF CONTENTS
1. Premises, Parking and Co1nmon Areas ............................................................................................. 1 I.I Parties .......................................................................................................................................... I
1.2 Premises ....................................................................................................................................... I
1.3 Letting .......................................................................................................................................... I 1 .4 Condition ..................................................................................................................................... I 1,5 Acceptance of Premises .............................................................................................................. 1
1.6 Vehicle Parking ........................................................................................................................... 2
1.7 Common Areas ........................................................................................................................... 3
1.8 Exterior Patio .............................................................................................................................. 4
2. Term ..................................................................................................................................................... 4
2.1 Original Term ............................................................................................................................. 4
2.2 Lease Extension ........................................................................................................................... 5
2.3 Surrender .................................................................................................................................... 6
2.4 Effect of Holding Over ............................................................................................................... 6
3. Rent ....................................................................................................................................................... 7
3.1 Definition ..................................................................................................................................... 7
3.2 Payment of Rent .......................................................................................................................... 7
3.3 Base Rent ..................................................................................................................................... 7
3.4 Tenant's Share of Common Area Maintenance Costs ............................................................ 7
3.5 Late Charges ............................................................................................................................... 9
3.6 Interest on Past-Due Obligations .............................................................................................. 9
3.7 Tenant Improvement Allowance ............................................................................................... 9
4. Security Deposit .................................................................................................................................. JO
4.1 Due at Execution ........................................................................................................................ 10
4.2 Use of Security Deposit.. ............................................................................................................ ! O
4.3 Return of Security Deposit ........................................................................................................ IO
5. Use ........................................................................................................................................................ 10
5.1 Permitted Use ............................................................................................................................. 10
5.2 Hours ofOperation .................................................................................................................... 11
5.3 Compliance with Governmental Regulations and Private Restrictions ................................ ] 2
5.4 Compliance with Americans with Disabilities Act .................................................................. 12 5 .5 No Roof Access ........................................................................................................................... 13
5.6 Hazardous Substances ............................................................................................................... 13
5.7 Inspection; Compliance with Law ............................................................................................ 14
6. Obligations; Improve1nents; Maintenance ....................................................................................... 14
6.1 Tenant's Obligations ................................................................................................................. 15
6.2 Tenant Improvements ............................................................................................................... 16
6.3 Landlord's Obligations .............................................................................................................. 16
6.4 Utility, Utility Installations, Trade Fixtures, Alterations ...................................................... 16
6.5 Ownership, Removal, Surrender, and Restoration ................................................................ 18
7. Insurance; Indemnity ......................................................................................................................... 19
7.1 Payment of Premiums ............................................................................................................... 19
7.2 Liability Insurance .................................................................................................................... I 9
7.3 Delivery of Evidence of Lessee's Insurance ............................................................................. 19
7.4 Other Insurance Requirements ................................................................................................ 20
7.5 Mutual Waiver of Subrogation ................................................................................................. 20
7.6 Indemnity ................................................................................................................................... 20
7.7 Exemption of Laudlord from Liability .................................................................................... 21
8. Damage or Destruction ...................................................................................................................... 21
8.1 Definitions .................................................................................................................................. 21
8.2 Premises Partial Damage - Insured Loss ................................................................................. 22
8.3 Partial Damage - Uninsured Loss ............................................................................................. 22
8.4 Total Destruction ....................................................................................................................... 23 Execution copy
8.5 Damage Near End ofTerm ...................................................................................................... .23
8.6 Abatement of Rent; Tenant's Remedies .................................................................................. 23
8.7 Hazardous Substance Conditions ............................................................................................. 24
8.8 Ter1ninatio11 ~ Advance Payments ............................................................................................ 24
8.9 Waiver of Statutes ..................................................................................................................... 24
9. Taxes.1 .................................................................................................................................................. 25
9.l Payment ofTaxes ...................................................................................................................... .25
9.2 Real Property Tax Definition ................................................................................................... 25
9.3 Additional Improvements ......................................................................................................... 25
9.4 Joint Assessment ........................................................................................................................ 25
9.5 Tenant's Taxes ........................................................................................................................... 25
9.6 "Possessory Interest Tax/Property Taxes" .............................................................................. 26
10. Assignment and Subletting ............................................................................................................... .26
10.1 Landlord's Consent Required .................................................................................................. 26
10.2 Default or Breach ..................................................................................................................... 27
10.3 Terms and Conditions Applicable to Assignment and Subletting ......................................... 27
10.4 Additional Terms and Conditions Applicable to Subletting .................................................. 28
11. Default; Breach; Remedies ................................................................................................................ 29 l l .I Tenant's Default ........................................................................................................................ 29
11.2 Landlord's Remedies ................................................................................................................ .31
11.3 Continuation of Lease .............................................................................................................. .32
11.4 Re-entry ...................................................................................................................................... 33 l l .5 Re-letting ................................................................................................................................... .33
11.6 Termination ............................................................................................................................... .33
11.7 Cumulative Remedies ............................................................................................................... .33
11.8 No Surrender ............................................................................................................................. 33
11.9 Landlord's Lien ......................................................................................................................... 34
11.10 Breach by Landlord .......................................................................................................... 34
12. Condemnation .................................................................................................................................... .34
13. 'J'enancy and Financial Statements ................................................................................................... 35
13. l Tenancy Statement ................................................................................................................... .35
13.2 Financial Statement ................................................................................................................... 35
14. Severability .......................................................................................................................................... 35
15. Time ofEssence ................................................................................................................................... 35
16. No Prior or Other Agreements .......................................................................................................... 35
17. Notices .................................................................................................................................................. 35
17.1 Notice Requirements ................................................................................................................. 35
17.2 Date ofNotice .............................................................................................................................. 36
18. Waivcrs ................................................................................................................................................ 36
19. No Recordation .................................................................................................................................. .36
20. Cumulative Remedies ........................................................................................................................ .36
21. Covenants and Conditions ................................................................................................................ .36
22. Binding Effect; Choice of Law ......................................................................................................... .36
23. Subordination; Attornment ............................................................................................................... 36
23.1 Subordination ........................................................................................................................... .36
23.2 Attornment ................................................................................................................................. 37
23.3 Self-Executing ............................................................................................................................ 37
24. Landlord's Access; Showing Premises; Repairs ............................................................................. .37
25. Auctions ............................................................................................................................................... 37
26. Signs ..................................................................................................................................................... 37
27. l'ermination; Merger ......................................................................................................................... 38
28. Consents .............................................................................................................................................. 38
29. Quiet Posscssion .................................................................................................................................. 38
30. Rules and Regulations ........................................................................................................................ 38
31. Security Measures .............................................................................................................................. 39
32. Reservations ........................................................................................................................................ 39 ii
Execution copy
33. Performance Under Protest .............................................................................................................. .39
34. Nondiscrimination .............................................................................................................................. 39
35. Authority ............................................................................................................................................. 39
36. Conflict ............................................................................................................................................... .40
37. Offer .................................................................................................................................................... .40 38, Amendments ...................................................................................................................................... .40
39. Multiple Parties ................................................................................................................................. .40
41. Force Majeure .................................................................................................................................... .40 Exhibit ''A"
Exhibit "B"
Exhibit"C"
Exhibit "D"
Exhibit "E"
Exhibit "P'
Description of Premises
Rules and Regulations
Date of Delivery of Possession
Landlord's Work
Laridlord's Sign Criteria
Tenant's Standard Sign Package
iii
TERMS AND CONDITIONS
1. Premises, Parking and Common Areas
1.1 Parties. This Lease ("Lease"), dated ------~' 2022 ("Effective Lease Date"), is made by and between THE CITY OF RIVERSIDE, a California charter city and municipal corporation ("Landlord") and EVERYTABLE, PBC, a Delaware public benefit corporation ("Tenant"). Collectively the Landlord and Tenant are referred to as "Parties," or individually as "Party."
1.2 Premises. That certain portion of the Building, including all improvements therein are to be provided by Landlord under the terms of this Lease, commonly known by the street address of3750 University Avenue, Suite 100 located in the City of Riverside, County of Riverside, State of California, 92501, as referenced on Exhibit "A" attached hereto and incorporated herein by reference, consisting of approximately 1,200 square feet of leasable space ("Premises"). The Premises shall have the right to the non-exclusive use of the exterior patio outside the Premises.
The "Building" is that certain building containing the Premises and generally described as a 6-story mixed use (retail and office uses) building known as "Mission Square" located at the southeast corner of University Avenue and Market Street and include Ground Floor Retail. In addition to Tenant's rights to use and occupy the Premises as hereinafter specified, Tenant shall have non exclusive rights to the Common Areas (as defined in Paragraph 1.8 below) as hereinafter specified, but shall not have any rights to the roof, exterior walls or utility raceways of the Building. The Premises, the Building, the Common Areas, and the land upon which they are located are herein collectively referred to as the "Project."
1.3 Letting. Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, the Premises, for the term, at the rental, and upon al I of the terms, covenants and conditions set forth in this Lease. Unless otherwise provided herein, any statement of square footage set forth in this Lease, or that may have been used in calculating rental and/or Common Area Operating Expenses, is an approximation which Landlord and Tenant agree is reasonable, and the rental and Tenant's Share shall be subject to revision once Landlord has finished constructing the space as described in Section 1.5 herein.
1.4 Condition. By taking possession of the Premises, Tenant accepts the Premises as suitable for Tenant's intended use and as being in good and sanitary operating order, condition and repair, as-is, and without representation or warranty by Landlord as to the condition, use or occupancy which may be made thereof. Any exceptions to the foregoing must be by written agreement executed by Landlord and Tenant. Tenant understands, acknowledges and agrees that it will perform the Landlord's work as defined in Section 6.3. l provided Landlord reimburses Tenant for the cost of said Landlord's Work including any interior demolition to accommodate Tenant's use. The cost of such Landlord's Work shall not exceed One Hundred Fourteen Thousand Dollars ($114,000) Dollars or Ninety-Five Dollars ($95.00) per square foot, as further set forth in Section
6.3.1. 1.5 Acceptance of Premises. Tenant hereby acknowledges, subject to the warranties and provisions of Section 1.4 above and this Section 1.5: (a) that it has been advised to satisfy itself 1 with respect to the with the present and future suitability of the Premises for Tenant's intended use; (b) that Tenant has made such investigation as it deems necessary with reference to such matters, and is satisfied with reference thereto, and assumes all responsibility therefore as the same relates to Tenant's occupancy of the Premises and/or the terms of this Lease; and (c) that neither Landlord, nor any of Landlord's agents, has made any oral or written representations or warranties with respect to said matters other than as set forth in this Lease. As required by California Civil Code No 1938, an ADA Survey has not been conducted by a Certified Access Specialist for the Premises and/or surrounding Common Areas. 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.
Notwithstanding the foregoing or anything in the Lease to the contrary, no later than thirty (30) days after the date on which Landlord delivers the Premises to Tenant, Tenant shall have the right, at its sole cost and expense, to have its architect remeasure the floor area of the Premises for accuracy. If an error is found in the measurement of the floor area, the Tenant shall cause its architect to certify the correct measurement to Landlord, and this Lease shall be amended to reflect any decrease or increase in rent if square footage is less or more than represented. In any event, square footage shall not be less than ninety-eight percent (98%) of the square footage described in the Basic Lease Information above.
1.6 Vehicle Parking. Tenant shall be entitled to use up to a total of 5 parking stalls whether they are reserved or unreserved parking spaces at Tenant's discretion. Tenant shall be responsible for payment of all parking fees to the operator of the parking garage. The parking rates for said parking will be the prevailing rates for reserved and unreserved parking at the Building, which rates are subject to increase from time to time. Tenant will pay any new rates as they are increased. Said parking spaces shall be used for parking by vehicles no larger than full-size passenger automobiles or pick-up trucks, herein called "Permitted Size Vehicles." Vehicles other than Permitted Size Vehicles shall be parked and loaded or unloaded as directed by Landlord in the Rules and Regulations as set for in Exhibit "B" attached hereto and incorporated herein by reference.
1.6.l Parking in Non-Designated Spaces Prohibited. Tenant shall not permit or allow any vehicles that belong to or are controlled by Tenant or Tenant's employees, suppliers, shippers, or contractors to be loaded, unloaded, or parked in areas other than those designated by Landlord for such activities.
1.6.2 Landlord's Rights and Remedies. If Tenant permits or allows any of the prohibited activities described in this Paragraph, then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost to Tenant, which cost shall be immediately payable upon demand by Landlord.
2 1.7 Common Areas. The term "Common Areas" is defined as all areas and facilities outside the Premises and within the exterior boundary line of the Project and interior utility raceways within the Premises that are provided and designated by the Landlord from time to time for the general non-exclusive use of Landlord, Tenant and other Tenants of the Project and their respective employees, suppliers, shippers, customers, contractors and invitees, including loading and unloading areas, trash areas, roadways, sidewalks, walkways, parkways, driveways and landscaped areas.
1.7.1 Rules and Regulations. Landlord or such other person(s) as Landlord may appoint, shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to establish, modify, amend and enforce reasonable Rules and Regulations.
Tenant agrees to abide by and conform to all such Rules and Regulations, and to cause its employees, suppliers, shippers, customers, contractors and invitees to so abide and conform, provided, however, that no such Rules and Regulations shall result in a material negative impact on Tenant's ability to conduct its business.
1.7.2 Tenant's Rights. Landlord hereby grants to Tenant, for the benefit of Tenant and its employees, suppliers, shippers, contractors, customers and invitees, during the term of this Lease, the non-exclusive right to use, in common with others entitled to such use, the Common Areas as they exist from time to time, subject to any rights, powers, and privileges reserved by Landlord under the terms hereof or under the terms of any rules and regulations or restrictions governing the use of the Project. Under no circumstances shall the right herein granted to use the Common Areas be deemed to include the right to store any property temporarily or permanently in the Common Areas. Any such storage shall be permitted only by the prior written consent of Landlord or Landlord's designated agent, which consent may be revoked at any time. In the event that any unauthorized storage shall occur then Landlord shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Tenant, which cost shall be immediately payable by Tenant. time to time:
1.7.3 Changes. Landlord shall have the right, in Landlord's sole discretion, from (a) To make changes to the Common Areas, including, without limitation, changes in the location, size, shape and number of driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas, walkways and utility raceways;
(b) To close temporarily any of the Common Areas for maintenance purposes so long as reasonable access to the Premises remains available;
3 ( c) To use the Common Areas while engaged in making additional improvements, repairs or alterations to the Project, or any portion thereof; and
(d) To do and perform such other acts and make such other changes in, to or with respect to the Common Areas and Project as Lru1dlord may, in the exercise of sound business judgment, deem to be appropriate.
Notwithstanding anything in this Lease to the contrary, any changes, additions or alterations to the Premises, the Common Areas or the Building shall not (a) materially and adversely impair access to, or visibility of the Premises; or (b) reduce Tenant's available parking as described in this Lease.
1.8 Exterior Patio. Tenant shall have a non-exclusive right to use the exterior patio area outside the Premises as shown in Exhibit "A," which is subject to change pursuant to Section 1. 7.3 above. Tenant shall not be charged any rent or operating expenses for the exterior patio. However, Tenant shall pay their share of for the cost and expense of the maintenance and upkeep of the exterior patio. Should Landlord reconfigure the exterior patio area to mal<e exclusive areas for the tenants, Tenant shall pay its proportionate share of the cost for the reconfiguration. Further, at such time as an exclusive area is designated for Tenant, Tenant shall be solely responsible for all costs and expense of its maintenance and upkeep of exterior patio.
2. Term.
2.1 Original Term. The term shall be for five (5) years ("Original Term") commencing from the Delivery Date ("Commencement Date"). This Lease may be extended by exercise of Lease Extension pursuant to Section 2.2. The Commencement Date shall be documented in writing by the Parties with the execution of the Commencement Date Memorandum attached hereto as Exhibit "C" and incorporated herein by reference. The Original Term shall expire at the end of five (5) years following the Commencement Date ("Expiration Date"). Landlord shall permit Tenant to occupy the Premises prior to the Commencement Date of the term, however, such occupancy shall be subject to all of the provisions of this Lease. Said early possession shall not advance the termination date of this Lease.
2.1.1 Rent Commencement Date. The Rent Commencement Date shall be the earlier of (i) sixty (60) days after the Commencement Date, or (ii) the date that Tenant opens for business to the general public.
2.1.2 Due Diligence Period and Permit Contingency. Notwithstanding anything herein to the contrary, Tenant shall have a period of One Hundred ru1d Eighty (180) days from the Effective Date of the Lease ("Dne Diligence Period") to conduct due diligence activities, including making all tena11t improvements, conducting any inspections, testing, investigations, studies, obtaining of permits, variances and approvals that are reasonably necessary to build and operate the Premises for the Permitted Use. Tenant shall have a right of access to the Premises during the Due Diligence Period. Tenant acknowledges that all of the terms and conditions of this Lease shall apply during the Due Diligence Period, including, without limitation, the insurance and 4 indemnification requirements herein. Notwithstanding the foregoing, during the Due diligence Period, Tenant's general contractor, or Tenant on behalf of its general contractor, shall carry Builder's Risk insurance during the period ofconstruction of Tenant's Work. Tenant shall promptly repair any and all damage to the Premises caused by the inspections, testing, investigations, and studies permitted by this Section. Should Tenant be unable to obtain all permits or other applicable necessary approvals ("Permits") within the Due Diligence Period, Tenant shall have two (2) thirty (30) day extensions. If, following the expiration of the Due Diligence Period and any extension periods thereto, Tenant has not received its Permits, Tenant shall have the option to terminate this Lease and neither Party shall have further obligation to the other, except those obligations expressly surviving the expiration or early termination of this Lease.
2.1.3 Delay in Possession. If for any reason Landlord cannot deliver possession of the Premises to Tenant on the Effective Lease Date, Landlord shall not be subject to any liability therefore, nor shall such failure affect the validity of this Lease, or the obligations of Tenant hereunder, or extend the term hereof, but in such case, Tenant shall not, except as otherwise provided herein, be obligated to pay rent or perform any other obligation of Tenant under the terms of this Lease until Landlord delivers possession of the Premises to Tenant. Except as may be otherwise provided, and regardless of when the Original Term actually commences, if possession is not tendered to Tenant when required by this Lease and Tenant does not terminate this Lease, as aforesaid, the period free of the obligation to pay Base Rent, if any, that Tenant would otherwise have enjoyed shall run from the date of delivery of possession and continue for a period equal to the period during which the Tenant would have otherwise enjoyed under the terms hereof, but minus any days of delay caused by the acts, changes or omissions of Tenant. Notwithstanding anything herein in this Section 2. l.3, if Landlord shall fail to deliver possession of the Premises to Tenant within Ninety (90) days of the Effective Lease Date, Tenant shall have an absolute right to terminate this Lease unless Tenant otherwise accepts in writing Landlord's late delivery of possession of the Premises to Tenant.
2.2 Lease Extension. As used in this Lease, the word "Lease Extension" means the right to extend the term of this Lease. Provided Tenant, or any Permitted Transfer, is not in default under the Lease at the time of notice and Tenant, or Permitted Transfer, is still operating under the Permitted Use and provided that Tenant, or Permitted Transfer, has provided Landlord with no more than twelve (12) months' and no less than six (6) months' prior written notice of Tenant's exercise of such Lease Extension, the Tenant shall have two (2) five (5) year option periods, upon the same terms and conditions, except that the Rent shall be recalculated in accordance with this Section 2.2.
For the first year of each option period, the base rent shall be the then fair market rent ("FMR") as agreed to by the Parties. Jf the Patiies cannot agree on FMR for the first year of an option period, each Party shall hire a qualified real estate broker, with no less than ten (10) years of experience in leasing retail commercial prope1iies within ten (I 0) miles of the Premises, to provide a FMR opinion. If the Parties' independent opinions are within five percent (5%) of each other, then the average of the two independent opinions shall be the FMR for the first year of that option period.
If the independent opinions are not within five percent ( 5%) of each other, the two real estate brokers shall choose a third independent real estate broker which meets the experience requirements provided herein to determine the FMR for the first year of that option period. In no event shall the FMR for the first year of an option period have more than a seven percent (7%) differential from 5 the base rent for the previous year. Thereafter, the monthly base rent shall be increased by two percent (2%) on each yearly anniversary of the Rent Commencement Date during the option.
2.2.1 Lease Extensions Personal to Tenant. The Lease Extension granted to Tenant in this Lease may not be voluntarily or involuntarily assigned to or exercised by another person or entity other than said original Tenant or Permitted Transfer, unless by an approved or permitted subletting or assignment pursuant to the terms of this Lease, such approval or permission not to be unreasonably withheld by Landlord.
2.2.2 Multiple Lease Extensions. In the event that Tenant has any multiple Lease Extensions to extend or renew this Lease, a later Lease Extension cannot be exercised unless the prior Lease Extensions to extend or renew this Lease have been validly exercised.
2.2.3 Effect of Default on Lease Extensions. Tenant shall have no right to exercise a Lease Extension, notwithstanding any provision in the grant of Lease Extension to the contrary, (i) during the period commencing with the giving of any notice of Default under Paragraph I !.I and continuing until the noticed Default is cured, or (ii) during the period of time any monetary obligation due Landlord from Tenant is unpaid (without regard to whether notice thereof is given Tenant), or (iii) during the time Tenant is in Breach of this Lease. The period of time within which a Lease Extension may be exercised shall not be extended or enlarged by reason of Tenant's inability to exercise a Lease Extension because of the provisions of this paragraph.
2.3 Surrender. Tenant agrees that on the last day of the Term or on the sooner termination of this Lease, Tenant shall surrender the Premises to Landlord in good condition and repair ( damage by acts of God, fire, and normal wear and tear excepted), but with all interior walls cleaned and repaired, any carpets cleaned, and all floors cleaned and waxed. Normal wear and tear shall not include any damage or deterioration that would have been prevented by proper maintenance by Tenant or Tenant otherwise performing all of its obligations under this Lease. On or before the expiration or sooner termination of this Lease, (I) Tenant shall remove all of Tenant's Property (as hereinafter defined) and Tenant's signage from the Premises, the Building and the Property and repair any damage caused by such removal, and (2) Landlord may, by notice to Tenant given not later than ninety (90) days prior to the Expiration Date (except in the event ofa termination of this Lease prior to the scheduled Expiration Date, in which event no advance notice shall be required), require Tenant at Tenant's expense to remove any or all Alterations and to repair any damage caused by such removal. Any of Tenant's Property not so removed by Tenant as required herein shall be deemed abandoned and may be stored, removed, and disposed of by Landlord at Tenant's expense, and Tenant waives all claims against Landlord for any damages resulting from Landlord's retention and disposition of such property; provided, however, that Tenant shall remain liable to Landlord for all costs incurred in storing and disposing of such abandoned property of Tenant. All Tenant Improvements and Alterations except those which Landlord requires Tenant to remove shall remain in the Premises as the prope1ty of Landlord.
2.4 Effect of Holding Over. 1 f Tenant remains in possession of the Premises after the expiration of the Lease term or any authorized Lease Extension with the consent of Landlord (either express or implied) and without executing a new Lease, then such holding over shall not be considered a renewal of this Lease, but rather shall be construed as a tenancy from month to month, 6 subject to all conditions, provisions, and obligations of this Lease insofar as the same are applicable to a month-to-month tenancy; provided, however, that Tenant shall pay as rent to Landlord, for each month that Tenant holds over, an amount equal to one hundred twenty-five percent (125%) of the rent for the last full calendar month during the regular term of this Lease, or any authorized Lease Extension. Notwithstanding the foregoing, nothing contained in this Lease shall be deemed consent by Landlord to occupancy or possession of the Premises by Tenant after the expiration or termination of this Lease.
3. Rent.
3.1 Definition. As used in this Lease, the word "Rent" shall include all monetary obligations of Tenant to Landlord.
3 .2 Payment of Rent. On the Rent Commencement Date and on the first day of the month, each month, after the Rent Commencement Date, Tenant shall pay the Base Rent and other rent or charges, as the same may be adjusted from time to time, to Landlord in lawful money of the United States, without offset or deduction, on or before the day on which it is due under the terms of this Lease. Base Rent and all other rent and charges for any period during the term hereof which is for less than one full month shall be prorated based upon the actual number of days of the month involved. Payment of Base Rent and other charges shall be made to Landlord at its address stated herein or to such other persons or at such other addresses as Landlord may from time to time designate in writing to Tenant.
3.3 Base Rent. Base Rent is as follows:
The monthly base rent shall be increased by two percent (2%) on each yearly anniversary of the Rent Commencement Date, including during the two (2) five (5) year options to extend, if exercised by Tenant. Notwithstanding the foregoing, the first year of each option period shall be set according to Section 2.2.
Base Rent (Triple Net):
Months Montblv Base Rent Annual Base Rent
1-12 $3,600.00 $43,200.00
13-24 $3,672.00 $44,064.00
25-36 $3,745.00 $44,940.00
37-48 $3,820.00 $45,840.00
49-60 $3,897.00 $46,764.00
3.4 Tenant's Share of Common Arca Maintenance Costs. Tenant shall pay to Landlord its proportionate share of all Common Area Maintenance Costs, insurance and taxes ( excluding Possessory Interest Tax) ("CAM"), on a monthly basis effective on the Rent Commencement Date of the Lease. CAM charges will be estimated at $0.40/ per square foot for the first full lease year of this Lease. Tenant is responsible for the actual CAM charges incurred each calendar year. The above figures are just an estimate and are subject to change. 7 The term "CAM Charges" as used in this Lease shall mean all direct costs and expenses of every kind and nature paid or incurred by Landlord in operating, managing, insuring, repairing, and maintaining the Ground Floor Retail area and Building area, including all security, parking and common areas thereof in a manner deemed reasonable and appropriate by Landlord and in the best interests of the Property. CAM Charges shall be determined by standard accounting practices, and shall include, but not be limited to: all real property taxes and assessments levied on the Property and all improvements thereon, rent or gross receipts taxes, costs and expenses of cleaning, painting, striping, policing, managing, (including costs of uniforms, equipment and all employment taxes), security, regulating traffic, providing security, furnishing water, lights, music, heat, ventilation and air-conditioning to the common areas, depreciation for machinery and equipment used in operating and maintaining common facilities; costs and expenses of repairing the lobby and all exterior walkways and patios, repairing exterior walls, foundations and structural portions of buildings, painting or staining exterior walls, trim and accessories, maintaining underground and overhead utility and service lines, repairing, resurfacing or replacing parking areas in part or in whole, driveways, curbs, walkways, sprinklers, drainage facilities and light standards; costs and expenses of gardening, relandscaping and replacing flowers, shrubbery and planters; legal and accounting fees, unless the same are associated with another tenant's failure to pay rent and/or Landlord's enforcement of a lease with another tenant; premiums for liability, business interruption, property damage, fire and extended coverage, malicious mischief, vandalism, workers' compensation, employees' liability, earthquake, sprinkler leakage and other casualty and/or risk insurance procured by Landlord in connection with the Property; together with an administrative charge by Landlord equal to five percent (5%) of the total (exclusive of depreciation of equipment) of said costs and expenses.
Notwithstanding anything hereinabove to the contrary: (i) CAM Charges shall not include expenses reimbursed by insurance or other tenants, depreciation of improvements, loan payments, executive salaries or real estate broker's commissions; and (ii) any CAM Charges which, under generally accepted accounting principles should be capitalized, shall be amortized in equal monthly installments over the useful life of the improvements, not to exceed 12 years, based on an interest rate of 8% per annum, and Tenant shall not be required to pay more than Tenant's pro rata share of such monthly amortized amount in any given month.
Tenant's pro rata share of CAM Charges may be estimated by Landlord, which estimate may include a reasonable reserve for the replacement of asphalt or other structural items. The amount so estimated by Landlord shall then be paid by Tenant monthly in advance, subject to adjustment in future billing to Tenant, or if deemed necessary, Landlord may make a special assessment for monies needed, and any such special assessment shall be paid by Tenant to Landlord within fifteen (15) days after receipt of the notice to pay. CAM Charges, including amounts to be set aside in reserve for replacements shall be computed on a cash basis according to standard accounting practices. Controllable CAM Charges shall be capped at five percent (5%) annually. "Controllable CAM Charges" excludes all taxes, insurance and utilities. On or before April I st of each year, Landlord shall determine (and furnish to Tenant a statement showing in reasonable detail) the CAM Charges for the preceding calendar year. To the extent that Tenant's pro rata share of such CAM Charges is greater or less than the sum actually billed to and paid by Tenant for such year, the difference shall be billed to and paid by Tenant or credited to Tenant against its next successive CAM Charge payment(s), as the case may be. Any such annual statement from Landlord, which is 8 not objected to by Tenant (stating the reason for objection and the specific items being questioned) within 60 days after Tenant's receipt thereof from Landlord, shall be deemed binding and conclusive. As soon as possible after termination of the Lease, Landlord shall reconcile CAM Chill'ges in order to determine Tenant's prorata share of CAM Charges to the date of Lease Termination. When such reconciliation is completed, any excess monies paid will be refunded to Tenant and any additional monies payable by Tenant will be billed to Tenant. Payment in full is due within fifteen (15) days from the date of the billing. Notwithstanding the foregoing or anything to the contrary in the Lease, Tenant shall have the right to request an audit of Landlord's CAM reconciliation statement, to occur at Landlord's place of business, within sixty (60) days after Tenant receives the same from Landlord. Tenant is limited to one (I) audit for each calendill' year of the Lease Term. The Audit shall be prepared by an independent certified public accounting firm and in no event shall any audit be performed by a firm retained on a "contingency fee" basis. This Section 3.4 shall survive the expiration of the Term, any Renewal Terms, or the earlier termination of this Lease. In the event that the results of the review of a particular statement indicates that Tenant's Share of CAM and Taxes for the period covered by the statement in question have been overstated by more than ten percent (10%), then Landlord shall pay the reasonable costs and expenses of the audit and reimburse Tenant for any related costs, and the amount of any overpayment by Tenant of estimated Tenant's Share of Estimated Expenses for the period in question shall be credited against Tenant's obligations to pay Tenant's Share of Estimated Expenses next coming due. However, if such review determines that the Landlord has not overstated the amounts by more than ten percent (I 0%), then Tenant shall be liable for costs related to the audit.
3.5 Late Charges. Tenant acknowledges that late payment by Tenant to Landlord of rent and other sums due hereunder will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting chal'ges and late charges which may be imposed upon Landlord by the terms of any ground lease, master lease, mortgage or deed of trust covering the Premises. Accordingly, if any installment of rent or other sum due from Tenant is not received by Landlord or Landlord's designee within ten (I 0) days after such amount is due, then, without any requirement for notice to Tenant, Tenant shall pay to Landlord a late charge equal to seven and one half percent (7.5%) of such overdue amount. The parties agree that such late charge represents a fair and reasonable estimate of the costs Landlord will incur by reason of late payment by Tenant.
Acceptance of such late charge by Landlord shall in no event constitute a waiver of Tenant's Default or Breach with respect to such overdue amount, nor prevent Landlord from exercising any of the other rights and remedies granted hereunder.
3.6 Interest on Past-Due Ohligatious. Any monetary payment due Landlord hereunder, other than late charges, not received by Landlord within ten (] 0) days following the date on which it was due, shall bear interest from the date due at the prime rate charged by the largest state chartered bank in the state in which the Premises are located plus the maximum interest rate permitted by law, in addition to the potential late charge provided for in Paragraph 3.5.
3.7 Tenant Improvement Allowance. Upon receipt by Landlord of "adequate documentation" of Tenant's expenses for the construction of the Tenant Improvements, Landlord shall reimburse tenant for Tenant Improvements as follows: 50% upon halfway point of construction completion, 40% upon Tenant's opening for business and 10% within 30 days after opening, 9 provided all lien releases are in place. Landlord shall grant to Tenant a Tenant Improvement allowance not to exceed Twenty-Five Dollars ($25.00) per square foot ("Tenant Improvement Allowance"). As used in the preceding sentence, "adequate documentation" of Tenant's expenses for the construction of the Tenant Improvements shall consist of signed invoices and/or receipts from vendors, contractors, and/or subcontractors for services, product, and/or supplies rendered/provided, or to be rendered/provided with respect to the construction of the Tenant Improvements. Tenant Improvements mean those fixtures and improvements attached to and become part of the Premises or the Building, including grease interceptor, and exhaust venting for the kitchen hood. Landlord shall pay the Tenant Improvement Allowance to Tenant within thirty (30) days following Landlord's approval of Tenant's construction expenses.
4. Security Deposit.
4.1 Due at Execution. On the Effective Lease Date, Tenant is to pay Landlord a security deposit in the amount of Four Thousand Three Hundred and Seventy-Seven Dollars ($4,377.00) ("Security Deposit").
4.2 Use of Security Deposit. If Tenant is in Default with respect to any provision of this Lease, Landlord may, but shall have no obligation to, use the Security Deposit or any portion of the Security Deposit to cure such default or to compensate Landlord for any damage or reasonable expense sustained by Landlord and resulting from such default, but only after providing Tenant with an opportunity to cure such default pursuant to the provisions of Section 11.1. Landlord shall provide Tenant with evidence of damages incurred as result of a default by Tenant.
4.3 Return of Security Deposit. Within ten (I 0) days after the Expiration or such earlier Termination of this Lease, Landlord shall return that portion of the Security Deposit not used or applied by Landlord pursuant to the terms of this Lease, and if any portion is applied by Landlord, an itemized accounting of such portion used.
5. Use.
5.1 Permitted Use. Tenant shall use and occupy the Premises only for the Permitted Use set forth in Basic Lease Information and for no other purpose. Tenant shall have the Exclusive Use (meaning 25% or greater of overall food sales) to sell pre-packaged food items and pre-packaged bowl concepts within the Project.
Tenant shall not use or permit the use of the Premises in a manner that is unlawful, creates waste or a nuisance, or that unreasonably disturbs owners and/or occupants of, or causes damage to the Premises or neighboring premises or properties. Tenant shall also comply with the following:
5.1.1 Tenant may not change the use of the Premises without the prior written consent of Landlord.
5.1.2 Tenant's use may not violate any exclusive use or use restrictions which have been granted to other occupants of the Project prior to the Commencement Date. 10 5.1.3 Tenant shall not be permitted to advertise "branded products" except as consistent with truth in menu laws and only within the Premises and not part of any signage on the exterior of the Premises, excepting signage described in Tenants Standard Sign Package, attached hereto as Exhibit "F", and which Landlord has conceptually approved, but will be subject to the City's Planning review and approval process, without Landlord's prior written consent.
5.1.4 Landlord represents and warrants that Tenant's Use of the Premises does not conflict with exclusive use provisions granted by Landlord in other leases for the Building.
Landlord further agrees that it shall, in the future, not grant an exclusive use privilege to any other tenant in the Building that will prevent Tenant from continuing to use the Premises for its Exclusive Use.
5.1.5 Tenant shall obtain an occupancy permit.
5.1.6 In the event Landlord breaches Tenant's Exclusive Use rights set forth above and fails to cure such violation within sixty (60) days foJlowing written notice thereof to Landlord, Tenant shaJI have the right to pay reduced Minimum Monthly Rent in an amount equal to seventy fifty percent (75%) of the Minimum Monthly Rent and Additional Rent otherwise payable by Tenant under the terms of this Lease, from the date of such violation until the earlier to occur of (i) the date such violation is cured, and (ii) one (I) year thereafter (the "Use Cure Period"). If Landlord fails to cure the violation before the end of the Use Cure Period, Tenant shall have the right to terminate this Lease by providing written notice to Landlord (the "Exclusive Use Violation Termination Notice") within thirty (30) days after the end of the Use Cure Period ("Use Violation Termination Period"), but prior to Landlord's cure, in which event the Lease shall terminate ninety (90) days after the date of the Exclusive Use Violation Termination Notice. If Tenant elects not to terminate the Lease as set forth in this paragraph, then at the end of the Use Violation Termination Period, the Minimum Monthly Rent and Additional Rent shalJ return to the full amount due under the Lease.
The foregoing reduced Rent and termination rights shalJ be Tenant's sole and exclusive remedies for a violation of Tenant's Exclusive Use Rights by Landlord (but excluding a Rogue Tenant violation, as defined below).
Notwithstanding the foregoing, if Landlord properly imposes the restrictions set forth above on a tenant or occupant of the Project (i.e., Landlord includes the restriction in a tenant's or occupant's lease or in an instrument recorded against such tenant's or occupant's premises) and such tenant or occupant thereafter violates the restrictions (a "Rogue Tenant"), then (a) Landlord shall, upon receipt of written notice of such violation from Tenant, for a period of not less than sixty (60) days, use commercially reasonable efforts to attempt to cause such Rogue Tenant to comply with the restriction (provided that Landlord wiJI not be required to resort to litigation or Lease termination) (Rogue Tenant Cure Period), and (b) if Landlord is unable to cause such Rogue Tenant to comply with the restriction by the end of such sixty (60) day period, such violation shaJI not constitute a default by Landlord under this Lease and Tenant shall have no rights or remedies against Landlord or under this Lease with respect to such violation; provided, however, Tenant shall have the right to pursue litigation in its own name against the offending Rogue Tenant, including, without limitation, injunctive relief, and Landlord agrees to reasonably cooperate with Tenant in connection therewith, but at no material out-of-pocket cost to Landlord.
5.2 Hours of Operation. Tenant shalJ have minimum hours of operation as follows:
11 Monday - Friday 11 :00 am to 7:00pm
Tenant shall have the right to operate in excess of the hours above, subject to state and local regulations. Failure to operate the minimum hours listed above shall be deemed a default under this Lease. Tenant shall have the right to close on national holidays and up to five (5) additional days of its choosing per year.
5.3 Compliance with Governmental Regulations and Private Restrictions. Tenant and Tenant's agents shall, at Tenant's expense, faithfully observe and comply with(!) all municipal, state and federal laws, statutes, codes, rules, regulations, ordinances, requirements, and orders (collectively, "Laws"), now in force or which may hereafter be in force pertaining to the Premises or Tenant's use of the Premises, the Building or the Property; (2) all recorded covenants, conditions and restrictions affecting the Property ("Private Restrictions") now in force or which may hereafter be in force; and (3) the Rules and Regulations. Without limiting the generality of the foregoing, to the extent Landlord is required by the city or county in which the Building is located to maintain carpooling and public transit programs, Tenant shall cooperate in the implementation and use of these programs by and among Tenant's employees. The judgment of any court of competent jurisdiction, or the admission of Tenant in any action or proceeding against Tenant, whether Landlord be a party thereto or not, that Tenant has violated any Laws or Private Restrictions, shall be conclusive of that fact as between Landlord and Tenant.
5.4 Compliance with Americans with Disabilities Act. Landlord and Tenant hereby agree and aclmowledge that the Premises, the Building and/or the Property may be subject to, among other Laws, the requirements of the Americans with Disabilities Act, a federal law codified at 42 U.S.C. 12101 et seq., including, but not limited to Title III thereof, and all regulations and guidelines related thereto, together with any and all laws, rules, regulations, ordinances, codes and statutes now or hereafter enacted by local or state agencies having jurisdiction thereof, as the same may be in effect on the date of this Lease and may be hereafter modified, amended or supplemented incltiding Title 24 enacted by the State of California (collectively, the "ADA"). Any Tenant Improvements to be constructed hereunder shall be in compliance with the requirements of the ADA, and all costs incurred for purposes of compliance therewith shall be a part of and included in the costs of the Tenant Improvements. Tenant shall be solely responsible for conducting its own independent investigation of this matter and for ensuring that the design of all Tenant Improvements strictly complies with all requirements of the ADA. If any barrier removal work or other work is required to the Building or the Common Areas under the ADA, then such work shall be the responsibility of Landlord at the sole cost and expense of Landlord; provided, if such work is required under the ADA as a result of Tenant's specific use of the Premises or any work or Alteration (as hereinafter defined) made to the Premises by or on behalf of Tenant, then such work shall be performed by Landlord at the sole cost and expense of Tenant. Except as otherwise expressly provided in this provision, Tenant shall be responsible at its sole cost and expense for fully and faithfully complying with all applicable requirements of the ADA with respect to the Premises but only while Tenant has possession of such Premises. Within ten (10) days after receipt, Tenant shall advise Landlord in writing, and provide Landlord with copies of (as applicable), any notices alleging violation of the ADA relating to any portion of the Premises or the Building; any claims made or threatened orally or in writing regarding noncompliance with the ADA and relating to any portion of the Premises or 12 the Building; or any governmental or regulatory actions or investigations instituted or threatened regarding noncompliance with the ADA and relating to any portion of the Premises, the Building or the Prope1iy. Tenant shall and hereby agrees to protect, defend (with counsel reasonably acceptable to Landlord) and hold Landlord and Landlord's Agents harmless and indemnify Landlord and Landlord's Agents from and against all liabilities, damages, claims, losses, penalties, judgments, charges and expenses (including attorneys' fees, costs of court and expenses necessary in the prosecution or defense of any litigation including the enforcement of this provision) arising from or in any way related to, directly or indirectly, Tenant's or any agent of Tenant's violation or alleged violation of the ADA. Tenant agrees that the obligations of Tenant herein shall survive the expiration or earlier termination of this Lease.
5.5 No Roof Access. At no time during the Term shall Tenant have access to the roof of the Building or have the right to install, operate or maintain a satellite-earth communications station (antenna and associated equipment), microwave equipment and/or an FM antenna on the Building.
5.6 Hazardous Substances.
5.6.1 Reportable Uses Require Consent. The term "Hazardous Substance" as used in this Lease shall mean any product, substance, chemical, material or waste whose presence, nature, quantity and/or intensity of existence, use, manufacture, disposal, transportation, spill, release or effect, either by itself or in combination with other materials expected to be on the Premises, is either: (i) potentially injurious to the public health, safety or welfare, the environment, or the Premises; (ii) regulated or monitored by any governmental authority; or (iii) a basis for potential liability of Landlord to any governmental agency or third party under any applicable statute or common law theory. Hazardous Substance shall include, but not be limited to, hydrocarbons, petroleum, gasoline, crude oil or any products or by-products thereof. Tenant shall not engage in any activity in or about the Premises, which constitutes a Reportable Use (as hereinafter defined), of Hazardous Substances without the express prior written consent of Landlord and compliance in a timely manner (at Tenant's sole cost and expense) with all Applicable Requirements (as defined in Paragraph 6.3). "Reportable Use" shall mean (i) the installation or use of any above or below ground storage tank, (ii) the generation, possession, storage, use, transportation, or disposal of a Hazardous Substance that requires a permit from, or with respect to that with which a report, notice, registration or business plan is required to be filed with any governmental authority, and (iii) the presence in, on or about the Premises of a Hazardous Substance with respect to which any Applicable Laws require that a notice be given to persons entering or occupying the Premises or neighboring properties. Notwithstanding the foregoing, Tenant may, without Landlord's prior consent, but upon notice to Landlord and in compliance with all Applicable Requirements, use any ordinary and customary materials reasonably required to be used by Tenant in the normal course of the Permitted Use, so long as such use is not a Reportable Use and does not expose the Premises or the Project to any meaningful risk of contamination or damage or expose Landlord to any liability therefore. In addition, Landlord may (but without any obligation to do so) condition its consent to any Reportable Use of any Hazardous Substance by Tenant upon Tenant's giving Landlord such additional assurances as Landlord, in its reasonable discretion, deems necessary to protect itself, the public, the Premises and the environment against damage, contamination or injury and/or liability thereto, including but not limited to the installation (and, at Landlord's option, removal on or before 13 Lease expiration or earlier termination) of reasonably necessary protective modifications to the Premises (such as concrete easements) and/or the deposit of additional Security Deposit.
5.6.2 Duty to Inform Landlord. If Tenant knows, or has reasonable cause to believe, that a Hazardous Substance has come to be located in, on, under or about the Premises or the Building, other than as previously consented to by Landlord, Tenant shall immediately give Landlord written notice thereof, together with a copy of any statement, report, notice, registration, application, permit, business plan, license, claim,'action, or proceeding given to, or received from, any governmental authority or private party concerning the presence, spill, release, discharge of, or exposure to, such Hazardous Substance including but not limited to all such documents as may be involved in any Reportable Use involving the Premises. Tenant shall not cause or permit any Hazardous Snbstance to be spilled or released in, on, under or about the Premises (including, without limitation, through the plumbing or sanitary sewer system).
5.6.3 Indemnification. Tenant shall indemnify, protect, defend and hold Landlord, its agents, employees, lenders and ground Landlord, if any, and the Premises, harmless from and against any and all damages, liabilities,judgments, costs, claims, liens, expenses, penalties, loss of pennits and attorneys' and consultants' fees arising out of or involving any Hazardous Substance brought onto the Premises by or for Tenant or by anyone under Tenant's control.
Tenant's obligations under this Paragraph shall include, but not be limited to, the effects of any contamination or injury to person, property or the environment created or suffered by Tenant, and the cost of investigation (including consultants' and attorneys' fees and testing), removal, remediation, restoration and/or abatement thereof, or of any contamination therein involved, and shall survive the expiration or earlier termination of this Lease. No termination, cancellation or release agreement entered into by Landlord and Tenant shall release Tenant from its obligations under this Lease with respect to Hazardous Substances, unless specifically so agreed by Landlord in writing at the time of such agreement.
5.7 Inspection; Compliance with Law. Landlord, Landlord's agents, employees, contractors and designated representatives, and the holders of any mortgages, deeds of trust or ground leases on the Premises ("Lenders") shall have the right to enter the Premises at any time in the case of an emergency, and otherwise at reasonable times upon two (2) days' prior written notice to Tenant, for the purpose of inspecting the condition of the Premises and for verifying compliance by Tenant with this Lease and all Applicable Requirements (as defined in Paragraph 6.3). Landlord shall be entitled to employ experts and/or consultants in connection therewith to advise Landlord with respect to Tenant's activities, including but not limited to Tenant's installation, operation, use, monitoring, maintenance, or removal of any Hazardous Substance on or from the Premises, The costs and expenses of any such inspections shall be paid by the party requesting same, unless a Default or Breach of this Lease by Tenant or a violation of Applicable Requirements or a contamination, caused or materially contributed to by Tenant, is found to exist or to be imminent, or unless the inspection is requested or ordered by a governmental authority as the result of any such existing or imminent violation or contamination. In such case, Tenant shall upon request reimburse Landlord or Landlord's Lender, as the case may be, for the costs and expenses of such inspections within a reasonable time, but in no event to exceed sixty (60) days.
6. Obligations ; Improvements ; Maintenance.
14 6.1 Tenant's Obligations. At all times during the Term of this Lease, and any Lease Extension thereof, Tenant shall have the following obligations:
6.1.1 Tenant shall, at Tenant's sole cost and expense and at all times, keep the Premises in good order, condition and repair (whether or not such portion of the Premises requiring repair, or the means of repairing the same, are reasonably or readily accessible to Tenant, and whether or not the need for such repairs occurs as a result of Tenant's use, any prior use, the elements or the age of such portion of the Premises), including, without limiting the generality of the foregoing, all equipment or facilities specifically serving the Premises, such as plumbing, heating, air conditioning, ventilating, electrical, lighting facilities, boilers, fired or unfired pressure vessels, fixtures, interior walls, interior surfaces of exterior walls, ceilings, floors, windows, doors, plate glass, and Tenants signage, but excluding any items which are the responsibility of Landlord pursuant to Paragraph 6.3 below. Tenant, in keeping the Premises in good order, condition and repair, shall exercise and perform good maintenance practices. Tenant's obligations shall include restorations, replacements or renewals when necessary to keep the Premises and all improvements thereon or a part thereof in good order, condition and state of repair. Tenant is responsible for fire ce1iifications required by code (including but not limited to re-charge and re-inspection of Premises' fire extinguishers). Tenant is also responsible for any plumbing which serves the Premises. The Tenant shall also be responsible to maintain and repair Landlord-owned equipment, nnless installed by Tenant.
6.1.2 Tenant, at its own cost and expense, shall procure a contract for routine maintenance, inspection and filter replacements for the heating, air conditioning and ventilation system.
6.1.3 If Tenant fails to perform Tenant's obligations under this Paragraph, Landlord may enter upon the Premises after fifteen (15) days' prior written notice to Tenant ( except in the case of an emergency, in which case no notice shall be required), perform such obligations on Tenant's behalf, and put the Premises in good order, condition and repair, in accordance with Paragraph 11.2 (Remedies) below.
6.1.4 Tenant shall be solely responsible for the maintenance and replacement, if necessary, of Tenant's storefront, including but not limited to, both interior and exterior glass, metalwork, entry doors, hardware (including the cost of re-keying under the building master system), and all signage.
6.1.5 All Tenant's trash and refuse shall be deposited only in the area assigned to Tenant. Tenant shall be responsible for the cost of its own trash and refuse service. No trash and refuse is to be stored in other non-designated areas. In the event Tenant is unable to obtain its own trash bin, Tenant will share a bin with others and will be charged accordingly through in its CAM charges.
6.1.6 Tenant shall be solely responsible for all janitorial services for the Premises.
15 6.1.7 Should Tenant for any reason fail to meet Tenant's above-referenced obligations, Landlord, in addition to other remedies under this Lease and upon written notice to Tenant ( other than emergencies which require no such notice), shall provide such maintenance and Tenant shall be responsible for payment of such costs to Landlord within a commercially reasonable time not to exceed ten ( 10) days.
6.2 Tenant Improvements. Tenant shall be entitled to construct improvements approved by Landlord in and on the Premises to the extent allowed by applicable laws and regulatory governing agencies. Tenant will also obtain Landlord's prior written consent for structural matters affecting building-wide systems, which consent shall not be LU1reasonably withheld, conditioned, or delayed.
6. 3 Landlord's Obligations.
6.3.1 Landlord Improvements. Prior to Delivery of Possession to Tenant, Tenant has agreed to perform Landlord's Work at Landlord's sole cost and expense as set forth in Exhibit "D," attached hereto and incorporated herein by reference and at a cost not to exceed One Hundred Fourteen Thousand Dollars ($114,000) or Ninety-Five Dollars ($95.00) per square foot. Landlord shall reimburse Tenant for the cost of Landlord Improvements as follows: 50% upon halfway point of construction completion, 40% upon Tenant's opening for business and 10% within 30 days after opening provided all lien releases are in place. Tenant accepts the Premises in its current as-is condition ready for Tenant to construct its required improvements.
6.3.2 Maintenance. Landlord, subject to reimbursement pursuant to Paragraph 3.4, shall keep in good order, condition and repair the foundations, , exterior walls, structural condition of interior bearing walls, roof (including membrane and skylights), fire sprinkler and/or standpipe and hose (if located in the Common Areas) or other automatic fire extinguishing system including fire alarm and/or smoke detection system and fire hydrants, walkways, parkways, driveways, landscaping, fences, signs and utility systems serving the Common Areas and all parts thereof as well as providing the services for which there is a Common Area Maintenance Cost pursuant to Paragraph 3.4. Landlord shall not be obligated to paint the interior surfaces or walls nor shall Landlord be obligated to maintain, repair or replace windows, doors or plate glass. Landlord shall, within seventy-two (72) hours of notice by Tenant, repair any damages deemed an emergency.
Emergency shall be defined as those items necessary for the continued operation of the business and which are Landlord's responsibility to maintain and repair. Should Landlord fail to timely perform any emergency repair, then Tenant may perform said repair and seek full reimbursement from Landlord.
6. 4 Utility, Utility Installations, Trade Fixtures, Alterations.
6.4.1 Utilities. Tenant shall pay directly for all utilities and services supplied to the Premises, including but not limited to electricity, telephone, security, gas and cleaning of the Premises, together with any taxes thereon. If any such utilities or services are not separately metered to the Premises or separately billed to the Premises, Tenant shall pay to Landlord its pro-rata share to be determined by Landlord of all such charges jointly metered or billed with other premises in 16 the Building. Should Tenant not be separately metered for any of the utilities, Tenant will be assessed and charged its appropriate share through its CAM charges.
6.4.2 Definitions; Consent Required. The term "Utility Installations" is used in this Lease to refer to all air lines, power panels, electrical distribution, security, fire protection systems, communications systems, lighting fixtures, heating, ventilating and air conditioning equipment, plumbing, and fencing in, on or about the Premises. The term "Trade Fixtures" shall mean Tenant's machinery and equipment, which can be removed without doing material damage to the Premises. The term "Alterations" shall mean any modification of the improvements on the Premises, which are provided by Landlord under the terms of this Lease, other than Utility Installations or Trade Fixtures, and which become permanently affixed to the Premises. "Tenant Owned Alterations and/or Utility Installations" are defined as Alterations and/or Utility Installations made by Tenant that are not yet owned by Landlord pursuant to this Paragraph. Tenant shall not make nor cause to be made any Alterations or Utility installations in, on, under or about the Premises without Landlord's prior written consent. Tenant may, however, make non-structural Utility Installations not requiring a Building Permit to the interior of the Premises ( excluding the roof) without Landlord's consent but upon notice to Landlord, so long as they are not visible from the outside of the Premises, do not involve puncturing or removing the roof or any existing walls, or changing or interfering with the fire sprinkler or fire detection systems, and the cumulative cost thereof during term of this Lease as extended does not exceed $25,000.00, or $10,000.00 for any one alteration.
6.4.3 Consent. Any Alterations or Utility installations that Tenant shall desire to make and which require the consent of Landlord shall be presented to Landlord in written form with detailed plans. All consents given by Landlord, whether by virtue of this Paragraph or by subsequent specific consent, shall be deemed conditioned upon: (i) Tenant's acquiring all applicable permits required by governmental authorities; (ii) the furnishing of copies of such permits together with a copy of the plans and specifications for the Alteration or Utility Installation to Landlord prior to commencement of the work thereon; and (iii) the compliance by Tenant with all conditions of said permits in a prompt and expeditious manner. Any Alterations or Utility Installations by Tenant during the term of this Lease shall be done in a good and workmanlike manner, with good and sufficient materials, and be in compliance with all Applicable Requirements. Tenant shall promptly upon completion thereoffurnish Landlord with as-built plans and specifications therefore in portable document format (as a "PDF").
6.4.4 Lien Protection. Tenant shall pay, when due, all claims for labor or materials furnished, or alleged to have been furnished, to or for Tenant at or for use on the Premises, which claims are or may be secured by any mechanic's or material men's lien against the Premises or any interest therein. Tenant shall give Landlord not less than ten (10) days' notice prior to the commencement of any work in, on, or about the Premises, and Landlord shall have the right to post notices of non-responsibility in or on the Premises as provided by law. If Tenant shall, in good faith, contest the validity of any such lien, claim or demand, then Tenant shall, at its sole expense, defend and protect itself, Landlord and the Premises against the same and shall pay and satisfy any such adverse judgment that may be rendered thereon before the enforcement thereof against the Landlord or the Premises. If Landlord shall require, Tenant shall furnish to Landlord a surety bond satisfactory to Landlord in an amount equal to the amount of such contested lien claim or demand, 17 indemnifying Landlord against liability for the same, as required by law for the holding of the Premises free from the effect of such lien or claim. If Tenant fails to protect Landlord as described herein above, upon five (5) days' written notice to Tenant, Landlord may require Tenant to pay Landlord's reasonable attorneys' fees and costs in such action. Notwithstanding the foregoing, if upon five (5) days' written notice to Tenant, Tenant takes substantive actions to properly dispute and/or satisfy the lien, Landlord shall afford Tenant such time as may be reasonable for Tenant to see such resolution to completion.
6.5 Ownership, Removal, Surrender, and Restoration.
6.5.l Ownership. Subject to Landlord's right to require their removal and to cause Tenant to become the owner thereof as hereinafter provided in this Paragraph, other than all improvements paid for by Landlord which are and continue to be property of Landlord, all Alterations and Utility Installations made to the Premises by Tenant shall be the property of and owned by Tenant, but considered a part of the Premises. Landlord may, at any time and at its option, elect in writing to Tenant to be the owner of all or any specified part of the Tenant-Owned Alterations and Utility Installations. Unless otherwise instructed all Tenant-Owned Alterations and Utility Installations shall, at the expiration or earlier termination of this Lease, become or remain the property of Landlord and remain upon the Premises and be surrendered with the Premises by Tenant. This section shall not apply to any patents, trademarks, tradenames, service marks, copyrights, trade secrets, and other intangible proprietary information of Tenant ("Tenant's Intellectual Property")
6.5.2 Removal. Unless otherwise agreed in writing, Landlord may require that Tenant remove Tenant-Owned fixtures and alterations to the Premises by the expiration or earlier termination of this Lease, notwithstanding that their installation may have been consented to by Landlord. Said Alterations shall exclude all underground utilities and HV AC systems, fire sprinkler drops, lighting, electrical modifications and ceilings. All utilities protruding outside of walls or ceilings shall be capped off. Flooring materials shall be removed. Landlord may require the removal at any time of all or any part of any Alterations or Utility Installations made without the required consent of Landlord.
6.5.3 Surrender/Restoration. Tenant shall surrender the Premises by end of the last day of the Lease term or any earlier termination date, clean and free of debris and in good operating order, condition and state of repair, ordinary wear and tear excepted. Ordinary wear and tear shall not include any damage or deterioration that would have been prevented by good maintenance practice or by Tenant performing all of its obligations under this Lease. Except as otherwise agreed or specified herein, the Premises, as surrendered, shall include the Alterations and Utility Installations. The obligation of Tenant shall include the repair of any damage occasioned by the installation, maintenance or removal of Tenant's Trade Fixtures, furnishings, equipment, and Tenant-Owned Alterations and Utility Installations, as well as the removal of any storage tank installed by or for Tenant, and the removal, replacement, or remediation of any soil, material or ground water contaminated by Tenant, all as may then be required by Applicable Requirements and/or good practice. Tenant's Trade Fixtures and Tenant's Intellectual Property, shall remain the property of Tenant and shall be removed by Tenant subject to its obligation to repair and restore the Premises per this Lease, unless otherwise agreed in writing by both parties. 18 6.6 Brokerage Commissions. Landlord hereby agrees to pay all real estate commissions owed to the Brokers identified in Section 25 of the Basic Lease Information.
7. Insurance; Indemnity.
7.1 Payment of Premiums. The cost of the premiums for the insurance policies maintained by Landlord under this Paragraph shall be a Common Area Maintenance Cost.
Premiums for policy periods commencing prior to or extending beyond the term of this Lease shall be prorated to coincide with the corresponding Commencement Date or Expiration Date.
7.2 Liability Insurance.
7.2.1 Insurance Required. Lessee shall, at Lessee's sole expense, obtain and maintain duringthe Term, Business Interruption Insurance, a policy of commercial general liability insurance, including contractual liability insurance, for bodily injury, property damage and personal/advertising liabilities arising out of the use or occupancy of the Premises and all areas appurtenant thereto. Such insurance shall be in an amount satisfactory to Lessor and of not less than $1,000,000 per occurrence, and $2,000,000 annual aggregate for all claims. An umbrella policy shall be permitted so long as the primary policy has a minimum of $1,000,000 per occurrence policy limits.
7.2.2 Deductibles; Proceeds. Lessee's Property and Business Interruption Insurance Lessee shall, at Lessee's sole expense, obtain and maintain during the Term, insurance coverage for Lessee's personal property, inventory, alterations, fixtures and equipment located on the Premises, for the full replacement value thereof without deduction for depreciation, and with a deductible not to exceed Ten Thousand Dollars ($10,000.00) per occurrence. The proceeds of such insurance, so long as this Lease remains in effect, shall be used to repair or replace the personal property, inventory, alterations, fixtures and equipment so insured. Lessee shall also maintain insurance for loss of income and extra expense in such amounts as will reimburse Lessee for direct and indirect loss of earnings attributable to all perils commonly insured against by prudent Lessee.
Upon request from Lessor, Lessee shall provide Lessor with written evidence that such insurance is in force.
7.3 Delivery of Evideuce of Lessee's Insurance. Each such insurance policy or certificate and endorsement thereof as required by this Article shall be delivered to Lessor by Lessee on or before the effective date of such policy and thereafter Lessee shall deliver to Lessor renewal policies or certificates and endorsements as available, but in any event prior to the expiration dates of the expiring policies. In the event that Lessee shall fail to insure or shall fail to furnish Lessor the evidence of such insurance as required by this Article, Lessor may from time to time acquire (without any obligation to do so) such insurance for the benefit of Lessee or Lessor or both of them for a period not exceeding one (I) year, and any premium paid by Lessor shall be recoverable from Lessee as additional rent on demand. Lessee's compliance with the provisions of Article VI shall in no way limit Lessee's liability under any of the other provisions of this Lease Agreement. Lessor may at any time, and from time to time, inspect and/or copy any and all insurance policies required by this Lease Agreement.
19 7.4 Other Insurance Requirements. The insurance to be acquired and maintained by Lessee shall be with companies admitted to do business in the State of California and companies of Best's Rating Guide of A or better and having a financial rating of at least VII. Lessee shall deliver to Lessor, prior to taking possession of the Premises, a certificate of insurance and additional insured endorsements evidencing the existence of the policies required hereunder, and shall certify that the policy:
7.4.1 Names Lessor, its elected officials, employees and agents, and any other entities designated by Lessor, as additional insureds under the Commercial General Liability policy;
7.4.2 Shall not be canceled or altered without thirty (30) calendar days' prior written notice to Lessor;
7.4.3 Insures performance of Lessee's indemnity set forth in this Lease Agreement;
7.4.4 Provide that no act or omissions of Lessee shall affect or limit the obligations of the insurer with respect to other insureds or including Lessor;
7.4.5 Include all waiver of subrogation rights endorsements necessary to effect the provisions below; and
7.4.6 Provide that the commercial general liability policy and the coverage provided shall be primary, that Lessor although an additional insured, shall nevertheless be entitled to recovery under such policy for any damage to Lessor by reasons of acts or omissions of Lessee, and that coverage carried by Lessor shall be noncontributory with respect to policies carried by Lessee.
7.5 Mutual Waiver of Subrogation. The Parties hereto release each other and their respective authorized employees, agents and representatives, from any and all claims, demands, loss, expense or injury to any person, or to the Premises or to personal property, including, but not limited to, furnishings, fixtures or equipment located therein, caused by or resulting from perils, events or happenings which are the subject of insurance in force at the time of such loss. Each Party shall cause each insurance policy obtained by it to provide that the insurer waives all right of recovery by way of subrogation against either party in connection with any damage covered by any policy. Neither Party shall be liable to the other for any damage caused by fire or any of the risks insured against under any insurance policy in effect as required by this Lease Agreement.
7.6 Indemnity. Except for Landlord's sole negligence and/or breach of express warranties, Tenant shall indemnify, protect, defend and hold harmless the Premises, Landlord and its agents, Landlord's master or ground landlord, paliners and lenders, from and against any and all claims, loss of rents and/or damages, costs, liens, judgments, penalties, loss of permits, attorneys' and consultants' fees, expenses and/or liabilities arising out of, involving, or in connection with, the occupancy of the Premises by Tenant, the conduct of Tenant's business, any act, omission or neglect of Tenant, its agents, contractors, or employees, whether active or passive, and out of any Default or Breach by Tenant in the performance in a timely manner of any obligation on Tenant's part to be 20 performed under this Lease. The foregoing shall include, but not be limited to, the defense or pursuit of any claim or any action or proceeding involved therein, and whether or not (in the case of claims made against Landlord) litigated and/or reduced to judgment. In case any action or proceeding is brought against Landlord by reason of any of the foregoing matters, Tenant upon notice from Landlord shall defend the same at Tenant's expense by counsel reasonably satisfactory to Landlord and Landlord shall cooperate with Tenant in such defense. Landlord need not have first paid any such claim in order to be so indemnified.
7.7 Exemption of Landlord from Liability Unless caused by Landlord's negligent act or omission, Landlord shall not be liable for injury or damage to the person or goods, wares, merchandise or other property of Tenant, Tenant's employees, contractors, invitees, customers, or any other person in or about the Premises, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, or from the breakage, leakage, obstruction or other defects of pipes, fire sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures, or from any other cause, whether said injury or damage results from conditions arising upon the Premises or upon other portions of the Building of which the Premises are a part, from other sources or places, and regardless of whether the cause of such damage or injury or the means of repairing the same is accessible or not. Landlord shall not be liable for any damages arising from any act or neglect of any other tenant of Landlord nor from the failure by Landlord to enforce the provisions of any other lease in the Project. Notwithstanding Landlord's negligence or breach of this Lease, Landlord shall under no circumstances be liable for injury to Tenant's business or for any loss of income or profit therefrom.
8. Damage or Destruction.
8.1 Definitions.
8.1.1 "Premises-Partial Damage" shall mean damage or destruction to the Premises, other than Tenant-Owned Alterations and Utility Installations the repair cost of which damage or destruction is less than fifty percent (50%) of the then Replacement Cost of the Premises (excluding Tenant-Owned Alterations and Utility Installations and Trade Fixtures) immediately prior to such damage or destruction.
8.1.2 "Premises-Total Destruction" shall mean damage or destruction to the Premises, other than Tenant-Owned Alterations and Utility Installations, the repair cost of which damage or destruction is fifty percent (50%) or more of the then Replacement Cost of the Premises (excluding Tenant-Owned Alterations and Utility Installations and Trade Fixtures) immediately prior to such damage or destruction. In addition, damage or destruction to the Building, (excluding Tenant-Owned Alterations and Utility Installations and Trade Fixtures of any Tenants of the Building), the cost of which damage or destruction is fifty percent (50%) or more of the then Replacement Cost ( excluding Tenant-Owned Alterations and Utility Installations and Trade Fixtures of any Tenants of the Building) shall, at the option of Landlord, be deemed to be Premises Total Destruction.
8.1.3 "Insured Loss" shall mean damage or destruction to the Premises(excluding Tenant-Owned Alterations and Utility Installations and Trade Fixtures), which 21 was caused by an event required to be covered by the insurance described in Paragraph 7 above irrespective of any deductible amounts or coverage limits involved.
8.1 .4 "Replacement Cost" shall mean the cost to repair or rebuild the improvements owned by Landlord at the time of the occurrence to their condition existing immediately prior thereto, including demolition, debris removal and upgrading required by the operation of applicable building codes, ordinances or laws, and without deduction for depreciation.
8.1.5 "Hazardous Substance Condition" shall mean the occurrence or discovery of a condition involving the presence of, or a contamination by, a Hazardous Substance as defined in Paragraph 5.6 in, on, or under the Premises.
8.2 Premises Partial Damage - Insured Loss. If an Insured Loss occurs to Premises Partial Damage, then Landlord shall, at Landlord's expense, repair such damage ( excluding Tenant's Trade Fixtures, Tenant-Owned Alterations and Utility Installations) as soon as reasonably possible and this Lease shall continue in full force and effect. In the event, however, that there is a material shortage of insurance proceeds and such shortage is due to the fact that, by reason of the unique nature of the improvements in the Premises, full replacement cost insurance coverage was not commercially reasonable and available, Landlord shall have no obligation to pay for the shortage in insurance proceeds or to fully restore the unique aspects of the Premises unless Tenant provides Landlord with the funds to cover same, or adequate assurance thereof, within ten (I 0) days following receipt of written notice of such shortage and request therefore. If Landlord receives said funds or adequate assurance thereof within said ten (10) day period, Landlord shall complete them as soon as reasonably possible and this Lease shall remain in full force and effect. If Landlord does not receive such funds or assurance within said period, and Landlord fails to substantially restore the unique aspects of the Premises, Tenant shall have the right to terminate this Lease on thirty (30) days' written notice to Landlord. Unless otherwise agreed, Tenant shall in no event have any right to reimbursement from Landlord for any funds contributed by Tenant to repair any such damage or destruction. Notwithstanding that there may be some insurance coverage, the net proceeds of any such insurance shall be made available for the repairs if made by either Party.
8.3 Partial Damage - Uninsured Loss. If an Uninsured Loss occurs to the Premises- Partial Damage unless caused by a negligent or willful act of Tenant (in which event Tenant shall make the repairs at Tenant's expense and this Lease shall continue in full force and effect), Landlord may at Landlord's option, either (i) substantially repair such damage as soon as reasonably possible at Landlord's expense, in which event this Lease shall continue in full force and effect or (ii) give written notice to Tenant within thirty (30) days after receipt by Landlord of knowledge of the occurrence of such damage of Landlord's desire to terminate this Lease as of the date thirty (30) days following the date of such notice. In the event Landlord fails to substantially restore the unique aspects of the Premises, Tenant shall have the right to terminate the Lease upon thirty (30) days' written notice to Landlord. In the event Landlord elects to give such notice of Landlord's intention to terminate this Lease, Tenant shall have the right within ten (10) days after the receipt of such notice to give written notice to Landlord of Tenant's commitment to pay for the repair of such damage totally at Tenant's expense and without reimbursement from Landlord. Tenant shall provide Landlord with the required funds or satisfactory assurance thereof within thirty (30) days following such commitment from Tenant. In such event this Lease shall continue in full force and 22 effect, and Landlord shall proceed to make such repairs as soon as reasonably possible after the required funds are available. If Tenant does not give such notice and provide the funds or assurance thereof within the times specified above, this Lease shall terminate as of the date specified in Landlord's notice of termination.
8.4 Total Destruction. Notwithstanding any other provision hereof, if Premises-Total Destruction occurs (including any destruction required by any authorized public authority), rent and common area expense charges shall cease upon the date of such Total Destruction, and this Lease shall terminate sixty (60) days following the date of such Premises-Total Destruction, whether or not the damage or destruction is an Insured Loss or was caused by a negligent or willful act of Tenant. In the event, however, that the damage or destruction was caused by Tenants negligence or willful act, Landlord shal1 have the right to recover Landlord's damages from Tenant except as released and waived by Landlord.
8.5 Damage Near End of Term. If at any time during the last six (6) months of the term of this Lease there is damage for which the cost to repair exceeds two (2) month's Base Rent, whether or not an Insured Loss, Landlord may, at Landlord's option, terminate this Lease not later than thirty (30) days following the date of occurrence of such damage by giving written notice to Tenant of Landlord's election to do so within thirty (30) days after the date of occurrence of such damage. Should such termination be effective, rent and other charges from the date of the occurrence to the date of termination shall he abated. Provided, however, if Tenant at that time has an exercisable right to extend this Lease, then Tenant may preserve this Lease hy (a) exercising such right, and (b) providing Landlord with any shortage in insurance proceeds ( or adequate assurance thereof) needed to make the repairs, on or before the earlier of (i) the date which is ten (I 0) days after Tenant's receipt of Landlord's written notice purporting to terminate this Lease, or (ii) the day prior to the date upon which such right to extend expires. If Tenant duly exercises such Lease Extension during such period and provides Landlord with funds ( or adequate assurance thereof) to cover any shortage in insurance proceeds, Landlord shall, at Landlord's expense, repair such damage as soon as reasonably possible and this Lease shall continue in full force and effect. If Tenant fails to exercise such Lease Extension and provide such funds or assurance during such period, then this Lease shal1 terminate as of the date set forth in the first sentence of this Paragraph.
8.6 Abatement of Rent; Tenant's Remedies.
8.6.1 If Tenant Not Legally Responsible. In the event of (i) Premises Partial Danmge, or (ii) Hazardous Substance Condition for which Tenant is not legally responsible, the Base Rent, Common Area Operating Expenses and other charges, if any, payable by Tenant hereunder for the period during which such damage or condition, its repair, remediation or restoration continues, shall be abated in proportion to the degree to which Tenant's use of the Premises is impaired, but not in excess of proceeds from insurance required to be carried under Paragraph 7. Except for abatement of Base Rent, Common Area Operating Expenses and other charges, if any, as aforesaid, all other obligations of Tenant hereunder shall be performed by Tenant, and Tenant shal1 have no claim against Landlord for any damage suffered by reason of any such damage, destruction, repair, remediation, or restoration. 23 8.6.2 Notice to Terminate. If Landlord is obligated to repair or restore the Premises under the provisions of this Section and does not commence, in a substantial and meaningful way, the repair or restoration of the Premises within one hundred twenty (120) days after such obligation shall accrue, Tenant may, at any time prior to the commencement of such repair or restoration, give written notice to Landlord and to any Lenders, of which Tenant has actual notice, of Tenant's election to terminate this Lease on a date not less than thirty (30) days following the giving of such notice. If Tenant gives such notice to Landlord and such Lenders and such repair or restoration is not commenced within ninety (90) days after receipt of such notice, this Lease shall terminate as of the date specified in said notice. If Landlord or a Lender commences the repair or restoration of the Premises within ninety (90) days after the receipt of such notice, this Lease shall continue in full force and effect. "Commence" as used in this Paragraph shall mean the beginning of the actual work on the Premises. Notwithstanding the foregoing, if such repairs are not substantially completed within One Hundred and Eighty (180) days of the damages occurring, Tenant may terminate this Lease, in its sole discretion, upon thirty (30) days' written notice to Landlord.
8.7 Hazardous Substance Conditions. If a Hazardous Substance Condition occurs, unless Tenant is legally responsible therefore (in which case Tenant shall make the investigation and remediation thereof required by Applicable Requirements and this Lease shall continue in full force and effect, but subject to Landlord's rights under Paragraph 5.6(c) and Paragraph 11), Landlord may at Landlord's option either (i) investigate and remediate such Hazardous Substance Condition, if required, as soon as reasonably possible, at Landlord's expense, in which event this Lease shall continue in full force and effect, or (ii) if the estimated cost to investigate and remediate such condition exceeds twelve (12) times the then monthly Base Rent or $100,000 whichever is greater, give written notice to Tenant within thirty (30) days after receipt by Landlord of knowledge of the occurrence of such Hazardous Substance Condition of Landlord's desire to terminate this Lease as of the date sixty (60) days following the date of such notice. In the event Landlord elects to give such notice of Landlord's intention to terminate this Lease, Tenant shall have the right within ten (10) days after the receipt of such notice to give written notice to Landlord of Tenant's commitment to pay for the excess costs of (a) investigation and remediation of such Hazardous Substance Condition to the extent required by Applicable Requirements, over (b) an amount equal to twelve (12) times the then monthly Base Rent or $100,000, whichever is greater. Tenant shall provide Landlord with the funds required of Tenant or satisfactory assurance thereof within thirty (30) days following said commitment by Tenant. In such event this Lease shall continue in full force and effect, and Landlord shall proceed to make such investigation and remediation as soon as reasonably possible after the required funds are available. If Tenant does not give such notice and provide the required funds or assurance thereof within the time period specified above, this Lease shall terminate as of the date specified in Landlord's notice of termination.
8.8 Termination -Advance Payments. Upon termination of this Lease pursuant to this Section 8, Landlord shall return to Tenant any advance payment made by Tenant to Landlord and so much of Tenant's Security Deposit as has not been, or is not then required to be, used by Landlord under the terms of this Lease.
8.9 Waiver of Statutes. Landlord and Tenant agree that the terms of this Lease shall govern the effect of any damage to or destruction of the Premises and the Building with respect to 24 the termination of this Lease and hereby waive the provisions of any present or future statute to the extent it is inconsistent herewith, provided the Landlord's and Tenant's respective counsels agree that such inconsistency exists.
9. Taxes.
9.1 Payment of Taxes. Landlord is exempt from the payment of real property taxes.
However, should there be any assessment or tax, Tenant shall be required to pay its proportionate share of any such assessment or tax.
9 .2 Real Property Tax Definition. As used herein, the term "Real Property Taxes" shall include any form of real estate tax or assessment, general, special, ordinary or extraordinary, any possessory interest or similar tax and any license fee, commercial rental tax, improvement bond or bonds, levy or tax ( other than inheritance, personal income or estate taxes) imposed upon the Project by any authority having the direct or indirect power to tax, including any city, county, state or federal government, or any school, agricultural, sanitary, fire, street, drainage, or other improvement district thereof, levied against any legal or equitable interest of Landlord in the Project or any portion thereof, Landlord's right to rent or other income therefrom, and/or Landlord's business of leasing the Premises. The term "Real Property Taxes" shall also include any tax, fee, levy, assessment or charge, or any increase therein, imposed by reason of events occurring, or changes in Applicable Law taking effect, during the term of this Lease, including but not limited to a change in the ownership of the Project or in the improvements thereon, the execution of this Lease, or any modification, amendment or transfer thereof, and whether or not contemplated by the Parties.
In calculating Real Property Taxes for any calendar year, the Real Property Taxes for any real estate tax year shall be included in the calculation of Real Property Taxes for such calendar year based upon the number of days, which such calendar year and tax year have in common.
9.3 Additional Improvements. Common Area Operating Expenses shall not include Real Property Taxes specified in the tax assessor's records and work sheets as being caused by additional improvements placed upon the Project by other Tenants or by Landlord for the exclusive enjoyment of such other Tenants. Notwithstanding Paragraph 9.1 hereof, Tenant shall, however, pay to Landlord at the time Common Area Maintenance Costs are payable, the entirety of any increase in Real Property Taxes if assessed solely by reason of Alterations, Trade Fixtures or Utility Installations placed upon the Premises by Tenant or at Tenant's request.
9.4 Joint Assessment. If the Building is not separately assessed, Real Property Taxes allocated to the Building shall be an equitable proportion of the Real Property Taxes for all of the land and improvements included within the tax parcel assessed, such proportion to be determined by Landlord from the respective valuations assigned in the assessor's work sheets or such other information as may be reasonably available and in accordance with government accounting standards board ("GASB"). Landlord's reasonable determination thereof, in good faith, and in accordance with GASB, shall be conclusive.
9.5 Tenant's Taxes. Tenant shall pay prior to delinquency all taxes assessed against and levied upon Tenant-Owned Alterations and Utility Installations, Trade Fixtures, furnishings, equipment and all personal property of Tenant contained in the Premises or stored within the Project, and all possessory interest taxes. When possible, Tenant shall cause its Tenant-Owned Alterations 25 and Utility Installations, Trade Fixtures, furnishings, equipment and all other personal property to be assessed and billed separately from the real property of Landlord. If any of Tenant's said property shall be assessed with Landlord's real property, Tenant shall pay Landlord the taxes attributable to Tenant's property within ten (10) days after receipt of a written statement setting forth the taxes applicable to Tenant's property.
9.6 "Possessory Interest Tax/Property Taxes" means Tenant recognizes and understands that this Lease may create a possessory interest subject to taxation and that Tenant may be assessed for the payment of taxes levied on such interest. Tenant and Landlord have agreed that Tenant shall pay any possessory interest taxes assessed to Tenant during the Term of this Lease, including any penalties, and any collection costs due, to the County Treasurer. 10, Assignment and Subletting.
10.1 Landlord's Consent Required. Except as set forth below, Tenant shall not voluntarily or by operation of law, assign, transfer, mortgage or otherwise transfer or encumber (collectively, "assign") or sublet all or any part of Tenant's interest in this Lease or in the Premises without Landlord's prior written consent, not to be unreasonably withheld, given under and subject to the terms of this Section.
IO.I. I Consent Not Required. Tenant shall have the right without Landlord's consent, to enter into an assignment or sublease to: (i) any subsidiary entity of Tenant or subsidiary of Tenant's parent; (ii) Tenant's parent entity; (iii) any entity succeeding to all or substantially all of the stock or assets of Tenant as a result of a consolidation or merger; (iv) a corporation or other business entity of which Tenant owns in excess of fifty percent (50%) of the outstanding capital stock and/or such corporation or other business entity has in excess of fifty percent (50%) common ownership with Tenant; (v) a business entity which has acquired all, or substantially all, of the outstanding capital stock or equity interest of Tenant or all or substantially all of the assets of Tenant; (vi) a business entity which acquires a minimum of three (3) locations operated as the same concept as Tenant; (vii) the sale or transfer of investment interests in Tenant or its parent, affiliate or subsidiary to individual investors or entities; (viii) a centralized entity comprised of a "roll-up" of Tenant with some or all of the other affiliates of Tenant or Tenant's parent; (ix) in connection with the transfer of any stock in Tenant to a subsidiary, affiliate, or controlling corporation (direct or indirect), or to the holder or holders of the majority of the issued or outstanding capital stock of Tenant; (x) for the issuance, redemption, or transfer of any stock through a private placement offering to effectuate a capital infusion into the Tenant and/or any attendant assignment to a holding entity created for the purposes thereof; (xi) the transfer of any stock in connection with a public offering and/or that is publicly traded on a recognized national or international stock exchange or over the counter, provided that within thirty (30) days after the effective date of any such transfer the Transferee executes and delivers to Landlord an instrument containing an express assumption of all of Tenant's obligations under the Lease; or (xii) a bona fide franchisee of Tenant (each a "Permitted Transfer").
10.1.2 Change in Control. Excepting Permitted Transfers as described above, a change in the control of Tenant shall constitute an assignment requiring Landlord's consent. The transfer, on a cumulative basis, of fifty-one percent (51 %) or more of the voting control of Tenant 26 shall constitnte a change in control for this purpose. If, however, there is a mere change in name of the business and Tenant still retains one hundred percent (100%) ownership and control of the business, such change in name shall not constitute an assignment.
10.1.3 Reduction in Net Worth. Excepting Permitted Transfers as described above, the involvement of Tenant or its assets in any transaction, or series of transactions (by way of merger, sale, acquisition, financing, refinancing, transfer, leveraged buy-out or otherwise), whether or not a formal assignment or hypothecation of this Lease or Tenant's assets occurs, which results or shall result in a reduction of the Net Worth of Tenant, as hereinafter defined, by an amount equal to or greater than fifty percent (50%) of such Net Worth of Tenant as it was represented to Landlord at the time of full execution and delivery of this Lease or at the time of the most recent assignment to which Landlord has consented, or as it exists immediately prior to said transaction or transactions constituting such reduction, at whichever time said Net Worth of Tenant was or is greater, shall be considered an assignment of this Lease by Tenant to which Landlord may reasonably withhold its consent. "Net Worth of Tenant" for purposes of this Lease shall be the net worth of Tenant (excluding any Guarantors) established under GASB consistently applied.
10.2 Default or Breach. An assignment or subletting of Tenant's interest in this Lease, other than a Permitted Transfer, without Landlord's specific prior written consent shall, at Landlord's option, be a Default curable after notice per Paragraph 13.1, or a non-curable Breach without the necessity of any notice and grace period. If Landlord elects to treat such unconsented to assignment or subletting as a non-curable Breach, Landlord shall have the right to either: (i) terminate this Lease, or (ii) upon thirty (30) days' written notice ("Landlord's Notice"), increase the monthly Base Rent for the Premises to the then fair market rental value of the Premises, as reasonably determined by Landlord. Upon receipt of Landlord's Notice, Tenant shall have the right to a determination of fair market rent by the method described in Section 2.2 herein. Pending determination of the new fair market rental value, if disputed by Tenant, Tenant shall pay the amount set forth in Landlord's Notice, with any overpayment credited against the next installment(s) of Base Rent coming due, and any underpayment for the period retroactively to the effective date of the adjustment being due and payable immediately upon the determination thereof. Further, in the event of such Breach and rental adjustment, (i) the purchase price of any option to purchase the Premises held by Tenant shall be subject to similar adjustment to the then fair market value as reasonably determined by Landlord (without the Lease being considered an encumbrance or any deduction for depreciation or obsolescence, and considering the Premises at its highest and best use and in good condition) or one hundred ten percent (110%) of the price previously in effect, (ii) any index-oriented rental or price adjustment formulas contained in this Lease shall be adjusted to require that the base index be determined with reference to the index to the time of such adjustment, and (iii) any fixed rental adjustments scheduled during the remainder of the Lease term shall be increased in the same ratio as the new rental bears to the Base Rent in effect immediately prior to the adjustment specified in Landlord's Notice. Tenant's remedy for any breach of this Paragraph by Landlord shall be limited to compensatory damages and/or injunctive relief.
10.3 Terms and Conditions Applicable to Assignment and Subletting. l 0.3.1 Regardless of Landlord's consent, any assignment or subletting shall not (i) be effective without the express written assumption by such assignee or subtenant of the obligations of Tenant under this Lease, (ii) release Tenant of any obligations hereunder, nor (iii) alter the 27 primary liability of Tenant for the payment of Base Rent and other sums due Landlord hereunder or for the performance of any other obligations to be performed by Tenant under this Lease.
Notwithstanding the above, Landlord and Tenant may negotiate the release of Tenant from (ii) and (iii) on a case by case basis.
10.3.2 Landlord may accept any rent or performance of Tenant's obligations from any person other than Tenant pending approval or disapproval of an assignment. Neither a delay in the approval or disapproval of such assignment nor the acceptance of any rent for performance shall constitute a waiver nor estoppel of Landlord's right to exercise its remedies for the Default or Breach by Tenant of any of the terms, covenants or conditions of this Lease.
I 0.3.3 The consent of Landlord to any assignment or subletting shall not constitute a consent to any subsequent assignment or subletting by Tenant or to any subsequent or successive assignment or subletting by the assignee or subtenant. However, Landlord may consent to subsequent subletting and assignments of the sublease or any amendments or modifications thereto with notice to Tenant or anyone else liable under this Lease or the sublease and without obtaining their consent, and such action shall not relieve such persons from liability under this Lease or the sublease.
10.3.4 In the event of any Default or Breach of Tenant's obligation under this Lease, Landlord may proceed directly against Tenant, any Guarantors or anyone else responsible for the performance of the Tenant's obligations under this Lease, including any subtenant, without first exhausting Landlord's remedies against any other person or entity responsible therefore to Landlord, or any security held by Landlord.
10.3.5 Each request or consent to an assigmnent or subletting shall be in writing, accompanied by information relevant to Landlord's determination as to the financial and operational responsibility and appropriateness of the proposed assignee or subtenant, including but not limited to the intended use and/or required modification of the Premises, if any, together with a non-refundable deposit of $1,000 or ten percent (10%) of the monthly Base Rent applicable to the portion of the Premises which, is the subject of the proposed assignment or sublease, whichever is less, as reasonable consideration for Landlord's considering and processing the request for consent.
Tenant agrees to provide Landlord with such other or additional information and/or documentation as may be reasonably requested by Landlord.
I 0.3.6 Any assignee of, or subtenant under, this Lease shall, by reason of accepting such assignment or entering into such sublease, be deemed, for the benefit of Landlord, to have asswned and agreed to conform and comply with each and every term, covenant, condition and obligation herein to be observed or performed by Tenant during the term of said assignment or sublease, other than such obligations as are contrary to or inconsistent with provisions of an assignment or sublease to which Landlord has specifically consented in writing.
I 0.4 Additional Terms and Conditions Applicable to Subletting. The following terms and conditions shall apply to any subletting by Tenant of all or any part of the Premises and shall be deemed included in all subleases under this Lease whether or not expressly incorporated therein:
28 10.4.1 Tenant hereby assigns and transfers to Landlord all of Tenant's interest in all rentals arising from any sublease of all or a portion of the Premises heretofore or hereafter made by Tenant, and Landlord may collect such rent and apply same toward Tenant's obligations under this Lease, provided, however, that until a Breach shall occur in the performance of Tenant's obligations under this Lease, Tenant may, except as otherwise provided in this Lease, receive, collect and enjoy the rents accruing under such sublease. Landlord shall not, by reason of the foregoing provision or any other assignment of such sublease to Landlord, nor by reason of the collection of the rents from a subtenant, be deemed liable to the subtenant for any failure of Tenant to perform and comply with any of Tenant's obligations to such subtenant under such sublease. Tenant hereby irrevocably authorizes and directs any such subtenant, upon receipt of a written notice from Landlord stating that a Breach exists in the performance of Tenant's obligations under this Lease, to pay to Landlord the rents and other charges due and to become due under the sublease. Subtenant shall rely upon any such statement and request from Landlord and shall pay such rents and other charges to Landlord without any obligation or right to inquire as to whether such Breach exists and notwithstanding any notice from or claim from Tenant to the contrary. Tenant shall have no right or claim against such subtenant, or, until the Breach has been cured, against Landlord, for any such rents and other charges so paid by said subtenant to Landlord. For purposes of this Section I 0.4.1, "rentals" shall not include compensation that the Tenant receives for the sale of assets, unrelated to a sublease and not received as consideration for a subtenant's use of the Premises.
I 0.4.2 In the event of a breach by Tenant in the performance of its obligations under this Lease, Landlord, at its option and without any obligation to do so, may require any subtenant to attorn to Landlord; provided, however, Landlord shall not be liable for any prepaid rents or security deposit paid by Tenant to Landlord.
I 0.4.3 No subtenant under a sublease approved by Landlord shall further assign or sublet all or any part of the Premises without Landlord's prior written consent.
10.4.4 Landlord shall deliver a copy of any notice of Default or Breach by Tenant to the subtenant, who shall have the right to cure the Default of Tenant within the grace period, if any, specified in such notice. The subtenant shall have a right of reimbursement and offset from and against Tenant for any such Defaults cured by the subtenant.
11. Default; Breach; Remedies.
11.1 Tenant's Default. The occurrence of any one of the following events, if not timely cured, shall constitute an event of default on the part of Tenant ("Default"):
I I.I.I The vacation or abandonment of the Premises by Tenant for a period often (10) consecutive days or any vacation or abandonment of the Premises by Tenant which would cause any insurance policy to be invalidated or otherwise lapse in each of the foregoing cases irrespective of whether or not Tenant is then in monetary default under this Lease. Tenant agrees to notice and service of notice as provided for in this Lease and waives any right to any other or further notice or service of notice which Tenant may have under any statute or law now or hereafter in effect.
29 11.1.2 Failure to pay any installment of Rent or any other monies due and payable hereunder, said failure continuing for a period of five (5) days after the same is due. Tenant shall have an absolute right of fifteen (15) days to cure such failure under this section 11.1.2.
11.1.3 A general assignment for the benefit of creditors by Tenant or any guarantor or surety of Tenant's obligations hereunder, including, without limitation, Lease Guarantor, if any, (collectively, "Guarantor").
11.1.4 The filing of a voluntary petition in bankruptcy by Tenant or any Guarantor, the filing by Tenant or any Guarantor of a voluntary petition for an arrangement, the filing by or against Tenant or any Guarantor of a petition, voluntary or involuntary, for reorganization, or the filing of an involuntary petition by the creditors of Tenant or any Guarantor, said involuntary petition remaining undischarged for a period of sixty (60) days.
11.1.5 Receivership, attachment, or other judicial seizure of substantially all of Tenant's assets on the Premises, such attachment or other seizure remaining un-dismissed or undischarged for a period of sixty (60) days after the levy thereof.
11.1.6 Death or disability of Tenant or any Guarantor, if Tenant or such Guarantor is a natural person, or the failure by Tenant or any Guarantor to maintain its legal existence, if Tenant or such Guarantor is a corporation, partnership, limited liability company, trust or other legal entity.
In such case, (i) Tenant shall have an absolute right to substitute a new Guarantor of similar or greater financial wherewithal, and (ii) Tenant shall have an absolute right to cure any issue with its legal existence within thirty (30) days after written notice of the issue from Landlord to Tenant.
11.1.7 Failure of Tenant to execute and deliver to Landlord any estoppel certificate, subordination agreement, or lease amendment within the time periods and in the manner required by Section 13 and/or failure by Tenant to deliver to Landlord any financial statement within the time period and in the manner required by Section 13.
I I. 1.8 An assignment or sublease, or attempted assignment or sublease, of this Lease or the Premises by Tenant contrary to the provisions of Section I 0, unless such assignment or sublease is to a Permitted Transfer, or expressly conditioned upon Tenant having received Landlord's consent thereto.
11.1.9 Failure of Tenant to restore the Security Deposit to the amount provided in Paragraph 4 above, and which failure continues for thirty (30) days after written notice thereof from Landlord to Tenant.
11.1.10 Failure in the performance of any of Tenant's covenants, agreements or obligations hereunder ( except those failures specified as events of Default), which failure continues for thirty (30) days after written notice thereof from Landlord to Tenant, provided that, if Tenant has exercised reasonable diligence to cure such failure and such failure cannot be cured within such thiity (30) day period despite reasonable diligence, Tenant shall not be in default under this subparagraph so long as Tenant thereafter diligently and continuously prosecutes the cure to 30 completion and actually completes such cure within sixty (60) days after the giving of the aforesaid written notice.
11.1.11 Chronic delinquency by Tenant in the payment of Rent, or any other periodic payments required to be paid by Tenant under this Lease. "Chronic delinquency" shall mean failure by Tenant to pay Rent, or any other payments required to be paid by Tenant under this Lease within three (3) days after written notice thereof for any three (3) months (consecutive or nonconsecutive) during any period of twelve (12) months.
11.1.12 Chronic overuse by Tenant or Tenant's Agents of the number of undesignated parking spaces set forth in the Basic Lease Information. "Chronic overuse" shall mean use by Tenant or Tenant's Agents of a number of parking spaces greater than the number of parking spaces set forth in the Basic Lease Information more than three (3) times during any consecutive three (3) month period after written notice by Landlord.
11. I .13 Any insurance required to be maintained by Tenant pursuant to this Lease shall be canceled or terminated or shall expire or be reduced or materially changed, except as permitted in this Lease, and which failure continues for ten (I 0) days after written notice thereof from Landlord to Tenant.
11.1.14 Any failure by Tenant to discharge any lien or encumbrance placed on the Property or any part thereof in violation of this Lease within ten (10) days after the date such lien or encumbrance is filed or recorded against the Property or any part thereof, and which failure continues for thirty (30) days after written notice thereof from Landlord to Tenant.
11.1.15 Any notice sent by Landlord to Tenant pursuant to this Paragraph 11 shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure Section 1161.
11.2 Landlord's Remedies.
11.2.1 Termination. In the event of any Default by Tenant, then in addition to any other remedies available to Landlord at law or in equity and under this Lease, Landlord shall have the immediate option to terminate this Lease and all rights of Tenant hereunder by giving written notice of such intention to terminate. In the event that Landlord shall elect to so terminate this Lease then Landlord may recover from Tenant:
(a) The worth at the time of award of any unpaid Rent and any other sums due and payable which have been earned at the time of such termination; plus
(b) The worth at the time of award of the amount by which the unpaid Rent and any other sums due and payable which would have been earned after termination until the time of award exceeds the amount of such rental loss Tenant proves could have been reasonably avoided; plus
31 ( c) The worth at the time of award of the amount by which the unpaid Rent and any other sums due and payable for the balance of the Term of this Lease after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus ( d) Any other amount necessary to compensate Landlord for all the waived or abated Base Rent or Additional Rent or any free rent or reduced rental rate granted hereunder; and any unamortized portion of the Tenant Improvement Allowance, such Tenant Improvement Allowance to be amortized over the Term in the manner reasonably determined by Landlord, if any; plus
( e) Such reasonable attorneys' fees incurred by Landlord as a result of a Default, and costs in the event suit is filed by Landlord to enforce such remedy; and plus
(f) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable law.
(g) The "worth at the time of award" is computed by allowing interest at an annual rate equal to five percent (5%) per annum or the maximum rate permitted by law, whichever is greater. The "worth at the time of award" is computed by discounting such amount at the discount rate of Federal Reserve Bank of San Francisco at the time of award, plus one percent (1 %). Tenant hereby waives for Tenant and for all those claiming under Tenant all right now or hereafter existing including, without limitation, any rights under California Code of Civil Procedure Sections 117 4 and 1179 to redeem by order or judgment of any court or by any legal process or writ, Tenant's right of occupancy of the Premises after any termination of this Lease.
11.3 Continuation of Lease. In the event of any Default by Tenant, then in addition to any other remedies available to Landlord at law or in equity and under this Lease, Landlord shall have the remedy described in California Civil Code Section 1951.4 (Landlord may continue this Lease in effect after Tenant's Default and abandonment and recover Rent as it becomes due, provided Tenant has the right to sublet or assign, subject only to reasonable limitations). Landlord shall have a duly to mitigate its damages. However, Landlord shall not be liable in any way whatsoever for its failure or refusal to re-let the Premises. For purposes of this Paragraph 11, the following acts by Landlord will not constitute the termination of Tenant's right to possession of the Premises: (a) Acts of maintenance or preservation or efforts to re-let the Premises, including, but not limited to, alterations, remodeling, redecorating, repairs, replacements and/or painting as Landlord shall consider advisable for the purpose of re-letting the Premises or any part thereof, or (b) The appointment of a receiver upon the initiative of Landlord to protect Landlord's interest under this Lease or in the Premises.
32 1 1.4 Re-entry. In the event of any uncured Default by Tenant, Landlord shall also have the right to terminate this Lease, in compliance with applicable law and pursuant to legal proceeding, or to re-enter the Premises, and remove all persons and property from the Premises; such property may be removed and stored in a public warehouse or elsewhere at .the cost of and for the account of Tenant.
11.5 Re-letting. In the event of the abandonment of the Premises by Tenant or in the event that Landlord shall elect to re-enter as provided in Paragraph 11 .4 or shall take possession of the Premises pursuant to legal proceeding or pursuant to any notice provided by law, then if Landlord does not elect to terminate this Lease as provided in Paragraph 11.6, Landlord may from time to time, without terminating this Lease, re-let the Premises or any part thereof for such term or terms and at such rental or rentals and upon such other terms and conditions as Landlord in its sole discretion may deem advisable with the right to make alterations and repairs to the Premises in Landlord's sole discretion. In the event that Landlord shall elect to so re-let, then rentals received by Landlord from such re-letting shall be applied in the following order: (i) to reasonable attorneys' fees incurred by Landlord as a result of a Default and costs in the event suit is filed by Landlord to enforce such remedies; (ii) to the payment of any costs of such re-letting; (iii) to the payment of the costs of any alterations and repairs to the Premises; (iv) to the payment of Rent due and unpaid hereunder; (v) to the payment of any indebtedness other than Rent due hereunder from Tenant to Landlord; and (vi) the residue, if any, shall be held by Landlord and applied in payment of future Rent and other sums payable by Tenant hereunder as the same may become due and payable hereunder. Should that portion of such rentals recvived from such re-letting during any month, which is applied to the payment of Rent hereunder, be less than the Rent payable during the month by Tenant hereunder, then Tenant shall pay such deficiency to Landlord. Such deficiency shall be calculated and paid monthly. Tenant shall also pay to Landlord, as soon as ascertained, any costs and expenses incurred by Landlord in such re-letting or in making such alterations and repairs not covered by the rentals received from such re-letting.
11.6 Termination. No re-entry or taking of possession of the Premises by Landlord pursuant to this Paragraph 11 shall be construed as an election to terminate this Lease unless a written notice of such intention is given to Tenant or unless the termination thereof is decreed by a court of competent jurisdiction. Notwithstanding any re-letting without termination by Landlord because of any Default by Tenant, Landlord may at any time after such re-letting elect to terminate this Lease for any such Default.
11.7 Cumulative Remedies. The remedies herein provided are not exclusive and Landlord shall have any and all other remedies provided herein or by law or in equity. 11 .8 No Surrender. No act or conduct of Landlord, whether consisting of the acceptance of the keys to the Premises, or otherwise, shall be deemed to be or constitute an acceptance of the surrender of the Premises by Tenant prior to the expiration of the Term, and such acceptance by Landlord of surrender by Tenant shall only flow from and must be evidenced by a written acknowledgment of acceptance of surrender signed by Landlord. The surrender of this Lease by Tenant, voluntarily or otherwise, shall not work a merger unless Landlord elects in writing that such merger take place, but shall operate as an assignment to Landlord of any and all existing subleases, or Landlord may, at its option, elect in writing to treat such surrender as a merger terminating 33 Tenant's estate under this Lease, and thereupon Landlord may terminate any or all such subleases by notifying the sub-lessee of its election so to do within five (5) days after such surrender.
11.9 Landlord's Lien. In addition to any statutory lien Landlord has, Tenant hereby grants to Landlord a continuing security interest for all sums of money becoming due hereunder upon personal property of Tenant situated on or about the Premises and such property will not be removed therefrom without the consent of Landlord until all sums of money then due Landlord have been first paid and discharged. If a default occurs under this Lease, Landlord will have, in addition to all other remedies provided herein or by law, all rights and remedies under the Uniform Commercial Code, including, without limitation, the right to sell the Tenant's property at public or private sale upon five (5) days' notice to Tenant. This contractual lien will be in addition to any statutory lien for rent. Notwithstanding any provision herein to the contrary, in the event of default by Tenant hereunder, Landlord may not operate the Premises as an Everytable; nor may Landlord sell, lease or encumber any of Tenant's Intellectual Property.
I 1.10 Breach by Landlord. Landlord shall not be deemed in breach of this Lease unless Landlord fails within a reasonable time to perform an obligation to be performed by Landlord. For purposes of this Paragraph, a reasonable time shall in no event be less than thirty (30) days after receipt by Landlord, and by any Lender(s) whose name and address shall have been furnished to Tenant in writing for such purpose, of written notice specifying wherein such obligation of Landlord has not been performed; provided, however, that if the nature of Landlord's obligation is such that more than thirty (30) days after such notice are reasonably required for its performance, then Landlord shall not be in breach of this Lease if performance is commenced within such thirty (30) day period and thereafter diligently pursued to completion.
12. Condemnation. If the Premises or any portion thereof are taken under the power of eminent domain or sold under the threat of the exercise of said power (all of which are herein called "condemnation"), this Lease shall terminate as to the part so taken as of the date the condemning authority takes title or possession, whichever first occurs. If more than ten percent (10%) of the floor area of the Premises, or more than twenty-five percent (25%) of the portion of the Common Areas designated for Tenant's parking, is taken by condemnation, Tenant may, at Tenant's option, to be exercised in writing within ten (I 0) days after Landlord shall have given Tenant written notice at snch taking ( or in the absence of such notice, within ten (10) days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority takes such possession. If Tenant does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the Base Rent shall be reduced in the same proportion as the rentable floor area of the Premises taken bears to the total rentable floor area of the Premises. No reduction of Base Rent shall occur if the condemnation does not apply to any portion of the Premises. Any award for the taking of all or any pmt of the Premises under the power of eminent domain or any payment made under threat of the exercise of such power shall be the propelty of Landlord, whether such award shall be made as compensation for diminution of value of the leasehold or for the taking of the fee, or as severance damages; provided, however, that Tenant shall be entitled to any compensation, separately awarded to Tenant for Tenant's relocation expenses and/or loss of Tenant's Trade Fixtures. In the event that this Lease is not terminated by reason of such condemnation, Landlord shall to the extent of its net severance damages received, over and above Tenant's Share of the legal and other expenses incurred 34 by Tenant in the condemnation matter, repair any damage to the Premises caused by such condemnation authority. Landlord shall reimburse Tenant for any costs or expense Tenant may incur up to the amount of the award Landlord may receive.
13. Tenancy and Financial Statements
13.l Tenancy Statement. Each Party (as "Responding Party") shall within ten (JO) days after written notice from the other Party (the "Requesting Party") execute, acknowledge and deliver to the Requesting Party a "Tenancy Statement," plus such additional information, confirmation and/or statements as may be reasonably requested by the Requesting Party. For the purposes of this Lease, a Tenancy Statement is that document required to confirm the lease relationship between the Parties of any proposed lender of a Party.
13.2 Financial Statement. If Landlord desires to finance, refinance, or sell the Premises or the Building, or any part thereof, Tenant shall deliver to any potential lender or purchaser designated by Landlord such financial statements of Tenant as may be reasonably required by such lender or purchaser, including but not limited to Tenant's financial statements for the past three (3) years. All such financial statements shall be received by Landlord and such lender or purchaser in confidence and shall be used only for the purposes herein set forth. Purchaser shall be defined as one who has made an offer in the form of a letter of intent, or similar, and who has signed a confidentiality agreement in connection with the financial statements received. Notwithstanding the foregoing, Landlord shall not request financial statements more than twice in any twelve month period.
14. Severability. The invalidity of any provision of this Lease, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof.
15. Time of Essence. Time is of the essence with respect to the performance of all obligations to be performed or observed by the Parties under this Lease.
16. No Prior or Other Agreements. This Lease contains all agreements between the Parties with respect to any matter mentioned herein, and no other prior or contemporaneous agreement or understanding shall be effective. This does not include, any agreements with consultants and/or real estate brokers representing either Party which is by separate agreement.
17. Notices.
17.1 Notice Requirements. All notices required or permitted by this Lease shall be in writing and shall be delivered in person (by hand, messenger or courier service) or by certified or registered mail or U.S. Postal Service Express Mail, with postage prepaid, or by any nationally recognized overnight courier, and shall be deemed sufficiently given if served in a manner specified in this Paragraph 3 to the addresses noted in Section 3 and 6 of the Basic Lease Information. The addresses noted adjacent to a Party's signature on this Lease shall be that Party's address for delivery or mailing of notice purposes. Either Party may, by written notice to the other, specify a different address for notice purposes, except that upon Tenant's taking possession of the Premises, the Premises shall constitute Tenant's address for the purpose of mailing or delivering notices to Tenant until such 35 time as Tenant is no longer in possession of the Premises. A copy of all notices required or permitted to be given to either party hereunder shall be concurrently transmitted to such Party or Parties at such addresses as either Party may from time to time hereafter designate by written notice to the other Party.
17.2 Date of Notice. Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt, or if no delivery date is shown, the postmark thereon. Notices delivered by courier or by an overnight delivery service, shall be deemed given on the date of delivery shown on the receipt.
18. Waivers. No waiver by either party of the Default or Breach of any term, covenant or condition hereof by either party, shall be deemed a waiver of any other term, covenant or condition hereof, or of any subsequent Default or Breach by the other party of the same or any other tenn, covenant or condition hereof. Either party's consent to, or approval of, any such act shall not be deemed to render unnecessary the obtaining of the other party's consent to, or approval of, any subsequent or similar act by the other party, or be construed as the basis of an estoppel to enforce the provision or provisions of this Lease requiring such consent. Regardless of Landlord's knowledge of a Default or Breach at the time of accepting rent, the acceptance of rent by Landlord shall not be a waiver of any Default or Breach by Tenant of any provision hereof. Any payment given Landlord by Tenant may be accepted by Landlord on account of moneys or damages due Landlord, notwithstanding any qualifying statements or conditions made by Tenant in connection therewith, which such statements and/or conditions shall be of no force or effect whatsoever unless specifically agreed to in writing by Landlord at or before the time of deposit of such payment.
19. No Recordation. Neither party will record this Lease or any memorandum or short form of it. Any such recording by Tenant will be void and a default under this Lease.
20. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
21. Covenants and Conditions. All provisions of this Lease to be observed or performed by Tenant are both covenants and conditions.
22. Binding Effect; Choice of Law. This Lease shall be binding upon the Parties, their personal representatives, successors and assigns, and be governed by the laws of the State of California. Any action at law or in equity brought by either of the Parties hereto for the purpose of enforcing a right or rights provided for by this Lease shall be tried in the Riverside Branch of the Consolidated Comis of Riverside County, State of California, and the parties hereby waive all provisions of law providing for a change of venue in such proceedings to any other county.
23. Subordination; Attornment.
23. l Subordination. This Lease and any Lease Extension granted hereby shall be subject and subordinate to any ground lease, master lease, mortgage, deed of trust, or other hypothecation or security device ( collectively, "Security Device"), now or hereafter placed by Landlord upon the real property of which the Premises are a part, to any and all advances made on the security thereof, 36 and to all renewals, modifications, consolidations, replacements and extensions thereof. Tenant agrees that the Lenders holding any such Security Device shall have no duty, liability or obligation to perform any of the obligations of Landlord under this Lease. If any Lender shall elect to have this Lease and/or any Lease Extension granted hereby superior to the lien of its Security Device and shall give written notice thereof to Tenant, this Lease and such Lease Extensions shall be deemed prior to such Security Device, notwithstanding the relative dates of the documentation or recordation thereof.
23.2 Attornment. Tenant agrees to attorn to a Lender or any other party who acquires ownership of the Premises by reason of a foreclosure of a Security Device, and that in the event of such foreclosure, such new owner shall not: (i) be liable for any act or omission of any prior Landlord or with respect to events occurring prior to acquisition of ownership, (ii) be subject to any defenses which Tenant might have against any prior Landlord, except in the event that Tenant is owed an offset under the terms of this Lease in which event said obligation to accept such offset shall transfer to new Landlord, or (iii) be bound by prepayment of more than one month's rent, except where Landlord may have collected such excess amounts in any form.
23.3 Self-Executing. The agreements contained in this Section shall be effective without the execution of any further documents, provided, however, that upon written request from Landlord or a Lender in connection with a sale, financing or refinancing of Premises, Tenant and Landlord shall execute such further writings as may be reasonably required to separately document any such subordination or non-subordination, and/or attornment agreement as is provided for herein.
24. Landlord's Access; Showing Premises; Repairs. Landlord and Landlord's agents shall have the right to enter the Premises at any time in the case of an emergency, and otherwise at reasonable times for the purpose of showing the same to prospective purchasers, lenders, or Tenants, and making such alterations, repairs, improvements or additions to the Premises or to the Building, as Landlord may reasonably deem necessary. Landlord may at any time place on or about the Building any ordinary "For Lease" sign. All such activities of Landlord shall be without abatement ofrent or liability to Tenant. Notwithstanding the foregoing, Landlord shall not cause any such sign described in this Section 24 to be placed in the window of the Premises, and Landlord shall make all reasonable efforts to ensure that the placement of such signs shall not negatively impact the regular operation of Tenant's business.
25. Auctions. Tenant shall not conduct, nor permit to be conducted, either voluntarily or involnntarily, any auction upon the Premises without first having obtained Landlord's prior written consent. Notwithstanding anything to the contrary in this Lease, Landlord shall not be obligated to exercise any standard of reasonableness in determining whether to grant such consent.
26. Signs. Tenant shall be permitted, at Tenant's sole cost and expense, to install upon the exterior of the Premises or the Building (but not on the roof) Tenant's Standard Sign Package, which Landlord has conceptually approved, subject to the City's Planning review and approval process,, subject to Landlord's prior written consent, not to be unreasonably withheld, and consistent with Landlord's signage criteria for the Project, which criteria is attached hereto as Exhibit "E" and incorporated herein by reference. Such signs shall be in a location designated by Landlord and shall comply with applicable City permits, requirements and ordinances and the signage criteria 37 established for the Project by Landlord. Tenant shall be responsible for the ongoing maintenance, repair and replacement of all such signage. During the term of this Lease, and any Lease Extension, so long as Tenant is not in default under the Lease and is still operating its business, Landlord shall not place any "For Lease" signs on the Premises. Landlord agrees to support Tenant's request for a second building sign facing Market Street. In addition to the foregoing, Tenant shall have the right to display a professionally prepared "Coming Soon" banner for the thirty (30) days immediately prior to opening for business and a professionally prepared "Now Hiring" and "Grand Opening" sign or banner for the sixty (60) days immediately following opening for business, subject to Riverside Municipal Code.
27. Termination; Merger. Unless specifically stated otherwise in writing by Landlord, the voluntary or other surrender of this Lease by Tenant, the mutual termination or cancellation hereof, or a termination hereof by Landlord for Breach by Tenant, shall automatically terminate any sublease or lesser estate in the Premises; provided, however, Landlord shall, in the event of any such surrender, termination or cancellation, have the option to continue any one or all of any existing subtenants. Landlord's failure within ten (IO) days following any such event to make a written election to the contrary by written notice to the holder of any such lesser interest shall constitute Landlord's election to have such event constitute the termination of such interest.
28. Consents. Except for Paragraph 25 hereof (Auctions) or as otherwise provided herein, wherever in this Lease the consent of a Party is required, such consent shall not be unreasonably withheld, or delayed. Within thirty (30) days of written request by Tenant and prior to incurring the below referenced costs, Landlord shall provide to Tenant a written estimate of costs attributable to the consideration of such request. Tenant shall be further advised by Landlord should costs be anticipated to exceed such previously submitted cost estimate. Landlord's actual reasonable costs and expenses (including but not limited to architects', attorneys', engineers and other consultants' fees) incurred in the consideration of, or response to, a request by Tenant for any Landlord consent pertaining to this Lease or the Premises, including but not limited to consents to an assignment, a subletting or the presence or use of a Hazardous Substance, shall be paid by Tenant to Landlord upon receipt of an invoice and supporting documentation therefore. Any unused portion of said deposit shall be refunded to Tenant without interest. Landlord's consent to any act, assignment of this Lease or subletting of the Premises by Tenant shall not constitute an acknowledgment that no Default or Breach by Tenant of this Lease exists, nor shall such consent be deemed a waiver of any then existing Default or Breach, except as may be otherwise specifically stated in writing by Landlord at the time of such consent. All conditions to Landlord's consent authorized by this Lease are acknowledged by Tenant as being reasonable.
29. Quiet Possession. Upon payment by Tenant of the rent for the Premises and the performance of all of the covenants, conditions and provisions on Tenant's part to be observed and performed under this Lease, Tenant shall have quiet possession of the Premises for the entire term hereof subject to all of the provisions of this Lease.
30. Rules and Regulations. Tenant agrees that it will abide by, and keep and observe all reasonable rules and regulations as set forth in Exhibit "B" ("Rules and Regulations") which Landlord may make from time to time for the management, safety, care and cleanliness of the 38 grounds, the parking and unloading of vehicles and the preservation of good order, as well as for the convenience of other occupants or tenants of the Building, the Project and their invitees.
31. Security Measures. Tenant hereby acknowledges that Landlord is not responsible for guard service, security camera monitoring or other security measures, and that Landlord shall have no obligation whatsoever to provide same. Landlord does, however, have the right to provide those services and charge Tenant its proportionate share for the same. Tenant assumes all responsibility for the protection of the Premises, Tenant, its agents and invitees and their property from acts of third parties on the Premises.
32. Reservations. Landlord reserves the right, from time to time, to grant, without the consent or joinder of Tenant, such easements, rights of way, utility raceways, and dedications that Landlord deems necessary, and to cause the recordation of parcel maps and restrictions, so long as such easements, rights of way, utility raceways, dedications, maps and restrictions do not reasonably interfere with the use of the Premises by Tenant. Tenant agrees to sign any documents reasonably requested by Landlord to effectuate any such easement rights, dedication, map or restrictions.
33. Performance Under Protest. If at any time a dispute shall arise as to any amount or sum of money to be paid by one Party to the other under the provisions hereof, the Party against whom the obligation to pay the money is asserted shall have the right to make payment "under protest" and such payment shall not be regarded as a voluntary payment and there shall survive the right on the part of said Party to institute suit for recovery of such sum. If it shall be adjudged that there was no legal obligation on the part of said Party to pay such sum or any part thereof, said Party shall be entitled to recover such sum or so much thereof as it was not legally required to pay under the provisions of this Lease.
34. Nondiscrimination Tenant hereby covenants for itself, its heirs, administrators, successors and assigns, and all persons claiming under or through Tenant, that this Lease is made and accepted upon and subject to the condition that there shall be no discrimination on the grounds of race, religious creed, color, national origin, ancestry, age, physical disability, mental disability, medical condition including the medical condition of Acquired Immune Deficiency Syndrome (AIDS) or any condition related thereto, marital status, gender, gender identity, genetic information, gender expression, sex, sexual orientation, or military or veterans status in the leasing subleasing, transferring, use occupancy, tenure or enjoyment of the Premises nor shall Tenant, or any person claiming under or through Tenant, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, Tenants, subcontractors subtenants, or vendees in the Premises herein leased. Further, Tenant agrees to conform to the requirements of the Americans with Disabilities Act in acting under this Lease.
35. Authority. If either Party hereto is a corporation, trust, or general or limited partnership, each individual executing this Lease on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Lease on its behalf. If Tenant is a corporation, Limited Liability Company, !lust or partnership, Tenant shall, within thirty (30) days after requested by Landlord, deliver to Landlord evidence satisfactory to Landlord of such authority. 39 36. Conflict. Any conflict between the printed provisions of this Lease and the typewritten or handwritten provisions shall be controlled by the typewritten or handwritten provisions.
37. Offer. Preparation of this Lease by either Landlord or Tenant, or Landlord's agent or Tenant's agent, and submission of same to Tenant or Landlord, shall not be deemed an offer to lease.
This Lease is not intended to be binding until executed and delivered by all Parties hereto.
38. Amendments. This Lease may be modified only in writing and signed by the parties in interest at the time of the modification. The Parties shall amend this Lease from time to time to reflect any adjustments that are made to the Base Rent or other rent payable under this Lease. As long as they do not materially change Tenant's obligations hereunder, Tenant agrees to make such reasonable non-monetary, non-material modifications to this Lease as may be reasonably required by an institutional insurance company or pension plan Lender in connection with the obtaining of normal financing or refinancing of the property of which the Premises are a part, but in no event shall the rent amount, term assignment or default provisions be subject to such modification.
39. Multiple Parties. Except as otherwise expressly provided herein, if more than one person or entity is named herein as either Landlord or Tenant, the obligations of such multiple parties shall be the joint and several responsibilities of all persons or entities named herein as such Landlord or Tenant.
40. Force Majeure. In the event that either party hereto be prevented, as a result of any reason beyond its control, including but not limited to, acts of God, strikes, lockouts, labor troubles, public health matters, or inability to procure materials, from completing its construction, maintenance and/or repair obligations, obtaining a certificate of occupancy or similar governmental certificate or approval, procuring or installing equipment, supplies and/or inventory, and/or hiring and/or training of employees, or shall at any time be so delayed by reason of failure of power, restrictive governmental laws or reasons of a similar nature not the fault of the party delayed in performing work or doing acts required under the terms of this Lease, then performance of such act shall be extended for a period equivalent to the period of such delay.
LANDLORD AND TENANT HA VE CAREFULLY READ AND REVIEWED THIS LEASE
AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE
PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS
OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LANDLORD AND TENANT WITH RESPECT TO THE PREMISES. [ signatures on next page]
40 The Parties hereto have executed this Lease at the place and on the dates specified below their respective signatures.
LANDLORD: TENANT:
THE CITY OF RJVERSIDE, EVERYTABLE, PBC,
a Delaware public benefit corporat ion
By _ _ _______ _
City Manage r
.& £? t?-6L
/? C'<.r, ...,
:.J
Attested to: ~ By ______ ____ _ _
Name_-::;-;'"'-_ _,,_/l'r--"---'-f'--'0:...;L-:::....c....1,..<... ____ _ _ Its ___ C_._c--=O _ _____ _
By _ ___ _ _ ____ _
City Clerk
Approved as to Form:
By ~~
Deputy City Attorney
21-0333 SW 3/14/22
\\Rc-citylaw\cycom\WPDocs\D0 l 4\P036\00640 116,docx
41 EXHIBIT "A"
DESCRIPTION OF THE PREMISES
EXHIBIT "A"
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EXHIBIT "B"
RULES AND REGULATIONS
This exhibit, entitled "Rules and Regulations," is and shall constitute Exhibit B to the Lease Agreement, dated as of the Lease Date, by and between Landlord and Tenant for the Premises. The terms and conditions of this Exhibit Bare hereby incorporated into and are made a part of the Lease.
Capitalized terms used, but not otherwise defined, in this Exhibit B have the meanings ascribed to such terms in the Lease.
l. Tenant shall use that method of heating or air conditioning as agreed to by Landlord.
2. Excepting those window graphics in Tenant's Standard Sign Package, which are conceptually approved and shall be approved pursuant to the method described in the Lease, all window coverings installed by Tenant and visible from the outside of the Building require the prior written approval of Landlord.
3. Tenant shall not use, keep or permit to be used or kept any foul or noxious gas or substance or any flammable or combustible materials on or around the Premises, except to the extent that Tenant is permitted to use the same under the terms of Paragraph 5.6 of the Lease.
4. Tenant shall not alter any lock or install any new locks or bolts on any door at the Premises without the prior consent of Landlord.
5. Tenant shall not make any duplicate keys without the prior consent of Landlord.
6. Tenant shall park motor vehicles in parking areas designated by Landlord except for loading and unloading. During those periods ofloading and unloading, Tenant shall not unreasonably interfere with traffic flow around the Building or the Property and loading and unloading areas of other tenants. Tenant shall not park motor vehicles in designated parking areas after the conclusion of normal daily business activity.
7. Tenant shall not disturb, solicit or canvass any tenant or other occupant of the Building or Property and shall cooperate to prevent same, except that Tenant may, from time-to-time and in a manner which does not disturb any other Tenant in the Building, provide samples of its products to patrons and/or invitees in the Common Area of the Building on the Ground Floor only.
8. No person shall go on the roof without Landlord's permission.
9. Business machines and mechanical equipment belonging to Tenant which cause noise or vibration that may be transmitted to the structure of the Building, to such a degree as to be objectionable to Landlord or other tenants, shall be placed and maintained by Tenant, at Tenant's expense, on vibration eliminators or in noise-dampening housing or other devices sufficient to eliminate noise or vibration.
10. All goods, including material used to store goods, delivered to the Premises of Tenant shall be immediately moved into the Premises and shall not be left in parking or receiving areas overnight.
EXHIBIT "B"
11. Tractor trailers which must be unhooked or parked with dolly wheels beyond the concrete loading areas must use steel plates or wood blocks under the dolly wheels to prevent damage to the asphalt paving surfaces. No parking or storing of such trailers will be permitted in the auto parking areas of the Properly or on streets adjacent thereto.
12. Forklifts which operate on asphalt paving areas shall not have solid rubber tires and shall only use tires that do not damage the asphalt.
13. Tenant is responsible for the storage and removal of all trash and refuse. All such trash and refuse shall be contained in suitable receptacles stored behind screened enclosures at locations approved by Landlord.
14. Tenant shall not store or permit the storage or placement of goods or merchandise in or around the common areas surrounding the Premises. No displays or sales of merchandise shall be allowed in the parking lots or other common areas.
15. Tenant shall not permit any animals, including but not limited to, any household pets, to be brougpt or kept in or about the Premises, the Building, the Property or any of the common areas unless the animal is a service animal, as defined by Title II and Title III of the ADA, or is otherwise permitted pursuant to state or federal disability laws.
16. Tenant shall not without Landlord's consent, which may be given or withheld in Landlord's sole and absolute discretion, receive, store, discharge, or transport firearms, ammnnition, or weapons or explosives of any kind or nature at, on or from the Premises, the Building or the Property.
17. Tenant will refer, all contractors, their representatives and installation technicians rendering any service to Tenant, to Landlord's approval before performance of any service. This provision shall apply to all work performed in the Building, including, without limitation, the installation of telephones, data cabling, electrical devices and attachments, and all installations of any nature affecting floors, walls, woodwork, trim, windows, ceilings, equipment or any other physical portion of the Building.
18. Movement in or out of the Building of furniture or office equipment or the dispatch or receipt by Tenant of any merchandise or materials that require the use of elevators or stairways or the movement through Building entrances or lobbies shall be restricted to hours designated by Landlord.
All such movement shall be under the supervision of Landlord and shall be performed in the manner agreed upon in writing between Tenant and Landlord before performance. Such agreement initialed by Tenant will include the determination by Landlord, and such movement shall be subject to Landlord's sole decision and control, in regard to time, method, and routing of movement, limitations imposed by safety or other concerns that may prohibit any article, equipment or any other item from being brought into the Building. Tenant shall assume all risk as to damage to articles moved and injury to persons or public property and personnel of Landlord if damaged or injured as a result of acts in connection with such services performed for Tenant or at Tenant's request.
19. Landlord shall not be responsible for lost or stolen personal property, equipment, money or jewelry from Tenant's area or public rooms regardless of whether such loss occurs when such area is locked against entry or not.
EXHIBIT "B"
20. None of the entries, passages, doors, elevators, elevator doors, hallways or stairways shall be blocked or obstructed, nor shall any rubbish, litter, trash or material of any nature be placed, emptied or thrown into these areas, nor shall such areas be used at any time except for ingress and egress by Tenant, Tenant's agents, employees or invitees.
21. Landlord specifically reserves the right to refuse admittance to the Building from 7:00 p.m. to 7:00 a.m. daily, or on Sundays or legal holidays, to any person who cannot furnish satisfactory identification, or to any person who, for any other reason, in Landlord's judgment, should be denied access to the Premises. Landlord, for the protection of the tenants and their effects, may prescribe hours and intervals during the night, on Sundays and holidays, when all persons entering and departing the Building shall be required to enter their names, the offices to which they are going or from which they are leaving, and the time of entrance or departure in a register provided for that purpose by Landlord.
22. All lettering and signage appearing or visible from the exterior of the Premises shall be subject to the prior written approval of Landlord. No banners, advertisements or displays shall be allowed to be displayed from the interior or exterior of the Premises which would be visible from the exterior of the Premises without the prior written permission of Landlord.
23. Normal business hours for the Building are 7:00 a.m. to 6:00 p.m. on Mondays through Fridays, exclusive of holidays. However, Tenant shall have access to the Premises 24 hours a day, seven days a week. The term "holiday" shall include all days on which national banks in the municipality in which the Building is located are closed to the general public. This shall include, but not be limited to, New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and Christmas Day.
24. Tenant shall keep all garbage, trash and refuse generated at the Premises or by the activities conducted therein in rodent-proof containers until removed, and cause the same to be removed in an appropriate manner on a daily basis.
EXH[B!T "B"
EXHIBIT "C"
COMMENCEMENT DATE MEMORANDUM
Note: This form to be completed by the Parties after the Lease Agreement has been fully executed.
Pursuant to the Lease Agreement dated ________ , between the CITY OF RIVERSIDE and EVERYTABLE, PBC, the parties hereby agree, understand and acknowledge that pursuant to the Lease Agreement, the Commencement Date is _________ _
LANDLORD
CITY OF RIVERSIDE,
By: __________ _
Date:. ____________ _
TENANT
EVERYTABLE, PBC,
a Delaware public benefit corporation
By: __________ _
Date: --------~
EXHIBIT "C"
SPRINKLERS:
SITE WORK:
DEMOLITION:
BUILDING
ENVELOPE:
TRASH&
RECYCLING:
CONCRETE
FLOOR:
FINISHES,
WALLS
HVAC:
RESTROOMS:
WATER:
SEWER:
ELECTRICAL:
EXHIBIT "D"
LANDLORD'S WORK
If required by the city, Landlord to provide coverage per Tenant floor plan.
As per existing or all by Landlord.
Premises to be delivered open per demolition plan Tenant will provide upon final floor planning, no drop ceiling, with no obstructions, in broom swept condition.
Walk-in coolers to remain in place.
Exterior shall be a watertight storefront system.
Provide trash and recycling for Tenant's use including required secure trash enclosures in a well-lit, nearby location. All costs associated with trash pick up to be paid by Tenant through CAM charges.
Concrete slab to be delivered smooth and level.
All walls shall meet applicable code for retail use. Walls to be taped, skimmed, and sanded to smooth finish ready to receive paint.
Landlord will provide new HV AC equipment capacity as determined to be required by Tenant's MEP and shall warrant said equipment for a period pursuant to the standard manufacturer's warranty that comes with the purchase of new HV AC package units - units are 5 years for the compressor and I year on parts/labor.
Landlord shall provide one (I) ADA restroom within Premises per Tenant's plan.
Landlord shall provide one (1) l" domestic water line, minimum of 60 PSI.
Water service is existing at the site and is in common with the Building and is included in the NNN charges.
Landlord shall provide one (I) existing four-inch (4") minimum sanitary sewer line. Sanitary sewer line shall connect to the main sanitary sewer system. Sewer costs, along with water costs are included in the NNN charges.
Electrical Service: 200A, 120/208V, Three phase electrical service. Electrical service is already separately metered to the Premises.
EXHIBIT "D"
TELEPHONE: One (1) one & one half inch (1 1/2") conduit within the Premises. In the event code requires a fire alarm or sprinkler system, provide an additional I" conduit run to the fire control panel.
EXHIBIT "D"
EXHIBIT "E"
LANDLORD SIGN CRITERIA
EXHIBIT "E"
MISSION SQUARE SIGNAGE OPPORTUNITIES
TOP FLOOR & EYEBROW
-Signs on upper stories limited lo lop floor only.
!==:I Signs on lower stories limitedJQ..!!rst floor only. ~
i.,.,~:r.::!.cd
for compliance
with RMC Tille 19
APPROVED FOR
P.ERMIT l •.
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Channel Letter Eyebrow Signs
PltOJECT KAME
Master Sign Program
lOCAllON
3750 University Ave.
Riverside, CA 92501
CONTACT
Christine Jensen
909.97•.•023
FX:
[email protected]
WESPDSON
Sean Baldwin
7U.M1.006-4
FX: 71•.Mt.0065
aaan.baldw;n@>i9nspooolists.a,m
DESIGNU
Brad Sanders
brod.sonden@"inspooali•ts.com
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SIGN SPECIALISTS
CORPORATION
North Elevation
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Channel Letter Building Top &
Channel Letter Eyebrow Signs
l'IIOJECTNM\E
Mosler Sign Program
LOCATION
3750 Univel'lity Ave.
Rive!'lide, CA 92501
CONTACT
Christine Jensen
9D9.91,.,023
FX:
O.ri1tineJ~1d.cam
SAI.ESl'DSON
Seen Baldwin
71~.~,.~
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[email protected],m
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CORPORATION
NOTE: Alt EYEBROW (FIRST FLOOR)
SIGNS TO HAVE A MAXIMUM LETTER
HEIGHT OF 24 INCHES.
Channel Letter Building Top &
Channel Letter Eyebrow Signs
PlOJECTNAME
Moster Sign Program
IOCAllON
3750 University Ave.
Riverside, CA 92501
CONTACT
Christine Jensen
909.974.402J
FX:
Chris1ir1t1Jansen@ogld'.com
SAWl'WON
Sean Baldwin
7U.6~l.0064
fX: 7U.6.41.0065
[email protected]
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Brad Sanders
brod.JOnd.~n_.;oli11Lcom
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CORPORATION
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SIGNS TO HAVE A MAXIMUM LflTER
HEIGHT OF 24 INCHES.
Channel letter Building Top &
Channel Letter Eyebrow Signs
PIOJECT NAME
Moster Sign Program
LOCATION
3750 University Ava.
Riverside, CA 92501
COt-lTACT
Christine Jonson
909.974.~023
l'X:
Chri1tin■[email protected]
5AL£S PD.SON
Sean Baldwin
71.(..,Ml.~
1'X: 7U.6•1.0065
...,n.bolclwio@s,gnspecial;.ts.cam
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Brad Sanders
brad.&andor,@,i9nipeoolil1>.oom
SC.ALE: 'AGE
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SIGN SPECIALISTS
CORPORATION
Channel Letter Building Top &
Channel Letter Eyebrow Signs
1'1!0JECTNAME
Mas1er Sign Program
lOCAllON
3750 University Ave.
Riverside, CA 92501
CONTACT
Christine Jensen
'109. '17A ,023
FX:
O,ri,tin■JlfflMtn@ngld com
SAlESPUSON
Sean Baldwin
714.6,11.006•
FX: 714.6-41.0065
,-n,[email protected],li>k.awn
OESICNU
Brod Sanders
b,od..andors@sl9n>pooali,h.com
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SIGN SPECIALISTS
CORPORATION
NOTE: Alt EYEBROW (FIRST FLOOR)
SIGNS TO HAVE A MAXIMUM LETTER
HEIGHT OF 24 INCHES.
Channel Letter Building Tap &
Channel Letter Eyebrow Signs
PIOJECTNAME
Master Sign Program
lOCATION
3750 University Ave.
Riverside, CA 92501
CONTACT
Christine Jensen
909.974.4023
FX:
[email protected]
SAWl'USON
Sean Baldwin
714.&41.006,4
FX: 714.641.0065
...,[email protected],m
0ESIGNEI
Brod Sanders
brod.sonden@sigrupedoli,i..com
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SIGN SPECIALISTS
CORPORATION
NOTE: All EYEBROW (FIRST FLOOR)
SIGNS TO HAVE A MAXIMUM LETTER
HEIGHT OF 24 INCHES.
Channel Letter Building Top &
Channel Letter Eyebrow Signs
l'lOJECTNAME
Mas1er Sign Program
LOCATION
3750 University Ave.
Riverside, CA 92501
CONTACT
Chris1ine Jensen
909.97~.~023
FX:
0"HidinaJ■[email protected]
SAUSPWON
Sean Baldwin
714.Ml.0064
FX: 7U.M l.0065
[email protected]
DESlGHEk
Brad Sanders
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NOTE: ALL EYEBROW (FIRST FLOOR)
SIGNS TO HAVE A MAXIMUM LEITER
HEIGHT OF 2-4 INCHES.
Channel Letter Building Top &
Channel Letter Eyebrow Signs
PROJECTNAME
Master Sign Program
LOCATION
3750 University Ave.
Riverside, CA 92501
CONTAl;T
Christine J,msen
909.97•.•023
FX:
011i1tmeJenMr,@ngld.com
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71~.6,U.006•
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brod.Mln0tl,s@si,grupeciali1ts..com
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rMAffUFACTURER erAnd Sign Co.
MATtlUA1$ Alum~n.um & L:E:"'?.
colOR Asoorted
rosnl()N ING Above main enuanc •
"quANm'IES 1·2
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'POINT OF CONTACT Eric tiUllgon
NOUS
Chef-Prepared Meals.
Starting at $5.
'PRODUCT NAME S~_udo ~d Window '~'inyls
MODEL# N/:,"
SUPPLIER N/•
MANUFACTURER
MATERIALS Vinyl
COLOR Whlliitl
PDstTIONtNG To b& pl.ie.ed <in .xterio r windows
QUANTITIES 1
SIZING TBD
PDIHT OF CONT A Cf N/o
NOT1'S
PRODUCT NAME Ooo, - Monoguim Window Vlnyt,
MODEL# N/~
'suPPLIER N/a
MANUFACTURER
MAJBUALS YJnyl
COLOR While
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SIZING TDD
POlNTOFCDNfACT N/fl
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SUPPLIER'. N/n
MANUFACTURER:
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