thefts can be committed and the difficulty of tracing a particular catalytic converter back to its prior owner (the victim), because catalytic converters typically have no identifying markers.
Individuals in possession of stolen catalytic converters are able to recycle them for substantial profit at relatively low risk, while victims are forced to commit to costly repairs. By criminalizing the mere possession of an unattached catalytic converter absent proof of ownership or lawful possession, this ordinance would combat this criminal practice by: (1) achieving deterrence by establishing zero-tolerance for catalytic converter thefts; (2) establishing sanctions for possessing stolen catalytic converters; (3) prohibiting the falsification of information in documents and records used to verify ownership or lawful possession of a catalytic converter; (4) preventing criminals from profiting from the sale and recycling of stolen catalytic converters; (5) providing indirect justice to the victims of catalytic converter theft cases that have gone or will go unsolved for the reasons discussed above; and (6) minimizing the fiscal and personnel impact on the City of San Clemente and the Orange County Sheriff's Department by reducing the time invested in deterring and investigating catalytic converter thefts.
Action: STAFF RECOMMENDS THAT the City Council consider the following action:
Attachments:
Introduce for first reading Ordinance No. _AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN CLEMENTE ADDING CHAPTER 10.54 (UNLAWFUL POSSESSION OF A CATALYTIC CONVERTER PROHIBITED) OF TITLE 10 (VEHICLES AND TRAFFIC) TO THE SAN CLEMENTE MUNICIPAL CODE
ESTABLISHING REGULATIONS PROHIBITING THE UNLAWFUL POSSESSION OF CATALYTIC CONVERTERS.
1. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN CLEMENTE ADDING CHAPTER 10.54 (UNLAWFUL POSSESSION OF A CATALYTIC CONVERTER PROHIBITED) OF TITLE 10 (VEHICLES AND TRAFFIC) TO THE SAN
CLEMENTE MUNICIPAL CODE ESTABLISHING REGULATIONS PROHIBITING THE UNLAWFUL POSSESSION OF CATALYTIC CONVERTERS.
8-16-22 / 1 0C-2
ORDINANCE NO. ---
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF SAN
CLEMENTE ADDING CHAPTER 10.54 (UNLAWFUL POSSESSION OF
A CATALYTIC CONVERTER PROHIBITED) OF TITLE 10 (VEHICLES
AND TRAFFIC) TO THE SAN CLEMENTE MUNICIPAL CODE
ESTABLISHING REGULATIONS PROHIBITING THE UNLAWFUL
POSSESSION OF CATALYTIC CONVERTERS
WHEREAS, citizens nationwide have experienced nsing rates of catalytic converter thefts, numbering approximately 26,000 through May 2021 ; and WHEREAS, citizens statewide have experienced rising rates of catalytic converter thefts, numbering approximately 8,000 through May 2021; and WHEREAS, citizens countywide have experienced rising rates of catalytic converter thefts, numbering approximately 2,000 this year to date; and WHEREAS, the citizens of San Clemente have experienced catalytic converter thefts from automobiles over the past several years; and WHEREAS, there is currently no City, State, or Federal legislation applicable within the City of San Clemente to define and punish catalytic converter thefts absent an identifiable victim; and
WHEREAS, there is currently no City, State, or Federal legislation applicable within the City of San Clemente requiring individuals to provide proof to law enforcement as to how they obtained catalytic converters, thus limiting law enforcement's ability to (1) protect the public by preventing catalytic converter thefts and (2) seize suspected stolen catalytic converters when no victim is present; and
WHEREAS, catalytic converter thefts are on the rise because individuals are incentivized to commit catalytic converter thefts for multiple reasons including, but not limited to: (1) the ease and undetectable nature of committing such thefts, potentially in a matter of seconds and through the use of common tools such as a reciprocating saw; (2) the ability to recycle catalytic converters at scrap metal yards for high dollar returns ranging from $200 to $1,200 per catalytic converter; and (3) loopholes in legislation protecting criminals from prosecution unless a victim can be identified; and WHEREAS, preventing these crimes at present is nearly impossible due to the ease and speed with which catalytic converter thefts can be committed and the difficulty of tracing a particular catalytic converter back to its prior owner (the victim), because catalytic converters typically have no identifying markers; and WHEREAS, the citizens of San Clemente and the Orange County Sheriff's Department are in need of legislation criminalizing mere possession of catalytic converters absent proof of ownership or lawful possession, for multiple reasons including, but not limited to: (1) achieving deterrence by establishing zero-tolerance for catalytic 8-16-22 / 1 0C-3
converter thefts; (2) establishing sanctions for possessing stolen catalytic converters; (3) preventing criminals from profiting from the sale and recycling of stolen catalytic converters; (4) providing indirect justice to the victims of catalytic converter theft cases that have gone or will go unsolved for the reasons discussed above; and (5) minimizing the fiscal and personnel impact on the City of San Clemente and the Orange County Sheriff's Department by reducing the time invested in deterring and investigating catalytic converter~efts; and
WHEREAS, individuals who are in possession of stolen catalytic converters recycle them for substantial profit while victims of these thefts suffer tremendous consequences in the form of costly repairs, inconvenience, and feelings of a lack of safety in the community; and
WHEREAS, this Ordinance is necessary to provide the City of San Clemente and the Orange County Sheriff's Department clear legal authority to better protect the public and deter this criminal activity.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SAN CLEMENTE DOES ORDAIN AS FOLLOWS:
SECTION 1. Incorporation of Recitals. The recitals above are each incorporated by reference and adopted as findings by the City Council as if fully set forth herein.
SECTION 2. CEQA. The City Council finds that the proposed amendments to the San Clemente Municipal Code are exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Title 14 of the California Code of Regulations, Section 15061 (b)(3) because it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.
SECTION 3. Code Amendment. Chapter 10.54 is hereby added to the San Clemente Municipal Code to read in full as follows:
"Chapter 10.56 - UNLAWFUL POSSESSION OF CATALYTIC CONVERTER
10.56.010 - Unlawful possession of catalytic converter prohibited.
A. It shall be unlawful to possess any catalytic converter that is not attached to a vehicle, unless the possessor has valid documentation or other proof to verify that they are in lawful possession of the catalytic converter.
B. It is unlawful for any person to falsify or cause to be falsified any information in any documentation or other proof intended to show valid proof of ownership or possession of a catalytic converter.
10.56.020 - Definitions.
8-1 6-22 I 1 0C-4
A. For purposes of this section, "lawful possession" includes (1) being the lawful owner of the catalytic converter or (2) in possession of the catalytic converter with the lawful owner's written consent. It is not required to prove the catalytic converter was stolen to establish the possession is not a "lawful possession." B. For purposes of this section, "documentation or other proof' means written document(s) that clearly identify the vehicle from which the catalytic converter originated based on the totality of the circumstances, and includes, but is not limited to, the following types of documents:
1. Bill of sale from the original owner with the signature of the vehicle owner authorizing removal of the catalytic converter, as well as the name, address, and telephone number of the vehicle owner.
2. Documentation from an auto-body shop or similar business proving that the owner relinquished the catalytic converter to the auto-body shop or similar business.
3. Verifiable electronic communication from the previous owner to the possessor relinquishing ownership of the catalytic converter.
4. Photographs of the vehicle from which the catalytic converter originated clearly showing the license plate number and vehicle identification number (VIN) of the car from which the catalytic converter was removed.
10.56.030 - Violations - Misdemeanor
A. Each and every violation of this section shall constitute a separate violation and shall be subject to all remedies and enforcement measures authorized by the Aliso Viejo Municipal Code. Each and every catalytic converter unlawfully possessed is a separate violation of this section.
B. It is unlawful and a misdemeanor subject to punishment in accordance with Chapter 1.06 of Title 1 of this Code, for any person to violate any provision of this section.
C. The remedies provided herein are not to be construed as exclusive remedies. The City is authorized to pursue any proceedings or remedies provided by law." SECTION 4. Publication. The City Clerk shall certify to the adoption of this Ordinance and cause it, or a summary of it, to be published once within 15 days of adoption in a newspaper of general circulation printed and published within the City of San Clemente, and shall post a certified copy of this Ordinance, including the vote for and against the same, in the Office of the City Clerk in accordance with California Government Code, section 36933.
SECTION 5. Records. The documents and materials associated with this Ordinance that constitute the record of proceedings on which the City Council's findings and determinations are based are located at City Hall, 910 Calle Negocio, San Clemente, CA 92673.
8-16-22 / 10C-5
SECTION 6. Severability. If any provision of this Ordinance or its application to any person or circumstance is held invalid, such invalidity has no effect on the other provisions or applications of the Ordinance that can be given effect without the invalid provision or application, and to this extent, the provisions of this ordinance are severable. The City Council declares that it would have adopted this Ordinance irrespective of the invalidity of any portion thereof.
SECTION 7. Effective Date. This Ordinance shall become effective 30 days after its adoption.
APPROVED AND ADOPTED this __ day of _ _ , 2022.
Gene James, Mayor
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) 55.
CITY OF SAN CLEMENTE )
I, Laura Campagnolo, Legislative Administrator of the City of San Clemente, California, hereby certify that Ordinance No. ___ having been regularly introduced at the meeting of ___ ____ _ __ , was again introduced, the reading in full thereof unanimously waived, and duly passed and adopted at a regular meeting of the City Council held on the __ day of __________ , and said ordinance was adopted by the following vote:
AYES:
NOES:
ABSENT:
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of San Clemente, California, this __ day of ______ ___ _ APPROVED AS TO FORM:
CITY ATTORNEY
LEGISLATIVE ADMINISTRATOR
of the City of San Clemente,
California
8-16-22 I 10C-6
AGENDA REPORT
SAN CLEMENTE CITY COUNCIL MEETING
Meeting Date: August 16, 2022
Department: City Manager
Prepared By: Samantha Wylie, Beaches, Parks, and Recreation Director Jonathan Lightfoot, Economic Development Officer
Agenda Item
Approvals:
City Manager
Dept. Head
Attorney
Finance
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ar:
JR
Subject: CONSIDERATION OF A FUTURE AMPHITHEATER SITE AND DEVELOPMENT OF A RELATED
CITIZENS COMMITTEE
Fiscal Impact: Unknown at this time.
Summary: The City has previously considered amphitheater opportunities, but funding was never secured. The City could evaluate undeveloped open space or existing parks, through the current Site Specific Master Plan Updates process, as potential sites. Staff recommends that the Council establish a Citizens Committee, which could more clearly identify potential users, facility needs, alternatives for venue management of operations, and financing feasibility.
Background: At its April 19, 2022 meeting, the City Council agendized the possibility of establishing a citizens committee for an amphitheater and directed staff to identify potential sites for the development of an amphitheater in the future.
An amphitheater has been discussed by the City in the past. On November 18, 2008, the City Council approved an Exclusive Negotiating Agreement ("ENA") with the Association for the Amphitheater ("AFTA") for a 43-acre parcel located near the intersection of Avenida La Pata and Calle Saluda. This area is currently zoned public open space (OS1). AFTA envisioned an outdoor amphitheater with related ancillary facilities on this site. The ENA specified that AFT A was responsible for investigating the feasibility of the site and preparing the necessary environmental documents to support a CEQA analysis of any proposed development. The ENA was extended in 2011 and 2014 but due to delays in fundraising by AFTA, environmental review was not completed and the project did not continue forward. The second extension expired in 2017. It is important to note that the California Surplus Land Act has been amended since 2017. If the City were to consider a long term lease or a sale of public lands, the City would be obligated to first advertise a Notice of Availability and then negotiate with interested affordable housing developers prior to entering into a new ENA or lease.
Before landing on the La Pata site as the preferred location, AFTA additionally considered three other sites for buildout as early as 2003; (1) Vista Hermosa Sports Park; (2) Jim Johnson Memorial Sports Park; and (3) Richard T. Steed Park. After review and discussion surrounding each site, AFTA determined that Steed Park would Administration Agenda Report
8-1 6-22 / 10D-1
Agenda Report Page 2
be a suitable location given the remote nature of the space and open land opportunity.
The Vista Hermosa and Jim Johnson locations posed concerns due to the potential of sound pollution from the surrounding streets, intersections, and freeway creating a less than ideal area for a theater or performing arts performance. Additionally, Vista Hermosa Sports Park was determined to be "overcommitted" to other activities that would compete or drown out the amphitheater activities and experience. The potential Jim Johnson Memorial Sports Park site was found to be subject to fog and wind that would interrupt an outdoor performance.
More recently, the Beaches, Parks, and Recreation (BPR) department has undertaken a Site Specific Master Plan Update process 1 which focused on updating five parks in the City. Linda Lane Park, situated above the beach trail just north of the Pier, is one of the parks slated to be updated. One alternative at Linda Lane Park included a site plan that would utilize the existing grading to establish a terraced park layout with a shade structure near the trail entrance that included a stage-like platform. To accomplish this, the park would essentially be reversed with a parking lot established in the existing uphill park location and the park/recreation space located near the beach access. This summer, BPR has hosted the successful summer concert series in this location, with a temporary band stage at the lower end of Linda Lane and an ocean view backdrop. These events have been attended by hundreds of residents and visitors.
This site plan alternative (see Attachment 1) received varied feedback from the community with several nearby residents expressing concerns over the change in the layout of the park, while other community members were supportive of the layout -----------AaA§e--eit+Atr{l=raHH akes-!J-reater-aEi-vaRtage-ef. he sceR-is-eeeaA-view-aR- - concentrating landscaping and amenities nearer to the beach trail. The amenities would need to be modified if the Council desired to make an amphitheater the dominant feature in this space. Reorienting Linda Lane will require environmental analysis prior to implementation. The City has initiated environmental review for the Richard T. Steed Memorial Park site-specific master plan, which has been prioritized by the City Council. Environmental review for the other four park plans, including Linda Lane, has not yet begun.
Discussion: The two examples referenced above would take different paths. The City Council precedent for greenfield development at the La Pata site places a responsibility for preliminary fundraising, feasibility analysis, and environmental review on the interested citizens groups or non-profits. The La Pata site offers a larger space and more varied opportunities for development. Conversely, the Linda Lane site is smaller, but redevelopment is already under consideration. The environmental review of the final site plan would be managed and funded by the City.
There are other sites that could be considered, but before identifying a site it will be important to identify:
• Who are the likely users?
• What types of events do those users produce?
1 https:/ /www .san-c lemente. org/recreation-com 111 unity/beach es-parks-and-recreation-master-p I an 8-16-22 I 10D-2
Agenda Report
Recommended
• What are the stage and seating capacity needs of those groups? • What accessory facilities (parking, restrooms, backstage, concessions) would be needed to support a venue of that size?
• Who will manage the facility?
• How will the development be funded?
• How would the venue operate sustainably?
Staff recommends that the City Council establish a Citizens Committee to further explore this concept and to begin to address these questions. Staff recommends that this committee include members representing (but not limited to):
• The Chamber of Commerce
• The San Clemente High School Drama Department and Principal • The Cabrillo Playhouse
• Local performing arts studios, such as the Ballet Academy & Movement • Operations staff from a regionally successful amphitheater • Liaison from BPR or Planning Commission
• Liaison from City Council
Once the committee has performed due diligence, they could return to City Council with a presentation of their findings and a recommendation for a facility type and location. At that point, the Council can further deliberate on the funding implications and whether to initiate site specific feasibility and environmental analysis.
Action: STAFF RECOMMENDS THAT the City Council establish a Citizens Committee to further analyze the feasibility of an amphitheater.
Attachments: 1. Proposed Master Plan Update at Linda Lane Park - Option 1 Notification: None
8-16-22 I 10D-3
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Linda Lane Park
OPTION 1 CONCEPT ENLARGEMENT PLAN
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Proposed Concept Elements
0 Children's Plaza. Shade Structure and Picnic Area
0 ADA Accessible Concrete Paths
0 Resilient Playground Surfacing in Ocean-Themed Pattern Q Ocean Themed Playground
0 Flat Lawn
C, Sloped Lawn
Osta,rs
0 Decorative Crosswalk
0 Proposed Native Planting For Slope Stabilization
G) Bench
Proposed Concept Elements
0 Ocean View Plaza (Benches and Picnic lables)
0 Ocean Pleza Shede Structure
f) Oceiln Themed Mura! on Plaza Paving
0 Relocated Art Bench
C, Decomposed Granite Plaza
CJ ADA Accessible Decomposed Granite Path
0 Benches
C, ADA Accessible Concrete Paths
0 Restrooms and Shower s
G) Native Coast al Sage Plantlngs For Slope Stabilization G Sloped lawn
8 Flat lawn
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Department:
Prepared By:
Subject:
AGENDA REPORT
SAN CLEMENTE CITY COUNCIL MEETING
Meeting Date: August 16, 2022
Community Development, Code Compliance Division
Adam Atamian, Deputy Community Development Director
\oc: Agenda Item v --- Approvals:
City Manager ES M
Dept. Head C En\) (JJ
Attorney ITT
Financ8\._J R,_,
USE OF UNMANNED AVIATION SYSTEMS, OR "DRONES" To INSPECT OPEN SPACE AREAS.
Fiscal Impact: Yes, the cost to implement staffs recommendation is approximately $2000-$4000 monthly. General fund money has not been allocated for this project.
Summary:
Discussion:
Recommended
Staff recommends the use of contracted unmanned aircraft (UA, or "drone") patrols, to inspect designated open space areas to help identify potential fire-safety issues or violations.
On May 25, 2022, the City Council directed staff to establish a UA patrol program for inspections over the City's open space areas.
In research and discussion with various partner agencies utilizing UAs for inspection purposes, including OC Public Works, OCFA, OCSD, and the City's Marine Safety Division, staff has identified an opportunity to contract for the inspections needed.
Contracted services would include:
• The use of UAs by highly trained and experienced pilots. • Trained and experienced specialists reviewing camera footage/photos using their own licensed software programs and required computer systems. • Inspection information and pin-point mapping provided to the City for Code Compliance staff to follow up to address health and safety issues and violations observed.
There are a number of constraints related to the in-house operation of a UA inspection program. These constraints relate to purchasing of new technology (such as the UAs, batteries, upgraded computers, and specialized software programs), initial training, continued education, FAA permitting and licensing, insurance (liability and equipment), etc. Based on these factors, a UA inspection program would be more practical with an operator that is equipped to conduct UA operations from an effective program management perspective.
Action: STAFF RECOMMENDS THAT the City Council direct staff to engage the services of a qualified UA operator to provide UA inspection services.
Attachments: None
Notification: None
Community Development Agenda Report 8-16-22 I 10E-1
A Resolution of the City of San Clemente, CA 8-16-22/10F A Resolution Calling on The California Legislature to Enhance the Confidence of The Voting Public in
Election Outcomes Through Improved Election Processes
Resolution No. ---- --
WHEREAS, faith in our election process is the foundation upon which our republic rests; and WHEREAS, the processes around elections should be designed to encourage voter participation while protecting against election fraud; and
WHEREAS, when irregularities are identified 111 the course of an election, they can undermine the legitimacy of our elected leaders; and
WHEREAS, there have been many changes in election laws in recent years to increase voter pa1ticipation; and
WHEREAS, some of these changes have increased the risk of election fraud; and WHEREAS, other measures such as photo voter identification have been left out of current policy despite being overwhelmingly supported by the public; and
WHEREAS, California has long struggled to effectively and efficiently remove inactive voters from the voter rolls; and
WHEREAS, allowing those who have either moved or passed away to remain on the voter rolls creates an unacceptable risk that other votes can be nullified tlu·ough the theft of a previous voter's identity; and WHEREAS, the distribution of vote by mail ballots to voters - while necessary to include those who are unable to go to the polls in person due to illness, disability, or military deployment - creates a higher leve l of risk for voter fraud; and
WHEREAS, we are unaware of any jurisdiction in California that requires a valid ID in order to submit a ballot;
WHEREAS, the lack of a clear chain of custody that shows who has handled vote by mail ballots may enable fraud; and
WHEREAS, it is the desire of the City Council of the City of San Clemente to improve both the actual security of elections, and the perceived security of elections in order to restore and maintain the faith in our election system.
NOW, THEREFORE BE IT RESOLVED BY THE SAN CLEMENTE CITY COUNCIL that it requests the California State Legislature adopt the following changes to the California Election Code:
1. Photo ID. Voters shall provide a valid photo identification demonstrating current United States citizenship that may include any identification issued by a government agency, passport, or driver's license. The law should allow those who cannot provide one of the previous forms of identification to 8-1 6-22 / 10F-1
submit an affidavit that the voter is the person on the registrntion rolls with the voter's date of birth and the last 4 digits of the voter's social security number.
2. Efficient Removal of lnactive Voters. California law and the National Voter Registration Act, Section 8 provides for active voters to be moved to the inactive voter roll list after the failure to vote in two consecutive general elections and the removal of inactive voters from the voter rolls after the failure to vote in two consecutive general elections. Inactive voters should be removed from the registered voter rolls prior to the next municipal, primary, or general election. The Legislature should require the Secretary of State or the County Registrar of Voters to use, on an on-going basis, The California Electronic Death Registration System (CA- EDRS) to find voters who have died, as well as datamatching software to find voters who have moved or died and to flag those registrations for review.
3. Prohibit the Use of Unsupervised Ballot Drop Boxes. Unattended ballot drop boxes - even those who are electronically surveilled - pose an unacceptable risk to the election process by making illegal ballot harvesting easier and should be prohibited.
4. Vote by Mail Ballot Chain of Custody and Photo ID. Voters casting vote by mail ballots should be subj ect to the same voter identification requirements as proposed above for in-person voting. There should be an enhanced chain of custody process for returning vote by mail ballots that includes identifying those who return absentee ballots on behalf of others.
5. Post-election Audit. An automatic post-election audit involving at least ten percent (10%) of all of the precincts involved in a given municipal, primary, or general election, prior to election certification.
Precincts shall be chosen at random and any deviation greater than 2% shal I trigger an automatic recount.
PASSED, APPROVED AND ADOPTED this day of August _ _ , 2022. - ---- ----~M~~ of San Clemente Clerlul.f..the Cicy of Sai.1-CLeiuentt:----------------- 8-16-22 I 1 0F-2
Department:
Prepared By:
Subject:
AGENDA REPORT
SAN CLEMENTE CITY COUNCIL MEETING
Meeting Date: August 16, 2022
City Manager
Jonathan Lightfoot, Economic Development Officer
Agenda Item \OH:
Approvals:
City Manager -=~'-'-fj- ----'1P
Dept. Head - - - Attorney (:J::
Finance ::.5t1.)~
APPROVAL OF LEASE AGREEMENTS FOR CONCESSION OPERATIONS AT THE T-STREET
CONCESSION BUILDING
Fiscal Impact: Yes. If executed, the concession lease at the T-Street location would generate three thousand dollars monthly.
Summary: Following a comprehensive Request for Proposal (RFP) process, staff is recommending that Organic Concepts, LLC (DBA West Toast Cafe) be awarded a five year lea~e fQ{.QJ2filation~9 t the T-Street concession building. _ Background: In 2021 , the City commissioned a review of citywide concession operations. After reviewing that report1, Council directed staff to proceed with an RFP process for private operations at the T-Street, North Beach, and North Beach Depot locations.
Staff conducted an RFP seeking proposals for each of these locations based on a five year term with two three-year extension options. The RFP was posted in November of 2021, with proposals due by January 17, 2022. In addition to posting the RFP on Planet Bids, the City's primary portal for bidding opportunities, staff also directly contacted twenty-eight local business owners and residents that had expressed an interest in the opportunity. Staff was also supported by the San Clemente Downtown Business Association and the San Clemente Chamber of Commerce, which shared the opportunity through to their members through their electronic newsletters. Staff provided access to the buildings for interested parties to view the spaces.
Ultimately, one qualified proposal was received for each building. Staff conducted interviews with each proposer to review their conceptual business plan and improvements. The City Council previously authorized a lease for the Depot location in April of 2022 for a bike rental business. At the North Beach Concession building, staff received a qualified offer; however, that proposer is still discussing improvement requirements with Orange County Health. A draft lease will return to the Council once they have resolved those discussions.
Regarding the T-Street concession space, the Council authorized Organic Concepts, LLC to operate on a limited term contract2 beginning in July of 2021 until an RFP could be completed. Organic Concepts, LLC is currently operating out of the building and 1 https://www.san-clemente.org/home/showpublisheddocument/63789 2 hltps://www.san-clemente.org/home/showpublisheddocument/65 103/6376 l 9632653470000 City Manager Agenda Report
8-16-22 I 10H-1
Agenda Report Page 2
has steadily reported increased business and revenue during their limited term tenancy.
Discussion: While staff received several inquiries on the T-Street site and provided a couple of tours of the space, only Organic Concepts, LLC submitted a qualified proposal. In the RFP, staff sought to restructure the rent requirement. The prior lease agreement had a provision for the greater of $300 or 13% of revenue. The City received about six to eight thousand dollars per year from the prior tenant under that agreement. In the RFP, staff set a baseline rent of the greater of two thousand dollars per month ($2000) or 7% of gross revenue. Under these terms, the City would receive double the revenue received under the last full year of operations prior to Covid interruptions (2019).
Organic Concepts' proposal increased the baseline to $3000 per month.
Following are a few of the provisions referenced within the draft operating agreement:
• A term of 5 years, with two options for three additional years (if mutually agreed upon);
• Rental rate of the greater of $3000 or 7% gross revenue, monthly; • In consideration of certain permanent property' imQLovements, the City _will waive up to one year of rent after final inspections have been conducted, following any City or County requirements3:
o Option to waive 4 months of rent in consideration of costs incurred for installation of a type 1 commercial kitchen hood and fire suppression system;
o Option to waive 4 months of rent in consideration of upgraded electrical, including a panel upgrade;
o Option to waive 2 months of rent in consideration of installation of new flooring and countertops (as approved by Orange County Health); o Option to waive 2 months of rent in consideration of installation of new windows and shutters (as approved by Orange County Health). • Permitted use of food and beverage sales as well as beach equipment rental; • Typical operating hours of 8 a.m. to 3 p.m., six days a week; • Beach access via a Gator or similar utility vehicle to assist in making deliveries and clearing trash in specified times of lower pedestrian traffic per a separate Beach Access Agreement with the City's Risk Analyst;
• Permission for signage up to 25 square feet in line with the Architectural Overlay standards;
• Live acoustic music (no electric components or amplification) on Saturdays and Sundays between the hours of 1 0am - 2pm;
• Option for special events, which require a Special Events Permit from the Beaches, Parks, and Recreation Division. Tenant may submit one application and fee for a series of comparable events. One example could be sunset dinners on the first Friday of each month. Different event types will require separate SEP applications;
3 Note: prevailing wage is required for improvements to the building. 8-1 6-22 / 1 0H-2
Agenda Report
Recommended
o Catering for any rentals of the T-Street picnic area, which may be permitted by the City after 4 p.m.
During their several months of operations under the limited term contract, Organic Concepts, LLC has improved service hours, quality, and revenues from this concession stand, and staff believes that they will continue to be a high quality operator out of this City facility.
Action: STAFF RECOMMENDS THAT the City Council:
1. Approve and authorize the City Manager to execute Lease Agreement by and between the City of San Clemente and Organic Concepts, LLC (OBA West Toast Cafe), to operate out of the T-Street Concession Building; and
2. Waive any permit fees associated with tenant-initiated improvements to the TStreet Concession building.
Attachments: 1. Draft Lease for the T-Street Concession Building with Organic Concepts, LLC (DBA - - - Wesf. Toas Cafe) -- - - - Notification: All qualified bidders to RFP
8-1 6-22 / 10H-3
ATTACHMENT 1
LEASE AGREEMENT
T-STREET CONCESSION BUILDING
by and between
CITY OF SAN CLEMENTE
("LANDLORD")
and
ORGANIC CONCEPTS LLC
("TENANT")
September 1, 2022
8-16-22 I 10H-4
(
LEASE AGREEMENT
Th.is LEASE AGREEMENT (the "Lease") is dated for reference purposes as of the I st day of September, 2022 (the "Effective Date"), by and between the CITY OF SAN CLEMENTE, a municipal corporation ("Landlord"), and ORGANIC CONCEPTS LLC ("Tenant"). Landlord and Tenant are sometimes collectively referred to herein as the "Parties" and individually as a "Pa1ty." RECITALS:
A. Landlord is the owner and operator of that certain real property located in the City of San Clemente, California, desc1ibed as the T-Street Concession (the "Landlord's Property").
B. Landlord desires to lease to Tenant the Landlord's Property or that portion of the Landlord's Property referred to herein as the Premises and Tenant desires to lease the Premises from Landlord, all subject to the tenns and conditions set forth herein.
COVENANTS:
In consideration of the foregoing Recitals, which are incorporated into this Lease by this reference, and the mutual covenants and conditions contained herein, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by both Landlord and Tenant, the Parties agree as follows:
ARTICLE I: SUMMARY OF FUNDAMENTAL LEASE TERMS
Subject to the more complete statement of certain of the Lease te1ms and conditions elsewhere in this Lease (which more complete desc1iption shall prevail to the extent of any inconsistency or conflict with the provisions set fo1th in this Article I), the fundamental business terms of this Lease are summaiized herein below:
(i) Landlord: City of San Clemente, a municipal corporation, and any successor to or assignee of City's fee ownership of the real property within which the Premises are located. (ii) Tenant: Organic Concepts, LLC. and any permitted assignee or transferee of Organic Concepts, LLC's leasehold interest in the Premises approved by Landlord in accordance with this Lease, as set forth in Article X.
(iii) Premises: A building, known as the T-Street Concessions building, located near the TStreet pedestrian bridge access to the beach from W. Paseo de Cristobal. (iv) Tenn: A five year tenn between September 1, 2022 and August 31, 2027. -1- 8-16-22 I 1 0H-5
(v) Options: The Landlord and Tenant may mutually agree elect to exercise up to two extensions of3 years each.
(vi) Rent: The greater of Tlu·ee Thousand Dollars and Zero Cents ($3000.00) per month, or seven percent (7%) of Gross Sales (as that tennis defined in Article IV). Rent to be "triple net" to Landlord. (See Atticles V, VII, and IX.)
(vii) Security Deposit: Two Thousand Dollars ($2000.00), which was previously collected in 2021. No additional deposit is required. (See Article XV.) (viii) Permitted Uses: The premises shall be used primarily for the sale of food and nonalcoholic beverages. The following activities are also permitted:
(A) The sale of beach equipment and merchandise, such as towels, sunscreen, etc. (B) Beach equipment and rental, such as umbrellas, chairs, and surf boards. (C) Tenant may operate recreational classes as approved tln·ough the Beaches, Parks and Recreation Contract Instructor Program 1. (See also At·ticle VI.) (D) One special activity event per month, which may include live or amplified entertainment (not to exceed 70 db as measured from the fildewal!c along W Paseo De Cristobal). Tenant is required to secure a Special Activity Pennit (SAP) from the Beaches Parks and Recreation (BPR) department prior to advertising or hosting any special event.
Tenant may submit a single application and application fee to cover events that are of a substantially similar nature.
(E) Live acoustic music (no elechic components or amplification) on Saturdays and Sundays between the hours of 1 0am - 2pm.
(F) Cateting for any rentals of the T-Street picnic area, which may be permitted by the City after 4 p.m.
(ix) Business License: The Tenant shall obtain and maintain an active City Business License. Any contractors or vendors hired to perfonn approved work or services at the premises are likewise required to obtain a business license.
(x) Minimum Hours of Operation: The required hours of operation are between 8:00 a.m. and 3 :00 p.m. and six days per week. How-s of operation shall be posted on the building for public awareness,
(A) These hours of operation are the minimum hours only and are not intended to restrict operation during other times that the San Clemente Beaches are open to the public. The minimum hours of operation do not apply during periods of inclement weather. (See Section
6.02.)
1 https://www.san-clemente.org(home/showpublisheddocument/ l 0 l 29/637043330889730000 -2- 8-16-22 I 1 0H-6
(
(xi) Beach Access: The City may pe1111it use of a Gator, Can-Am, or similar small off-road utility vehicle for use in transporting deliveries or h·ash. Pennitted hours of use shall be specified in writing within a beach access agreement fo1111 as provided by the City. Refer also to Section 13 .04. (xii) Addresses for Notices and Agents for Service of Process:
To Landlord:
To Tenant:
SECTION 2.01 GENERAL.
City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
Attn: Finance and Administrative Services
ORGANIC CONCEPTS LLC
208 AVENIDA VICTORIA UNIT C
San Clemente, CA 92672
Attn. Eligija Straviskaite
ARTICLE II
LEASE OF PREMISES
Subj ect to the tenns and conditions set fait h in this Lease, Landlord hereby agrees to lease the Premises to Tenant and Tenant hereby agrees to lease the Premises from Landlord.
SECTCON 2.02 QUIET ENJOYMENT.
Landlord agrees that, subject to the limitations expressly set forth in this Lease, Tenant, upon paying the Rent and performing the tenns and covenants in this Lease required to be peifonned by Tenant, may quietly have, hold, and enjoy the Premises during the Initial Term and any Extended Te1m, as applicable, without hindrance or intem1ption by Landlord.
SECTION 2.03 AS-IS CONDITION.
From and after the Commencement Date (as that term is defined in Section 3.01 herein below), the Premises wil1 be leased in an as-is physical condition only except for any maintenance or improvement commitments specifically enumerated within Articles VII or VIII. By taking possession of the Premises, Tenant thereby acknowledges the Premises are in good and tenantable condition for the purposes intended and that Tenant will not hold Landlord responsible for any repairs or improvements thereon except as may be expressly set fo1th herein. Furthermore, Tenant, at its sole cost and expense, shall keep and maintain the Property and all structures and improvements, fixtures, equipment, and personal property located within the Property, including without limitation internal plumbing fixtures, all doors, door frames, signage, utilities, lighting fixtures, outlets switches, controls, internal and external lighting components, walls, floors, and ceilings, in good order and first class condition, quality and repair and in accordance with all federal, state, county, municipal, and other governmental agencies having jurisdiction. The Landlord shall have responsibility to maintain the exterior structure of the building, e.g. roof, -3- 8-16-22 I 10H-7
walkways, walls, exterior hardscape, external plumbing, etc. except that the Tenant shall be responsible for painting the exterior of the building and the pergola. The Landlord will water jet the plumbing lines quaiterly at the same time that the T-Street restrooms are jetted. The City's maintenance division will not remedy plumbing issues caused by a full or inoperable grease trap.
The Tenant, at their own expense, shall coordinate plumbing repairs related to the grease trap.
Note: It is understood that the external plumbing can get backed up as the lines do not follow consistent grades under the sand. The City does not intend to repair or replace these lines at this time due to the significant costs and beach closures that it would require. City Maintenance will assist with plumbing issues at T-Street when those issues are caused by mainline backups.
ARTICLE III
TERM
SECTION 3.01 COMMENCEMENT AND DURATION.
The "Initial Tenn" of this Lease shall commence on the "Commencement Date," which shall be September 1, 2022. Starting from 12:01 a.m. on the Commencement Date, the Initial Term shall be 5 years, ending July 31 , 2027.
SECTION 3.02 OPTIONS TO EXTEND TERM OF LEASE.
The Landlord and Tenant may mutually agree elect to exercise up to two extensions of 3 years each. The tenant shall submit notice of request to exercise their extension within 6 months of the end of the first term and first extension, as applicable.
SECTION 3.03 SURRENDER; HOLDING OVER.
Upon the expiration or earlier tennination of this Lease, whether by lapse of time or otherwise, Tenant agrees to peaceably yield up and sun-ender the Premises to Landlord, including all such improvements and trade fixtures (except those Tenant-owned fixtures and property timely removed by Tenant pursuant to Section 8.02 of this Lease) in good order, repair, and condition, reasonable wear and tear and damage by casualty excepted. In the event Tenant continues in possession of the Premises after the Initial Term or an Extended Tenn with the consent of Landlord, express or implied, but not pursuant to Section 3.02, such holding over shall be deemed a tenancy from month to month subject to all the tenns and conditions of this Lease, and Tenant shall pay rent in the same manner and on the same basis as was in effect immediately prior to such holding over; provided, however, that upon no less than thirty (30) days' written notice to Tenant, Landlord may (i) modify the terms of the month-to-month tenancy or (ii) tenninate the month-tornonth tenancy (in which event Tenant shall vacate the Premises and sun-ender the same to Landlord). No holding over by Tenant, whether with or without Landlord's consent, shall operate to extend the Initial Term or a properly exercised and effective Extended Tenn. -4-
8-16-22 I 10H-8
SECTION 4.01
ARTICLE IV
RENT
AMOUNT OF RENT.
Rent shall be the greater of: (a) "Base Rent" for the Initial Te1m in an amount equal to Three Thousand Dollars and Zero Cents ($3000.00),or (b) "Percentage Rent" in an amount equal to seven percent (7%) of Gross Sales for each calendar month in the Tenn (Base Rent and Percentage Rent are collectively refe1Ted to herein as "Rent"). Any Rent or other payments or charges due under this Lease for any fractional part of a calendar month shall be prorated based on the ratio that the number of days in that month dmi ng the Initial Tenn or Extended Tenn (or holding over period, if applicable) bears to the total number of days in that month.
SECTION 4.02 TIME OF PAYMENT.
Tenant's obligation to pay Rent as specified in Section 4.01 shall commence on the Conunencement Date (herein, the "Rent Commencement Date"), which will be October 1, 2022 to allow for capital and facility investment, referred to as a "Build Out Period," and Tenant's obligations to pay Rent shall continue thereafter throughout the Initial Tenn, any Extended Term, and any holdover period. Rent shall be due and payable on a monthly basis. Tenant shall submit the prior month's gross sales repo1t in a digital fom1at and shall pay the greater of $3000.00 or 7% of gross sales per Section 1.01 to Landlord no later than the tenth day of the month following the full or partial calendar month for which Rent is due. For example, Rent for the month of January is due and payable no later than February 10. It is understood and agreed that the ten-day grace period shall be used by Tenant for accounting and detennining whether the Percentage Rent is greater than the Base Rent for the applicable month.
SECTION 4.03 CALCULATION OF PERCENTAGE RENT.
Throughout the Initial Term, any Extended Tenn, and any holdover period, Tenant shall calculate and record, for every full or partial calendar month, as applicable, the total Gross Sales.
If the Percentage Rent for the applicable month is greater than the Base Rent, Tenant shall pay the Percentage Rent for that month. If the Percentage Rent for the applicable month is less than the Base Rent, Tenant shall pay the Base Rent for that month. For purposes of this Lease, "Gross Sales" means all revenues, receipts, income, proceeds of sales, and compensation for services of every kind, including without limitation rentals or other fees for the usage of space and deposits not refunded, whether provided for cash or on credit, earned directly or indirectly from the business(es) on and operations on the Premises in and for the applicable month. "Gross Sales" shall not include the occasional sale of fixtures and equipment by Tenant following their substantial use in the conduct of Tenant's operations upon the Premises, sales and use taxes and similar taxes imposed on the sale of goods or services on the Premises, insurance proceeds, or credits or reimbursements earned by Tenant for merchandise returned to shippers, manufacturers, wholesalers, or suppliers.
SECTION 4.04 ACCOUNTING FOR GROSS SALES.
At such time as Tenant submits to Landlord each monthly payment of Rent, such payment shall be accompanied by an itemized statement showing the Gross Sales derived from all business -5- 8-16-22 I 1 0H-9
and operations at the Premises du1ing the applicable month, together with a detailed itemization of the goods and services provided, as well as any deductions or exclusions therefrom. Gross sales for the purposes of this lease shall not include refunds, returns or employee provided meals or other gifted meals, products, or services.
Tenant shall establish and install a system of bookkeeping records and accounts ("Accounts") to be used and maintained by Tenant to accurately and timely record the results of all transactions regarding Tenant's use, occupancy, business operations, and other activities of Tenant under this Lease consistent with the repo1ting requirements of this Lease and the rights of Landlord hereunder to inspect and audit such activities and Accounts. The Accounts shall be established and maintained by Tenant in such manner and with such segregation of such Accounts from any other business or activity of Tenant such that an examination of such Accounts may be conducted by persons external to Tenant (including without limitation Landlord or its representatives) to allow the examiner to detennine if such Accounts have huly and accurately recorded the matters for which they were established and to detennine if the periodic statements and repmts to be submitted by Tenant hereunder truly, accurately, and completely reflect the financial matters to be so reported.
All business records of Tenant must be supported by source documents such as sales slii:>s, invoices, !J1Umgs, unbiITed accounting documents, ledgers~ank deposit receipts," sales tax returns, cash register tapes, sales books, bank books, purchase invoices, contracts, and such other similar records and documents as may be reasonably necessary to verify the amount of Gross Sales and the basis of the calculations necessary for the detennination of Percentage Rent hereunder.
In the event that Landlord consents to any sublease by Tenant or any other third pa1iy conduct of a business on the Premises, Tenant shall be responsible to ensure that each sublessee and/or other business occupant fully complies with the foregoing accounting and reporting procedures and any failure by any such sublessee or other business occupant to do so shall constitute a Default hereunder by Tenant to the same extent, and with the same consequences, as if said failure were a failure of Tenant itself. Without intending to limit the effect of the foregoing, Landlord's consent to any such sublease or other business occupancy is subject to the continuing condition that the sublessee or other business occupant, as applicable, shall properly account and report for its Gross Sales and upon any failure of the sublessee or other business occupant to do so, Landlord may revoke its consent previously given and require Tenant to take immediate action to tenninate such sublease or other business occupancy.
Throughout the Initial Term, any Extended Term, and any holdover period, Tenant shall cause to be completed a financial audit for the previous calendar year ( or portion thereof if Tenant's business operations commence after January 1 of any calendar year, or if this Lease shall terminate prior to the end of a calendar year) of all books, records, and accounts pertaining to Tenant's operations at the Premises (the "Annual Audit") at the request of the Landlord. The Annual Audit shall be completed and submitted to Landlord no later than thirty (30) days after the end of the full or paitial calendar year for which the audit is being conducted. The Annual Audit shall be made by an independent certified public accountant mutually agreed to by Landlord and Tenant, and in the event no mutual agreement is reached, the Annual Audit shall be conducted by a certified public accountant employed by one of the major accounting firms in the United States chosen at random by Landlord. If the Annual Audit shows a discrepancy with the statements of Gross Sales -6- 8-16-22 I 10H-10
previously made to Landlord, then and in that event there shall be an adjustment and Tenant shall pay to Landlord on demand such sums as may be necessary to settle in full the accurate amount of Rent payments that should have been paid for the period or periods covered by such inaccurate statement or statements, together with interest on any past due amounts in the sum of ten percent (10%) per amrnm or the maximum rate permitted by law, whichever is less.
NOTE: Notwithstanding the above, the Tenant has agreed to operate the concession using a digital point of sale system. Repotis of gross sales shall be provided electronically on a monthly basis to the City.
SECTION 4.05 MAINTENANCE AND INSPECTION OF RECORDS; AUDIT.
Tenant shall maintain at the Premises or at Tenant's office located within twenty-five (25) miles of San Clemente City Hall full, complete, and accurate books, records, and accounts of all daily Gross Sales and other records used in calculating the Gross Sales. Tenant shall keep all such records for a minimum of (i) three (3) years after the Rent amounts attributable to such Gross Sales have been paid or (ii) if Landlord has initiated an audit of Tenant's records ptior to the end of such three (3) year pe1iod, until said audit has been completed and any dispute relating to the results of said audit have been finally resolved and any delinquent Rent, interest, and late charges thereon, - - - - - tf applicable, nave oeen pm ~ ----
Landlord may, at any time within three (3) years after the Rent amounts attributable to Gross Sales have been paid, deliver written notice to Tenant of Landlord's intent to inspect and/or audit Tenant's (and any applicable sublessee's and/or business occupant's) books, records, and accounts relevant to the determination of Gross Sales for such period. Such w1itten notice shall designate a date and time (du1ing Tenant's normal business hours) for such inspection and/or audit.
Landlord shall have the right at the date and time designated in such notice to examine, inspect, and make copies and abstracts of such books, accounts, and records. Such inspection and audit may continue from time to time until completed, and shall be conducted either by Landlord or by a representative designated by Landlord. Tenant shall make all records specified in the notice available at the time specified in the notice, to the extent practicable, and at the place where the records are to be kept; provided, however, that Landlord, in the course of any inspection or audit, is entitled to have complete access (with or without copying equipment) to any and all records for the purpose of examination or copying.
Landlord shall pay all of its costs relating to any such inspection or audit of Tenant's business records and Tenant shall pay for any costs it incurs in making such records available; provided, however, that in the event Landlord's inspection and/or audit demonstrates that Tenant has underreported Gross Sales and underpaid Rent for any period of time by an amount in excess of three percent (3%) of the total amount due, Tenant shall be responsible for reimbursing Landlord its actual and reasonable inspection and auditing costs ( or the portion thereof attributable to the period for which such underreporting and underpayment occurred) in addition to Tenant's obligation to pay interest and late charges on the delinquent amount and without prejudice to any other right or remedy that Landlord may have hereunder. -7- 8-16-22 I 1 0H-11
SECTION 4.06 MANNER OF PAYMENT.
All Rent and other payments and charges due under this Lease shall be paid by Tenant to Landlord without prior demand therefor, and without any deduction or offset whatever, in lawful money of the United States of America which shall be legal tender at the time of payment, at:
City of San Clemente
910 Calle Negocio
San Clemente, CA 92673
Attn: Cashier
or to such other person or at such other place as Landlord may from time to time designate in w1iting. Tenant shall reference the period for which Rent is being paid. The acceptance by Landlord of Tenant's payment shall not constitute a waiver of Landlord's 1ight to subsequently demand that any additional amount be paid that may be owing.
SECTION 4.07 DELINQUENT PAYMENTS.
4.07.0 Interest.
lf Tenant shall neglect or fail to pay any Rent when the same is due and payable Tenant shall pay to Landlord, in addition to such unpaid amounts, interest upon such unpaid amounts at the rate of ten percent (10%) per annum or the maximum legal rate then in effect, whichever is less, from the date the delinquent payment was due until p1incipal and accrued interest are paid in full.
4.07.1 Late Charge.
Tenant acknowledges that late payment by Tenant to Landlord of Rent or any other amount required to be paid under this Lease will cause Landlord to incur costs not contemplated by this Lease, the exact amount of which is extremely difficult and impracticable to asce1tain. Such costs include, without limitation, processing and administrative and collection costs, accounting charges, and late charges that may be imposed on Landlord by virtue of its debt obligations.
Accordingly, if Tenant fails to pay Rent or any other payment required to be paid under this Lease within ten (10) days after such payment is due, Tenant shall additionally pay a late charge equal to five percent (5%) of the amount of such payment or $150.00, whichever is greater.
4.07.2 Independent Rights.
The interest and late charge provisions contained in this Section 4.07 are in addition to and do not diminish or represent a substitute for any other Landlord rights and remedies for a Default by Tenant as set forth in Alticle XII of this Lease.
-8- 8-16-22 / 10H-12
ARTICLE V
TAXES AND UTILITY CHARGES
SECTION 5.01 TAXES.
5.01.0 Taxes for Possession of Premises.
Tenant shall timely pay any and all taxes, assessments, and other charges, however described (hereinafter collectively refened to as "Taxes"), that are levied, assessed, or imposed by any governmental agency against the Premises, or any portion thereof (including without limitation any possessory interest tax imposed on Tenant's leasehold interest created by this Lease), or any improvements or other propeliy in or on the Premises (including any personal property of any kind (including fixtures) owned by or placed in, upon, or about the Premises by or on behalf of Tenant) for any period from and after the Conunencement Date until the termination or expiration of the Term of this Lease or such later date that Tenant actually vacates the Premises.
5.01.1 Right to Contest Taxes.
Tenant may at any time, in good faith and upon reasonable grounds, protest, dispute, or contest the validity or amount of the whole or any pait of Taxes for which Tenant is responsible and in this regard Tenant may in good faith diligently conduct any necessary proceedings to void, reduce, recover, or seek a refund of the same. It is understood that Tenant shall not, in the event of and dming the bona fide and diligent prosecution of any such proceeding, be deemed to be in default in respect to the payment of any disputed Taxes so long as Tenant complies with the following provisions:
(i) Tenant shall prosecute any such proceeding to a final conclusion as speedily as is reasonably possible;
(ii) Neither the Premises nor any pali thereof shall by reason of any such proceeding be, in the reasonable judgment of Landlord, in danger of being forfeited, lost, or materially affected; (iii) Any such proceeding to contest the validity or amount of any Taxes or to recover any Taxes paid by Tenant shall be prosecuted by Tenant at Tenant's sole cost and expense, and Tenant shall indemnify, defend, and hold Landlord haimless from and against any and all claim, liability, loss, cost, or expense of any kind, including but not limited to reasonable attorneys' fees and expenses, which may be imposed upon or incuned by Landlord in connection therewith; and (iv) Upon the tennination of any such proceedings it shall be the obligation of Tenant to promptly pay the unpaid portion of any such Taxes or part thereof as are finally determined in such proceedings to be due and owing, together with all costs, fees, interest, penalties, or other liabilities in connection therewith, and, upon such payment, Landlord shall direct the Escrow Agent to return any amount deposited with it, not theretofore expended, with respect to such Taxes; provided, however, Landlord, if requested by Tenant, shall direct that the Escrow Agent disburse the monies on deposit with it directly to the taxing authority to whom the Taxes are payable. -9-
8-16-22 I 10H-13
SECTION 5.02 UTILITIES.
5.02.0 Payment for Services.
Electiicity, gas, and water are included within the base rent and will not be invoiced separately. The tenant is responsible, however, for any added services at the building including phone, internet, television, or other utility services provided to or for the benefit of the tenant at the premises. Tenant shall contract directly with providers to pay for such services.
5.02. I Inte111.1ption of Service.
So long as Landlord does not default in the performance of its obligations and duties hereunder, Landlord shall not be liable in damages or otherwise for any temporary denial of access to the Premises or any failure or interruption of any utility service being furnished to the Premises, and no such temporary denial, failure, or intenuption, unless protracted and due to Landlord's active negligence or willful misconduct, shall entitle Tenant to te1minate this Lease or to an abatement of Rent or other amounts due hereunder.
SECTION 6.01 USE.
ARTICLE VI
US-E- OF-PR:E-MIS-ES
The Premises shall be used for only those uses described in Alticle I, clause (viii) of this Lease and the terms and conditions of any applicable governmental permits and licenses applicable to the Premises from time to time, including without limitation any liquor license, if applicable.
To the extent there may be any inconsistency between the terms and conditions of any applicable governmental pennits and licenses applicable to the Premises and this Lease, the tenns and conditions of the applicable governmental pe1mits and licenses shall govern. As a mate1ial pait of the consideration for this Lease, Tenant covenants that it shall not use or pe1mit the Premises to be used for any purpose other than the purposes specified in this Lease.
SECTION 6.02 HOURS OF OPERATION.
The Premises shall be open for business to the general public during the minimum hours of operation specified in Article I, clause (x) of this Lease, and shall not be open beyond the maximum hours of operation specified therein or as may otherwise be prohibited by City ordinance or City Council direction.
SECTION 6.03 RESTRICTIONS ON USE.
Except as may be provided below in this Section 6.03, Tenant, at its sole cost and expense, shall faithfully observe in the use, occupancy, and possession of the Premises all municipal and county ordinances, and all state and federal statutes now in force and which may hereafter be in force, and Tenant shall fully comply at its sole expense with all regulations, orders, permits, and other requirements issued or made pursuant to any such ordinances and statutes. The final nonappealable judgment of any court of competent jurisdiction or the admission by Tenant in any action or proceeding against Tenant, whether Landlord be a party thereto or not, that Tenant has -10- 8-16-22 / 10H-14
violated any such statute, ordinance, regulation, order, permit, or other requirement for which Tenant is responsible in its use, occupancy, or possession of the Premises shall be conclusive of that fact as between Landlord and Tenant.
6.03.0 Access for Disabled Persons.
Landlord, at its sole cost and expense, shall be responsible in its design and construction for timely complying with all federal, state, and local laws and regulations, including but not limited to the Americans with Disabilities Act of 1990 ("ADA"), regarding ingress and egress to and from the Premises for disabled persons, including without limitation the cost of making any physical modifications or improvements to tl1e area outside the Premises for that pm-pose (herein, "ADA Improvements"). Tenant shall be responsible for any ADA Improvements within the Premises to accommodate use and occupancy by disabled persons. In addition to the foregoing, Tenant shall indemnify, defend, and hold hannless Landlord and its officers, officials, directors, employees, and agents, and each of them, from and against any and all claims, actions, damages, liabilities, and expenses (including without limitation attorneys' fees) directly or indirectly arising from or out of any alleged or actual violation of any federal, state, or local law or regulation, including the ADA, enacted to prevent the discrimination against persons with disabilities, where _said_alleged or actual violation occurs~ ithin any ~ftEe areas for which Tenant is responsible.
Landlord shall indemnify, defend, and hold harmless Tenant and its officers, officials, directors, shareholders, employees, and agents, and each of them, from and against any and all claims, actions, damages, liabilities and expenses (including without limitation attorneys' fees) directly or indirectly arising from or out of any alleged or actual violation of any federal, state, or local law or regulation, including the ADA, enacted to prevent the discrimination against persons with disabilities, where said alleged or achml violation occurs within any of the areas for which Landlord is responsible.
6.03.1 Nuisance, Waste, Peaceful Co-existence.
Tenant shall not commit or allow to be conunitted any nuisance, act of waste, or other act in or about the Premises that will in any manner whatsoever obstruct or interfere with the rights of adjacent or nearby property owners, businesses, residents, and the general public or injure or annoy them; nor shall Tenant allow the Premises to be used for any improper, immoral, unlawful, or objectionable purpose.
SECTION 6.04 TENANT'S CONDUCT OF BUSINESS.
Tenant shall keep the Premises and all public areas immediately adjacent to the Premises at all times in a neat, clean, and orderly condition. Tenant's failure to comply with this Section shall be deemed to be a material breach of this Lease.
6.04.0 Water Quality
Tenant must be familiar and comply with the City's water quality requirements as defined in Section 13.40 of the City's Municipal Code. For any exte1;or cleaning activities, the Tenant must use dry sweeping/cleaning methods to the maximum extent possible, and properly collect and dispose of the collected material. If use of water becomes necessary, all wash water must be -11- 8-16-22 / 10H-15
collected and not allowed to discharge to area drains, stonn drain inlets, gutters, paved areas or any similar features. Floor mats or other equipment are prohibited from being cleaned in exterior areas. Any waste oil or grease must be collected for recycling, and must be properly stored for recycling collection. Tenant must properly maintain grease traps and/or grease interceptor units, and keep records to document such maintenance. Grease trap should be cleaned weekly at a minimum during the peak season (May-September). Tenant is responsible for any repair or maintenance costs related to the Grease h·ap.
6.04.1 Trash/ Recycling
Tenant must keep h·ash area clean and trash lids closed. Trash containers must never be filled with liquid or hosed out with water or other liquids. Tenants must implement a recycling program and separate other recyclable materials to maximize placement ofrecyclable materials in recycling bins provided by the City. As of July l, 2022, the City h·ash cans along the Coastal h·ail will be emptied three times per day. The tenant shall clear their own containers, h·ash, cardboard, etc to the trash enclosure at the base of pier.
6.04.2 Prohibition on Use of Polystyrene Food Service Products Terrant-slratt--norseU;-serve, orpackage-ftrffd-or beverages from tnePremises in contamers made out of expandable polystyrene, or otherwise use or distribute or pennit the use or distribution of expandable polystyrene food service products, including without limitation takeout containers, trays, plates, drinking cups, and bowls in connection with Tenant's use of the Premises.
SECTION 7.01
ARTICLE VII
MAINTENANCE AND REPAffiS
GENERAL PROVISIONS.
During the Initial Tenn, any Extended Tenn, and any holdover pe1iod, Tenant shall at its expense maintain the Premises and all improvements, fixtures, and personal property located within the Premises in a first-class condition, and in good order and repair, free oflitter and trash, reasonable wear and tear and casualty damage excepted. Except as expressly set forth in Articles VIII and IX, Landlord shall have no responsibility for maintenance or repair of the Premises or any improvements, fixtures, or personal property located thereon.
Tenant shall be responsible for the day-to-day maintenance and repair of the Premises and all portions thereof, including, without limitation, all of Tenant's fixtures and equipment, the exterior and interior windows, all Tenant signs, door and window locks and closing devices, and all window sashes, casements or frames, doors and door frames, floor coverings, including carpeting, and other special f1001ing. Tenant shall promptly replace all broken glass, both extetior and interior, with glass of the same kind, size, and quality. Tenant shall clear the grease trap weekly.
SECTION 7.02 LANDLORD'S RIGHT OF SUBSTITUTED PERFORMANCE.
If al any time dming the Tenn Tenant refuses or neglects to make repairs or maintain the Premises or any part thereof in a manner consistent with the terms of this Lease or otherwise ( -12- 8-16-22 I 10H-16
reasonably satisfactory to Landlord, Landlord shall have the right, upon giving Tenant reasonable wtitten notice of its election to do so, to make such repairs or perfonn such maintenance on behalf of and for the account of Tenant. In such event Landlord's cost for such work shall be reimbursed by Tenant to Landlord within ten (10) business days after Tenant's receipt of a bill therefor.
ARTICLE VIII
CONSTRUCTION, ADDITIONS, ALTERATIONS, AND IMPROVEMENTS
SECTION 8.01 TENANT IMPROVEMENTS.
Tenant shall not have the right to make any additions, alterations, or improvements to the Premises without the prior wlitten consent of Landlord, which consent Landlord shall not unreasonably delay, condition, or deny; provided, however, that nothing set fo1th in this Lease is intended or shall be interpreted to limit or restrict Landlord's exercise of its police powers, including with respect to the consideration and approval of required applications for development and building entitlements.
Any and all additions, alterations, and improvements, whether or not requiring Landlord's consent, which are made or caused to be made by Tenant before or during the Initial Tenn or any Extended Term or holdover period shall be made at Tenant's expense in accordance with the following: (i) such work, including, without limitation, Tenant's final working drawings, plans, specifications, and choice of contractors, subcontractors, and suppliers shall be subject to the continuing approval of Landlord, which info1mation shall be furnished to Landlord for Landlord's review and approval before the work is commenced, and any work not acceptable to the appropriate governmental entity or not reasonably satisfactory to Landlord shall be promptly replaced at Tenant's expense; (ii) notwithstanding any failure by Landlord to object to any such work, Landlord shall not be responsible therefor; (iii) such work shall not adversely affect the outside appearance and strength of the Premises, or the mechanical, electtical, and plumbing services and equipment thereof; (iv) such work shall not alter, add to, or othe1wise change the exterior of the Premises without Landlord's prior w1itten consent, which consent Landlord may withhold in its sole and absolute discretion; (v) such work shall not cause or create a dangerous or hazardous condition and shall not interfere with or disturb adjacent or nearby prope1iy owners, businesses, or residents; (vi) Tenant shall cause all such work to be perfonned in such a manner as not to obstmct the access to the Premises; (vii) such work shall be done in a good and workmanlike manner and in compliance with all applicable legal requirements and shall be diligently prosecuted to completion; (viii) Tenant's contractor or each of its subcontractors shall be bonded with sureties satisfactory to Landlord in an amount sufficient to ensure full perf01mance of the work to be done by Tenant and to ensure full payment to materialmen; (ix) Tenant and its contractor and subcontractors shall can-y such worker's compensation general liability and personal and property damage insurance as Landlord may reasonably require; (x) such insurance shall be adequate to protect Landlord and shall name Landlord as an additional insured; (xi) Tenant shall defend, indemnify, and hold hannless Landlord and its officers, directors, shareholders, employees, and agents (all of the foregoing being hereinafter collectively referred to as the "Indemnitees") from and against any and all claims, actions, damages, liabilities, and expenses (including, without limitation, attorneys' fees) directly or indirectly arising out of or incmTed in connection with, and any and all claims, demands, suits, actions for or in relation to, wages or cost of mate1ials or equipment used in connection with, additions, alterations and improvements made - 13-
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or caused to be made by Tenant; and (xii) Landlord shall have the right at all reasonable times to post and keep posted on the Premises any notice that may be provided by law which Landlord may deem necessary or advisable for the protection of Landlord and the Premises from mechanics' lien or stop notice claims. The restrictions contained in this Section 8.01 with respect to Tenant's contractors, subcontractors, and suppliers shall apply regardless whether such persons or entities are employees or agents of, or otherwise affiliated with Tenant.
SECTION 8.02 WAIVER OF RENT FOR IMPROVEMENTS
Landlord and Tenant, in reference to the 2016 ANB Consulting Engineers Report regarding recommended rehabilitation steps for the T-Street building, have agreed to the following limited scope of prope1iy improvements after any necessary pennits and approvals have been secured:
Landlord agrees to waive rent (Article 4) for up to one year in consideration of physical improvements made to the facility in aligmnent with the 2016 ANB Consulting Engineers Repo1t ( commissioned by the City) regarding recommended rehabilitation steps for the T-Street building.
Waivers of rent shall not exceed the costs incurred of completing such improvements. Pennanent improvements must be conducted at prevailing wage. Examples of waivers may include, but are not limited to:
- .- option to waive 2J monfnsof renfin cons1derat1on of costs incurred for installation of a type 1 commercial kitchen hood and fire suppression system; • Option to waive 4 months of rent in consideration of upgraded electrical, including a panel upgrade;
• Option to waive 2 months of rent in consideration of installation of new flooring and countertops (as approved by Orange County Health);
• Option to waive 2 months of rent in consideration of installation of new windows and shutters (as approved by Orange County Health);
A diagram of tenant's desired future improvements is incorporated for reference as Exhibit C.
Pennits are required for improvements; however, the City will waive permit fees associated with these reviews.
SECTION 8.03 TENANT'S PROPERTY.
Except for any and all building or structural improvements and trade fixtures pennanently affixed to the Premises, which shall immediately become and remain the prope1iy of Landlord, any and all items of personal prope1ty, including but not limited to trade fixtures not pennanently affixed to the Premises, and other fixtures, furniture, furnishings, and other equipment constructed or placed on the Premises after Landlord's delivery of the Premises to Tenant shall be and remain the property of Tenant upon termination. Tenant shall remove from the Premises all such items of property prior to the termination of this Lease. Tenant may also remove any signs containing Tenant's name, trademark, symbol, logo, or design regardless of whether same are attached or affixed to the real property and regardless of their characterization as real or personal property or fixtures under law.
Upon termination of this Lease, if Tenant causes any damage to the Premises or other property of Landlord by removing any property whatsoever, Tenant shall at its own expense repair and restore the Premises and other Landlord property, as applicable, as nearly as practicable to the -14- 8-16-22 I 10H-18
condition such property was in prior to said damage and in compliance with Section 7.01 of this Lease.
If for any reason Tenant leaves any of Tenant's prope1iy in or around the Premises after the termination or expiration of this Lease, Tenant shall be conclusively deemed to have abandoned such prope1iy in place in addition to whatever rights Landlord may have and Landlord shall have the right to immediately remove, destroy and dispose of, or reuse the same at Landlord's sole option without any fmiher obligation to Tenant. In such circumstance, Tenant hereby releases and waives any rights and claims that it might otherwise have against Landlord to notice, an opportunity to reclaim Tenant's prope1iy, and any right to compensation for Landlord's use or disposal of Tenant's prope1iy under California Civil Code § 1980 et seq. and any other applicable provision of law.
SECTION 9.01
ARTICLE IX
INSURANCE; INDEMNITY
TENANT'S INSURANCE.
Tenant, at its sole expense, shall procure and maintain in effect the following policies of insurance forthe--entire-i-ntttat""Te1m-aml ExtCTIT!ed Term oitms tease, ano any noldover penod:
(i) Comprehensive General Liability Insurance.
A policy of comprehensive general liability insurance w1itten on a per occtmence basis in an amount not less than Two Million Dollars ($2,000,000) for bodily injury, death, and property damage or destrnction of property on and about the Premises. Said insurance shall include coverage for, among other risks and perils, all businesses and operations on the Premises (including any businesses and operations conducted by third parties, regardless of whether such third party businesses and operations violate this Lease, and without any waiver by Landlord of any other 1ight or remedy it may have against Tenant with respect thereto), premises and operations, blanket contractual, cross liability, broad form property damage, independent contractors, owned and non-owned automobile and vehicle coverage, garagekeeper's liability (if Tenant manages parking or provides valet parking services), and dramshop and liquor liability coverage. The amount of any deductible or self-insured retention under said policy shall not exceed Five Thousand Dollars ($5,000.00) without Landlord's written consent. Landlord shall have the 1ight at any time during the Term, not more frequently, than once every three (3) years, to deliver w1itten notice to Tenant requiring Tenant to increase the amount of such policy so long as the required percentage increase in the coverage amount does not exceed the percentage increase in the Consumer P1ice Index published by the United States Department of Labor (All Items) for the smallest geographic area within which the Premises are located or are most proximate between the Commencement Date and the date of Landlord's notice, and in such event Tenant shall procure the increased amount of insurance and provide proof of same to Landlord within thirty (30) days. Such insurance shall be primary insurance and not participating with or in excess of any coverage which Landlord may can-y. All such insurance shall specifically insure the perfonnance by Tenant of the indemnity agreement -15-
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set forth in Section 9.04 of this Lease as to liability for damage to property or injury to or death of persons.
(ii) Auto Insurance.
A policy of automobile insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure, and provide legal defense for both Landlord and Tenant against any loss, claim, or damage arising from any accidents or injuries occuni.ng to any worker employed by or any persons retained by Tenant in the course of can·ying out the work or services contemplated in this Lease and involving an automobile or off-road vehicle (such as a Gator, or similar). (iii) Worker's Compensation Insurance.
A policy of worker's compensation insurance in such amount as will fully comply with the laws of the State of California and which shall indemnify, insure, and provide legal defense for both Landlord and Tenant against any loss, claim, or damage arising from any injuries or occupational diseases occuni.ng to any worker employed by or any persons retained by Tenant in the course of carrying out the work or services contemplated in this - teifs-e. -
(iv) Business Interruption Insurance.
A policy of business interruption insurance in sufficient amounts to cover any payment by Tenant, including Rent, to Landlord for a period of not less than one ( 1) year during any casualty loss and _restoration of the Premises while this Lease remains in effect. (v) Fire and Extended Coverage Insurance.
A policy of standard fire and extended coverage insurance, with vandalism and malicious mischief endorsements, coveti.ng all Tenant Improvements to the Premises and Tenant's trade fixtures, furnishings, equipment, and personal property on the Premises in an amount equal to one hundred percent (100%) of the replacement costs thereof.
Prior to the Commencement Date pursuant to Section 3.01 of this Lease, Tenant shall file with the City Clerk, in a fmm and content satisfactory to Landlord, certificates of insurance for all of the above policies. All of the above policies shall be cani.ed by companies rated "B-plus" (B+) or better in Best's Insurance Guide, and shall be primary insurance and name Landlord and its officers, employees, and agents as additional insureds. The insurer shall waive all rights of subrogation and contribution it may have against Landlord and against its officers, employees, and agents, and their respective insurers. All of said policies of insurance shall provide that the said insurance may not be amended or cancelled without providing thirty (30) days prior written notice to Landlord. In the event any of said policies of insurance are cancelled or not renewed or extended, Tenant shall, prior to the cancellation or expiration date, submit new evidence of insurance to Landlord. No operations or services authoti.zed pursuant to this Lease shall commence or continue until Tenant has provided Landlord with certificates of insurance or appropriate insurance binders evidencing the above insurance coverages, and said certificates of insurance or binders are approved by Landlord.
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SECTION 9.02 WAIVER OF SUBROGATION.
Tenant hereby waives, to the maximum extent permitted by law and any policy issued by its insurance company, any and all 1ights of recovery against Landlord, or against the employees, agents, and representatives of Landlord, for loss of or damage to Tenant or its property or the property of others under its control, where such loss or damage is insured against under any insurance policy in force at the time of such loss or damage. Upon obtaining such insurance, Tenant shall give notice to the insurance canier or caniers that the foregoing mutual waiver of subrogation is contained in this Lease. Tenant shall obtain and furnish evidence to Landlord of the waiver of subrogation in favor of Landlord from all insurance cartiers furnishing insurance hereunder.
SECTION 9.03 INCREASES IN INSURANCE COSTS.
Tenant shall not cany any stock or goods or do anything in, on, or about the Premises at any time during the Tenn of this Lease whicl1 will in any way tend to increase the insurance rates or the risks against which Landlord maintains an insurance policy for any p01tion of the Landlord's Prope1ty, including the Premises. Tenant shall pay to Landlord fo1ihwith upon demand the amount of any increase in premiums for insurance canied by Landlord resulting from Tenant's acts or - - om1ss1ons, wfieffier or not Lancllord shall have consented-to such acts or omissions on the pait of Tenant.
SECTION 9.04 INDEMNITY.
Regardless of any limitations on and exclusions from coverage of any insurance policies obtained by Tenant, Tenant shall fully indemnify, defend, and hold harmless Landlord and its officers, directors, shareholders, employees, and agents, and each of them (the foregoing being hereinafter collectively referred to as the "Indemnitees"), from and against any and all claims, actions, damages, liabilities, and expenses (including, without limitation, attorneys' fees) for damage to property (including Tenant's property) and injury to or death of persons (including officers, directors, employees, or agents of Tenant) directly or indirectly atising from or out of Tenant's occupancy or use of the Premises or any part thereof, including the means of ingress into or egress from the Premises, whether or not occasioned in part by any act or omission of the Indemnitees, regardless of their passive or active negligence, and to the maximum extent permitted by law. If the Premises are not smTendered at the time required pursuant to this Lease, Tenant shall indemnify, defend, and hold harmless the Indemnitees against loss or liability resulting from the delay by Tenant in so surrendering the Premises, including, without limitation, claims made by any succeeding tenant, other than Landlord or an affiliate of Landlord.
SECTION 9.05 EXEMPTION OF LANDLORD.
So long as Landlord does not default in the performance of its obligations and duties pursuant to this Lease, Landlord shall not be liable to Tenant for injury or damage which may be sustained by any person, property, or effects of Tenant or any other person in or about the Premises caused by or resulting from fire, steam, electricity, gas, water, or rain, which may leak or flow from or into any part of the Premises, or from the breakage, leakage, obstruction, or other defects of the pipe, sprinklers, wires, appliances, plumbing, air conditioning, or lighting fixtures of the -17- 8-1 6-22 I 10H-21
same, whether such damage or injury results from conditions arising upon the Premises or from other sources.
SECTION 9.06 CASUALTY DAMAGE.
9.06.0 Destrnction by Risk Covered by Insurance.
If the Premises are totally or paiiially destroyed by a risk covered by insurance caITied by Tenant, rendering the Premises totally or paiiially inaccessible or unusable, Tenant shall utilize the insurance proceeds to restore the Premises to substantially the same condition as they were in immediately prior to such destrnction. Restoration shall be commenced as soon as reasonably practicable, and in no event later than ninety (90) days after the later of (i) the date such destruction occurs or (ii) the date such insurance proceeds are made available for such restoration, and thereafter the work shall be diligently pursued to completion.
9.06.1 Damage Not Covered by Insurance.
If the Premises are totally or substantially destroyed by a risk not covered by and not required to be covered by insurance, then either Party may at its option elect to tenninate this Lease by giving written notice to the other Party within fifteen (15) days after detennining the replacement cost; provided, however, that in such event this Lease shall not tenninate if the nontenninating Pmiy shall, within thi1iy (30) days after receipt of such notice give wtitten notice to the tenninating Paiiy of its election to cause the repair and restoration of the Premises at its cost.
In such event, the Patty electing to cause the repair and restoration shall, at its sole expense, provide the funds necessary therefor and shall thereafter promptly and diligently repair and restore the Premises. Each Party agrees in such event to assign all insmance proceeds to the Pa1iy electing to make the repairs. As used herein, the tenn "substantially destroyed" shall mean that the uninsured replacement cost exceeds the sum of Twenty-five Thousand Dollars ($25,000).
9.06.2 Replacement of Tenant's Prope1iy.
In the event of the damage or destruction of improvements located on the Premises not giving rise to a tennination of this Lease, Tenant shall, at its own expense, replace and repair all Tenant's trade fixtures, . equipment, machinery, furnishings, furniture and inventory as soon as possible to pennit the prompt continuation of Tenant's business from the Premises.
9.06.3 Damage Near End of Lease Tenn.
In the event more than fifty percent (50%) of the Premises are totally destroyed <luting the last six (6) months of the Initial Tenn or any Extended Te1m, Tenant and Landlord shall each have the option to tenninate this Lease on w1itten notice to the other of exercise thereof within thirty (30) days after such destrnction.
9.06.4 Abatement of Rent.
In the event that a paiiial damage or destruction of the improvements on the Premises occurs and this Lease is not tenninated, there shall be no abatement of rent for a pe1iod of one year (the period of the business intenuption insurance which Tenant is required to maintain pursuant to -18- 8-16-22 I 1 0H-22
this Lease), and Tenant shall continue to utilize the improvements for the operation of its business to the extent it may be practicable to do so. If, despite diligent effo1t, Tenant is unable to fully repair and restore the Premises du1ing said one year petiod, the Base Rent shall abate from the end of the one year petiod until the improvements on the Premises are fully repaired or restored, but only by that propo1tion that the unusable part of the improvements bears to the whole thereof.
SECTION 10.01
ARTICLEX
ASSIGNMENTS AND SUBLETTING
REQUIREMENT OF LANDLORD'S CONSENT.
This Lease is a personal contract in that Landlord has entered into this Lease to a matetial extent because of the unique character and quality of Tenant and Tenant's existing business operations. Accordingly, Tenant shall not transfer, assign, sublet, devise, bequeath, enter into license or concession agreements, change ownership, mortgage, or hypothecate (hereinafter, collectively, "Transfer") this Lease or Tenant's interest in and to all or any p01tion of the Premises without first procuring the written consent of Landlord, which consent Landlord may withhold in its sole and absolute discretion. Any attempted Transfer without Landlord's written consent shall be void and shall confer no right upon any third person. Fmthennore, where Tenant is one or more - - - - fnciiviauaTs, Tenant s person representative m t 1e event o Tenant's death sha I not Transfer this Lease or Tenant's interest in and to the Premises without first procuring Landlord's w1itten consent; any attempted Transfer by such personal representative without Landlord's prior written consent shall be void and shall confer no 1ight upon any third paity. If Tenant enters into a sublease or other airnngement for occupancy of any po1tion of the Premises by any third party without Landlord's consent and such sublease or other an-angement remains in effect notwithstanding the consent requirements contained herein, Tenant shall immediately pay Landlord as additional Rent any consideration received or retained by Tenant, and Landlord's acceptance of such additional Rent shall not limit or restrict any other right or remedy Landlord shall have under this Lease for Tenant's Default.
SECTION l0.02 CERTAIN TRANSFERS.
For the purpose of this Article, each of the following shall constitute a "Transfer": (i) if Tenant is a partnership, a withdrawal or change, voluntary, involuntary, or by operation oflaw, of any partners or the dissolution of the partnership; (ii) if Tenant consists of more than one person, a purported assignment, voluntary, involuntary, or by operation oflaw, from one person to another; and (iii) if Tenant is a corporation (whose stock is not traded through an exchange or over the counter) any liquidation, dissolution, merger, consolidation, or other reorganization of Tenant, or the sale, exchange, trade, assignment, hypothecation, or other transfer of an aggregate of twentyfive percent (25%) or more of the capital stock of Tenant, or the sale of an aggregate of twentyfive percent (25%) or more of the value of the assets of Tenant.
SECTION 10.03 OBLIGATIONS AND LIABILITIES OF TRANSFEREE.
Each Transfer to which there has been consent shall be by an instrument in writing in form satisfactory to Landlord, and shall be executed by the transferor in each instance; and each transferee shall agree in w1iting for the benefit of Landlord herein to assume, to be bound by, and -19- 8-16-22 I 1 0H-23
to perfonn the tenns, covenants, and conditions of this Lease to be done, kept, and perfonned by Tenant, including the payment of all amounts due under this Lease. Failure to comply with the provisions of this section shall operate to prevent any such Transfer from becoming effective.
SECTION 10.04 NO WANER OR RELEASE.
Consent to any Transfer which may be given by Landlord or the acceptance of any Rent by Landlord from Tenant or any third party, shall not constih1te a waiver by Landlord of the provisions of this A1iicle or a release of Tenant from the full pe1fonnance by it of the covenants contained herein to be perfonned by Tenant. Any consent given by Landlord to any Transfer shall not relieve Tenant from the requirement of obtaining the written consent of Landlord to any subsequent Transfer. The restiictions on transferability contained in this Aliicle shall be considered a continuous covenant and shall nm with the land.
ARTICLE XI
MECHANICS' LIENS
Tenant shall give Landlord twenty (20) days' prior written notice before any construction work on the Premises is undertaken by or on behalf of Tenant. Tenant shall do all things reasonably necessary to prevenCfiTe fitrng o any mec arucs 7 1ens or other hens agamstt ne Premises, or any part thereof, by reason of work, labor, services, or materials supplied or claimed to have been supplied to Tenant or anyone holding the Premises, or any part thereof, through or under Tenant. Without limiting the generality of the foregoing, Tenant shall record a notice of completion promptly upon the completion of any such work, labor, services or supplying of materials, in the manner pennitted by law. If any such lien shall at any time be filed, Tenant shall promptly notify Landlord of same and shall either cause the same to be discharged of record within twenty (20) days after the date of filing the same, or, if Tenant, in its discretion and good faith, determines that such lien should be contested, it shall furnish such security as may be required by law to prevent any foreclosure proceedings against the Premises, or any part thereof, or Tenant's interest therein, during the pendency of such contest. If Tenant shall fail to discharge such lien within such period or fail to furnish such security, then, in addition to all other rights or remedies, Landlord may, but shall not be obligated to, discharge the same no sooner than five (5) days after delivery of written notice to Tenant (and assuming Tenant has not cured its default within that period of time) (i) by paying the amount claimed to be due, (ii) by procuring the discharge of such lien by deposit in court, (iii) by giving security, or (iv) in such other manner as is, or may be, prescribed by law. Any amount paid by Landlord for any of the aforesaid purposes, including all reasonable attorney's fees to procure the discharge of such lien with all necessary disbursements in connection therewith, with interest thereon at the rate of ten percent (I 0%) per annum or the maximum rate pennitted by law, whichever is less, from the date of payment, shall be repaid by Tenant to Landlord on demand. Nothing herein contained shall imply any consent or agreement on the part of Landlord to subject the Premises, or any part thereof, to liability under any mechanics' lien law.
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ARTICLE XII
DEFAULT, TERMINATION, AND REMEDIES
SECTION 12.01 DEFfNITlON OF DEFAULT.
The occunence of anyone or more of the following events shall constitute a material "Default" of this Lease by Tenant:
12.01 .0 Rent Default.
The failure by Tenant to make, as and when due, any payment of Rent or other charges payable by Tenant hereunder, where such failure has continued for a period of ten ( l 0) days after written notice thereof from Landlord to Tenant. Any such notice shall be in lieu of, and not in addition to, any notice othe1wise required under Sections 1161 and 1162 of the Californ.ia Code of Civil Procedure.
12.01.1 Abandomnent.
The abandomnent or vacation of the Premises by Tenant. As used herein, abandotunent is defined to include, without limitation, any absence of Tenant from the Premises for fifteen (15) consecutive days or longer, or the failure to continuously operate the business authorized by this Lease for fifteen (15) consecutive days or longer, excepting such failures as may be excused due to the occurrence of casualty losses or other events of force majeure as set forth in Section 16.16 of th.is Lease.
12.01.2 Failure to Perform Covenants.
The failure by Tenant to observe or perfonn any of the express or implied covenants, promises, agreements, or provisions of th.is Lease to be observed or performed by Tenant, where such failure has continued for a period of fifteen (15) days after written notice thereof from Landlord to Tenant (or such other time period as may be expressly provided herein); provided, however, that if such failure to observe or perfo1m cannot be cured with such fifteen (15) day period due to causes refen-ed to in Section 16.16, Tenant shall not be deemed in Default of this Lease if, within such fifteen (15) day period, Tenant promptly conunences to cure such failure and thereafter diligently pursues the cure to completion. Any such notice shall be in lieu of, and not in addition to any notice otherwise required under Sections 1161 and 1162 of the California Code of Civil Procedure. In the event Tenant fails to comply with the same tenn, covenant, or condition of th.is Lease on tln·ee (3) occasions during any twelve (12) month period of the Term, and is given notice as provided herein for each such failure, then each failure thereafter during such twelve ( 12) month period shall at the sole option of Landlord constitute an incurable Default. The fifteen (15) day curing period provided for in this Subsection shall in no event be conshued to lengthen or extend the curing periods provided elsewhere in th.is Section. Furthennore, if the covenant, promise, agreement, or provision of this Lease which Tenant fails to observe or perform is of such a nature that it cannot afte1ward be perfonned, then such failure shall constitute an incurable Default immediately upon occun-ence and no notice or time to effect a cure need be given to Tenant.
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12.0 l.3 Falsification of Statements.
The falsification by Tenant or an agent of Tenant of any report or statement required to be furnished to Landlord pursuant to the terms of this Lease, which at the sole option of Landlord shall constitute an incurable Default.
12.01.4 Assignment of Leasehold Interest.
The Transfer of Tenant's rights and interest in this Lease without Landlord's prior written consent, as set fo1ih in Article X.
12.01.5 Insolvency
Insolvency, which shall be the (i) making by Tenant of any general assignment for the benefit of creditors; (ii) filing by or against Tenant of a petition to have Tenant adjudged a bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy (unless, in the case of a petition filed against Tenant, the same is dismissed within thiliy (30) days); (iii) appointment of a trustee or receiver to take possession of substantially all of Tenant's assets located on the Premises or of Tenant's interest in this Lease, where possession is not restored to Tenant within thiity (30) days; (iv) attachment, execution or other judicial seizure of substantially all of Tenant's assets located on the Premises or of Tenant's interest in this Lease, where such seizure is not discharged within thirty (30) days thereafter; or (v) Tenant's convening of a meeting of its creditors or any class thereof for the purpose of effecting a moratorium upon or composition of its debts.
SECTION 12.02 NOTICE OF DEFAULT.
Notices given under this Article shall specify the alleged Default and the applicable provisions of this Lease and shall demand that Tenant perfonn the provisions of this Lease, or pay Rent or other sum that is otherwise due, within the applicable period or quit the Premises.
SECTION 12.03 LANDLORD'S REMEDIES.
Upon the occmTence of a Default by Tenant, or at any time thereafter dming the continuance of such Default, in addition to and not by way of limitation of any other 1ights and remedies Landlord may have under this Lease and applicable law, Landlord shall have the 1ight, at its option and without further notice or demand of any kind to Tenant, to any and all of the following remedies:
12.03.0 Continuation of Tenant's Interest.
Landlord may continue Tenant's interest in the Lease and Premises in full force and effect, and Landlord shall have the right to collect any Rent payable to Landlord when due. During the peiiod Tenant is in Default, unless Tenant is diligently proceeding to cure the Default, Landlord may enter the Premises and relet them or any part thereof to a third party or parties. Tenant shall be liable immediately to Landlord for all costs Landlord incurs in reletting the Premises, including costs for advertisements and brokerage fees. Reletting may be for a period shorter or longer than the remaining Tenn, whether the Initial Tenn or any Extended Term, of this Lease. Tenant shall -22- 8-16-22 I 1 0H-26
pay to Landlord Rent due under this Lease on the date such Rent is due, which payment shall be adjusted by the amount of Rent Landlord receives from any reletting. No act of malfeasance, effort to relet, or any other act by Landlord allowed by this Subsection 12.03. l shall tenninate Tenant's interest in the Lease unless Landlord notifies Tenant in writing that Landlord elects to terminate.
12.03.l Termination of Tenant's Interest.
Landlord may tenninate Tenant'::; right to possession of the Premises at any time while Tenant is in Default, provided that Tenant is not diligently proceeding to cure such Default, by giving Tenant written notice specifying that the Default has not been cured and that Landlord has terminated this Lease, effective as of the date of tennination set forth in such notice. Tenant's interest in this Lease shall terminate on the date specified in such notice as fully and completely as if such date were the date originally fixed for the expiration of the Initial Tenn or applicable Extended Tenn, and Tenant shall quit and smTender the Premises. No act by Landlord other than giving such notice of tennination to Tenant shall tenninate Tenant's interest in this Lease. Upon tem1ination of Tenant's interest, in addition to any other rights Landlord has pursuant to this Lease or at law or in equity, Landlord shall have the tights described in Section 12.04 of this Lease.
12.03.2 Right to Appoint Receiver.
Landlord shall have the right to have a receiver appointed to collect Rent and conduct Tenant's business while Tenant is in Default, provided Tenant has not commenced to cure and is not diligently proceeding to cure said Default. Neither the filing of a petition for the appointment of a receiver nor the appointment thereof shall constitute an election by Landlord to tenninate this Lease.
12.03.3 Right to Cure at Tenant's Expense.
Landlord may, at any time after Tenant commits a Default, cure such Default at Tenant's expense. If Landlord at any time, by reason of Tenant's Default, pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord shall be due immediately from Tenant to City at the time the sum is paid, and if paid at a later date, shall bear interest in the amount of ten percent (10%) per annum or the maximum rate allowed by law, whichever is less, from the date the sum is paid by Landlord until reimbursement by Tenant.
SECTION 12.04 TERMINATION OF LEASE DAMAGES.
Upon Landlord's tennination of this Lease, as set fo1th in Section 12.03, Landlord may recover as damages from Tenant any and all of the following:
12.04.0 Unpaid Rent at Termination.
The wo1ih, at the time of award, of the unpaid and past due Rent at the time of termination. -23-
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12.04.1 Unpaid Rent at Award.
The wo11h, at the time of award, of the amount by which the unpaid Rent that would have been earned after the date of te1111ination until the date of award exceeds the amount of the loss of Rent that Tenant proves could have been reasonably avoided.
12.04.2 Future Rent.
The wo11h, at the time of award, of the amount by which the unpaid Rent for the balance of the Initial Term, or the applicable Extended Tenn, exceeds the amount of the loss of Rent that Tenant proves could have been reasonably avoided.
12.04.3 Other Amounts.
Any other amount necessary to compensate Landlord for all of the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or that in the ordinary course of things would be likely to result therefrom, whether through inability to relet the Premises on satisfactory tenns or otherwise, specifically including, but not limited to, (i) all reasonable expenses necessary to relet the Premises, which shall include the cost of advertisements and brokerage fees, and (ii) any increase in insurance premiums caused by the vacancy of the Premises.
SECTION 12.05 TERMS DEFINED.
As used in Section 12.04, the following tenns are defined:
12.05.0 Wo11h at the Time of Award.
The "w01ih, at the time of award" of the amounts refetTed to in Subsections 12.01. l and
12.01.2 is computed by allowing interest from the due date thereof to the date of payment at the rate of ten percent (10%) per annum or the maximum rate permitted by law, whichever is less.
The "worth at the time of award" of the amount refened to in Subsection 12.01.3 is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (I%).
12.05.1 Time of Award.
The "time of award" as used in Subsections 12.01.1, 12.01.2, and 12.01.3 is the date on which judgment is entered by a comt of competent jurisdiction.
SECTION 12.06 LANDLORD'S DEFAULT.
Landlord shall be in Default of this Lease if it fails or refuses to perfonn any provision of this Lease that it is obligated to perfonn if the failure to perform is not cured within thi1ty (30) days after w1itten notice of default has been received by Landlord from Tenant. If such Default cannot be reasonably cured within thirty (30) days, Landlord shall not be in Default if Landlord commences to cure the Default within the thirty (30) day petiod and thereafter diligently and in good faith continues to cure the Default.
-24- 8-16-22 I 10H-28
(
SECTION 12.07 INDEMNIFICATION UNAFFECTED.
Nothing in this Article shall limit or otherwise impair the right of Landlord to indemnification from Tenant under this Lease, whether before or after this Lease expires or is tenninated.
SECTION 12.08 NO TERMINATION.
Even though Tenant has breached this Lease, this Lease shall continue in effect for so long as Landlord does not terminate Tenant's tight to possession, and Landlord may enforce all of Landlord's rights and remedies under this Lease, including the tight to recover Rent as it becomes due.
SECTION 12.09 TERMINATION AND ENTRY.
In the event Landlord tenninates this Lease, Landlord may (upon such notice as is expressly provided in this Article XII) re-enter the Premises and take possession thereof and remove all persons therefrom, and Tenant shall have no further claim under this Lease. Such tennination shall not relieve Tenant of any obligation hereunder that has accrued ptior to the date of such tennination. Landlord may take possession of all personal property of Tenant and of any other person that is located on the Premises and may store all such personal property on behalf of and at the risk and expense of Tenant. Within thirty (30) days after Landlord takes possession thereof, Tenant may redeem such personal prope1ty upon payment to Landlord in full of all ammmts then due from Tenant to Landlord hereunder and all costs incurred by Landlord in providing such storage. If Tenant fails to redeem such personal prope1ty within such petiod Landlord may sell such personal propetty in any reasonable manner and shall apply the proceeds from such sale actually collected by Landlord from such sale first against the costs of storage and sale and then against any other obligation due from Tenant hereunder. Tenant recognizes these tights as just and adequate remedies and hereby expressly waives any and all tights of redemption granted by or under present or future laws (including, without limitation, Sections 1174 and I 179 of California Code of Civil Procedure) in the event of Tenant's being evicted or dispossessed for any cause, or in the event of Landlord's obtaining possession of the Premises by reason of a Default of Tenant under this Lease, or otherwise.
SECTION 12.10 LIEN FOR RENT.
Tenant hereby grants to Landlord a lien and security interest on all property of Tenant now or hereafter placed in or upon the Premises, and such property shall be and remain subject to such lien and secmity interest of Landlord for payment of all Rent and any other amount required to be paid by Tenant under this Lease. Said lien and security interest shall be in addition to and cumulative of the Landlord's liens and provided by law. This Lease shall constitute a secmity agreement under the California Commercial Code (the "CCC") so that Landlord shall and may enforce a security interest on all property now or hereafter placed by or on behalf of Tenant in or on the Premises, including, but not limited to, all fixtures, machinery, equipment, furnishings, and other articles of personal prope1ty. Tenant shall execute as debtor such financing statement or statements as Landlord may now or hereafter reasonably request in order that such security interest or interests may be protected pursuant to the CCC. Landlord may at its election at any time file a -25- 8-16-22 I 1 0H-29
copy of this Lease as a financing statement. Landlord, as secured Party, shall be entitled to all of the rights and remedies afforded a secured Party under the CCC.
SECTION I 2.11 WANER.
No delay or omission in the exercise of any right or remedy of Landlord shall impair such a right or remedy or be construed as a waiver. The waiver by Landlord of any failure by Tenant to perform any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, or condition or any subsequent or preceding failure or breach of the same or any other tenn, covenant, or condition herein contained. The subsequent acceptance of Rent (or a portion thereof) by Landlord shall not be deemed to be a waiver of any previous breach by Tenant of any term, covenant, or condition of this Lease, other than the failure of Tenant to pay the Rent (or portion thereof) so accepted, regardless of Landlord's knowledge of such prior existing failure or breach at the time and acceptance of such Rent. Without limitation on the foregoing, no payment by Tenant or receipt by Landlord of a lesser amount than the monthly installment of Rent due under this Lease shall be deemed to be other than on account of the earliest Rent due hereunder, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Landlord may accept such check or payment without prejudice to Landlord's right to recover the balance of such Rent or pursue any other remedy available to Landlord; no receipt of money by Landlord from Tenant after the tennination of this Lease or after the service of any notice of the commencement of any suit, or after final judgment for possession of the Premises, shall reinstate, continue or extend the Initial Tenn or any Extended Tenn, or affect any such notice, demand or suit; and acceptance of any payment from a debtor in possession, a trustee or any other person acting on behalf of Tenant or Tenant's estate shall not waive or cure a default hereunder.
Landlord's consent to or approval of any act by Tenant requiring Landlord's consent shall not be deemed to waive or render unnecessary Landlord's consent to or approval of any subsequent act by Tenant requiring Landlord's consent or approval.
SECTION 12.12 SURRENDER.
Prior to expiration of the Initial Tenn or any then-effective Extended Term, only an express written notice from Landlord to Tenant of Landlord's intention to accept a stmender by Tenant shall constitute acceptance of the surrender of the Premises and accomplish a tennination of this Lease. No other act or conduct of Landlord including, without limitation the acceptance of the keys to the Premises, shall constitute an acceptance of the surrender of the Premises before the expiration of the Initial Term or any then-effective Extended Tenn. Landlord shall not by any reentry or other act be deemed to have accepted any surrender by Tenant of the Premises or Tenant's interest therein, or be deemed to have tenninated this Lease, or to have relieved Tenant of any obligation hereunder, unless Landlord shall have given Tenant written notice of Landlord's election to terminate this Lease.
SECTION 12.13 CUMULATIVE REMEDIES.
In addition to other remedies provided in this Lease, Landlord shall be entitled, to the extent pennitted by applicable law, to injunctive relief in case of the violation or attempted or threatened violation of any of the covenants, agreements, conditions or provisions of this Lease, or to a decree -26- 8-16-22 / 10H-30
compelling perfonnance of any of the other covenants, agreements, conditions or provisions of this Lease, or to any other remedy allowed to Landlord at law or in equity. Except as provided herein or as provided under applicable California law in effect at the time of execution hereof, the tights and remedies reserved to Landlord in this Atticle XII are independent and cumulative and in addition to all other tights available to Landlord under this Lease, at law or in equity, and Landlord may pursue any or all of such tights and remedies, at the same time or otherwise.
ARTICLE XIII
COMMON AREAS: USE, MAINTENANCE, AND COSTS
SECTION 13.01 DEFINITIONS.
As used herein, "Common Areas" shall mean all areas and improvements within the Landlord's Property, if any, that will not be held for exclusive use by Landlord or by other persons entitled to occupy any space therein. Common Areas shall include parking areas, walkways, driveways, delivery passages, curbs, sidewalks, landscaped and planted areas, service areas, exterior and interior access ways and stairways, retaining walls, paving, light fixtures, and other areas and non-building improvements, where said Common Areas are provided by Landlord for the common use of Landlord, tenants and their respective employees, agents and invitees, and the - - g eneral pubhc. Landlord may make c anges at any tune in t e size,s 1ape, ocation, number, and extent of the Common Areas and may provide substitute parking, so long as Tenant's access to the Premises is not unreasonably impaired. No such change shall entitle Tenant to any abatement of Rent. Before instituting any such changes, Landlord shall notify Tenant thereof and consult with Tenant thereon, but Tenant's consent thereto shall not be required and Landlord may institute such changes in its sole discretion.
SECTION 13.02 TENANT'S RIGHT TO USE; TENANT'S COOPERATION.
Tenant and its employees, agents, and invitees shall be entitled to use the Common Areas in common with Landlord and with other persons authorized by Landlord; provided, however, that Tenant's use of the Common Areas shall not inte1fere with or impair the use and enjoyment of the Landlord's Property by Landlord, other tenants and occupants, their employees, agent, and invitees, or any other member of the public. The rights of Tenant in and to the Common Areas shall at all times be subject to the rights of Landlord and the other tenants and occupants of the Landlord's Property to use the same in common with Tenant. Landlord shall not be responsible to Tenant for the violation or nonperfonnance by any other tenant or occupant of the Landlord's Property for failure to observe Tenant's tight to use and enjoyment of the Common Areas. Tenant shall keep the Common Areas free and clear of any obstrnctions created or pe1mitted by Tenant or resulting from Tenant's operation.
SECTION 13.03 CONTROL BY LANDLORD.
13.03.0 Management.
Landlord shall operate, manage, equip, police, insure, light, repair, clean, and maintain the Common Areas. Landlord may temporatily close the Common Areas, or any portion or portions thereof, for repairs or alterations, or to prevent a dedication thereof or the accrual of prescriptive right therein.
-2 7- 8-16-22 I 10H-31
13.03. l Exclusive Control.
Landlord shall at all times have exclusive control of all Common Areas and may at any time restrain any use thereof, except as othe1wise provided by law or in this Lease. Landlord may at any time remove any unauthorized person from the Common Areas or prohibit the use thereof by unauthorized persons. If, in the opinion of Landlord, unauthorized persons are using any of the Common Areas by reason of the presence of Tenant, Tenant, upon demand of Landlord, shall remove such unauthorized persons by appropriate proceedings. Nothing herein shall affect the tights of Landlord at any time to remove any such unauthmized persons from the Common Areas or to restrain the use of any of the Common Areas by unauthorized persons.
SECTION 13.04 PARKING.
Tenant and its employees and agents shall park their vehicles only in po1iions of the parking areas within the Common Areas that are from time to time designated for that purpose by Landlord, which parking areas shall be reasonably close to the Premises. If requested by Landlord, Tenant shall furnish Landlord with a list of its employees' and agents' vehicle license numbers within fifteen (15) days after the Commencement Date and thereafter notify Landlord of any change in such list within five (5) days after such change occurs. Tenant shall assume responsibility for comp Ta1iceoy its employees wilh7he parlruig provisionscontamecf herem. Tenant hereby authorizes Landlord to tow away from the Common Areas any vehicle belonging to Tenant or Tenant's employees or agents parking in violation of these provisions.
Tenant shall complete any fonns, acknowledgements, or training as required by the City to pennit the moming vehicular access to the beach, which shall specify pennitted times of access.
Access is pennitted only for loading and unloading by authorized agents of the company. The City may permit use of a Gator, Can-Am, or similar small off-road utility vehicle for use in transpmiing deliveries or trash. Permitted hours of use shall be specified in writing within a beach access agreement fo1m as provided by the City. Tenant may secure two (2) City parking passes at no additional charge from the City to enable parking within the Pier Bowl or T-Street parking areas.
If desired, additional passes must be paid for and obtained from the City.
SECTION 14.01
ARTICLE XIV
SIGNAGE
PERMITTED ACTIVITIES.
Tenant shall have the right, subject to obtaining any required governmental plans and pennits and obtaining Landlord's prior wiitten consent, which consent shall not be unreasonably denied, delayed, or conditioned, to:
(a) lnstall or affix to the exte1ior doors or windows of the Premises lighting fixtures, shades, awnings, or exterior decorations (including exterior painting); and (b) Install or affix to the exte1ior doors or windows of the Premises or to the face of the building any sign, lette1ing, placards or the like.
-28- 8-16-22 I 1 0H-32
( c) Install or affix a wall sign and/or mural to the premises after obtaining the appropriate sign or mural pennit. Tenant may have up to 25 square feet of signage in total.
SECTION 14.02 PROHIBITED ACT1VITIES.
Tenant shall not, without Landlord's prior written consent, do any of the following:
(a) Cause or pe1111it to be used any advertising materials or methods which are objectionable to Landlord including, without limitation, loudspeakers, mechanical or moving display devices, unusually bright or flashing lights, and similar devices, the effect of which may be seen or heard outside the Premises;
(b) Solicit business in the parking areas or other Common Areas, or distribute, or cause to be distributed, any hand bills or other advertising matter in the parking areas or in other Common Areas; or
( c) Use any sign or advertising that is not of professional quality.
SECTION 14.03 MAINTENANCE.
------ - ----- --
Tenant shall at all times maintain its windows and signs in a neat, clean and orderly condition. If, as to any sign exposed to the parking areas or other Common Areas, Tenant shall fail to do so after twenty-four (24) hours' written notice from Landlord, Landlord may repair, clean, or maintain such exterior sign and the cost thereof shall be payable by Tenant to Landlord upon demand as additional Rent.
ARTICLE XV
SECURITY DEPOSIT
No later than the Commencement Date, Tenant shall deposit, in lawful money of the United State of America, a "Security Deposit" in the amount of two thousand dollars ($2000). The Security Deposit shall be held by Landlord as security for the perfonnance by Tenant of all of the tenns, covenants, and conditions of this Lease to be kept and pe1fonned by Tenant. The Security Deposit shall not be mortgaged, assigned, transfen-ed, or encumbered by Tenant without the prior written consent of Landlord and any such act on the part of Tenant shall be without force and effect and shall not be binding upon Landlord. In the event of bankruptcy or other debtor-creditor proceedings against Tenant, such Security Deposit shall be deemed to be applied first to the payment of Rent and other charges due Landlord for all periods prior to filing of such proceedings.
If Tenant commits a Default with respect to any provision of this Lease, including without limitation the provisions relating to the payment of Rent, Landlord may (but shall not be required to) use, apply, or retain all or any part of the Secu1ity Deposit for the payment of any Rent or any other sum in default, or for the payment of any other amount which Landlord may spend or become obligated to spend by reason of Tenant's Default or to compensate Landlord for any other loss or damage which Landlord may suffer by reason of Tenant's Default. If any portion of the Security Deposit is so used or applied, Tenant shall, within five (5) days or written demand therefore by Landlord, deposit cash with Landlord in an amount sufficient to restore the Security Deposit to its original amount, and Tenant's failure to do so shall be a mate1ial Default of this Lease. Landlord shall not be required to keep the Security Deposit separate from its general funds and Tenant shall -29- 8-16-22 I 1 0H-33
not be entitled to interest on the Security Deposit. If Tenant fully performs every provision of this Lease to be perfonned by it, the Secuiity Deposit or any balance thereof shall be returned to Tenant (or, at Landlord's option, to the last assignee of Tenant's interest hereunder) upon termination of this Lease. In the event ofte1111ination of Landlord's interest in this Lease, Landlord shall transfer the Security Deposit to Landlord's successor in interest, and upon such transfer Landlord shall be discharged from any further liability with respect to the Security Deposit.
SECTION 16.01
ARTICLE XVI
MISCELLANEOUS
LANDLORD'S RIGHT OF ACCESS.
Upon reasonable p1ior notice to Tenant, Landlord and its agents shall have free access to inspect the Premises dming Tenant's nonnal business hours (or at other times in the event of a sudden and unanticipated emergency), to make reasonable repairs or installations which Landlord may be required or permitted to make hereunder, to exhibit the Premises to prospective purchasers or tenants, and to post notices required or pe1mitted by law.
SECTION 16.02 NONDISCRIMINATION.
- - - - - - --
Tenant covenants, by and for himself, and his successors and assigns, and this Lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national 01igin, or any other protected class pursuant to federal, state, or local law, in the leasing, subleasing, transfening, 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 licensees, tenants, lessees, sublessees, subtenants, or vendees in the Premises.
The foregoing provisions shall be binding upon and shall obligate Landlord and Tenant and any transferees or assignees of either of them.
SECTION 16.03 TRANSFER OF LANDLORD'S INTEREST.
Upon any transfer of Landlord's interest in the Premises, the transferor shall be automatically relieved of all obligations and liabilities on the part of Landlord accruing after the date of such transfer.
SECTION 16.04 SEVERABILITY.
Any provision of this Lease which shall prove to be invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision hereof, and such remaining provisions shall remain in full force and effect.
SECTION 16.05 TIME OF ESSENCE.
Time is of the essence with respect to every provision of this Lease. -30- 8-16-22 I 1 0H-34
SECTION 16.06 LEASE NOT SUBJECT TO LEVY.
This Lease and the interest of Tenant hereunder shall not be subject to garnishment or sale under execution in any action or proceeding which may be brought against or by Tenant without the w1itten consent of Landlord.
SECTION 16.07 NON-PARTNERSHIP.
It is understood and agreed that neither Party shall be construed or held to be a partner, joint venturer, affiliate, or associate of the other, nor shall either Paiiy be liable for any debts or other obligations incun-ed by the other; and that the relationship of the Parties hereto is and at all times shall be and remain that of Landlord and Tenant.
SECTION 16.08 BROKERS.
Tenant hereby wan-ants and represents that Tenant has not dealt with any brokers. Tenant shall indemnify and hold hannless Landlord from any and all claims, costs, expenses (including, without limitation, attorneys' fees) and liability for any commission, brokerage fee, or other charge claims against Landlord by any broker, agent, or finder purpo1ting to have been engaged by Tenant - i-n-c0nneet-i0n with-this Lease. --- - - - ---
SECTION 16.09 QUITCLAIM.
At the tennination of this Lease, Tenant shall execute, acknowledge, and deliver to Landlord, within ten (10) days after wtitten demand from Landlord, any quitclaim deed or other document reasonably required by any reputable title company to remove the cloud of this Lease from the title to the real prope1ty subject to this Lease.
SECTION 16.10 SAFETY AND HEAL TH.
Tenant shall at all times during the Initial Tenn, any Extended Term, and any holdover pe1iod, comply with the requirements of the Occupational Safety and Health Act of 1970, 29 U.S.C. Section 651 et seq., and any similar legislation in California (collectively, the "Act"), to the extent that the Act applies to the Premises and operations thereon. Without limiting the generality of the foregoing, Tenant shall maintain all working areas, all machinery, stmctures, electrical facilities, and the like upon the Premises in a condition that fully complies with the requirements 9f the Act, including such requirements as would be applicable with respect to agents, employees, or contractors of Landlord who may from time to time be present upon the Premises. Tenant shall indemnify and hold harmless Landlord from any liability, claims, or damages arising as a result of a breach of the foregoing covenant and from all costs, expenses, and charges a1ising therefrom including, without limitation, attorneys' fees and court costs incurred by Landlord in co1rnection therewith, which indemnity obligation shall survive the termination of this Lease.
SECTION 16.11 ATTORNEY'S FEES.
If either Landlord or Tenant institutes any action or proceeding against the other relating to the provisions of this Lease, or any default hereunder, the unsuccessful Patty in such action or -3 1- 8-16-22 I 1 0H-35
proceeding shall reimburse the prevailing Party therein for the reasonable expenses, disbursements, and attorneys' fees incuned therein by the prevailing Party.
SECTION 16.12 CAPTIONS.
Article, Section, and Subsection captions in this Lease have been inserted solely for the convenience of the Paities, and such captions, headings, and titles shall in no way define or limit the scope, intent, or application of any provision of this Lease.
SECTION 16.13 INUREMENT.
Subject to any provisions hereof restiicting assignment or subletting by Tenant, the terms and conditions contained in the Lease shall bind the Parties and their successors and assigns.
SECTION 16.14 CHOICE OF LAW.
This Lease shall be consh·ued in accordance with and governed by the internal laws of the State of California, without regard to conflict of law p1inciples.
SECIION-1_6.15 _ DENDER;~BER~
Throughout this Lease the stated gender shall be read to mean the feminine, masculine, or neuter, and the stated number shall be read to mean the singular or plural, as the context may require.
SECTION 16.16 FORCE MAJEURE.
In the event Landlord or Tenant is delayed, hindered, or prevented from performing any act required hereunder by reason of strikes, lockouts, or other labor troubles, inability to procure or sho1tage of materials or supplies, failure of power, energy sh01tages, resttictive govenunental laws or regulations, inclement weather, fire, explosion, earthquake or other casualty, riots, insmTection, war, act of God, or other causes that are without the fault and beyond the reasonable control of such Party, then the perfonnance of such Party shall be excused for and extended by the period of such delay. The provisions herein shall not operate to excuse Tenant from the prompt payment of Rent or any other payment required under this Lease, unless herein otherwise expressly provided to the contrary. In no event shall Tenant's inability to obtain financing, interest rates, or market conditions excuse Tenant's performance or entitle Tenant to an extension of time for perfonnance of its obligations set forth in this Lease.
SECTION 16.17 NO REPRESENTATIONS OR WARRANTIES BY LANDLORD.
Tenant agrees to accept physical possession of the Premises in a strictly "as-is" physical condition, subject to all matters of record and to all applicable zoning, municipal, county, state, and federal laws, ordinances, and regulations governing and regulating the use of the Premises.
Tenant acknowledges that neither Landlord nor Landlord's agents have made any representation or warranty as to such matters of record, or as to such laws, ordinances, zoning regulations, or as to the condition of the Premises or the suitability of the Premises for the conduct of Tenant's business. Landlord reserves the absolute right to lease other space within Landlord's Property as ( -32- 8-16-22 / 1 0H-36
Landlord, in the exercise of its sole business judgment, shall determine to better promote its interests. Tenant does not rely on the fact, nor does Landlord represent, that any specific tenant or number of tenants shall during the Initial Te1111 or Extended Term occupy any other space within the Landlord's Propeiiy.
SECTION 16.18 EFFECTIVENESS OF LEASE.
Submission of this instrument for examination or signature by Tenant does not constitute an offer of or option to lease; it is not effective as a lease otherwise until execution by Landlord and delivery thereof to Tenant.
SECTION 16.19 INCORPORATION OF PRIOR LEASE AGREEMENTS.
This Lease and the Exhibits hereto cover in full each and every agreement of every kind or nature whatsoever between the Parties concerning the Premises, and all preliminary negotiations and agreements of whatsoever kind or nature, except those contained herein, are superseded and of no further force or effect. Landlord has made no representations or promises whatsoever with respect to the Premises, except those contained herein; and no other person, finn, or corporation has at any time had any auth01ity from Landlord to make any representations or promises on behalf of Landlord, and Tenant expressly agrees that if any such representations or promises have been made by others, Tenant hereby waives all right to rely thereon. No verbal agreement or implied covenant shall be held to vary the provisions of this Lease, any statute, law or custom to the contrary notwithstanding. No provision of this Lease may be amended or added to except by an agreement in writing signed by the Pa1iies hereto or their respective successors in it interest.
Tenant, by initialing this section, acknowledges that it has read the same and understands it to be a waiver of any 1ight to rely on any representations or agreements concerning the Premises not expressly set fo1ih in this Lease.
Tenant's Initials
Landlord's
SECTION 16.20 NOTICES.
Any notice required or pennitted hereunder shall be in w1iting and shall be served personally or by ce1iified or registered mail. If served by mail, notice shall be addressed as specified in Aliicle I. Any notice given by mail shall be deemed to have been delivered seventytwo (72) hours after deposit in the United States mail, postage prepaid and addressed as specified in Atiicle I. Either Party may by written notice to the other specify a different address for notice.
SECTION 16.21 SERVICE OF PROCESS.
Tenant hereby appoints as its agent for receiving service of legal process on behalf of Tenant the person or entity identified in Article I at the address specified therein. Tenant shall not revoke or rescind the above appointment or otherwise relieve or replace said agent without first notifying Landlord in writing of the name and address of another agent to be substituted in lieu thereof. Such notice shall specify the effective date of substitution. -33-
8-16-22 I 10H-37
SECTION 16.22 COUNTERPARTS.
This Lease may be signed by the Paiiies in several counterpaiis, and each of the signature pages shall be deemed to be an otiginal copy and combined shall be a document binding on the Parties.
[Signature Page to Follow]
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Lease to be effective on the date first above w1itten.
Landlord:
CITY OF SAN CLEMENTE,
a California municipal corporation
Dated:
---------- --- By: _________ ____ _
Mayor
ATTEST:
City Clerk
APPROVED AS TO FORM:
By: _ ___________ _
City Attorney
Tenant:
Dated: ----------- --
By: ____________ _
-34- 8-16-22 I 1 0H-38
4 EXHIBIT ''A"
LOCATION AND DEPICTION OF THE PREMISES
-1-
~i
WEST PASE.O ~
DE. CR.ISTOBAL
_...:C:...-RJ~w_,,_.,,_e ___ _
To Nr7f1ot1<1/ Ci+y - ·-
E.S. 1007+<;,&.3
----MP-Z05+0Z.T~g- -
"'1
8-1 6-22 I 1 0H-39
EXHIBIT "B"
CONCEPT PROPOSAL
Prepared by: Eligija Stravinskaite
Email Address: [email protected]
A copy of the proposal submitted by Organic Concepts, LLC (OBA West Toast Cafe) is on file with the City Manager's Office. Note that not all elements or services proposed are authorized. Proposal is incorporated for reference only and does not constitute a permit or license for uses or services other than what is described within the lease.
EXHIBIT "B" 8-16-22 / 1 0H-40
EXHIBIT "C"
PRELIMINARY DESIGN PLANS
The Following page is a conceptual plan of desired improvements at the facility. The City has not yet received or reviewed complete plans. Plans will require a pennit from the City and the Orange County Health Department before they can be built/implemented. Any expansion of facilities would require a Coastal Development Permit.
EXHIBIT "C"
8-16-22 / 10H-41
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with G.i,tv1nbt'd lq:s and Urwieritwtf
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EXHIBIT "D"
LIST OF EQUIPMENT AND ITEMS TO BE PROVIDED
BY LANDLORD AND TENANT
City:
• Two-compa1tment prep sink
• Single food prep sink
• Hand washing station/sink
Tenant:
--. All other equipment
EXHIBIT "D"
8-16-22 I 1 0H-43
ARTICLE I
ARTICLE II
SECTION 2.01
SECTION 2.02
SECTION 2.03
ARTICLE III
SECTION 3.01
SECTION 3.02
SECTION 3.03
ARTICLE IV
SECTION 4.01
SECTION 4.02
SeG-'r:-ION-4-.03
SECTION 4.04
SECTION 4.05
SECTION 4.06
SECTION 4.07
ARTICLE V
4.07.1 4.07.2
4.07.3 SECTION 5.01
5.01.1 5.01.2
SECTION 5.02
5.02.1 5.02.2
ARTICLE VI
SECTION 6.01
SECTION 6.02
SECTION 6.03
6.03.1 6.03.2
SECTION 6.04
ARTICLE vrr
SECTION 7.01
-iTABLE OF CONTENTS
SUMMARY OF FUNDAMENTAL LEASE TERMS ................. 1
LEASE OF PREMISES .............................................................. J_J GENERAL .................................................................................. J_;.
QUIET ENJOYMENT ................................................................ 1,1 AS-IS CONDITION ................................................................... 1J TERM ......................................................................................... ~ COMMENCEMENT AND DURATION ................................... ~ OPTIONS TO EXTEND TERM OF LEASE ............................. :1:.4- SURRENDER; HOLDING OVER. ............................................ ~ RENT .......................................................................................... i~ AMOUNT OF RENT ................................................................. i~ TIME OF PAYMENT ................................................................ 2_~ - GAbGYb-A~IGN-O~P-ER:GEN.:r:AGE-R::ENT ......................... -:::i~ ACCOUNTING FOR GROSS SALES . ..................................... i$ MAINTENANCE AND INSPECTION OF RECORDS;
AUDIT ........................................................................................ l+ MANNER OF PAYMENT ......................................................... £&- DELINQUENT PAYMENTS .................................................... £-& Interest. ........................................................................................ £-&- Late Charge ................................................................................. 11.-& Independent Rights ..................................................................... £-& T AXES AND UTILITY CHARGES .......................................... 2.9 TAXES ........................................................................................ 2:9 Taxes for Possession of Premises ............................................... .2.9 Right to Contest Taxes ................................................................ -2_9 UTILITIES .............................................................................. 10-l:-G Payment for Services .............................................................. 10-l:-G Intenuption of Service ............................................................ 10-l-G USE OF PREMISES ............................................................... 10-1:-G USE ......................................................................................... 10-1:-G HOURS OF OPERATION ..................................................... nG-l-0 RESTRICTIONS ON USE ..................................................... 10-1:-G Access for Disabled Persons ................................................... ll-1-tNuisance, Waste, Peaceful Co-existence ................................ ll-1-tTENANT'S CONDUCT OF BUSINESS ............................... lltt MAINTENANCE AND REP AIRS ........................................ 12-P-· GENERAL PROVISIONS ..................................................... L2£ 8-16-22 / 10H-44
SECTION 7.02
ARTICLE VIII
SECTION 8.01
SECTION 8.02
ARTICLE IX
SECTION 9.01
SECTION 9.02
SECTION 9.03
SECTION 9.04
SECTION 9.05
SECTION 9.06
ARTICLEX
9.06.1 9.06.2
9.06.3 9.06.4
9.06.5 SECTION 10.01
SECTION 10.02
SECTION 10.03
SECTION 10.04
ARTICLE XI
ARTICLE XII
SECTION 12.01
12.01.1 12.01.2
12.01.3 12.01.4
12.01.5 12.01.6
SECTION 12.02
SECTION 12.03
12.03.1 12.03.2
12.03.3 12.03.4
SECTION 12.04
12.04. 1
- 11-
LANDLORD'S RIGHT OF SUBSTITUTED
PERFORMANCE. ............................................................. ..... 12e
CONSTRUCTION, ADDITIONS, ALTERATIONS,
AND IMPROVEMENTS ....................................................... 13-!r; TENANT IMPROVEMENTS ................................................ _11-H, TENANT'S PROPERTY ........................................................ 14114 INSURANCE; INDEMNITY ................................................. 15+& TENANT'S INSURANCE ..................................................... 15¼ W AIYER OF SUBROGATION ............................................. 17'.f.+ INCREASES IN INSURANCE COSTS ................................ 17+:7 INDEMNITY .......................................................................... 17P EXEMPTION OF LANDLORD . ........................................... D7HCASUALTY DAMAGE ......................................................... 18,~ Destruction by Risk Covered by Insurance ............................ 18+& Damage Not Covered by Insurance ........................................ 18~ Replacement ofTenant's Prope11y .......................................... ts-1:-8 Damage Near En of Lease Term ........................................... 18'-f.& Abatement of Rent. ................................................................. 18-1:-8 ASSIGNMENTS AND SUBLETTING ................................. 19+9 REQUIREMENT OF LANDLORD'S CONSENT ................ ]9-¥.} CERTAIN TRANSFERS ....................................................... 19-I-9
OBLIGATIONS AND LIABILITIES OF
TRANSFEREE ....................................................................... I9-19 NO WAIVER OR RELEASE ................................................. 2000 MECHANICS' LIENS ........................................................... 20~ DEFAULT, TERMINATION, AND REMEDIES ................. 21±.-1- DEFINITION OF DEFAULT ................................................. 21R-- Rent Default. ........................................................................... 21UAbandorunent. ......................................................................... 21 UFailure to Perfonn Covenants ................................................. 21±+ Falsification of Statements ...................................................... 22~ Assignment of Leasehold Interest. .......................................... 22-P-- Insolvency ............................................................................... 22.~ NOTICE OF DEFAULT ......................................................... 22~ LANDLORD'S REMEDIES .................................................. 22~ Continuation of Tenant's Interest. .......................................... 22~ Tennination of Tenant's Interest. ........................................... 23~ Right to Appoint Receiver ...................................................... 23~ Right to Cure at Tenant's Expense . ........................................ 23~ TERMINATION OF LEASE DAMAGES ............................ 23@ Unpaid Rent at Termination .................................................... 23,~ 8-16-22 I 10H-45
12.04.2 12.04.3
12.04.4 SECTION 12.05
12.05. l
12.05.2 SECTION 12.06
SECTION 12.07
SECTION 12.08
SECTION 12.09
SECTION 12.10
SECTION 12.11
SECTION 12.12
SECTION 12.13
ARTICLE XIII
__ I - - SECTION 13.01
SECTION l 3.02
SECTION 13.03
13.03.1 13.03.2
SECTION 13.04
ARTICLE XIV
SECTION 14.01
SECTION 14.02
ARTICLE XV
ARTICLE XVI
SECTION 16.01
SECTION 16.02
SECTION 16.03
SECTION 16.04
SECTION 16.05
SECTION 16.06
SECTION 16.07
SECTION 16.08
SECTION 16.09
SECTION 16.10
SECTION 16.11
SECTION 16.12
SECTION 16.13
SECTION 16.14
-iiiUnpaid Rent at Award .................. .......................................... 2424 Future Rent. ........................................................................... .. 2424 Other Atnounts ....................................... ................................. 2421 TERMS DEFINED ................................................................. :21~ Worth at the Time of Award ................................................... 2424 Titne of Award ........................................................................ 2424 LANDLORD'S DEFAULT .................................................... 2421 INDEMNIFICATION UNAFFECTED .................................. 258 NO TERMINATION .............................................................. 258 TERMINATION AND ENTRY. ............................................ 25~ LIEN FOR RENT ................................................................... 258 WAIVER .............................................. ................................... 262:{; SURRENDER ......................................................................... 26U CUMULATIVE REMEDIES ................................................. 262:{; COMMON AREAS: USE, MAINTENANCE, AND
COSTS ..................................................................... ............... 27n DEFINITIONS ...................................................... ,.:·:..:..:·-=..c.=··,:,c,:·,27HTENANT'S RIGHT TO USE; TENANT'S COO PERA TI ON .................................................................... 2 7±.+- CONTROL BY LANDLORD ................................................ 27~ Manage1nent. ........................................................................... 2 7:;;/- Exclusive Control.. .................................................................. 28~ P ARIGNG ............................................................................... 28U SIGN AGE ............................................................................... 28~ PROHIBITED ACTIVITIES .................................................. 28n MArNTENANCE . .................................................................. 29Q.9.
SECURITY DEPOSIT ............................................................ 29~ MISCELLANEOUS ............................................................... 30JG LANDLORD'S RIGHT OF ACCESS .......... .......................... 30JG NONDISCRIMINATION ....................................................... 300-G TRANSFER OF LANDLORD'S rNTEREST ........................ 30JG SEVERABILITY .................................................................... 30JG TIME OF ESSENCE . ............................................................. 3o;Q LEASE NOT SUBJECT TO LEVY ....................................... 3 1:3+ NON-PARTNERSHIP ............................................................ J.l;..i..
BROKERS . ............................................................................. J.l;..i..
QUITCLAIM .......................................................................... 3 liM SAFETY AND HEALTH ....................................................... 31:3+ ATTORNEY'S FEES . ............................................................ 31;+ CAPTIONS ............................................................................. 323±- INUREMENT ......................................................................... 32* CHOICE OF LAW ...... ........................................................... 32~ 8-16-22 I 1 0H-46
SECTION 16.15
SECTION 16.16
SECTION 16.17
SECTION 16.1 8
SECTION 16.19
SECTION 16.20
SECTION 16.21
SECTION 16.22
-l VGENDER; NUMBER ............................................................. 3.~ FORCE MAJ EURE . ............................................................... 32.Ja
NO REPRESENTATIONS OR WARRANTIES BY
LANDLORD ........................................................................... 3,2J.2:.
EFFECTIVENESS OF LEASE . ............................................. 33~
INCORPORATION OF PRIOR LEASE
AGREEMENTS ...................................................................... 33~ NOTICES ................................................................................ 33~ SERVICE OF PROCESS ....................................................... 33.;; COUNTERPARTS ................................................................. 34;,4. 8-16-22 / 10H-47