Lease Agreement for Hamburger FactoryHAMBURGER FACTORY LEASE
This lease is made as of January 1, 2011, by and between the CITY OF POWAY
(hereinafter "LANDLORD "), and HAMBURGER FACTORY, INCORPORATED
(hereinafter "TENANT "), who agree as follows:
ARTICLE I DESCRIPTION OF LEASED PREMISES
Section 1.01 Description
Landlord leases to Tenant and Tenant leases from Landlord the premises situated at
14122 Midland Road, Poway, California, consisting of approximately 5,280 square -feet,
which includes 1,493 square -feet of patio area, 3,575 square -feet of dining /kitchen area,
and 212 square -feet of storage area, as shown in Exhibit "A ".
Section 1.02 Landlord's Warranty of Quiet Eniovment
Landlord covenants and agrees that Tenant, upon paying the rent and other charges
herein provided for and observing and keeping the covenants, conditions, and terms of
this Lease on Tenant's part to be kept or performed, shall lawfully and quietly hold,
occupy and enjoy the leased premises during the term of this Lease.
ARTICLE II COMMON AREA
Section 2.01 Tenant's Non - Exclusive Right to Use Common Area
Tenant and its authorized representatives and invitees shall have the nonexclusive right
to use the common areas, including all parking spaces, with others who are entitled to
use the common areas (including the public using nearby public property and facilities),
subject to Landlord's rights set forth in Section 2.02.
Section 2.02 Landlord's Maintenance and Management
Landlord shall maintain the common areas in good condition at all times. Landlord shall
have right to:
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a. Establish and enforce reasonable rules and regulations applicable to Tenant
concerning the maintenance, management, use and operation of the common
areas.
b. Temporarily close any of the common areas for maintenance purposes.
Unless in the case of an emergency, Tenant will be given a minimum of 24-
hour notice.
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C. Select a person to maintain and operate any of the common areas if at any
time Landlord determines that the best interests of all parties will be served by
having any of the common areas maintained and operated by that person.
Landlord shall have the right to negotiate and enter into a contract with that
person on such terms and conditions and for such period of time as Landlord
deems reasonable and proper, both as to service and as to cost.
d. Make changes to the common areas, including, without limitation, changes'in
the location of driveways, entrances, exits, vehicular parking spaces, parking
area, or the direction of the flow of traffic following written notice to Tenant.
e. Control program hours and special events without the consent of Tenant. All
park, recreation programming, and facility related concerns and coordination
should be addressed by Tenant with the City Park Supervisor onsite.
ARTICLE III
Section 3.01
TERM
Primary Term
The term of this lease shall be for a period of fourteen (14) years commencing on
January 1, 2011, and expiring, unless sooner terminated, on the fourteenth anniversary
of the date the term commences.
Section 3.02 Extended Term
Provided Tenant shall not then be in default hereunder, Tenant shall have the option to
extend the term of this Lease for one (1), five -year extension period, upon the same
terms and conditions herein contained, except for the minimum monthly rent, upon
delivery by Tenant to Landlord of its written notice of such election at least sixty (60)
days prior. to the expiration of the current term, and upon agreement of the City
Manager. The minimum monthly rent during the extended term shall be subject to
adjustment annually as set forth in Section 4.02 herein.
ARTICLE IV RENT
Section 4.01 Minimum Rent
Subject to adjustments as hereinafter set forth, Tenant shall pay to Landlord as
minimum monthly rent, without deduction, setoff, prior notice, or demand, the sum of
Five - Thousand, Three - Hundred dollars and Sixty -Five cents ($5.300.65) per month in
advance on the first day of each month, commencing on the date the term commences,
and continuing for a twelve (12) month period. Minimum monthly rent for the first month
or portion of it shall be paid on the day the term commences. Minimum monthly rent for
any partial month shall be prorated at the rate of one - thirtieth (1/30) of the minimum rent
per day.
Section 4.02 Cost of Livino Adiustment
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Beginning with year two (2) following the Commencement Date, and annually thereafter
until January 1, 2015, on the anniversary of the Commencement Date, rent shall be
increased based on the Consumer Price Index, All Items, for All Urban Consumers
(based on December 1997 = 100) for West B/C (Cities 50,000 — 1,500,000), published
by the United States Department of Labor, Bureau of Labor Statistics ( "index'). The
base month for increases during this period is July, 1997, at which time the applicable
index was 101.3. Each year the minimum Rent shall be determined by dividing the
index closest to the Commencement Date in the current year by the July, 1997 index.
The product of which shall then be multiplied by the current monthly rent. The resulting
sum of the calculation shall be the new monthly rent for the following twelve (12) months
commencing January 1. The, cost of living adjustment should not exceed six percent
(6 %). If the index has changed, the index shall be converted in accordance with the
Conversion Factor published by the United States Department of Labor Statistics. If the
index is discontinued or revised during the term, such other government index or
computation with which it is replaced shall be used in order to obtain substantially the
same result as would be obtained if the index had not been discontinued or revised.
Beginning January 1, 2015, the monthly Rent shall be raised to $1.30 per square -foot,
or Six - Thousand, Eight- Hundred, and Sixty -Four dollars ($6,864), and shall be
increased 10% every five years thereafter in accordance with Exhibit "B ".
It shall be the obligation of the Landlord to calculate the rent increase annually and
provide notice of the rent increase to Tenant. In the event that the Landlord fails to
provide notice of the rent increase to Tenant by January 1, Tenant shall continue to pay
rent at the rate payable in the previous month until notice is received. Within fifteen (15)
days after Tenant's receipt of the notice, Tenant shall pay to Landlord any and all
arrearage due between January 1 and the date of payment of the arrearage. Landlord's
failure to provide notice of the rent increase shall not constitute waiver thereof and
Landlord may, at any time during the term of the Lease, adjust the rent as provided
herein, give notice of the rent increase to Tenant, and demand that Tenant pay the
arrearage as provided herein.
ARTICLE V UTILITIES AND TAXES
Section 5.01 Utilities
Tenant shall make all arrangements for and pay for all utilities and services furnished to
or used by Tenant, including, without limitation, water, sewer, gas, electricity, cable,
telephone service, trash collection and for all connection charges other than City
initiated charges. Tenant shall provide electricity for the exterior holiday lights that are
located on tenant's electric meter.
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Section 5.02 Personal Property Taxes
Tenant shall pay before delinquency all taxes, assessments, license fees and other
charges that are levied and assessed against Tenant's personal property installed or
located in or on the premises, and that become payable during the term. On demand
by Landlord, Tenant shall furnish Landlord with satisfactory evidence of these
payments.
Section 5.03 Possessory Interest Taxes
This lease may result in a taxable possessory interest and be subject to the payment of
property taxes. Tenant agrees to and shall pay before delinquency all taxes and
assessments of any kind assessed or levied upon Tenant or the Premises by reason of
this Lease or of any buildings; machines, or other improvements of any nature
whatsoever erected, installed or maintained by Tenant or by reason of the business or
other activities of Tenant upon or in connection with the Premises. Such taxes and
assessments shall be in addition to Rent.
ARTICLE VI USE AND OCCUPANCY
Section 6.01 Use
Tenant shall use the premises for the purposes of operating and conducting a
restaurant and for no other use without Landlord's consent.
Section 6.02 Hours of Operation
Tenant shall operate its business only during the following days and between the
following hours:
Sunday- Thursday: 6:00 a.m. to 9:00 p.m.
Friday and Saturday: 6:00 a.m. to 10:00 p.m.
Section 6.03 Compliance with Law
Tenant shall comply with, and conform to, all laws and regulations, municipal, state and
federal, and any and all requirements and orders of any municipal, state, or federal
court or authority, present or future, in any way relating to the use or occupancy of the
leased premises throughout the entire term of this Lease and any extension or renewal
thereof.
Section 6.04 Restriction of Tenant's Use
Tenant agrees, in using the leased premises:
a. Not to commit any waste or suffer any waste to be committed upon the
leased premises.
b. Not to commit any public or private nuisance or any other act or thing,
which might or would disturb the quiet enjoyment of any occupant of
nearby property.
C. Not to burn refuse or other materials in or about the leased premises, or
permit any activity or activities, which might cause unreasonable
annoyance to any occupant or nearby property.
d. Not to overload, or permit the overloading of, any floor in the buildings
located upon the leased premises.
e. Not to keep, use, sell, or offer for sale on the leased premises, any article,
or conduct any activity thereon, which may be prohibited by the standard
form of fire insurance policy, and if Tenant does keep, use, sell or offer for
sale any such article, or if any acts are performed•on the leased premises
by Tenant which increase the rate of fire insurance premiums upon the
leased premises, Tenant agrees to pay to Landlord the amount of
increase in fire insurance and premiums attributable thereto on demand.
Not to place, construct, or maintain any sign, advertisement, awning,
banner or other exterior decoration on the exterior of the leased premises
or in the immediate vicinity thereof, without obtaining Landlord's prior
written consent and all applicable City permits.
g. Tenant will be allowed two business designation signs on the exterior of
the leased premises, currently located on the roof and restaurant
entrance, and one business designation sign on Midland Road at the park
entrance, in accordance with the City's sign ordinance.
h. The Tenant will prohibit smoking of a tobacco product inside the
restaurant and within 20 feet of an exit, entrance, or operable window, and
otherwise comply with all applicable smoking laws and ordinances
currently in effect. Tenant will ensure that signage is displayed in public
view. Tenant's employees will comply with all applicable smoking laws
and ordinances and will smoke in designated smoking areas only.
All uses of the Leased Premises shall be in compliance with all applicable
ordinances, resolutions, statutes, rules, regulations and laws of the City of
Poway, and any Federal, State, or local government agency or competent
jurisdiction.
ARTICLE VII TRADE FIXTURES
Section 7.01 Installation
Tenant may install in and affix to the leased premises such fixtures and equipment as
Tenant deems desirable.
Section 7.02 Removal
Not later than the expiration or termination of this Lease, Tenant is required to surrender
possession of the leased premises to Landlord. Tenant may, and if prior to the
expiration of such time Landlord gives written notice requiring Tenant to do so, Tenant
shall remove and properly dispose of all trade fixtures installed in the leased premises
by Tenant. The removal of such trade fixtures shall be effected solely at the expense
of Tenant and in the manner satisfactory to Landlord and without injury or damages to
the leased premises or the building, and Tenant covenants to repair immediately, at
Tenant's expense, any injury or damage caused by such removal.
ARTICLE VIII ACCEPTANCE OF LEASED PREMISES AS -IS
Section 8.01 Acceptance of Leased Premises As -Is
Tenant has previously leased the leased premises, and has examined and inspected
and knows the condition of the leased premises and every part thereof and agrees to
accept the same in their present condition. Tenant waives any right or claim against
Landlord for any cause, directly or indirectly, arising out of the condition of the leased
premises, appurtenances thereto, the improvements thereon, and the equipment
thereof.
ARTICLE IX ALTERATIONS, REPAIRS AND IMPROVEMENTS
Section 9.01 Tenant's Installations, Additions and Improvements
a. Tenant shall make no installations, additions, or improvements in or to the
leased premises except as otherwise authorized in the Lease, or structural
alterations or changes either to the interior or exterior of the buildings located
on the leased premises, or in the bearing walls, supports, beams, or
foundation, without first obtaining the written consent of the City Manager. All
applicable City permits and approvals must be obtained prior to the
installation of any additions or improvements.
b. Plans and specifications showing such proposed installations, additions, or
improvements and alterations and changes, shall be submitted to Landlord for
approval upon the application for such written consent.
C. All installations, additions, or improvements, and alterations and changes
made, with the written consent of Landlord, shall be made under the
supervision of an architect or engineer satisfactory to Landlord. Work shall be
inspected and permitted by the City's Building Division as required. All
architects, engineers and contractors must be approved by the Landlord, and
must maintain insurance coverage deemed acceptable by the Landlord.
d. If during the term of this Lease any additions, alterations, or improvements in
or to the leased premises, as distinguished from repairs, are required by any
government authority or any law, ordinance, or governmental regulation
because of the use to which the leased premises are put by Tenant and not
by reason of the character or structure of the building, they shall be made and
paid for by Tenant.
Section 9.02 Tenant's Repair and Maintenance Responsibilities
The Tenant agrees during the term thereof, and any extension or renewal thereof, to
keep and maintain the leased premises and the exterior and the interior of all doors,
windows, and plate glass in and about the leased premises in good order, condition,
and repair, including, without limiting the foregoing, all plumbing lines and plumbing
fixtures, drains, natural gas lines beginning at the point of entry into the building, and
sewage facilities within the leased premises, fixtures, interior walls, floors, ceilings,
sides, exhaust equipment, and all interior building appliances and similar equipment. It
is Tenant's responsibility to replace lighting fixtures, bulbs, and ballasts as necessary.
Tenant shall maintain in good working order two exterior grease traps necessary for
Tenant's business operations. Grease traps should be cleaned in accordance with the
City of Poway's FOG (Fat, Oil, Grease) Program requirements included as Exhibit "C ".
Tenant shall pressure wash, adhering to the Best Management Practices contained in
the City's Jurisdictional Urban Runoff Management Plan (JURMP), the boardwalk area
between the kitchen door and outdoor public restrooms and the dumpster area ,
minimum of once every three months, or as deemed necessary by Landlord. Tenant
shall keep the trash enclosure, and any other exterior areas affected by Tenant's
business operations, clean and free from grease and debris. Tenant shall be
responsible for ensuring that the interior of the premises is kept free of insects and
rodents. Tenant shall keep outdoor areas free of restaurant equipment and supplies.
Tenant shall keep upstairs attic area clear and accessible.
The Landlord may at times require the Tenant to make repairs such as painting,
carpentry, plumbing, and other types of repairs to the leased premises during the time
of the Lease. These repairs will be made within thirty (30) days of any written request
for the reason of aesthetics or five (5) days for health and safety reasons. If the repairs
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are not made within the stated timeframe, the Landlord may make the repairs and
charge the costs to the Tenant.
Section 9.03 Landlord's Repair and Maintenance Responsibilities
The Landlord agrees during the term thereof, and any extension or renewal thereof, to
maintain the'exterior of the building, grounds outside the building, air conditioning and
heating equipment, Christmas lights on exterior of building, sewer lines leaving the
building beginning after the two grease traps located on the west and south sides of the
building, and the interior electrical facilities, with exception of the lighting fixtures, bulbs,
and ballasts. The Landlord will be responsible for ensuring the exterior of the building is
free of insects and rodents.
Section 9.04 Mechanic's Liens
a. Tenant agrees to pay promptly for all labor done or materials furnished for
any work or repair, maintenance, improvements, alterations, or addition done
by Tenant in connection with the leased premises, and to keep and to hold
the leased premises free, clear, and harmless from all liens that could arise
by reason of any such work. If any such lien shall at any time be filed against
the leased premises, Tenant 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 in good faith, determines that such lien should be contested,
Tenant shall furnish such security as may be necessary or required to prevent
any foreclosure proceedings against the leased premises during the
pendency of such contest. If Tenant shall fail to discharge such lien within
such period, or fails to furnish such security, then in addition to any other right
or remedy, Landlord may, but shall not be obligated to discharge the same,
either by paying the amount claimed to be due or by procuring the discharge
of such lien by deposit in court, or by giving security or in such other manner
as is or may be prescribed by law. Tenant shall repay to Landlord on demand
all sums disbursed or deposited by Landlord pursuant to the foregoing
provisions hereof, including Landlord's costs, expenses, and reasonable
attorney's fees incurred by Landlord in connection therewith. Nothing
contained herein shall imply any consent or agreement on the part of
Landlord to subject Landlord's interest in the leased premises to liability under
any mechanic's lien law.
b. Landlord shall at all times have the right to post and to keep posted on the
leased premises notices provided for under the laws of the State of California
for the protection of the leased premises from mechanic's liens or liens of a
similar nature.
Section 9.05 Damage or Destruction by Fire or Other Casualty
a. Should the building in which the leased premises are located be damaged by
fire or other casualty, then if damage is so slight as not to interfere
substantially with Tenant's use of the leased premises, Tenant shall notify
Landlord. The Tenant shall immediately undertake to make repairs to the
building and improvements and restore the same to substantially the same
condition as they were in immediately preceding such damage or destruction.
Such work shall be done as rapidly as conditions permit and there shall not
be abatement of rent.
b. Should there be total or substantial destruction in such building and
improvements so that the leased premises are rendered unusable, either in
whole or in part, either party shall have the right to terminate this Lease by
mutual agreement of both parties.
C. Unless the parties to the Lease can and do agree forthwith upon the extent
and amount of such damage or destruction, the parties shall mutually agree
to the selection of a certified architect, registered engineer, or licensed
building contractor who shall determine such matters, and the determination
of such architect, engineer or contractor shall be final and binding upon the
parties to this Lease.
d. Tenant shall repair or rebuild such building and improvements to.substantially
the same condition that they were in immediately preceding such damage or
destruction, unless both parties agree to the termination of the Lease.
e. Tenant, at its sole expense, shall procure and maintain a policy or policies of
business interruption insurance in sufficient amounts to cover the Annual
Minimum Rent hereunder for a period of not less than one (1) year during any
casualty loss and restoration of the Premises while this Lease remains in
force.
ARTICLE X CONDEMNATION
Section 10.01 Total Condemnation
If during the term thereof there shall be a "total taking" by a public authority under the
power of eminent domain, then the leasehold estate of Tenant in the leased premises
shall cease and terminate as of the date actual physical possession thereof shall be
taken. "Total taking" is defined to be the taking of the entire leased premises under the
power of eminent domain, or taking of so much of the leased premises as to prevent or
substantially impair the conduct of Tenant's business therein.
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Section 10.02 Partial Condemnation
If, during the term hereof there shall be a partial taking of the leased premises, this
Lease shall terminate as to the portion of the leased premises taken upon the date
which actual possession of the portion of the leased premises is taken pursuant to
eminent domain proceedings, but this Lease shall continue in force and effect as to the
remainder of the leased premises. The rental payable by Tenant for the balance of the
term shall be abated in the ratio that the square footage of the floor area of the leased
premises taken bears to the total floor area of the leased premises at the time of such
taking., "Partial taking" is defined to be the taking of only a portion of the leased
premises under the power of eminent domain, which does not constitute a "total taking"
as defined above in Section 10.01.
ARTICLE XI SUBORDINATION
Section 11.01 Liens to Which Lease is Subordinate
This Lease, at Landlord's option, shall be subordinate to any ground lease, mortgage,
deed of trust, or any other hypothecation or security now or hereafter placed upon the
real property of which the premises are a part, and to any and all advances made on the
security thereof, and to all renewals, modifications, consolidations, replacements, and
extensions thereof. Notwithstanding such subordination, Tenant's right to quit
possession of the premises shall not be disturbed if Tenant is not in default, and so long
as Tenant shall pay the rent and observe and perform all of the provisions of this Lease,
unless this Lease is otherwise terminated pursuant to its terms. If any mortgagee,
trustee, or ground lessor shall elect to have this Lease prior to the lien of its mortgage,
deed of trust or ground lease, and shall give written notice thereof to Tenant, this Lease
shall be deemed prior to such mortgage, deed of trust, or ground lease, whether this
Lease is dated prior or subsequent to the date of said mortgage, deed of trust, or
ground lease, or the date or recording thereof.
Tenant agrees to execute any documents required to effectuate an attornment, a
subordination, or to make this Lease prior to the lien of any mortgage,-deed of trust, or
ground lease, as applicable. Tenant's failure to execute such documents within twenty
(20) days after written demand shall constitute a material default by Tenant hereunder,
or, at Landlord's option, Landlord shall execute such documents on behalf of Tenant as
Tenant's attorney -in -fact. Tenant does hereby make, constitute and irrevocably appoint
Landlord as Tenant's attorney -in -fact and in Tenant's name, place, and stead, to
execute such documents in accordance with paragraph 11.01.
Section 11.02 Statement of Modifications
Tenant shall at any time, and from time to time, upon not less than twenty (20) days
prior written request by Landlord execute, acknowledge and deliver to Landlord a
statement in writing certifying that this Lease is unmodified and in full force and effect
(or, if there shall have been modifications, that the Lease is in full force and effect as
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modified and stating the modification or modifications), and the dates to which the fixed
rent and other charges or payments have been paid in advance. It is expressly
understood and agreed that any such statement delivered pursuant to this paragraph
may be relied upon by Landlord, or by any prospective purchaser, mortgagee, assignee
of any mortgagee, or the trustee or beneficiary of any deed of trust placed upon the
leased premises.
ARTICLE XII INDEMNITY AND INSURANCE
Section 12.01 Responsibility for Acts of Tenant
a. Landlord shall not be liable at any time for any loss, damage, or injury to the
property or person of any person whomsoever at any time occasioned by or
arising out of any act or omission of Tenant, or of anyone holding under
Tenant or the occupancy or use of the leased premises or any part thereof by
or under Tenant, or directly or indirectly from any state or condition of the
leased premises or any part thereof during the term of this Lease.
b. Any provisions hereof to the contrary notwithstanding and irrespective of any
insurance carried by Tenant for the benefit of Landlord, Tenant agrees to
protect, indemnify, and hold Landlord and the leased premises harmless from
any and all damages or liabilities of whatsoever nature arising under the
terms of this Lease, or arising out of or in connection with the operation
carried on by Tenant on, or the use or occupancy of, the leased premises.
Section 12.02 Commercial General Liability and Property Damage Insurance
Tenant shall carry and maintain during the entire term hereof, at Tenant's sole
cost and expense, broad form Commercial General liability insurance with a
combined single limit of not less than $1,000,000, insuring against any and all
liability of Tenant with respect to the leased premises, or arising out of the
maintenance, use, or occupancy thereof.
Tenant shall carry and maintain during the entire term hereof, at Tenant's sole
cost and expense, broad form Liquor Liability Insurance with a combined
single limit of not less than $2,000,000, insuring against any and all liability of
Tenant with respect to the leased premises, or arising out of the use or
occupancy thereof.
C. Endorsements shall be obtained so that each policy described above contains
the following two provisions:
1. Additional Insured:
"City of Poway and its elected and appointed boards, officers, agents, and
employees are additional insureds with respect to this subject project and
contract with the City ".
2. Primary Coverage:
"The policy provides primary coverage to City and its elected and appointed
boards, officers, agents, and employees. It is not secondary or in any way
subordinate to any other insurance or coverage maintained by City ".
d. Not more frequently than each two (2) years, if, in the opinion of Landlord's
lender or of the insurance broker retained by Landlord, the amount of
Commercial General liability, Liquor Liability, and Property Damage insurance
coverage at that time is not adequate, Tenant shall increase the insurance
coverage as required by either Landlord's lender, or Landlord's insurance
broker.
e. All policies of insurance to be carried and maintained by Tenant hereunder
shall be issued by companies having not less than A.M. Best's A -, VII rating
for California Admitted Carriers. Coverage by California Non - Admitted
Carriers will be considered on a case -by -case basis and may be allowed at
the sole discretion of Landlord with a minimum A.M. Best's rating.of A -, X. All
such policies shall contain ,a provision that Landlord, although named as an
Additional Insured, shall nevertheless be entitled to recovery under such
policies of insurance, which certificate shall, among other things, designate,
the company writing the same, and the number, amount, and provisions
thereof. Upon Landlord's written request, duplicate copies of such certificates
of insurance shall be delivered to Landlord's mortgagee.
f. The above insurance policies shall contain a provision that such policies shall
not be cancelled or terminated without forty -five (45) days prior notice from
the insurance company to Landlord. Tenant agrees that on or before ten (10)
days prior to expiration of any insurance policy, Tenant will deliver to Landlord
written notification in the form of a receipt or other similar document from the
applicable insurance company that said policy or policies have been renewed,
or deliver certificates of insurance coverage from another good and solvent
insurance company for such coverage.
g. Landlord shall maintain Property Damage Insurance coverage during the
entire term hereof in a coverage amount of Landlord's determination.
Landlord shall be the sole loss payee and, in the event of a total loss of the
premises, shall at its sole discretion determine whether to utilize any
insurance proceeds to rebuild the premises or to terminate the lease as per
section 9.05 of this lease. Tenant shall have no rights to any proceeds or
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payments resulting from Landlord's Property Damage Insurance coverage.
Tenant also acknowledges that said policy of insurance shall not insure
Tenant's personal or business property, nor Tenant's trade fixtures or
° equipment. Tenant shall have no rights to any proceeds or payments
resulting from Landlord's insured coverage of Boiler and Machinery under
Landlord's Property Damage Insurance coverage.
h. No use shall be made or permitted to be made of the said premises, nor acts
done which will cause a cancellation of any insurance policy covering said
building, or any part thereof, nor shall Tenant sell, or permit to be kept, used,
or sold, in or about said premises, any article which may be prohibited by the
standard form of fire insurance policies. Tenant shall, at its sole cost and
expense, comply with any and all requirements, pertaining to said premises,
or any insurance organization or company, necessary for the maintenance of
reasonable fire and commercial general liability insurance, covering said
building and appurtenances.
ARTICLE XIII ASSIGNMENT AND SUBLEASING
Section 13.01 Landlord's Consent Required
Tenant shall not assign, mortgage, or hypothecate this Lease in whole or in part, not
sublet all or any part of the leased premises, without the prior written consent of
Landlord in each instance. This prohibition against assigning or subletting shall be
construed to include a prohibition against any assignment or subletting by operation of
law. Landlord's consent will not unreasonably be withheld. Tenant agrees to reimburse
Landlord for any out -of- pocket expense and fees involved with any Lease Assignment
or Sublease.
Section 13.02 No Waiver
The consent by Landlord to any assignment or subletting shall not constitute a waiver of
the necessity for such consent to any subsequent assignment or subletting. If this
Lease be assigned, or if the leased premises or any part thereof be sublet or occupied
by anybody other than Tenant, Landlord may collect rent from the assignee, subtenant,
or occupant, and apply the new amount collected to the rent herein reserved, but no
such assignment, subletting, occupancy, or collection shall be deemed a waiver of this
covenant, or a release of Tenant from the further performance by Tenant of covenants
on the part of Tenant.
Section 13.03 Liability of Tenant
Notwithstanding any assignment or sublease, Tenant shall remain fully liable on this
Lease and shall not be released from performing any of the terms, covenants, and
conditions of this Lease.
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ARTICLE XIV DEFAULT AND REMEDIES
Section 14.01 Tenant's Insolvency, Bankruptcy, or Dissolution
a. This Lease shall be deemed repudiated and breached by Tenant if, during the
term of this Lease:
1. A petition to have Tenant adjudicated as bankrupt, or a petition for
reorganization or arrangement under any of the laws of the United States
relating to bankruptcy be filed by Tenant, or be filed against Tenant, and if
so filed against Tenant, not be dismissed within ninety (90) days from the
date of such filing.
2. The assets of Tenant or the business conducted by Tenant on the leased
premises be assumed by a trustee or other person pursuant to any judicial
proceedings.
3. Tenant becomes insolvent or makes an assignment for the benefit of
creditors, or commits any act of bankruptcy.
b. Tenant expressly agrees that Landlord may at its election terminate this
Lease in the event of the occurrence of any of the contingencies hereinabove
described by giving not less than ten (10) days written notice to Tenant and
when so terminated, Landlord may re -enter the leased premises, and the
leasehold interest created by this Lease shall not be treated as an asset of
Tenant's estate. It is further expressly understood and agreed that Landlord
shall be entitled upon such re -entry, notwithstanding any other provisions of
this Lease, to exercise such rights and remedies, and to recover from Tenant
as damages for loss of the, bargain resulting from such breach, and not as a
penalty, such amounts as are specified in Section 14.03, unless any statute
or rules or law governing the proceeding in which such damages are to be
proved shall lawfully limit the amount of such claims capable of being so
proved, in which case Landlord shall be entitled to recover as and for
liquidated damages, the maximum amount which may be held under any
such statute or rule of law.
Section 14.02 Default
The occurrence of any of the following shall constitute a material default and breach of
this Lease by Tenant:
a. Any failure by Tenant to pay the rent or to make any other payment required
to be made by Tenant under this Lease (when that failure continues for ten
(10) days after written Notice to Quit or Pay Rent is given by Landlord to
Tenant).
14
b. The abandonment or vacation of the premises by Tenant (the absence of
Tenant from or the failure by Tenant to conduct business on the premises for
a period in excess of fourteen (14) consecutive days, shall constitute an
abandonment or vacation for purposes of this Lease).
C. A failure by Tenant to observe and perform any other provisions of this Lease
to be observed or performed by Tenant, when that failure continues for ten
(10) days after written notice of Tenant's failure is given by Landlord to
Tenant; provided, however, that if the nature of the default is such that it
cannot reasonably be cured within a ten (10) day period, Tenant shall not be
deemed to be in default if Tenant commences that cure within the ten (10)
day period and thereafter diligently prosecutes it to completion.
d. Tenant's bankruptcy, insolvency, or dissolution as provided in Section 14.01
above.
Section 14.03 Remedies
On any breach, default, or abandonment, Landlord may exercise any of the following
rights after the periods of time stated in Section 14.02:
a. Immediately re -enter and remove all persons and property from the leased
premises, storing the personal property in a public warehouse or elsewhere at
the cost of, for the account of, and at the risk of Tenant. In the event of any
such re -entry by Landlord, Landlord may make any repairs, additions, or
improvements in, to, or upon the leased premises which may be necessary or
convenient; provided, however, that Landlord shall be entitled to recover from
Tenant the expense of such repairs or alterations only to the extent necessary
to restore the building to the condition it was in on the commencement of the
term of the Lease, reasonable wear and tear excepted. In such instance, the
Lease will be terminated, and Landlord will be entitled otherwise to recover all
damages allowable under the law of this Lease.
b. To collect by suit or otherwise each installment of rent or other such sum as it
becomes due hereunder, or to enforce, by suit or otherwise, any other term or
provision hereof on the part of Tenant required to be kept or performed, it
being specifically agreed that all unpaid installments of rent or other sums
shall bear interest at the highest legal rate from the due date thereof until
paid.
C. Terminate this Lease, in which event Tenant agrees to immediately surrender
possession of the leased premises, and to pay to Landlord, in addition to any
other remedy Landlord may have, all damages Landlord may incur by reason
of Tenant's default, including the cost of recovering the leased premises.
15
Section 14.04 Measure of Damage
The damages Landlord may recover include the worth at the time of award of the
amount by which the unpaid balance for the balance of the term after the time of award
exceeds the amount of such rental loss for the same period that Tenant proves could be
reasonably avoided.
Section 14.05 No Waiver of Default
Landlord's or Tenant's failure to take advantage of any default or breach of covenant on
the part of Landlord or Tenant shall not be, or be construed as a waiver thereof, nor
shall any custom or practice which may grow up between the parties in the course of
administering this instrument be construed to waive or to lessen the right of Landlord or
Tenant to insist upon the performance by Landlord or Tenant of any term, covenant, or
condition hereof, or to exercise any rights given Landlord or Tenant on account of any
such default. A waiver of a particular breach, or default, shall not be deemed to be a
waiver of the same or any other subsequent breach or default. The acceptance of rent
hereunder shall not be construed to be, a waiver of any term, covenant, or condition of
this Lease.
Section 14.06 Remedies Cumulative
The rights, powers, elections, and remedies of Landlord contained in this Lease shall be
construed as cumulative and no one of them is or shall be considered exclusive of the
other or exclusive of any rights or remedies allowed by law, and. the exercise of one or
more rights, power, elections, or remedies shall not impair Landlord's right to exercise
any other.
Section 14.07 Landlord's Rights to Cure Default
If Tenant shall be in default in the performance of any covenant on its part to be
performed under this Lease, then, after notice and without waiving or releasing - Tenant
from the performance thereof, Landlord may, but shall not be obligated so to do,
perform any such covenant, and in exercising any,such right, pay necessary and
incidental costs and expenses in connection therewith. All sums so paid by Landlord,
together with interest thereon at the rate of ten percent (10 %) per annum, shall be
deemed additional rent and shall be payable to Landlord on the next rent paying day.
ARTICLE XV LANDLORD'S GENERAL PROTECTIVE PROVISIONS
Section 15.01 Surrender at End of Term
Tenant shall peaceably give up and surrender the leased premises and every part
thereof to Landlord at the termination of the term of this Lease in as good a condition
and repair as reasonable use and wear thereof will permit.
16
Section 15.02 No Meraer — Termination of Subtenancies
The voluntary or other surrender of this Lease by Tenant, or mutual cancellation thereof,
shall not work a merger and shall, at the option of Landlord, terminate all of any existing
subleases or subtenancies, or may, at the option of Landlord, operate as an assignment
to Landlord of any or all subleases or subtenancies.
Section 15.03 Release of Landlord After Sale
In the event of a sale or conveyance by Landlord of the leased premises, Landlord shall
be released from any future liability upon any of the covenants or conditions, expressed
or implied, in favor of Tenant, and in such event, successor in interest to Landlord will
assume all of Landlord's rights and responsibilities under this Lease.
Section 15.04 Landlord's Right to Inspect
Landlord shall be entitled, at all reasonable times, to go on the leased premises for the
purpose of inspecting the leased premises, or for the purpose of inspecting the
performance by Tenant of the terms and conditions of this Lease, or for the purpose of
posting and keeping posted thereon notices of non - responsibility for any construction,
alteration, or repair thereof, as required or permitted by any law or ordinance.
ARTICLE XVI GENERAL PROVISIONS
Section 16.01 Conditions and Covenants
All of the provisions of this Lease shall be deemed as running with the land, and
construed to be "conditions" as well as "covenants" as though the words specifically
expressing or imparting covenants were used in each separate provision.
Section 16.02 No Waiver of Breach
No failure by either Landlord or Tenant to insist upon the strict performance by the other
of any covenant, agreement, term, or condition of this Lease, or to exercise any right or
remedy consequent upon a breach thereof, shall constitute a waiver of any such breach
or of such covenant, agreement, term, or condition. No waiver of any breach shall
affect or alter this Lease, but each and every covenant, condition, agreement, and term
of this Lease shall continue in full force and effect with respect to any other existing or
subsequent breach.
Section 16.03 Time of Essence
Time is of the essence of this Lease and of each provision
17
Section 16.04 Computation of Time
The time in which any act provided by this Lease is to be done is computed by
excluding the first day and including the last, unless the last is a Saturday, Sunday, or
holiday, and then it is also excluded. The term "holiday' shall mean all holidays
specified in Sections 6700 and 6701 of the Government Code.
Section 16.05 Unavoidable Delay — Force Maieure
If either party shall be delayed or prevented from the performance of any act required by
this Lease by reason of Acts of God, strikes, lockouts, labor troubles, inability to procure
materials, restrictive governmental laws, or regulations or other cause, without fault and
beyond the reasonable control of the party obligated (financial inability excepted),
performance of such act shall be excused for the period of the delay; and the period for
the performance of any such act shall be extended for a period equivalent to the period
of such delay, provided, however, nothing in this section shall excuse Tenant from the
prompt payment of any rental or other charge required of Tenant except as may be
expressly provided elsewhere in this Lease.
Section 16.06 Successors in Interest
Each and all of the covenants, conditions, and restrictions in this Lease shall inure to
the benefit of and shall be binding upon the successors in interest of Landlord, and
subject to the restrictions of Article XIII, the authorized encumbrancers, assignees,
transferees, subtenants, licensees, and other successors in interest of Tenant. The
Tenant's interest in this Lease Agreement shall not be transferred or sold to any other
party without the approval of the Landlord.
Section 16.07 Entire Agreement
This Lease contains the entire agreement of the parties with respect to the matters
covered by this Lease, and no other agreement, statement or promise made by any
party, or to any employee, officer, or agent of any party, which is not contained in this
Lease shall be binding or valid. This lease will supersede all prior leases between
Tenant and Landlord related to this property.
Section 16.08 Partial Invalidity
If any term, covenant, condition or provision of this Lease is held by a court of,
competent jurisdiction to invalid, void, or unenforceable, the remainder of the
provisions shall remain in full force and effect, and shall in no way be affected, impaired,
or invalidated.
MI
Section 16.09 Relationship of Parties
Nothing contained in this Lease shall be deemed or construed by the parties or by any
third person to create the relationship of principal and agent, or of partnership or of joint
venture, or of any association between Landlord and Tenant, and neither any provisions
contained in this Lease nor any acts of the parties shall be deemed to create any
relationship between Landlord and Tenant, other than the relationship of Landlord and
Tenant.
Section 16.10 Interpretation and Definitions
The language in all parts of this Lease shall in all cases be simply construed according
to its fair meaning and not strictly for or against Landlord or Tenant.
Unless otherwise provided in this Lease, or unless the context otherwise requires, the
following definitions and rules of construction shall apply to this Lease:
a. In this Lease, the neuter gender includes the feminine and masculine, and the
singular number includes the plural, and the word "person" includes
corporation, partnership, firm, or association whenever the context so
requires.
b. "Shall," "will," and "agrees" are mandatory; "may" is permissive.
C. The captions contained herein are for convenience and reference only, and
the words contained therein shall in no way be held to explain, modify,
amplify, or. aid in the interpretation, construction, or meaning of the provisions
of this Lease.
d. All references to the term of this Lease shall include any extensions of such
term.
e. Leased premises shall include the improvements to the land and outside
eating areas.
f. Parties shall include the Landlord and Tenant named in this Lease.
g. As used herein, the word "sublessee" shall mean and include in addition to a
sublessee and subtenant, a licensee, concessionaire, or other occupant or
user of any portion of the leased premises or buildings or improvements
thereon.
19
Section 16.11 Attorney's Fees
Should either party commence any legal action or proceeding against the other based
on this Lease, the prevailing party shall be entitled to an award of reasonable attorney's
fees.
Section 16.12 Interest
The total of rent payments, which are five (5) or more days late, shall be assessed a
late payment penalty of five percent (5 %) thereof each calendar month that such
payment is late.
Section 16.13 Modifications
This Lease is not subject to modification except in writing executed by all parties
thereto.
Section 16.14 Notices
a. All notices, demands, or requests from one party to another may be
personally delivered or sent by mail, certified or registered, postage prepaid,
to the addresses stated in this section, and shall be deemed to have been
given at the time of personal delivery, or at the end of the second full day
following the date of mailing.
b. All rents and other sums payable by Tenant to Landlord, or notices, demands,
or requests from Tenant to Landlord, shall be delivered in person, or mailed to
Landlord at:
City of Poway
Attn: Director of Administrative Services
P.O. Box 789
Poway, CA 92074
C. All notices, demands, or requests from Landlord to Tenant shall be given to
Tenant at the leased premises.
d. Each party shall have the right, from time to time, to designate a different
address by written notice given in conformity with this section.
20
Section 16.15 Holding Over
In the event that Tenant shall hold over after expiration of the term of this Lease with
consent, expressed or implied, of Landlord, such holding over shall be deemed merely a
tenancy from month -to- month, on the same terms, covenants, and conditions so far as
applicable as herein contained until such tenancy is terminated in a manner prescribed
by law.
ARTICLE XVII
Section 17.01
EXECUTION
Entire Lease
This Lease shall constitute the entire understanding between Landlord and Tenant
relating to the terms and conditions of the Lease.
IN WITNESS WHEREOF, the parties hereto have duly executed this Lease on
the date first above written.
CITY OF POWAY
HAMBURGER FACTORY, INC.
Q �� 1-0216:L
Cleta Spear, Pre ident
Philip Spear, Tr sur
APPROVED AS TO FORM:
Lisa Foster, City Attorney
21
C�TY POWAY�DOCUMENTu•"
HAMBURGER FACTORY
AMENDMENT NO. 2'TO' LEASE AGREEMENT
On the_ 20 day of Ju l y. , 2004, the parties hereto amend that
certain lease dated October 1, 1992, by and between the City of Poway
( "Landlord ") and Joseph and Lisa Lucidi subsequently assigned to Hamburger
Factory, L.L.C. ( "Tenant') and amended by Amendment No. 1 to Lease
Agreement on January 6, 1999:
Lease
Hamburger Factory, L.L.C., a California limited liability company,
incorporated on June 13, 2002, as Hamburger Factory, Inc. Hamburger
Factory, Inc., _agrees to perform all of the terms and conditions imposed
upon the Tenant by this Lease, as amended. As of the date of this
Amendment No: . 2 to ,Lease Agreement, "Tenant' shall be Hamburger
Factory, Incorporated.
2. Section 4.02 Cost.of Living Adjustment
Section 4.02 is hereby amended to read as follows:
The minimum monthly provided for. in Section 4.01 as of March 1
2004, shall be ; Four.. Thousand Four Hundred Sixty -Four Dollars and
Ninety -Four Cents ($4,464.94). The minimum rent provided.for in Section
4.01 shall be adjusted. effective October 1 of each year of the term hereof
( "the Adjustment Date ") and during any extended term hereof, in
accordance with the terms of this section.
The base for computing the adjustment is the Consumer Price Index's
Pacific Cities and U.S. City Average, All Items For All Urban Consumers,
Base Year December 1996 = 100 for West -B /C (Cities less than
1,500,000) published by the United States Department of Labor, Bureau
of Labor Statistics. The base month for all increases is July, -1997, at
which time the applicable index was 10`1.3. Each year the minimum rent
shall be increased effective October 1 by dividing the July index of the
current year by the July, 1997 . index. That productsshall then be multiplied
times the then current minimum monthly rent. The sum, which results
from the calculation, shall be rent,as adjusted by the cost of living for the
following twelve months commencing October 1:
It shall be the obligation of the Landlord to calculate the rent increase
annually and provide the rent increase .to,.Tenant. In the.-event that the
Landlord fails to provide the, rent ,increase to, Tenant - by October 1 t,
Tenant shalt continue to pay rent at thetrate payable in the previous month
until notice is received. Within fifteen (15) days after Tenant's receipt of
the notice, Tenant shall pay to Landlord any and all arrearage due
T
between October 1 and the,date of;paymenf ofthe arrearage. Landlord's
failure to "provide notice of the ,rent increase shall not constitute waiver
thereof and Landlord:may; .,at;any time during the term;,of the Lease, adjust
the, rentas provided herein, give notice of -the rent increase to Tenant, and
demand that Tenant pay the arrearage as provided herein.
The cost of living adjustment shall in no event exceed six percent (6 %)
annually. If the Index has changed, the Index. shall be converted in
accordance with the Conversion Factor published by the United States
Department of Labor, Bureau of Statistics. If the Index is discontinued or
revised during the term, such other govern ment,'index or computation with
which it is replaced shall be used in order to obtain °substantially the same
result as would be obtained if the index had been discontinued or revised.
I Section 6.04 Restriction of Tenant's Use
h. The tenant will prohibit smoking of "a 'tobacco product inside the
restaurant and within 20 feet of an exit, entrance, or operable window.
Tenant will ensure °that signage is displayed in public view.
All other terms and conditions of the Lease not in conflict herewith shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Lease
Amendment to be duly executed on the respective dates set forth opposite their
signatures.
Dated: July 20, 2004
Dated: fl Zt� y
i
CITY OF POWAY
By
l ames; L. Bowersox
ity Manager
HAMBURGER FACTORY, INC.
By: C w
Cleta Spear
President
r ' CITY OF POWAY DOCUMENT
HAMBURGER FACTORY
AMENDMENT`NO. 2'TO LEASE-AGREEMENT
On the 20th day of JulY , 2004, the parties hereto amend that
certain lease dated October 1, '1.992, by and between the City of Poway
("Landlord") and Joseph and Lisa Lucidi, subsequently assigned to Hamburger
Factory, L.L.C. ( "Tenant ') a"nd amended by Amendment No. 1 to Lease
Agreement on January 6, 1999:
1. Lease
Hamburger Factory, L.L.C., a California limited liability company,
incorporated on June 13, 2002, as Hamburger Factory, Inc. Hamburger
Factory, Inc., agrees to perform all of the terms and conditions imposed
upon the' Tenant by 'this Lease, as amended. As of the date of this
Amendment No. 2 to Lease Agreement, "Tenant" shall be Hamburger
Factory, Incorporated.
2. Section 4,02 Cost of "Living Adiustment
Section 4.02 is hereby amended to read as follows:
The minimum, monthly rent provided for in Section 4.01 as of March 1,
2004, shall be Four Thousand Four Hundred •Sixty-Four Dollars and
Ninety -.Four Cents ($4,464.94). The minimum rent provided for in Section
4.01 shall be adjusted effective October 1 of each year of the term hereof
( "the Adjustment Date') and during any extend_ ed term hereof, in
accordance with the terms of this section.
The base for computing the adjustment is the Consumer Price Index's
Pacific Cities and U.S. City Average, All Items For All Urban Consumers,
Base Year December 1996 = 100 for West -B/ C (Cities less than
1,500,000), published by the United States Department of Labor, Bureau
of Labor Statistics. The base month for all increases is July, 1997, at
which time the applicable index was 101.3. Each year the minimum rent
shall be increased effective October 1 by dividing the July index of the
current year by the July, 1997 index. That product shallthen'be multiplied
times the base rent of $3;947.60. The sum, which results from the
calculation, shall be rent as adjusted by cost of living for the following
twelve months commencing October 1.
It shall be the obligation of the Landlord to calculate the rent increase
annually and ;provide the rent increase to Tenant. In the event that the
Landlord fails to provide the rent 'increase; to Tenant by October 15r
Tenant shall continue to pay rent at the, rate payable in the previous month
until notice is received. Within fifteen, (15) days after Tenant's receipt of
the notice, Tenant shall pay to Landlord any and all arrearage due
between October 1 and the date of payment of the arrearage. Landlord's
failure to provide notice of the rent increase shall not constitute waiver
thereof and Landlord may, at any time during the term of the Lease, adjust
the rent as provided herein, give notice of the rent increase to Tenant, and
demand that Tenant pay the arrearage as provided herein.
The cost of living adjustment shall in no event exceed six percent (6 %)
annually. If the Index has changed, the Index shall be converted in
accordance with the Conversion Factor published by the United States
Department of Labor, Bureau of Statistics. If the Index is discontinued or
revised during the term, such other government index or computation with
which it is replaced shall be used in order to obtain substantially the same
result as would be obtained if the index had been discontinued or revised.
3. Section 6.04 Restriction of Tenant's Use
h. The tenant will prohibit smoking of a tobacco product inside the
restaurant and within. 20 feet of an exit, entrance, or operable window.
Tenant will ensure that signage is displayed in public view.
All other terms and conditions of the Lease not in conflict herewith shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Lease
Amendment to be duly executed on the respective dates set forth opposite their
signatures.
Dated: 0
Dated: qW c y
CITY OF POWAY
Ja es L. Bowersox
Ci Manager
By: �" 1"
Cleta Spear
President
HAMBURGER FACTORY, INC.
-_ l
Lrenows AGR ffkm T
SBA Loan #-. GP 263W740'00'SD Amount: $300;000:00
Lender. GE Capital Sorell Business Finance Corporation
635 Maryville Center Drive; Suite 120
St. Louis, MO 63141
Borrower (Lessee): Hamburger Factory, LLC
Lease Dated: October 1, 1992, Approved January 12, 1993 and Assigned and
ratified January 5,;1999.
Premises: 14122 Mldland ;Road. Poway, CA192064
Lessor certifies the Lender and:SBA as.:follows:
1. Lessor agrees that ln'the event of any default by tenant under the
lease, it will not terminate the lease without giving Lender notice of the institution of
such action at the:above address and Lender shell have;the right to cure such
default during the applicable cure period provided to Tenant under the lease.
2. Lessor. subordinates and waives as to.Lender: any and all liens,
including distraint and:le 49ainstthe property of Borrower.in the demised premises
under the lease, in which..propeRy Lender has or will have a security interest, given
to Lender by Borrower as collateral for the loan.
3. Lessor shall grant access to the premises to Lender for purposes of
removal by Lender of any property subject to Lenders security Interest with the
understanding that thetander'shali„ have the obilgation'to.repairany damage,to
premises or the Complex (as defined inthe lease) during removal'and Lender shall
remove all such property within tan (10) days after termination'of the lease. Lender
agrees to pay1ossor pro -rata rent,dudng: this, period at the rental rate set forth in the
Lease Agreement.dated Octobers, 1992, approved January 12, 1993,.assigned and
ratified January S. 1999. by and between City of Poway and Hamburger Factory LLC.
4. Lessor cardfles that the undersigned has full authority to execute this
agreement
LESSOR: City of Poway
P. O. Box789
Poway. cA 9=64
Dated
ASSIGNMENT OF LEASE
fON`4V A L'UEiiRECEIVED, I, the unaerstgna OSEP1.1 G. LUCIDI AND LISA LUCIDI Mal hereby assign, transfer and
Set
over ,u nto: HAM BU RG ERjFAGSO RY,. CLC , :.�Cel :fcrnie limited lisbili -' - --
" tyncompeny all, mye ;ng M, title endi nteresF in and t0!
.hat; certain lease,dated J anuary 12 ,1''993' b'y and between CITY OF POWAY. as Lessor; and
JOSEPH LUCIDI AND LISA LUCIOI.-as Lessee, :cover, ng` that t certain - property, situated in the City of Poway, County
of:SAN DIEGO. State. of California and particularly described�aa:
HAMBURGEn "FACTORY,' 14122 Mltlland Rood, 'Poway, CA 92004
'Tdgether' with all my right, and interest in end'to prepaid rent and /or security deposit on said lease. If any.
ACCEPTANCE OF ASSIGNMENT OF LEASE
We /1, HAMBURGER FACTORY, -LLC, a California limited (lability company do(es) hereby accept the above assignment
and agree to be bound by -,all of the conditions and covenants contained In said lease, and I promise to pay the rent .
therein, reserved In the manrier>,end', at the, times therein specified.
Dated this 91h day of Novembgr. 1998.
C1e taL. Spear, -lam fndivldua�ONSENT`TO ASSIGNMENT OF LEASE
VWe CITY OF POWAY'Lessor, named in the. foregoing mentioned' lease, do hersby� cons to the assignment as
descnbed,above, on the understa"n iing tnetdall this terms. conditlons,'provlsions. end covenants of said lease shall
remain'. and continue In full, force and effeoi.
I/y1/e elan hereby certify .the "following:
" oni' , paid in, advance in the)sum;.of si -0- is held by',me,
' A security deposit I- the sum of 9" ' -7- .is held by ms•
Rem"in' the
amount df 3 - :has p'eid to 1- 31 -99, (date).
Common arse maintenance fees 'in, the emountof g n' /a , .have been paid.to / a (date)
R
and.,are billed on a.quarTahV basis. :
eal'prboarty taxes In the amount`of. 9 n/a, have been paid to. n/a (date)
ind'.are wiled on an . annual basis,
Ind ur3r pays quar -nder the laaae irn'the amount of 5 in LUi1 ,. and hes.baen paid to (Clare)
and bllled '.on quert
a prly besi '
Rent is to be paid to :City ofPowa 1,33.25 Civic Center Drive, Poway, CA 92064
�at Telephone No.
THS ASSIGNMENT OF LEASE SHALL ONLY BE EFFECTIVE AS OF CLOSE OF ESCROW NO. 41678 -8
Dated this 6th day of January 1999
Jain s L. Bowersox, City Manager_ Lessor
Cit - of Poway
HAMBURGER FACTORY, LLC, a California limited liability
company,
LEASE AMENDMENT NO. 1 (1998)
FOR
HAMBURGERFACTORY
14122 MIDLAND ROAD
POWAY, CALIFORNIA 92064
0
9
HAMBURGERFACTORY
AMENDMENT NO. 1 TO LEASE AGREEMENT
The parties hereto amend that certain lease dated January 12, 1993 ( "Lease ") by
and between the City of Poway ( "Landlord ") and Joseph Lucidi and Lisa Jucidi
( "Tenant ") as follows.
1. Lease
Joseph Lucidi and Lisa Lucidi have assigned the Tenant's interest herein to
Hamburger Factory, LLC, a California limited liability company. Hamburger
Factory, LLC, agrees to perform all of the terms and conditions imposed upon
the Tenant by this Lease, as amended. Guarantors executing an Individual
Personal Guaranty of the Lease as amended agree to pay on demand any sum
due under the Lease.
2. Section 2.01 Nonexclusive Right To Use Common Areas
Section 2.01 is hereby amended to read as follows:
"Tenant and its authorized representatives and invitees shall have the
nonexclusive right to use the common areas, including all parking spaces,
delineated on Exhibit "A" attached hereto, with others who are entitled to use the
common areas (including the public using nearby public property and facilities),
subject to Landlord's rights set forth in Section 2.02."
3. Section 4.02 Cost of Living Adaustment
Section 4.02 is hereby amended to read as follows:
"The minimum monthly rent provided for in Section 4.01 as of October 1, 1997,
was Three Thousand Seven Hundred Ninety Seven Dollars and Sixty Cents
($3,797.60). The minimum rent provided for in Section 4.01 shall be adjusted
effective October 1 of each year of the term hereof ( "the Adjustment Date ") and
during any extended term hereof, in accordance with the terms of this section.
"The base for computing the adjustment is the Consumer Price Index's Pacific
Cities and U.S. City Average, All Items For All Urban Consumers, Base Year
December 1996 = 100 for West -B /C (Cities less than 1,500,000), published by
the United States Department of Labor, Bureau of Labor Statistics. The base
month for all increases is July, 1997, at which time the applicable index was
101.3. Each year the minimum rent shall be increased effective October 1 by
dividing the July index of the current year by the July, 1997 index. That product
shall then be multiplied times the base rent of $3,797.60. The sum which results
from the calculation shall be the rent as adjusted by the cost of living for the
following twelve months commencing October 1.
• r
Lease Amendment 1
Hamburger Factory, LLC
Page 3
"By way of example:
Adiustment Commencing October, 1998
Base Rent = $3,797.60
July, 1997 Base Index = 101.3
July, 1998 Index = 102.3
102.3 _ 101.3 = 1.01
1.01 x $3,797.60 = $3,835.58
"In accordance with the calculation set forth hereinabove, the rent for the period
October 1, 1998 through September 20, 1999 shall be Three Thousand Eight
Hundred Thirty Five Dollars and Fifty Eight Cents ($3,835.58). Tenant agrees to
pay any and all arrearage resulting from this adjustment of the rent as of October
1, 1998, not later than January 30, 1999.
"It shall be the obligation of the Landlord to calculate the rent increase annually
and provide the rent increase to Tenant. In the event that the Landlord fails to
provide the rent increase to Tenant by October 1 st, Tenant shall continue to pay
rent at the rate payable in the previous month until notice is received. Within
fifteen (15) days after Tenant's receipt of the notice, Tenant shall pay to
Landlord any and all arrearage due between October 1 and the date of payment
of the arrearage. Landlord's failure to provide notice of the rent increase shall
not constitute waiver thereof and Landlord may, at any time during the term of
the Lease, adjust the rent as provided herein, give notice of the rent increase to
Tenant, and demand that Tenant pay the arrearage as provided herein."
"The cost of living adjustment shall in no event exceed 5% annually until October
2002 or six (6) percent annually thereafter. If the Index has changed, the Index
shall be converted in accordance with the Conversion Factor published by the
United States Department of Labor, Bureau of Statistics. If the Index is
discontinued or revised during the term, such other government index or
computation with which it is replaced shall be used in order to obtain to
substantially the same result as would be obtained if the Index had been
discontinued or revised.
4. Section 6.02
Section 6.02 is hereby amended to read as follows:
Lease Amendment 1
Hamburger Factory, LLC
Page 4
5.
"Tenant shall operate its business only during the following days and between
the following hours:
Sunday - Thursday:
Friday and Saturday:
Section 14.02 Default
6:00 a.m. to 8:00 p.m.
6:00 a. m. to 9:00 p. m.
Section 14.02 is hereby deleted and amended to read as follows:
"The occurrence of any of the following shall constitute a material default and
breach of this lease by Tenant:
(a) Any failure by Tenant to pay the rent or to make any other payment
required to be made by Tenant under this lease (when that failure continues for
three (3) days after written Three (3) Day Notice to Quit or Pay Rent is given by
Landlord to Tenant).
(b) The abandonment or vacation of the Premises by Tenant (the
absence of Tenant from or the failure by Tenant to conduct business on the
Premises for a period in excess of fourteen (14) consecutive days shall
constitute an abandonment or vacation for purposes of this lease).
(c) A failure by Tenant to observe and perform any other provision of this
lease to be observed or performed by Tenant, when that failure continues for ten
(10) days after written notice of Tenant's failure is given by Landlord to Tenant,
provided, however, that if the nature of that default is such that it cannot
reasonably be cured within a ten (10) day period, Tenant shall not be deemed to
be in default if Tenant commences that cure within the ten (10) day period and
thereafter diligently prosecutes it to completion.
(d) Tenant's bankruptcy, insolvency, or dissolution as provided in Section
14.01 above."
6. Section 14.03 Remedies
Section 14.03 is hereby amended to correct the reference therein from Section
15.02 to Section 14.02.
0 0
Lease Amendment 1
Hamburger Factory, LLC
Page 5
7. Section 16.12 Interest
Section 16.12 is hereby amended to read in its entirety as follows:
"The total of rent payments which are five (5) or more days late shall be
assessed a late payment penalty of five percent (5 %) thereof each calendar
month that such payment is late."
8. Section 16.14 Notices
All reference to "rents" and 'other sums" is deleted.
Section 16.14 b. and c. are hereby amended to read as follows:
City of Poway
Attn: Director of Community Services
P.O. Box 789
Poway, CA 92074
All other terms and conditions of the Lease not in conflict herewith shall remain
in full force and effect.
0
Lease Amendment 1
Hamburger Factory, LLC
Page 6
0
IN WITNESS WHEREOF, the parties hereto have caused this Lease
Amendment to be duly executed on the respective dates set forth opposite their
signatures.
Dated: I (0 199`
Da • •9
Dated: t��k 199
/ Q
Dated: l
Dated: Q ,
CITY OF POWAY
Qy �61V)A
� Jpmes L. Bowersox
City Manager
HAMBURGER FACTORY, LLC
a California Limited Liability Company
By S�l 4 l e
By:
Lis ucidi
1998. By: \
Cleta L. Spear, nager
199 I f By:
Stanlee A. Verheijen, Ma ger
Izz
X - 2,
E
A7� �j�
MCI
Pill 14
0
E
ESTOPPEL CERTIFICATE TO LANDLORD
We, the undersigned, certify the following:
1. We are the Tenant in possession of those leased premises generally
known as "Hamburger Factory' located at 14122 Midland Road, Poway,
California 92064.
2. We hold the premises under a written lease between ourselves as Tenant
and the City of Poway as Landlord dated January 12, 1993.
3. The prior term of the lease expires September 20, 2012, subject to
Tenant's option to extend the lease for an additional twenty -four (24)
months.
4. As of the date of this certificate, the Landlord is not in default in the
performance of such lease, nor has Landlord committed any breach of the
lease.
5. No rent has been paid in advance by Tenant.
6. No security deposit has been paid in advance by Tenant.
7. Tenant has no claim against Landlord for any deposits.
8. Tenant has no claim against Landlord for overpayment of rent.
9. Tenant has no defenses or offsets which could be alleged in any action
brought against Tenant for rents accruing under the lease after January 1,
1999.
Executed one 1999, at Poway, California.
I declare under penalty of perjury that the foregoing is true and correct
.=
� ZisA L bi
U'AHOMMCIMPOWAY POOMESTOPPEL CER
INDIVIDUAL PERSONAL GUARANTY
I, Cleta L. Spear, in consideration of the City of Poway's execution of that certain
Lease Amendment No. 1998 -1, by which Hamburger Factory, LLC, is obligated to make
regular payments for leased property, as those payments are specified in said Lease
Amendment, personally guaranty to the City of Poway all payments to be made by
Hamburger Factory, LLC, under said Lease as amended. I agree to pay on demand any
sum that may become due to City of Poway whenever Hamburger Factory, LLC, fails to
make timely payment. It is understood that this guaranty will be a continuing, irrevocable
guaranty and indemnity for any indebtedness of Hamburger Factory, LLC, under the Lease
as amended. I agree that any notice provided to Hamburger Factory, LLC, as required by
the Lease will be deemed to have been provided to me personally. I further agree that my
personal consent will not be required for any modification, renewal, or exercise of option
by Tenant under the Lease, and that any of these acts by Lessee will not cancel or alter
this guaranty in any way. I further agree that I shall be obligated hereunder and that the
City of Poway may pursue collection of my obligations hereunder without regard to whether
or not suit has been filed against Hamburger Factory, LLC, or any other guarantor of the
Lease, and whether or not judgment has been obtained against Hamburger Factory, LLC,
or any other guarantor.
DATE: � I b I % GUARANTOR:
C Q 4tn LdA
CLETA L. SPEAR ,
0 0
INDIVIDUAL PERSONAL GUARANTY
I, Stanlee A. Verheijen, in consideration of the City of Poway's execution of that
certain Lease Amendment No. 1998 -1, by which Hamburger Factory, LLC, is obligated to
make regular payments for leased property, as those payments are specified in said Lease
Amendment, personally guaranty to the City of Poway all payments to be made by
Hamburger Factory, LLC, under said Lease as amended. I agree to pay on demand any
sum that may become due to City of Poway whenever Hamburger Factory, LLC, fails to
make timely payment. It is understood that this guaranty will be a continuing, irrevocable
guaranty and indemnity for any indebtedness of Hamburger Factory, LLC, under the Lease
as amended. I agree that any notice provided to Hamburger Factory, LLC, as required by
the Lease will be deemed to have been provided to me personally. I further agree that my
personal consent will not be required for any modification, renewal, or exercise of option
by Tenant under the Lease, and that any of these acts by Lessee will not cancel or alter
this guaranty in any way. I further agree that I shall be obligated hereunder and that the
City of Poway may pursue collection of my obligations hereunder without regard to whether
or not suit has been filed against Hamburger Factory, LLC, or any other guarantor of the
Lease, and whether or not judgment has been obtained against Hamburger Factory, LLC,
or any other guarantor.
DATE: 1uc�Lt G lC�� GUARANTOR:
STANLEE A. VERHEIJEN
INDIVIDUAL PERSONAL GUARANTY
I Philip R. Spear, in consideration. of the City of Poway's execution of that certain
Lease Amendment No. 1998 =1, by which Hamburger Factory, LLC, is obligated to make
regular payments for leased property, as those payments are specified in said Lease
Amendment, personally guaranty to the City of Poway all payments to be made by
Hamburger Factory, LLC, under'said Lease as amended. I agree to'pay on demand any
sum that may become due to City of Poway Hamburger Factory, LLC, fails to
make timely payment. It is understood that this guaranty will be a continuing, irrevocable
guaranty and indemnity for any indebtedness of Hamburger Factory, LLC, under-the Lease
as amended. I agree that any notice provided to Hamburger Factory, LLC, as required by
the Lease will be deemed to have been provided to me personally. I further agree that my
personal consent will not be required for any modification, renewal, or exercise of option
by Tenant under the Lease, and that any of these acts by Lessee will not cancel or alter
this guaranty in any way. I further agree that I shall be obligated hereunder and that the
City of Poway may pursue collection of my obligations hereunder without regard to whether
or not suit has been filed against Hamburger Factory, LLC, or any other guarantor of the
Lease, and whether or not judgment has been obtained against Hamburger Factory, LLC,
or any other guarantor.
DATE: 9,5�
GUARANTOR:
r �
PHILIP P A. SP
.,Am 51999 ITEM 19
INDIVIDUAL PERSONAL GUARANTY
I, Frans Verheijen, in considerationof =:the City of Poway's execution of that certain,
Lease Amendment No. 1998 =1, by which. HamburgerFactory, LLC, is obligated to make
regular payments for leased property, as those payments are specified in said Lease
Amendment, personally guaranty to the City, of Poway all payments to be made by
Hamburger Factory,. LLC, under said Lease as amended. I agree:to pay.on demand any
sum that may become due to' City of Poway whenever Hamburger Factory LLC, fails to
make timely payment. It is'understocd that this guaranty will be a'continuing, irrevocable
guaranty and indemnity for any indebtedness of Hamburger Factory, LLC, under the Lease
as amended. I agree that any notice provided to Hamburger Factory, LLC, as required by
the Lease will be deemed to;have been provided to me personally. I further agree that my
personal consent will not be required for any modification, renewal, or exercise of option
by Tenant under the Lease, and that any of these acts by'Lessee will not cancel or alter
this guaranty in any way. I further agree that I shall be,obligated hereunder and that the
.City of Poway may pursue, collection of my obligations hereunder without regard to whether
or not suit has been filed..against Hamburger Factory, LLC, or any other guarantor of the
Lease, and whether or.not judgment has been obtained against Hamburger Factory, LLC,
or any other guarantor. 9 /
DATE: y If AF
GUARANTOR:
FRANS
17 „F rr JAN 5 1999. A T EM , o
v
V
CITY OF POWAY DOCUMENT NUMBER
602 -01 #967
COMMERCIAL LEASE
FOR
HAMBURGER FACTORY
14122 MIDLAND ROAD:
POWAY, CALIFORNIA 02064
DATE AMENDED: OCTOBER 1, 1992
DATE APPROVED: JANUARY 12, 1993
LANDLORD:tCITY OF POWAY
P.O. BOX 78,9,
POWAY, CALIFORNIA 92064
TENANT: JOSEPH AND LISA.LUCIDI
14122 MIDLAND ROAD
POWAY, CALIFORNIA 92064
INDEX
PAGE
ARTICLE
I
DEMISE OF LE I ASE D:PREMISES
1
Section
IOD
Demise
1
.Section
1.02
Landlord's Warranty of Quiet Enjoyment
1
ARTICLE
II
COMMON AREA
1
Section
'2.01
Tenant's,,Right to Use
1
Section
2.02
Landlord's Maintenance and Management.
1
ARTICLE
III
TERM
2
Section
3.01
Primary Term
2
Section
3.02
Extended Term
2
ARTICLE
IV
RENT
2
.Section
4.01
Minimum Rent
2
Section
4.02
Cost of Living Adjustment
2
ARTICLE
V
UTILITIES AND TAXES
3
.Section
5.01
Utilities
3
Sect "ion
5,.02
Personal.Pr.operty Taxes
3
ARTICLE
VI
USE AND OCCUPANCY
3
Section
6,01
Use
3
Section
6.02
Hours of Operation
3
Section
6.03
Compliance With Law
3
Section
6.04
Restriction on Tenant's Use
3
ARTICLE
.VII
TRADE FIXTURES
4
Section
7.OI
Installation
4
Section
7.02
Removal
4
ARTICLE
VIII
ACCEPTANCE OF LEASED ,PREMISES AS IS
4
Section
8.01
Waiver of Claim /Rights
4
ARTICLE
IX
ALTERATIONS,, REPAIRS,,RESTORATION
5
Section
9.01
`Tenant's Installations, Additions and Improvements
5
Section
9.02
Repairs Or Routine Emergency Repairs Not Being
Made or For
5
Section
9.03
Mechanic's Liens
5
Section
9.04
Damage or Destruction by Fire or Other Casualty
6
0 •
INDEX PAGE
ARTICLE X CONDEMNATION
Section
10:01
Total Condemnation
6
- Section
10.02
Partial Condemnation
6
`Section
10.03
Allocation of,Award
7
Section
10.04
Allocation .of Award
7
ARTICLE
XI
SUBORDINATION
7
Section:
11.01
liens•to Which Lease is Subordinate
7
Section
11.02
Statement of Modifications
8
ARTICLE
XII
INDEMNITY AND INSURANCE
8
Section
12.01
Responsibility for Acts of Tenant
8
Section
12.02
Public Liability and Property Damage Insurance
8
ARTICLE,XIII
ASSIGNMENT AND SUBLEASING
9
Section
13.01
Landlord's Consent Required
9
Section
13.62
No Waiver
9
Section
13:03
Liability of Tenant
10
ARTICLE
XIV
DEFAULT AND REMEDIES
10
Section
14.01
Tenant',s Bankruptcy, or Dissolution
10
Section
14.02
Default'
10
Section
14.03
Remedies
11
Section
14.04
Measure of Damages
11
Section
14.05
No Waiver of Default
11
:Section
14:06
Remedies Cumulative
12
,Section
14.07
Landlord's Right to Cure Default
12
ARTICLE
XV
LANDLORD'S GENERAL PROTECTIVE PROVISIONS
12
Section
15.01
Surrender at End of Term
12
Section
35.02
No Merger - Termination of Subtenancies
12
Section
15.03
Release of Landlord After Sale
12
Section
15.04
Landlord's Right to Inspect
12
ARTICLE
XVI
GENERAL PROVISIONS
12
Section
16.01
Conditions and Covenants
12
Section
16.02
No Waiver of Breach
13
Section
16.03
Time of Essence
13
Section
16.04
Computation of Time
13
Section
16.05
Unavoidable Delay - Force Majeure
13
Section
16.06
Successors in Interest
13
Section
16.07
Entire Agreement
13
Section
16.08
Partial Invalidity
13
Section;
16.04
Relationship of 'Parties
14
Section
16.10
Interpretation and Definitions
14
INDEX
PAGE
Section
16.11
Attorney's Fees
14
'Section
16.12
Interest
14
Section
16.13
Modification
15
Section
16.14
Notices
15
Section
16.15
Holding Over
15
ARTICLE
XVII
EXECUTION
15
Section
17.01
Counterparts
15
Section
17.02
Execution
15
0 6
LEASE
THIS is made at 'Poway, Callifornia,..as of October 1, 1992, by and between
the _CITY OF POWAY, _ (hereinafter "LANDLORD ") and Joseph and
.Lisa Lucidi ( "TENANT'), who agree as follows:
ARTICLE I DEMISE Of LEASED PREMISES
Section 1_01 Demise
Landlord leases to Tenant and Tenant leases from.Landlord the premises
situated at 14122 Midland Road, Poway, California, consisting of approximately
2;596 square feet of ins -ide. floor space, 2,110 square feet of outside floor
space, and'equipment and furnishings belonging to Lessor as shown in
Exhibit A.
Section 1.02 Landlord's Warranty of Ouiet Enjoyment
Landlord covenants. and agrees that Tenant, upon paying the rent and other
charges.herein provided for and observing and keeping the covenants,
conditions; and terms of this Lease on Tenant's ;part to be. kept or performed,
shall lawfully and quietly hold, occupy and enjoy the leased premises during
the tern of this Lease without hindrance or molestation of Landlord or any
person claiming under Landlord.
ARTICLE II COMMON -AREA
Section 2.01 enant's'Right to Use
Landlord gives to Tenant and its authorized representatives and invitees the
nonexclusive right to use the common areas including all parking spaces, with
others who are use the common areas, subject to Landlord's rights
set forth in Section 2.02.
Section 2 Landlord's 'Maintenance and Managgment
Landlord shall maintain the common areas in good condition at all times.
Landlord shall have right to:
.a. Establish and enforce reasonable rules and regulations applicable to
all tenants;;,concerning the maintenance, management, use and operation
of the common areas.
b. Close temporarily any of the common areas for maintenance purposes.
c. Select a person to maintain and operate any of the common areas if at
any time Landlord determines that the best interests of all parties will
be served by having any�of the commom areas'mainta,ined and operated by
that person: Landlord shall have the right to negotiate and enter into
a contract with that person on such terms and conditions and for such
period of time.as Landlord deems reasonable and proper, both as to
service and as to cost.
Make changes to the common areas, including, without limitation, changes
in the location of driveways, entrances, exits, vehicular parking spaces,
parking area, or the direction of the -flow of` traffic following written
notice to Tenant.
ARTICLE III TERM
Section 3.01 Primary Term
The term of this Lease shall be for a period of twenty (20) years, commencing
on October 1, 1992, and expiring, unless sooner terminated, at 12:01
a.m. on the 20th anniversary of the date the term commences.
T714 ,u
Provided Lessee shall not then be in default hereunder, Lessee shall have the
option to extend the term.of this Lease for twenty -four (24) months, upon the
same terms and conditions herein contained, except for the minimum monthly.
rental, upon delivery by Lessee to Lessor of its written notice of such
election at least sixty (60) days prior to the expiration of the current term,
The minimum monthly rental during the extended terms shall be subject to
adjustment annually as set forth in Section 4.01 herein.
ARTICLE IV RENT
Subject to adjustments as hereinafter set forth, Tenant shall pay to Landlord
as minimum monthly rent, without deduction, set off, prior notice, or demand,
the sum of $2,475.00 ($.75 per square foot) per month in advance on the first
day of each month, commencing on the date the term commences and continuing
for a twenty -four (24) month period. After the twenty -four (24) month period,
the rent shall be $3,124.00 ($1.00 per square foot) for the following twelve
month period. Minimum monthly rent-for the first month or portion of it shall
-be paid on the day the term commences. Minimum monthly rent for any partial
month shall be prorated at the rate of one - thirtieth (1/30) of the minimum
rent per day.
The Poway Redevelopment Agency agrees to reimburse Lucidi for the renovation
work by crediting the sum of $2,054.07 per month against Lucid:i's rent
obligation to'the Poway Redevelopment Agency for the Hamburger factory for
period of thirty -six (30) months and paying to Lucidi in the thirty -sixth
(36th) month,the sum of $202,518.10 without interest. The thirty -six '(36)
month period shall begin upon this amended lease commencement date.
Lessee has agreed in addition to construct and fund patio/kitchen improvements
on the north side of the Hamburger Factory, which includes 2,110 square feet.
The Lessor has agreed to rent,2,110 square feet to the Lessee at a cost of
twenty -five cents a square foot for three (3) years.
2
Section 4.02 Cost of Living Adjustment
The minimum monthly rent provided for in Section 4.01 shall' be subject to
adjustment at the:commencement of the fourth (4th) year of the term and every
year thereafter ( "the adjustment date ") and during any extended term hereof.
The base for computing the adjustment is the Consumer Price Index, All Items,.
for All Urban Consumers (base year December 1977 =100) for West -C (Cities
50,000 to 330,000) published by the'United States Department of Labor, Bureau
of Labor Statistics ( "index "), which is published for the month nearest the
date of the commencement of the term ( "beginning index ") has increased over
the beginning index, the'minimum monthly rent set,forth in Section 4.01 by a
fraction, the numerator of which is the extension index and the denominator of
which is the.beginning index. The cost of living adjustment shall not exceed
five percent (5 %) annually for the first ten years, and six percent (6 %) for
the second ten years. If the index is changed so that the base year differs
from that used as of the month immediately preceding the month in which the
term commences, the index.shall be converted in accordance With the conversion
factor published by the United States Department of Labor, Bureau of Labor
Statistics. If the. index is d.iscont:inued or revised during the term, such
other government index or computation with which it is replaced shall be used
in order to obtain substantially the same result as would be obtained;if the
index had not been discontinued or revised.
ARTICLE V UTILITIES AND TAXES
Section 5.01 Utilities
Tenant shall makeal,l arrangements for and pay for all utilities and services
furnished to or used by Tenant, including, without.limitation, gas,
electricity, telephone service, trash collection and for all connection
charges other than City initiated charges. Lessor shall pay for water.
Section 5.02 Personal Property Taxes
Tenant shall pay before delinquency, all taxes, assessments, license fees and
other charges that are levied and assessed against Tenant's business, place of
business, and personal property installed or located in or on the premises,
and that become payable during, the term. The tenant is responsible to pay the
possessory interest tax for all facilities leased under this agreement. On
demand by Landlord, Tenant shall furnish Landlord with satisfactory
evidence: of these payments.
11
ARTICLE YI
Section 6,01
USE AND OCCUPANCY
U se
0
Tenant shall use the premises for the purpose of operating and conducting a
family restaurant and for no other use without Landlord's consent.
Section 6.02 Hours of Operation
The Tenant shall operate their business from 11:00 a,m. to 10:00 p.m., six
days a week. The hours may be extended upon prior written notification and
approval by the Director of Community Services.
Section 6.03 Compliance Nith Law
Tenant shall comply with and conform to all laws and regulations, municipal,
state and federal, and any and all requirements and orders of any municipal,
state, or federal court or authority, present or future, in any way relating
to the use or occupancy of the leased premises throughout the entire term of
this Lease and any extension or renewal thereof.
Section 6.04 Restriction of Tenant's Use
Tenant agrees, in using the leased premises:
a. Not to commit any waste or suffer any waste to be committed upon the
leased premises.
b. Not to commit any public or private nuisance or any other act or thing
which might or would disturb the quiet enjoyment of any occupant of
nearby property.
c. Not to burn refuse or other materials in or about the leased premises,
or permit any activity or activities which might cause unreasonable
annoyance to any occupant or nearby property.
d. Not to overload, or permit the overloading of, any floor in the
buildings located upon the leased premises.
e. Not to keep,.use, sell, or offer for sale on the leased premises, any
article; or conduct any activity thereon, which may be prohibited by
the standard form of fire insurance policy, and if Tenant does keep,
use, sell or offer for sale any such article, or if any acts are performed
on the leased.premises by tenant which increase the rate of fire
insurance premiums upon the leased premises, Tenant agrees to pay to
Landlord the amount of increase in fire insurance and'premiums
attributable thereto on demand.
f. Not to place, construct, or maintain any sign, advertisement, awning,
banner or other exterior decoration on the leased premises or in the
immediate vicinity thereof, without Landlord's prior written consent.
4
0 0
g. The Tenant will be allowed one sign, in accordance with the City's sign
ordinance, which will be permitted on Midland Road at the.park entrance.
ARTICLE VII
TRADE FIXTURES
Installation
Tenant may install in and affix to the leased premises such fixtures and
equipment as Tenant deems desirable.
Not later than the expiration or termination of this Lease, Tenant is required
to.surrender possession of the leased premises to Landlord. Tenant may, and
if prior to. the expiration of such time Landlord gives written notice.
requiring Tenant to do so, Tenant shall remove all trade fixtures installed in
the leased premises by Tenant. All trade fixtures not removed within such
time shall become and remain the property of Landlord. The removal of such
trade fixtures shall be effected solely at the expense of Tenant and in the
manner satisfactory to Landlord and without injury or damages to the leased
premises or the building, and Tenant covenants to repair immediately, at
Tenant's expense, any injury or damage caused by such removal.
ARTICLE VIII ACCEPTANCE OF LEASED PREMISES AS IS
��
Tenant has examined and inspected and knows the condition of the leased
premises and every part thereof and agrees to accept the same,in their present
condition Tenant waives any right "or claim against Landlord for any cause,
directly or indirectly, arising out of the condition of the leased premises,
appurtenances thereto, the improvements thereon; and the equipment thereof.
ARTICLE IX ALTERATION, REPAIRS AND IMPROVEMENTS
Section 9.01 Tenant's Additions and Improvements
a. Tenant shall make no installations, additions, or improvements in or
to the leased premises except as otherwise authorized in this Lease,
or structural alterations or changes either to the interior or
exterior of the buildings located on the leased premises ", or in the
bearing walls, supports, beams, or foundation, without the written
consent of the Director of Community Services.
b. Plans and specifications showing such proposed installations,
additions, or improvements and alterations and changes, shall be
submitted to landlord for approval upon the application for such
written consent.
c. All installations, additions, or "improvements, and alterations and
changes made, with the written consent of Landlord, shall be made under
the supervision of an architect or engineer satisfactory to Landlord.
5
0
If during the term of this Lease any additions, alterations, or
improvements in,or to the leased premises, as distinguished from
repairs, are required by any government authority or any law,
ordinance, or governmental regulation because of the use to which
the leased premises are put by Tenant and not by reason of the
character or structure of the building, they shall be made and paid
for by Tenant.
The Tenant agrees during the term hereof, and any extension or
renewal thereof, to keep and maintain the leased premises and the
exterior and the interior of all doors, windows, and plate glass in
and about the leased premises in good order, condition, and repair,
including, without limiting the foregoing, all plumbing, electrical
and sewage facilities within the leased premises, fixtures, interior
walls, floors, ceilings, sides, and all interior building appliances
and similar equipment. The Landlord may at times require the Tenant
to make repairs such as painting, carpentry, plumbing, electrical,
and other types of repairs to the inside of the building during the
time of the'Lease. These repairs will be made within thirty (30)
days of any written request for the reason of aesthetics or five (5)
days for health.and safety reasons. If the repairs are not made
within the stated time frame the City may make the repairs, and
charge the costs to the Tenant.
Section 9.03 Mechanic's Liens
Tenant agrees to pay promptly for all labor done or materials furnished
for any work or repair, maintenance, improvements, alterations, or
addition done by Tenant in connection with the leased premises, and to
keep and to hold the leased premises free, clear, and harmless of an from
all liens that could arise by reason of any .such work. If any such lien
shall at any time be filed against the leased premises, Tenant 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 in
good faith determines that such lien should be contested, Tenant shall
furnish such security as may be necessary or required to prevent any
foreclosure proceedings against the leased premises 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 any other
right or remedy, Landlord may, but be obligated to discharge the same.,
either by paying the amount claimed to be due or by procuring the
discharge of such lien by deposit in court or by giving security or in
such other manner as is or may be prescribed by law. Tenant shall repay
to Landlord on demand all sums disbursed or deposited by Landlord
pursuant to the foregoing provisions hereof, including Landlord's costs,
expenses and reasonable attorney's fees incurred by Landlord in
connection therewith. Nothing contained herein shall imply any consent
or agreement on the ,part of Landlord to subject Landlord's interest in
the leased premises to liability under any mechanic's lien law.
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b. Landlord shall at all times have the right to post and to keep posted
on the leased premises notices provided "for under the laws of the State
of California for the protection of the ],eased premises from mechanic's
liens or'liens of a similar nature.
, Section 9.04 Damage of Destruction by Fire or Other Casualty
a. Should the building in which the leased premises are located be damaged
by fire or other casualty, then if damage is so slight as not to
interfere substantially with Tenant's use of the leased premises,
Tenant shall notify Landlord. The Tenant shall immediately undertake
to make repairs to the building and improvements and restore the same
to substantially the same condition as they were in immediately preceding
such damage or destruction, such work shall be done as. rapidly
as conditions permit and there shall be no abatement of rent.
b. Should there be total or substantial destruction in such building and
improvements so that the leased premises are rendered unusable, either
in whole or in part, either party shall have the right to terminate
this Lease by mutual agreement of both parties.
c. Unless the parties to the Lease can and do agree forthwith upon the
extent and amount of such damage or destruction, the parties shall
mutually agree to the selection of a certified architect, registered
engineer, or Iicensed,building contractor who shall determine such
matters, and the determination of such architect, engineer or contractor
shall be final and binding upon the parties to this Lease.
d. Tenant shall repair or rebuild such building and improvements to
substantially the same condition that they were in immediately preceding
such damage or destruction unless both parties agree to the termination
of the Lease.
e. Tenant shall be entitled_ to a reasonable suspension or diminution of
the rent payable hereunder during the time required for restoration and
repair according to the portion of the leased premises rendered unusable,
taking into considerat -ion the time and extent of interference with the
usual conduct of Tenant's business.
ARTICLE X CONDEMNATION
Section 10.01 Total Condemnation
If during the term hereof there shall,be a "total taking" by a public
authority under the power of eminent domain, then the leasehold estate of
Tenant in the leased premises shall cease and terminate as of the date actual
physical possession thereof shall be taken: "Total taking" is defined to be
the taking of the entire leased premises under the power of eminent domain or
taking of so much of the leased premises as to prevent or substantially impair
the conduct of Tenant's business therein.
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Section 10.02 Partial Condemnation
If during the term hereof there shall be a partial taking of the leased
premises, this Lease shall terminate as to the portion of the'leased premises
taken upon the date which actual possession of the portion of the leased
premises is taken pursuant to eminent domain proceedings, but this Lease shall
continue in force and effect as to the remainder of the leased premises. The
rental payable by Tenant for the balance of the term shall be abated in the
ratio that the square footage of the floor area of the leased premises taken
bears to the total floor area of the leased premises at the time of such
taking. "Partial taking" is defined to be the taking of only a portion of the
leased premises under the power of eminent domain which does not constitute a
"total taking" as defined above in Section 11.01.
ARTICLE XI SUBORDINATION
Section 11.01 Liens to Which Lease is Subordinate
This Lease, at Landlord's option, shall be subordinate to any ground lease,
mortgage, deed of trust, or any other hypothecation or security now or
hereafter placed upon the real property of which the premises are a part and
to any and all advances made on the security thereof and to all renewals,
modifications, consolidations, replacements, and extensions thereof.
Notwithstanding such subordination, Tenant's right to quit possession of the
premises shall not be disturbed if Tenant is not in default and so long as
Tenant shall pay the ren`'and observe and perform all of the provisions of
this Lease, unless this Lease is otherwise terminated pursuant to its terms.
If any mortgagee, trustee, or ground lessor shall elect to have this Lease
prior to the lien of its mortgage deed of trust or ground lease, and shall
give written notice thereof to Tenant, this Lease shall be deemed prior to
such mortgage, deed of trust, or ground lease, whether this Lease is dated
prior or subsequent to the date ;of said mortgage deed of trust or ground
lease or the date or recording thereof.
Tenant agrees to execute any documents required to effectuate an attornment,
subordination, or to make this Lease prior to the lien of any mortgage, deed
of trust, or ground lease, as the case may be. Tenant's failure to execute
such documents within twenty (20) days after written demand shall constitute
materi default by Tenant hereunder, or, at Landlord's option, Landlord shall
execute such documents on behalf of Tenant as Tenant's attorney -in -fact.
Tenant does hereby make, constitute and irrevocably appoint Landlord as
Tenant's attorney -in -fact and in Landlord's name, place and stead, to execute
such documents in accordance with paragraph. (12.01).
Section 11.02 Statement of Modifications
Tenant shall at any time, and from time to time, upon not less than twenty
(20) days prior written request by Landlord execute, acknowledge and deliver
to Landlord a statement in writing certifying that this Lease is unmodified
and.in full force and effect (or, if there shall have been modifications,
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that the Lease is in full force and effect as modified and stating the
modification or modifications) and the dates to wh,i'ch the fixed'rent and any
other charges, or payments.have been paid in advance. It is expressly
understood and agreed that any such statement delivered pursuant to this
paragraph may be 'relied upon by Landlord or by any prospective purchaser,
mortgagee, assignee of any mortgagee, or the trustee or beneficiary of any
deed of trust placed upon the leased premises.
ARTICLE XII INDEMNITY AND INSURANCE
Section 12.01 Responsibility for Acts of Tenant
a. Landlord shall not be liable at any time for any loss, damage, or
injury to the property or person of any person whomsoever at anytime
occasioned by or arising out of any act or omission of Tenant, or of
anyone holding under Tenant or the occupancy or use of the leased
premises or any part thereof.by or under Tenant, or directly or indirectly
from any state or condition of the leased premises or any part thereof
during the term of this Lease.
b. Any provisions hereof to the contrary notwithstanding and irrespective
of any insurance carried by Tenant for the benefit.of Landlord, Tenant
agrees to protect, indemnify, and hold Landlord and the leased premises
harmless from any and all damages or liabilities of whatsoever nature
arising under the terms of this Lease or arising out of or in connection
with the operation carried on by Tenant on, or the use or occupancy .
of, the leased premises.
Section 12.02 Public Liability and Property Damage Insurance
a. Tenant shall carry and.maintain during the entire term hereof, at
Tenant's sol'e cost and expense, broad form comprehensive,public liability
insurance with a combined single limit of not less than $1,000,000,
insuring against any and all liability of Tenant with respect to the
leased premises or arising out of the maintenance, use or occupancy'
thereof.
b. Not more frequently than each two (2) years, if, in the opinion of
Landlord's lender or of the insurance broker retained by Landlord, the
.amount of public liability and property damage insurance coverage at
that time is, not adequate, Tenant shall increase the insurance coverage
as required by either Landlord's lender or Landlord's insurance broker.
c.. All policies of insurance to be carried and maintained by Tenant
hereunder shall be issued by companies having not less than Best's "A"
rating and shall be issued in the names of Tenant and Landlord and for
the mutual and joint benefit and protection of the parties. All such
policies shall contain a provision 'that Landlord, although named as an
insured, shall nevertheless be entitled to recovery under such policies
of insurance, which certificate shall,. among other things, designate
the company writing the same, and the number, amount,, and provisions
thereof. Upon Landlord's written request, duplicate copies of such
certificates of insurance shall be delivered to Landlord's mortgagee.
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d. All insurance policies shall contain a provision that such policies
shall not be canceled or terminated without forty -five (45) days prior
notice prior notice from the insurance company to Landlord. Tenant agrees
that on or before ten (10) days prior to expiration of any insurance
policy, Tenant will deliver to Landlord written notification in the form
of a receipt or other similar document from the applicable insurance
company that said policy or policies have been renewed, or deliver
certificates of insurance coverage from another good and solvent insurance.
company for such coverage.
No use shall be made or permitted to be made of the.said premises nor
acts done which will cause a cancellation of any insurance policy
covering said building, or any part thereof, nor shall .Lessee sell, or
permit to be kept, used, or sold, in or about said premises, any
article which may be,prohibited by the standard form of fire insurance
policies. Lessee shall, at his sole cost and expense, comply with any
and all requirements, pertaining to said premises, or any insurance
organization or company, necessary for the maintenance of reasonable
fire and public liability insurance, covering said building and
appurtenances.
ARTICLE XIII ASSIGNMENT AND SUBLEASING
Tenant shall not assign, mortgage, or hypothecate this Lease in whole or in
part, nor sublet all or any pant of the leased premises, without the prior
written consent of Landlord in each instance. This prohibition against
assigning or subletting shall be construed to include a prohibition against
any assignment or subletting by operation of law. Landlord's consent will not
unreasonably be withheld. Tenant agrees to reimburse Landlord for any
out -of- pocket expense and fees involved with any Lease Assignment or Sublease.
Section 13.02 No Waiver
The consent by Landlord to any assignment or subletting shall not constitute
Waiver of the necessity for such consent to any subsequent assignment or
subletting. If this Lease be assigned, or if the leased premises or any part
thereof'be sublet or occupied by anybody other'than Tenant, Landlord may
collect rent from the assignee, subtenant, or occupant, and apply the new
amount collected to the rent herein reserved, but no such assignment,
subletting, occupancy, or collection shall be deemed a waiver of this
covenant, or a release of Tenant from the further performance by Tenant of
covenants on the part of Tenant.
Notwithstanding any assignment or sublease,
on this Lease and shall not be released fro m
covenants, and conditions of this Lease.
Tenant shall remain fully liable
performing any of the terms,
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ARTICLE XIV DEFAULT AND REMEDIES
Section 14.01 Tenant's Insolvency: Bankruptcy. or Dissolution
a. This Lease shall be deemed repudiated and breached by Tenant if, during
the term of this Lease:
1. A petition to have Tenant adjudicated a bankrupt or a petition for
reorganization or arrangement under any of the laws of the United
States relating to bankruptcy be filed by Tenant or be filed
against Tenant, and -if so filed against Tenant not be dismissed
within ninety (90) days from the date of such filing.
2. The assets of Tenant or the business conducted by Tenant on the
leased premises be assumed by and Trustee or-'other person pursuant
to any judicial proceedings.
3. Tenant becomes insolvent or makes an assignments for the benefit
of creditors, or commits any act of bankruptcy.
.b. Tenant expressly agrees that Landlord may at its election terminate
this Lease in the event of the occurrence of any of the contingencies
hereinabove described by giving not less than ten (10) days written
notice to Tenant and when so terminated, Landlord may re -enter the
leased premises, and the leasehold interest created by this Lease
shall not be treated as an asset of Tenant's estate. It is further
expressly understood, and agreed that Landlord shall be entitled upon
such re- entry, notwithstanding any other provisions of this Lease, to
exercise such rights and remedies and to recover from Tenant as damages
for loss of the bargain resulting from such breach, and not as a
penalty, such amounts as are specified in Section 14.03, unless any
statue or rules or law governing the proceeding in which such damages
are to be proved shall lawfully limit the amount of such claims capable.
of being so proved, in which case Landlord shall be entitled to recover
as and for liquidated damages the maximum amount which may be held
under any such statute or rule or law.
Section 14.02 Default
Landlord may, at Landlord's option and without limiting Landlord in the
exercise of any other right or remedy Landlord may. have on account of a
default or breach by Tenant, exercise the rights and remedies specified in
Section 15.03 if:
a. Tenant defaults in the payment of any money agreed to be paid by Tenant
to Landlord for rent or to be paid for taxes and utilities or for any
other purpose under this Lease, and if such default continues for
ten (10) days after written notice to Tenant by Landlord.
b. tease is deemed abandoned when: 1.) tenant abandons lease premises;
2.) lessor properly notices the lessee regarding the assumed abandonment;
and 3.) when rent is eighteen (18) days delinquent.
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c. Tenant defaults in the performance of any other of its agreements,
conditions, or covenants under this Lease and such default continues for
ten (10) days after written notice, plus such period of delay as Tenant
may encounter in the performance of J ts by reason of matters
beyond the control of Tenant.
Section 14.03 Remedies
On any breach, default, or abandonment, Landlord may exercise any of the
following rights after the periods of time stated in Section 15.02:
a. Immediately re -enter and remove al'l persons'and property from the
leased premises, storing the personal property in a public warehouse or
elsewhere at the cost of, for the account of, and at the risk of
Tenant. In the event of any such re -entry by Landlord, Landlord may
make any repairs, additions, or improvements in, to, or upon'the leased
premises .which may be necessary or convenient; provided, however, that
Landlord shall be entitled to recover from Tenant the expense of such
repairs or alterations only to the extent necessary to restore the
building to the condition it was in on the commencement of the term of
the Lease, reasonable wear and tear excepted_. In such instance, the
Lease will be terminated, and Landlord will be entitled otherwise to
recover all damages allowable under law or this Lease.
b. To collect by suit or otherwise each installment of rent or other such
sum as it becomes due hereunder, or to enforce, by suit or otherwise,
'any other term or provision hereof on the part of Tenant required to be
kept on performed, it being specifically agreed that all unpaid
installments of rent or other sums shall bear interest at the highest
legal rate from the due date thereof until paid.
c. Terminate this Lease, in which event Tenant agrees to immediately
surrender possession of the lease premises, and to pay to Landlord, in
addition'to any other remedy Landlord may have, all damages Landlord
may incur by reason of Tenant's default, including the cost of recovering
the leased premises.
Section 14.04 Measure of Damage
The damages Landlord may recover include the worth at the time of award of the
amount by which the unpaid balance for the balance of the term after the time
of'award exceeds the amount of such rental loss for the same period that
Tenant proves could be reasonably avoided.
Section 14.05 No Waiver of Default
Landlord's or Tenant's failure to take advantage of any default or breach of
covenant on the part of Landlord or Tenant shall not be, or be construed as a
waiver thereof, nor shall any custom or practice which may grow up between the
parties in the course of administering this instrument be construed to waive
or to lessen the right of'Landlord or Tenant to insist upon the performance by
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Landlord or Tenant. of any term, covenant., or condition hereof, or to exercise
any rights given Landlord or Tenant,on account of any such default. A waiver
of a particular breach, or default, shall not be deemed to be a waiver of the
same or any other subsequent breach or default. The acceptance of rent
hereunder shall not be or be construed to be, a waiver of any term, covenant,
or condition of this Lease.
6TsMWSTIMEIR
The rights, powers, elections, and remedies of Landlord contained in this
Lease shall be construed as cumulative and no one of them is or shall` be
considered exclusive of the other or exclusive of any rights or remedies
allowed by law, and the exercise of one or more rights, power, elections, or
remedies shall not impair Landlord's right to exercise any other.
Section 14.07 Landlord's Right to Cure Default
If Tenant shall be in default in the performance of any covenant on its part
to be performed under this Lease, then, after notice and without waving or
releasing Tenant from the performance thereof, Landlord may, but shall not be
obligated so to do, perform any,_such covenant, and in exercising any such
right pay necessary and incidental costs and expenses in connection therewith.
All sums so paid by Landlord, together with interest thereon at the rate of
ten percent (16%) per annum, shall be deemed additional rent and shall be
payable to landlord on the next rent paying day.
ARTICLE XV LANDLORD'S GENERAL PROTECTIVE PROVISIONS
Section 15.01 Surrender at End of Term
Tenant shall peaceably give up and surrender the leased premises and every
part thereof to Landlord at the termination of the term of this Lease in as
good a condition and repair as reasonable use and wear thereof will permit.
Section 15.02 No_Nerggr - Termination of Subtenancies
The voluntary or other surrender of this Lease by Tenant, or mutual
cancellation thereof, shall not work a merger and shall,, at the option of
Landlord, terminate all of any existing subleases or subtenancies; or may, at
the option. of Landlord operate as an assignment to Landlord of any or all
subleases or subtenancies.
Section 15.03 Release of Landlord After Sale
In the event of a sale or conveyance by Landlord of the leased premises,
Landlord shall be released from any future liability upon any of the covenants
or conditions, expressed or implied, in favor of'Tenant, and in such event,
Tenant agrees to look solely to the responsibility of the successor in
interest Landlord in and to this Lease.
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Landlord shall be entitled, at all reasonable times, to go on the leased
premises for the purpose of inspecting the leased premises or for the purpose
of inspecting the performance by Tenant of the terms and conditions of this
Lease, or for the purpose of posting and keeping posted thereon notices of
non- responsibility for any construction, alteration, or repair thereof, as
required or permitted by any law or ordinance.
ARTICLE XVI GENERAL PROVISIONS
Section 16.01 Conditions and Covenants
All of the provisions of this Lease shall be deemed as running with the land
and construed to be "conditions" as well as "covenants" as though the words
specifically expressing or imparting covenants and conditions were used in
each separate provision.
Section 16.02 No Waiver of Breach
No failure by either Landlord or Tenant to insist upon the strict performance
by the other of any covenant, agreement, term, or condition of this Lease or
to exercise any right or remedy consequent upon a breach thereof, shall
const +itute a waiver of any_such, breach or of such covenant, agreement, term,
or condition. No waiver of any breach shall affect or later this Lease, but
each and every covenant, condition, agreement, and term of this Lease shall
continue in full force and effect with respect to any other then existing or
subsequent breach.
Section 16.03 Time of Essence
Time is of the essence of this Lease and of each provision.
Section 16.04 Computation of:Time
The time in which any act provided by this Lease is to be done is computed by
excluding the first day and including the last, unless the last is a Saturday,
Sunday, or holiday and then it is also excluded. The term "holiday" shall
mean all holidays specified in Sections 6700 and 6701 of the Government Code.
If either party shall be delayed or prevented from the performance of any act
required by this Lease by reason of Acts of God, strikes, lockouts, labor
troubles, inability to procure materials, restrictive governmental laws, or
regulations or other cause, without fault and beyond the reasonable control of
the party obligated (financial inability excepted), performance of such act
shall be excused for the period of the delay; and the period for the
performance of any such act shall be extended for a period equivalent to the
period of such delay, provided, however, nothing in this section shall excuse
Tenant from the prompt payment of any rental or other charge required of
Tenant except as may be expressly provided elsewhere in this Lease.
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Section 16.06 Successors in Interest
Each and all of the covenants, conditions, and restrictions in this Lease
shall inure to the benefit of an shall be binding upon the successors in
interest of Landlord, and subject to the restrictions of Article XIII, the
authorized encumbrancers, assignees, transferees, subtenants, licensees, and
other successors in interest of Tenant. The Tenant's interest in this Lease
Agreement shall not be transferred or sold to any other party without the
approval of the Landlord.
This Lease contains the entire agreement of the parties with respect to the
matters covered by this Lease, and no other agreement, statement or promise
made by any party, or to any employee, officer, or agent of any party, which
is not contained in this Lease shall be binding or valid.
If any term, covenant, condition or provision of
of competent jurisdiction to be invalid, void, or
of the provisions shall remain in full force and
affected, impaired, or invalidated.
this Lease is held by a court
unenforceable, the remainder
effect and shall in on way be
Nothing contained in this Lease shall be deemed or construed by the parties or
by any third person to create the relationship of principal, and agent or of
partnership or of joint venture or of any association between Landlord and
Tenant, and neither any provisions contained in this _Lease nor any acts of the
parties shall be deemed to create any relationship between Landlord and
Tenant, other then the relationship of Lessor and Lessee.
SEW
The language in al] parts of this Lease shall in ali cases be simply construed
according to its fair meaning and not strictly for or against Landlord or
Tenant.
Unless otherwise provided in this Lease, or unless the context otherwise
requires, the following definitions and rules of construction shall apply to
this Lease:
a. In this Lease, the neuter gender includes the feminine and masculine,
and the singular number includes the plural, and the word "person"
includes corporation, partnership, firm, or association whenever the
context so requires.
"Shall ", "will ", and "agrees" are mandatory; "may" is permissive.
15
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C. The captions contained herein are for convenience and reference only,
and the words contained therein shall 'in no way be held to explain,
modify, amplify, or aid the interpretation, constructions, or meaning
of'the provisions of this Lease.
d. All references to the term of this Lease shall include any extensions
of such term.
e. Leased premises shall include the improvements to the land and outside
eating areas.
f. Parties shall include the'Landlord and Tenant named in this Lease.
g. As used herein, the work "sublessee" shall mean and include in
addition to a sublessee and subtenant, a licensee, concessionaire, or
other occupant or userof any portion of the leased premises or buildings
or improvements thereon.
6.11 Attornev's
Should either party commence any legal action or proceeding against the other
based on this Lease, the prevailing party shall be entitled to an award of
reasonable attorney's fees.
Section 16.12 Interest
Any sum accruing to Landlord or Tenant under the provisions of this Lease
which shall not be paid when due shall bear interest at the rate of ten
percent (10%) per annum.
In addition to above mentioned interest, all rent payments made after fifteen
(15) days from due date., Tenant agrees to pay late payment penalty of
twenty -five dollars ($25.00) per payment.
� ,,
This Lease is not subject to modification except in writing executed by all
parties thereto.
Section 16.14 Notices
a. All rents or other sums, notices, demands, or requests from one party
to another may be personally defivered or sent by mail, certified or
registered, postage.prepaid, to the addresses stated in this section,
and shall be deemed to have'been given at the time of personal delivery
or at the end of the second full day following the date of mailing.
b. All rents and other sums payable by Tenant to Landlord shall be delivered
`in person or mailed to Landlord at:
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Poway Redevelopment Agency
Attn: Director of Administrative Services
P.O. Box 789
Poway, CA 92074
C. All notices,, demands, or requests from Tenant to Landlord shall be
given to Landlord at:
Poway Agency
Attn: Director of Community Services
P.O. Box 789
Poway, CA 92074
d. All notices, demands or requests from Landlord to Tenant shall be
given to Tenant at the leased premises.
e. Each party shall have the right, from time to time, to designate a
different address by written notice given in conformity with this
section.
In the event that Tenant sha9T hold over after expiration of the -term of this
Lease with consent, expressed or implied, of Landlord, such holding over shall
be deemed merely a tenancy from month to month on the'same terms, covenants,
and conditions so far as applicable as herein contained until such tenancy is
terminated in a manner prescribed by law.
ARTICLE XVII
MAIM M)
EXECUTION
This Lease, consisting of sixteen (16) pages has been executed by the parties
in several counterparts, each of which shall be deemed to be an original copy.
Section 17.02 Execution
This Lease has been executed by the parties at Poway, California, on this 12th
day of'January, 1993.
CITY OF POWAY
17
HAMBURGER FACTORY
ame L.L. Bowersox, City