HomeMy WebLinkAboutLEASE AGREEMENTLEASE AGREEMENT
BETWEEN
260 J Restaurant and Marin~ LLC,
a California limited 1iability company
LANDLORD
AND
MAMA'SNPB, LP~
a Delaware limited partnership
dba
}dama ':s Comfort Food~ & Cocktails
TENA.i"iT
PA2019-026
LEAS~: AGREEMENT
THIS LEASE is made mid <.."ntcrcd into effective as of the 291h day of January
2019 (the "'Effective Date"), by and bctw'ccn 2601 Restaurant and Marina, LLC~ a
California limited liability company, hc.rcina&r referred to as .. Landlord" and
MAMA.'S NPB, LP, a Dela\\'B.TI: limi~ partnership~ hereinafter .referred to as
11 Te11ant" ..
Landlord and Tenant agree as follows:
1. !J.K. For the Lease Tenn (as hereinaUer defined), I.anclloTd hereby leases
to Tenant,, and Tenant hereby leases frum Landford~ the "'Premises'• (as heroinaftcr
dctlnc-d) nas .. is and where-is'\ including any and all existing ea'1cmcnli;~ rights-of-way
and encumbrances., tor the purpose of conducting thereon a full-service c.;usLW.I breakfu.1tt,
1uneh and dinner restaurant specializing iu comfi.rrt foud'if incluiling Thrifty ice t."'TCH'.m~
and specialty drinks for on premises consumption, all under the tlilllle ''Mama"s Comfi>rt
Food & Cocktails'r ~ and all ill compliance with, subject and subordinate to the tenns~
condirionsf restrictions and other provisions of Conditional Use Pennit No. UP2-0I I-00I
issued by the City of Newport Beach for the ope1·ation of a restaurant on the Premise:s
{"CUPH), and for no other purpose without tbe prior written consent of Landlord .. w·hicl1
consent .shall not be unreasonably withheld. Tenant shall be bound by the terms,,
conditions~ restrictions and other provisions of the CUP and shall!' whenever the City of
Nev.port B,cach oT the I .a.ndlord may so demand~ execute, acknow·l.cdgc or consent to
any 1118tru.mcnt evidencing such tcnn.s,, conditions, restrictions and othcv provisions of
the CUP. Tenant rqm.-senti; and v.rarranf!; that it has made a detailed m8Jlccti<:>n of the
Buildin{b Prenlises and an fumituret fixtures and equipment therein:-all lic~'iCs and
permits .• including the CUP and ha..~ entered into t11is Lease based upon its independent
inspections and not as the result of any statement~ or representations of the Landlord,
except those which are expressly set .forth in this Le-.ase.
2. Prcmj313. The R".al property leased to Tenant~ together with the existing
building (""Building") and otller appurtem'l11ces thereon, is bereillafter referred to as the
"'Premisestll,..and is situated in the City ofNe\vport Beach,. Conacy of Orang~ State of
California, commonly known ns 260l West 0.>mil Highway" Newport Beach~ C.alifornia.
The Premi.~~ are legally dest..-ribed in Exhibit A attached hereto and incorporated herein
by this ref~renre.
3. rmn.
(a) The inilial term of this Lease {the "'Initial Term") shall commence
on January 29~ 2019~ on which date the Tenant may take possessicm ofthe Premises and
sha.ll end on the earlier of April 1, 2019 or the day on wruch the California Department
of Aleoholic Beverage Control transfers to Tenant the existing 'Iypc 4 7 Full Liquor
Liccm.~,. Lic!!nse No. 543747 for the Premises ("Liquor License"). TClli'mt.covcnants and
%'Tees to U..°'\e an possible diligence and to do all other things required to expeditiously
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apply for and obtain the Tempo:rucy Pennil and Liquor Llcerise.
(b) The base term of this I.case (the •~e Tenn"') shall be for eight (8}
years commencing on the date that the Initial Term ends.
(<i) The term "~sc Term'" shall mtan and Tcfor to coUecfrvely the Initial
Term and the Base Term.
4. Purchase ofExjstin¥ Uwaor Lls;sm!U'.t-Tenant shall deposit into an cscrO\"\r
designated by the Landlord eoncurrent with execution of this T.ca.'5c~ the sum ofFm1.y
'Thml$and Dt,llaTS ($40J.t00.00) a.,-. the purchase price for the Liquor License and in
exchange Landlord agrees to transfer to Tenant the existing Liquor License currently held
for the Premises. Tenant, upon request of landlord and in Landlonfs oolc discretion,
coneurrcnt "ith the termination of the l..ca.5c, transfers and sells the Liquor License to
Lmtllcm.l or Landlonrs designee, through 1lll escrow designated by Landlord frw that purpos~.
5. .B.£m. Tenant shaJJ puy to Landlord during the Lease Tcm:i a.lJ monthly rent
("Monthly Rent") for the Premises the following amounts:
(a) During the Initial Tenn, no Monthly Rent shalt be payable.
(b) During the Base Term, the Monthly Rent shall be as follow.s:
(i)
(ii)
(iii)
Years t-2:
Y~ars 3-4;
Years 5 .. 3:
$14,000 per month $ l 68J)OO per year
$18,000 per montll S216t000 per year
$20,000 per month $240,000 per year
In additiun tu the Monthly Rent, Tenant shall pay LandJmd a percentage rent
(''Percentage Rcnf•) which ~hall be six percent ( 6%} of an gross sales ("'Gross Sale~t1
) in
excess uf tbe natwaal breakpoint ( .. Natural _Breakpoint"). The Natural Breakpoint shaH be
c-atc.ulatcd a.c; the Monthly Rent divided by six percent (6%). For example. if !:ht: Gross Sales
in a particular month during year one oftbc Ba51: T'-'TlTl is $275,000.00, the l 3crccntagc Rent
would be calcul~tcd as foHowR: the Natural Breakpoint wotltd be the $14~000 Monthly Rent
d1'\1idcd by 6%, which equals $233,333.33 and the excess Gross Sales would be $41,666.67
{$275:000.00 -$233.333.33}, thus t~ Percentage Rent would 6% of $4 t ,666.611 or the sum
of $2,500.00. The Pcrccn.tagc Rent $hall be calculated for each month or fractional period of
such month during the Bwi.e Tenn of the Lease. Should the Ba."ic Tenn of the Lease COJlllllCnC-C
on a day ,,,bkh is not the first day of a calendar month, then the Percentage Rent for :such fust
fractional mcmth shall be computed by using the Initial Prorated Monthly Rent (as, defined
below) 1-atber than the Monthly Rent for that firs1 fractional momh to c.-alculate the Pc.rcentag_c
Rent.. Similarly,,. if t'he Base Tenn ends on a day which il'!i not 1he last day of a calendar month,
then the Percentage Rent for :such fast fractional month of the Ba."ie Tenn shall be computed
by llsing the Final Prorated Monthly Rent (as defined below) rather than the Monfh1y Rent
for that final fmcticmal monlh to calculate the Pcrc-entagc Rent. AH Percentage Rent :i;hall be
paid for each calendar q,1a.rtcr or fractional period of such calendar qW1rler, without sctoff~
(k-,duction. priornot.ice or demand on the fifteenth ( t,Slh) day of the calcnd:.u month following
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the prior calendar quarter or fractional period of such prior calendar quarter tllid the
Percentage Rent bccmne due. Each payment of Percentage Rent shaU be .accompanied by a
detailed breakdown of each category of revenue received comprising the Gross Sal~ for the
applicable calendar quarter or fr.:tctinnal calendar qunrter lo which the Pcn::cntage Rent
applies, with a written certification by Tenant that each category of revenue and 11.e Gross
1m:-0m~ reported is comp lctc and accurate.
(c) The term Gross Sales shall mean and refer to the total amount of all
tevenu~ whether in t-ash ur c.redit (induding all mnounhi retained by credit card companie~
OT iS8uers), !,renentted or d.t.·rivcd from the conduct of any m.L"iin~ at or relating to the
Premises or on the internet~ including without limitatiofl;, the sale of goodsJ services!'
admissiom to the Premises" buy-oubi: of the Premise-ii, food~ be\lerd1~, on and off~ite
catcrin_g1' merchandise, gift certificates, tickets, \·ending machines. video pmcs and A TM
1nacllines, and for each shall exclude an fedetal, stat~ and local sales and use taxes of any
kind what'50CVcr.
{ d) The applic3blc Monthly Rent shall be payable on or before the frn,t day
of each month during the Lease Tenn. Should the Base Term of this Lease commence on a
day which is n.nt the first day of a calc:ndm month1 then the Mcmth1y Rent for-such fm;t
fractional UJJonth shall be computed on a daily basis for the period from the commencement
date of that first ti'acii.onal month to the last day of such calendar lllOnth and at an amount
equal lo one thirtieth (1/3~.G.) of said Munlh1y Rent for ~h ofsueh <lays ("ln.itial Prorated
Monthly Rcnf~), and thereafter shall he computed as the full Monthly Rent as st:1 forth in
Article 5-(b). Jfthc Base Term ends on a day which is not the la.c;t day ofa calendar month,
then the Monthly Rent for such last fractional month of the Base Tenn shall be computed on
a daily bm;is for the pmod from tne fin;l calt:rn.htr day of that last fractional month to the last
day of the of the Base PcriQd and at an amount equal to one thirtieth (ll3ff-b) ofsaid Monilily
Rent for each of such days f"Final Prorated Monthly Rent"'),
6. Real Fsta.tc Taxes and Common Area Majnteuuuss tCAM} CJ:m,n,:es. During
the Base Ter~ Tenant shall be responsible for payment of an assessed real property tax
chavges {"Real Propmy Tax Pnym~t1
),. with the right to audit. Annual property taxes arc
estimated to be $65~000 for Fiscal Tax Year 2018/2019 which begins on July pt and ends on
June 30th • Tt:mmt shall make twelve (12) equal monthly payments ("'Monthly Real Property
Tax Payments'.'') to 1..3:ndlo-rd for such property tax~ a.~ ai;:."lc:ssed by the County of Orange,
c(mc:urrent with and cm the ~a.me day as 01e payment of the Monthly Rent~ beginning: on the
first month or partial month that Monthly Rent is due. Should the Base Term of this Lease
commence on a day which is not the fi1'st day ofa calendar month or end on a day that is not
last day of a calendar month, than a.~ to suc-h fmclimw] months the Monthly Rent for such
fra.dicmal month shall be roinputed on a daily basis for the number of clays of the fractional
month period and :.u an amount equal to one thirtieth (1/30llt) of the applicable Monthly Real
Property Tax Payment for each day in the fractional month perii>d. Lmuilord represents there
arc no CAM charges to Teru1:nt.
7. Sc~"Urity D;po.5jl. NONE.
,.
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8. utilities. Landlonl sh.all be res,ponsible for providing all rcquircd utility loads
and serviceM to the Premises, On or before its occupancy of the Premises, Tenant shaU atrdn~te
for the utility accounts to be ~stahlished in Tcnant".s name and shaU pay .. before delinquency~
all charges for water~ sewer"' gas,. he.at:-electricity, power1 telephone ;service, lnllih picl-up and
an other services and utilities. including any connection,, use or other f e.es required to be paid
as a result of the me of tlle Premi~es by Tenant during the I.ca~ TCTTn, F.xcqJt for l.andlord's
gmss ncgiigcnct; Landlord shall not be Jiable in damages or otherwise for any failure or
ink."TTUpiion of any utility ~cc being fum.isb:cd to the Premises. and no such failure or
inte!'mption shall entitle Tenant to terminate this Le~e OT withhold any Munth1y Rent,
Percentage Rent, ft.fonthly-Rea! Prop-crtyTax Payments or any other sums due under the terms
ofthis Lem;e.
9. £arkjn11 Am;em<.--nt"i. Tenant agrees to assume as..~gnmimt of two (2) existing
p:.u:king agreements as .required b:!t"" the City of Ne\"\rport Beacbt pursuant to the C.."UP.
10. fmjs;cl Sj,;m,1;;. Te.nan! shall submit detailed ~-ignuge dntwin~ for umdlonlts
rcvie\'\· and approval. whlch approval shall not be unreasonably withheld, delayed or
conditioned. Teoaut shall be solely responsible tor obtaining any permit required by the City
of Newport Beach for any signnge nt OT on the Premise5 Oiat Tenant desires and which has
been pre,,approved by the Landlord.
I I. Ppnmpa] Pmma:t)' IM®· During the Base Term~ Tertcmt shall pay~ priot to
delinquency, all tmcc.-s asses!ied against and lt."Vied upon the fixtures, furnishings~ equipment
and any personal property of Tenant located in or at the Prcmi~,
12. 0211wct,ipn. Landlord shaU not be obligated to provide ur pay for any
improvement work or scrvi.ccs related to the improvement of the Premises. T'--nant
acknowledges that. Landlord ha.i;; made 110 represenmtitm or wartanty regarding the condition
or the Premises or its suitability for a particular purpose. Tenant shall be ~olcly respQTisihJc
fur the cos~ of.aU ai~ nnprov~menhi on or in tht! Pren1ises~ including any and all permit tc-cs.
utility conncc.tio-n fees and charges, lic-L"llsc foes c)T other r~es or charges in connection with
tlie 111.~ and improven1et1t oftllie Prem.i:SeS; by Tenant and the operation of Tcnant1s hu~i;s
on or in the Premises. 1t is tmdcrstood thirt all nnprovcmcnl"l made fo the Premises ~ball be
made purswml tn a hui1ding pennit~ if required by law!< duly issued by the City of NC\1t'JlOrt
Beach, Tenant shall be responsible for paying for any n~sary work to or maintenance of
the sewer or grease trap required by the City of Newport Beach or other governmental
authority h;iving jurisdiction over the Premises wi a condition to Tenant's operating the
restaurant business on the Premises. Tenant shall be TC!;pomriblc fo. monlhJy maintenanc~ of
the groa.iie trap and regularmainterwm.::e oftht:: sewer system; Tenant shall be rcspon:siblc for
any modific-.ations to the grease trap and/or sewer system a.5 the rewult uf the use of or its
modification of the Pn::mises.
1.:L Altqrntjq:n§. During th~ Lease Term, Tenant shall have the right to make
interior, non~stmetural alterations or additions to the Pn:m11ie~. Any alterations shall require
Laru.11o~'s prior w1.'itten consent, whid1 consent shall not he unreasonably withheld~ delayed
or conditioned. Tenant shall be solely responsible for all costs associated with any alterations
or additions to the Prclllis~ pcrfonncd by or fur Tt."llan~ including any and all permit fees~
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lice.nse f~:, utility charges or other fees or cbargt:s. Upon the expiration or earlierterminaticm
oft.his Lease~ Tenant shuJJ not ren1ovc any partitions, electricaJ or plumbing; itcn1s or other
alterations made by Tenant to the Premises. Tenant 1$ en.titled to remove its personal property
and moveable equipment from the Premises. Any damage done to the Premises in connection
with the removaJ by Tenant of any personal property oTmQVcablc-cquipment shall be repa~
at Tenant,s soJe cost and, expem;e. Tcn,.~nt shall not be required to remo\•e any such partition.~.
elecfricaE or plumbing items or other alterations to the Pn;miscs made by Tenant which bav~
bt..--cn. pre-approved by the Landlord. Un l~s removed as specified in this Article 13, all such
additx1m; to the Premises shall at the expiration or earlier tt:!rnlinaiiun of this I.ca5e become
the property of Landlord and remain upon the Premise.."~
14. Jlµjlding Maintenance and Repajr Su~fect to Article 25 of this u.-a"IC, Tcnffllt
shall at all times during the I.emie T<.."ml,, and at Tffl3Dt's sole cost and expense!-keep, maintain
and repafr the Premises and all improvements upon the Premises in good antl sanitary order
and condition. including without limilatiun1 the rrmmtcnancc and repair of any interior walls~
store ftontj, glm:.s~ doors, window cascmcn~ glazing~ plumb~ pipcst electrical wiring and
conduiti.~ and the heating and air conditioning systell'I, including Ch~ maintenance of a 8CTVicc
contract with a bt:ating and air conditioning: contractor reasonably approved by Landlord .•
and Tt.'11ant shall promptly replace any portion of the Premises, orany sy}ilem or equipmt..-nt
in the Premises~ which cannot be fully n:pai~ with new or n:conditic.mcd equipment of
like kind and quality. Tcnant:s.haUalso~atitssolccostand expens,e:o berespoasible for any
alterations or improvements to the Premises necessitated as a result oftbe requirement of
any municipal, state or federal authurity a.5 a result (lfTcn.ant"s u .. cte of the Premises. Tenant
hereby waives all rights to make repairs at the expense of Landlord.,, aod T enar1t hereby
waives all rights p!'ovided for by Section 1941 of the Civil Code of the State of California
to make said repairs which Landlo:rd is obligated to make ~ndcr this Lease. Subjc-,ct to
Article 25 of this t.case. Tenant agrees on the last day of the term of this Lease or sooner
tcmililatiou of tllis Lease to liurremler the Pn..-mi.ses (with the Buildings and other
appurtenances) in substantially the ~me condition as wben received_. reasonableuse and
w~rthcrcofcxcepted.
Tenant shall .install and maintain at Tenant's expense any tire protection
:il:YS!.ter't\S for the grill~ det!p fry ;in.-.:m;, C.lVt.ml-~md C0(.1-king RR!~~ wbi,.:b ~:rt.'.! :n.-:t1t1iTdi,',!d by t-:i:ty.
county and/or state tire ordinances.
15. Q2mQ)iaps;e WiJll 4Wti:-
(a) Ge.pm,] Proyi{jjops. Tenant sliaTI, at its sole cost and expense, comply
with the requirements of ~u municipal, state and fcdcr~l autboriti~ oow in force or which
may hereafter be in force pertaining to Temmt•s lllie c:>fthe Premis~ incJuding compliance
\~.ritn the Americans with Disabilities Act, and shall faithftdly observe in said use all municipal
on:lim1n<."CS and. :!date and f cdcral statutes now in forec or which :Shan ht."I't,"lnafter he in ftm::u.
Tenant agrees, to comply with all of the conditions of approval imposed by the CUP as to
Tcna11t1K u.sc of the P'n..'1Tlist.'8 as well as any conditions imposed hy the C...alifomia C.mL.iilal
Com.mission.
(b} Umrrs pf Qvsrntjop. Landlord abrree.s to Tenant's proposed hours of
c:ipcmtic;m bctv,•c<.~ 8:30 a. m. and I t :00 p.m. daily, subject lo approval by the City of Newport
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Beach to amend the CUP,. which cl.!TJ"eJitly limit"f the hours of operation. Any such application
to• amend the CUP shall be at the sole cost and expen~ ofTem.mL Tenant und~-tands and
a._~es that any dmial of the application to amend the CUP shall not be a basis for termination
of the Lease or the withholding of,. or delay in making1 any payment~ of Monthly Rent.
Petcentage Rent. Monthly Real Property Tax Payments or any other sums due under the tenns
of the Lease.
( c) Hazardous MaterjalJ. Landlord has le$ed the Premis~ to another
restaurant operator prior lo lhc commencement of this Lease and represents that, to the best
of its know1~re, ihc Premi~cs arc tree of hazardous materials prior to de:nvc:zy to Tenant.
Tenant shaJl not introduce hazardous materials to tht: PremiSl!S lhmu.gh tne cnnstnoc.iion of
iL't impmvcmcnlli or the operation of its business.
T~mmt shall not r.,.r;c., store or permit toxic v..--astc or other toxic or
hazardou..'5 suhsfanccs or materials on the Prerni.ses during the Lease Term. in violatiotr of any
"Envh·onmental Law"' { a.'i hereinafter dcfmed). Tc.ma11t shall deliver to T ..and.loTCl copies of all
studies, reports and other inform.3tion submitted by Tenant to any governmental entity or
agency regulating the use ofan.y toxic substuiCd, or materiat'i, concummtly with the delivery
uf sam~ to such govcmmL-ntal entity or agency. Jn no event shall Tenant store any toxic
chemicals or S11bstru1ccs in underground tanks .. The proposed use of any toxic chemicals or
sub:stan-ces ~hall be appruv<.-.d, i fTequircd, by the Nc'W'port Beach Fire Department. In the cvc.nt
that any toxic wa.,,.tes, suhsm11ccs or materials in violation of any Environmcmat Law arc
heremafter found on, under or about the Premisi:::s, which tiubs.t:mct! is present as u result of
any m:;t of Tenant:, Tenant shall mkc all nccc~ary and appropriate actions and shall spend aU
:nc~cssary Sllms to cause the same to be cleaned up and immediately removed from and about
the Premises.,.. and Landlord shall in no event be liable or responsible for any costs or expettSt::.s
incmred in so doing. Tt-"nllllt i;ruill at all times observe and satisfy the rcq~ircmcnt':i o~ and
main.bin the Premises in compliance with, all federal, state and local environmental
protection, occupational, health and safety and ~imifar lawloi, onlinance.'i, rc~tri'--'"'lions, licenses
and rcgulations1 including but not limited to. th~ Federal Water Pollution Control Act (33
U.S.C. Section 1251 et seq.), Resource Conservation and R~V~T}' Act {42 U.S.C. s~ction
690 I el seq.). Safe Drinking Water Ad (4-2 U.S.C. Section :3000(1) et seq.). Tox.ic Suhstnm."e'.s
Control Act (15 U.S.C. Section 2601 el :seq.}, Clean Air Act (42 U.S.C. Sedion 7401 ets~-t
Community Environmental Response facilitation Act (42 U.S.C. Section 960t ct seq.),
California llealth and Safety Code (Section 25100 et seq"7 Section 39()00 et seq.), and
California Water C.ode (Secti,m 13000 et ~-) or any law or statute that ~uperned~, amood.'i
or supplements any of tbe foregoing (each an "Environmental Law'"'), Should tenant at any
time reot.-ivc any notice of violation of any Envirornm.."Tttal Law~ or be given a t."itation with
respect thereto, Te.nant shall (i) .itnmcdiately notify Landlord of Sl1ch notice or citation. {iiJ
provide Landlord witl1 a copy of liallle:, and {iii) commence to cure the deficiency set forth ll1
the n<Jticc or c-it.ation with.in thirty {30) days after the date of roccipt tht.""Tcof and diligently
prosecute such cure tu completion or, altemati vely, contest the same~ in which event, if such
deficiency is ·upheld, CQmmcncc to cure si1ch dcficicncy within thirty (30) days following
final determination and thereafter diligently prosecute such cure to completion, Should
Tenant at any tirne default in or fail to pt.."tfunn nr observe any of its obli,gations under this
Article 15(cJ. landlord shall have the light. but not the duty, without limitation up(m any of
Landlord's other rights pursuant to this Lease .• to pclform the same, and Tenant agnx.,.,_, to pay
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to landlord~ within thirty (30) days of demand, all costs and expenses incurred by Landlord
in conn~-tion thc..wro'With, together-with interest,. from the date of e.;tpemlib.tre-, at the ra.te of ten
percent (10t11~) per annum but in no event at a higher interest rate than that allowed by law,
Tenant h~y indemnifies Landlord ilml a~ to defend with counsel selected by Tenant
and approved by Landlord. such approval not to be 11nrcasonahlywithhcldt and hold Landlord
hann]e.i;s ·fit.ml any lc,..i;s incurred by or liability imposed on I..amDortl by reason ofTettartt's
failure to perform or ,1bserve an:,· of ib; obligations or agreements under this Att.icle 15(c).
Landford may c.,-ntcr the Premis~ at any time~ without notict; for the purpose of ascettaini.ng
oomplia.nce by Tenant with the requirements of this Article l5(c).
16. Envirnmrnmtal Conditjon. landlcml represent.~ tlmt it has no knowledge of any
environmental condition on the Premises whic-b violates any federal, slate or kx:i111aw.
17. Pmpcmr [&artH!J!!!!ii£... Outing the Base Tenn7 Tenant shall maint~ at its
expense) propert)i"~ fire and extended coverage insuranc.c on the Pn."tmse.-; in an amount not
lc:s.~ than the full replaceme.tit cost of the Premises, v,ritho1tt d¢duction for dcprecinticm1
including aU furniture. fixtt.n-cs ro,d cqtripmcnt. Such insurance sbaJl nan.re Landlord as an
Additional Insured and shall contain a co,.instmmce or contribution ciau."ic, n n:placemen.t cost
endorsement and detluctible."i not to e,'l(.ceed $5,000.00 per occurrence and shaU be home by
Tenant. Such insurance shall include. ·without limitation, rental abatement insurance in the
amount of not less than 12 months of pJOspcctlvc McnthJy Rent under this Le-ase. Landlord
may, but sha11 not be obliged to, at its expense~ cany other insurance in additicm lo ih~
insurance required to be maintained by Tenant. In the event Tenant fails to maintain and pay
for the insurance required to be maintlincd hy it pursuant to this Article 17 !' Landlord may~
but without obligation to do so~ procure such insurance and pay the premiums therefore~ in
which event Tenant shall repay Landlord all sums. so paid by Landlonl within ltm ( I 0) days
following; Landlord's WTittcn d~m.and to Tenant for sut;h payrnent. AU Sllch payments by
Landford shall bea1· interest at t~ rate of tc1' percent ( I 0%) per annum Wl.til paid in foU.
ts. Jmbamrification oft,angJord-Yahilny Imnmmce by Isrnuu.
(a} Ienam's Ipsurance Requirement«;. During the Le.ase Term. other than
the Initial Term., Tenant shall, at rts sole (.-.)st and expemie, procure, pay for and keep· in full
fort-:e mid effect
(i) Broad form oommerdal general liabili.1}'" insurance with TChJ)eCf.
to the Prcmis~, product"i and curnpleted operations" contractual liability and
indepcndcntcont1'3ctor.s, and the operations oforon bcoo.lfofTcnant in, on or
about the Prcmiscs1 including but not limited to pcrs.onaJ injmy, product
liability (if applicable), blanket contractual, owner's protccfr,•c., hruad. form
property damag~ liability c.overage, host liquor liability, and owned and
non~ov,'Dod automo,bile liability in an amount not less than S2,000i000.00
combined single limit pL'T oc~urrence. Such policy shall contain the
following provisions.:
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B. Cros· .. ~ liability; mJd
C. A provision tc, the effect that such insurance
shall be primary m; re~-pects any liability or claims arisjn_g
out of the occupancy of the Premises by the Tenant or
Tenant's opemtiorlS, and any m})urancc carried by Landlord
shall be excess and nonc.ontributory.
(ii) Workds compc...-nsation insu:rancc as re.quired by law.
{iii) lnsuran£e against vundalism1 rnalicfou.~ mi~chicf and such
other additional perils, other than fire., as now are or hereafter may be
included in 11 All Rjsks" coverage.
(iv) AH policic-s of insurance required to b~ c.mritffl by Tc .. -nmit
punm.ant to these requirements shall be written by res.pi:msible im:1urnncc
companies autborized to do bu.sine..~~ and f'iadmittcd11 in the State of
California, having an A, M. Be&.'tts Insurance rating of not less than BI VU
AU such insurance required to be carried by Tenant hereunder may be
furnished by Tenant undtt any blanket policy carried by it or under a
separate policy therefor. A copy of each paid up policy evidencing such
in.'iuran.~ or a certificate of inslll'ance evidencing sudi policy shall be
delivered to Landlord prior to the cornmencernent of the Base Term~ and
npon renewals" prior to th~ expin1tion of such coverage.
{v) Each policy evidencing the iosur-anee requi~ to be carried
by Tenant ptu'Suant to this Article 18 shaJI contain a provision including
Landlcrrd and any other parties in interest rcMonably designated by
Landlord as an additional insured or insureds, and a waiver by the T en:ant's
insurer(s) of ariy right lo submgaticm against T.andlcmli itt; agcntsi
employ~c:-.s and represents.ti vc~ which arises or might aris.c by rcasoJl of any
payment under su,ch poli(..'Y or by reason of any act or omission of
Landlord~ its agent~~ employee." or re:prest:ntalives. Lamfiord and Tenant
shall be Co-Loss Payees ,,tith regard to the property insurance carried by
Tenant under Article 17 f, above. Even though Laru:llord and Tenant are Cu-
Loss Payees; except for proceeds of property ins.un.mce on Tenant's
pcfflonal property and equipment which shall be paid to Tenant~ the
proceeds of property insuranc.e shall be paid to Landlord; and Landlord
shall make the pro~.eeilii available to T enanl to use solely .for the repair and
reconstruction of the Premises in the cvt,~t Tenant is required to repair <,1-r
restore any damage or destruction pursuant to .Article 25 and. shall be
retained by Landlord :if Olis Lt.:ase is 1t:nninakd as tle:scribt.:d 111 Article 25
OT26.
In the event that Tenant tails t.o maintain and pay for inS1.1ranc-c required by
this Article 18, Landlord ro.1.y (but without obligation to do so) procure such insurnn.ce
and pay the premiums therefor~ in which event Tena11t shall repay Landloid all sums so paid
by T.Jtn:dford within ten ( IO) days following I.amUord1s written cl1:mand tt1 Tt:Irant for such
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payment. All such payment.,q by T.andfom shaU bcaT intCTcst at the mtc of ten percent (1 C1.'li>)
per annum tmtil p~id in foll..
During the construction of any improvement in or on the Premises Tenant sbalJ
carry Builder's Risk J nsurance in lieu uf the insur,mre required by Article J 7 and th1:; Article
Ht
19. Jodemnitkation Tenant sllall defend, indemnify and hold harmless Landlord
agµin:sl antl from all daim~, damages~ cosfa (indudmg Tea...rqmable aUcITT.1eys' fees anti court
costs), judgments and liabilities arising from Tenant's use of the Premises or the conduct of
its business arising from any ~ 11eglect, fault or omission of Tenant, or of its agents,
empluyees,. cuntrootoni and invitees.
20. Damgn; .in Tenant's Pffil1Ytly. Lmdlmd shiill not be liable for any ilf\tury or
damage to persons or property, including without limitation resulting fmm fire,. cxp1rn,;,m,
faning p1a."1ler, stemn~ gm., electricity, water or rdin which may leak from any pru1 of the
Premises or fron1 the pipes. appliances OT plumbing won:..~ th(.':T'em m from the roof, street or
~uhsurface or from any other place or ffi3"Ulting from dampness or any other patent or latent
cause whatsoever. l.a.ndlor~ or it,<; agents shall not he liable foT interference wi.(b tlte 1ig11t or
0th.et incorporeal hereditament.s. Tenant shall give prompt notice to un.dtOTd in cn..5c of fire
or nt.--cidents in OT at. the Prem.ise.s.
2 l. WaivcT of Subrogation. Landford and Tenant eada l1ereby waive any and all
rights of reoovery against the other. or against the general pa:rtncr, mm,agcr, rn<,.."Tlllx.."TS,
officers'! cmpfoyees1 agents and representafo1es of the other, tor loss of or damage to such
wai\•ing party or its properly or She property of others uru:kr its control to the extent that !tl.lch
loss or d,unage is fi.JUy in~urcd against undcr any insurance policy ui force at the time of such
loss m-damages. Tcmar1t shall, upon obtaining the policies of murancc required ht..-reunder,
give notice to the insurance carrier or earners that the foregoing mutual waivt:-r of subJ.x,gation
is contained in this I.ca.~.
22. frsg ftom bl""US-Tenant shall krep the Premist:'S f~ from any Iienst ::iri.~ine
out of any work pCTformcd 1 material furnished, or obligation incurred by or through
Tenant. In the event a mechanic's or matcrialmcn';S lien 1s fil~ again...:;.t the Premises as a
result of any wod performed by or through Tcnani Tenant shall promptly remove such
lien either through payment in full or thmugh th!! recording of a release bond in the
statutory amount Failure by Tenant to rc-rnovc the Jit:n withjn t1lil'ty {JO) daysaftcr'WTittcn
demand from Landlord shall entitle Landlord to remove the lien u.sset forth in the preceding
sentence, and Tenant shall within ten ( l 0) days after written notice from I.and!ord reimbllnie
Landlot'd tor all costs and expenses (induding reasonable attorneys' foes) incurred by
Lantllord in connection with the removal of the lien. AU su.c.h payments by Landlord shall
bear intcn.tt{t at the rate often percen.t {10%) per annum until paid in fun. Landlord reserves
the right_. at its option, to file notic-C:5 of non-T~ponsiliility relating to Tenant's con.stm<.,1ion of
impn:ivt:ment on t'he Premises.
23. Abandonment Temmt shr:ill not abandon the Prcmlsc.~ at any time during the
term of 1his Lease. The: Prcmii;cs shall be deemed abandoned by Tenant within the meaning
of Section I 95 J .2 of the Caliibmia Civil Code. and this Least: shall terminate witho1rt
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prejudice to any of Lmuilord':s other rights hereunder if landlord gt\'{;S written notice of it~
belief of abandonment in complitn1ee with Sccti011 19:51.3 of the California Civil Code and
Tenant fails to give Landlunl written notice of its in.tent not to abandon the Premises in
compliance with Secticm 1951..3 of the CaUfomia Cival Cude.
24. Entcy apd Inspcctjqn. Upon reasonable advance notice, Tenant shall p,crmit
la:ndlOTd and its agents to enter into and upon the Premises at all reasonable tim~ for the
purpose ofinspecting the same.
25. Damages and Ucstmctjop or Prs:rmiw
{a) Ism.mt"§ Ohljption t9 Restore. Tenant shall p1·omptly notify Landlord
of any damage to, f.lr d~iruction of. the Premises resulting from fire many other ca.,,mlty. ln
the event the Premises is damat,rcd or ~troycd. during the Lease Tcm".4 Tenant soon have
the obligation to restore th~ Pn..-nnscs to substa.ntia.Uy the condition as existed prior to the
damage or de..-..trudion to the cx~t permitted by Jaw unless one or more of the following
ccmditicms is present (a} repairs canoot be reasonably completed within one hundrc--d eighty
(180) days following i$.iiuam::e of the applicable building pcm:rlt for the repair or restoration
of the darn.age; (h) the damage or destruction occuIS during the last twenty-four (24) months
of the I.ca"ic Term~ OJ' (c} the damage or destruction is caused by earthquake. In .suc.h event •.
Teoont ~ban have lhc right to terminate the Lease \\-itbin sixty (60) days following the date
that the damage or liestrudicm occurs. Tn fhc event of tcnnin~tion of th.is Lease. Tenant shall
pay over-lo Landlc.mJ any proceeds of any insurance paid to it relating to the datnah~ or
dcstruc.tion of the Premises {but excluding any insuronce procet:ds \\·hic:h Tenant receives
relating to Tenant's persona] property or "'quipmcnt) and hereby assigns to Landlord its right
to .receive any :such ffl.!lunmcc pmccods. In the-event the Lease is not so terminate.d and in the
event the n.~taurant bi£Sincss. is closed to the public as a result of such damage or destrucli<m,
Monthly Rent shall be abated,. but not other amount~ payable by Tenant pursmmtto this Lease.
from &he dat~ of !he occurrence of the damage or destruction lmti l the date (i) which is: seven
(7) days aftL"li Tenant completes its repairs or reconstructioa, or (ii) Tenant reopens the
~"f:ii:aunmt business to the public., whichever occws first, but only to t1le extent Landlonl i.s
paid the rental ab.at~ment pmcec.-d.'t under Article 18, above.
(b) Waiver ofStatuJpcy Punei;:.iom1-The provisions nf!hi!i Lease, including
this Artide 25~ constitute an express agreement bct\\•ccn Landlord and T cnant with respect to
any and aU damage to, or d('.struction of~ all or any part of the Premire.i:;, and. any statute or
regulation of the state in wl1ich the Premises are located with respect fo any righb;; or
obliga6onli-concerning dam~ or dcstn.iction in the absence of an express agreement brnvccn
the ps:mcs, and any other stanric or regulation, now or hereafter in effect shall have no
application to this Lea.ire or any dama,bre UT ~lrucliun lo al1 or any part ofth!! Premi~e.'i.
{a) Terminatjon of tlw Lease In the event that all the Premises are
cond~mned by a governmental authority, this Lease shall tenninute l:ili of lhe date the
~ondcmning authority receives possession of the Premises. 1n the event that a portion of the
Premises arc condemned by a governmental authority, but not all of too Premises arc so
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c.oudemned~ Tenant shall haYe the right to t.cnninate this Lease up,m ,,vrittcn notice to
l..andlord {a) ifany portion of the Building is taken oT (b) if more than twenty pen-ent (20%)
of the Premises arc taken11 provided in either eventt the restaurant hu.5inc~s it is operating on
the Premises would be su~ally and advenidy affected by such taking. 1n the evt.-nt of
:such 'lea.lie tcm1ination!-this Lea.....e shall tcrmmatc as of the date the condemning authority
rccoeives possessio,i of the portion of the Premise.<i. In the event that this Lease is tenninsk.d
a.ct; providc;d in this Article, Lundlord !jhaH receive the portion of the award equal to its fee
interest in the Premises and lhe value of the Building_., and Tenant shall rcx:civc the then
unamortized pcmion of the cost of its itnprovement'li to the Premises. amortized O\.'er the initial
eight (8) yeaTS of the Lease Term on a straight-line bas.is, goodwill mid relocation expenses.
Both. Landlord and Ttmimt may make separate app1icatiom for their portion of the award and
may participate in any court prot-eeding relating to the condemnation.
(b) Im£ !s Not Iero)jpytc;d. In the event that less than all of the Premi~e.\i
arc so ~ondenmcd by a gov~cntal authority but this Lease is not terminated ptmiuant to
Article 26(a)~ this: Lease shalJ terminate as to the portion of the Premises so condemned as of
the date the condemning authority rec~i v~ pns .. ~sion of such portion and shall remain in
effect as to the balance of the Premises, Landlord shall roceivi: the L"lltire award for the
condemm:Liion. In the event that a partial 1al;ng occurs and this Lease-is not tenninated7 the
Monthly Rent sball be-adju."rnXl only if a portion of the Buildin~ i~ taken. In such -event, the
Monthly Rent shaU he proportionately reduced {tlaat is~ the Monthly Rent sh:a.H be multiplied
by a fi-a<..iion, the numerator of wliich is the square footage of the .8uildin.g. afte1' the taking
and the denominator of which is the square footage of the Bwlding before the twcing). In the
event a portion of the Building is taken but tlwi L~e is not tcnnimm.~ there sb-iaU be an
adju.-;;tnumt of the Monthly Rent payable hereunder (which Monthly Rent is based un the
square footage of the floor area of the Building).
27. Assi;nrosu1 Suhlcttina and fn5cumbranee.
(a) Lmd]urd's Consimt Scgnjrgt Tenant shall not voluntarily or by
operation of law a'{.litgn, sublet~ lkense, ftanc-llise1 transf~r, mortgage, hyp<)thce-,atc or
othcn.,.isc encumber all 01· any part of Tt..-nant's interest in this Lease: or in the Pre.mises,
\,1w•ithou£ the prior wnttcn consent of Landlord in e---JCh in.4ttam.:.e, imd any afu..mpted a.s.":iignmcnt~
subfoaisc, liccnSJC~ :franchise~ transfer, mortgage or (..'TJL'l.lmh.nmcc without such consent shall
be wholly void and shall confer no right.s up('Jll any thfrd parties. ·The consent of Landlord
retr;uired herein shaU not be 1.:mreasonably withheld, conditio11ed 1 err delayed, however
Landlord shalt be under no obligatioti to approve 1:111y such a."signmcnt, sublca...~. or transtc.r
to any party whose net wort1i and opera.ting capnal and restaurant operating experience is less
Oum tha1 of the TCTiant, or whom Landlord roosonably believes i~ not qwtli fled to operate the
Premises as a restaurant that is substantially similar to the restaurant Qpcratcd at the Pn::miscs
by Tenant It shall be the obligation of Tenant to provide any and all documentation to
Landlord~ including five (5) ycani of Federal and State Income Tax Returns of the proposed
assign~ subksee or transfe.ree, as applicable, su that I..andlord can JlTOPCl"ly evaluate their
net worth; operating capital and r~tauram operating cxpcricnc-c
(b) A§§PIDPliWJ o[Obljpficms. Each ~signcc, ~bl~cc or transferee. other
thim Landford oT a mortgagee of a mortgage or beneficiary of a deed of tmst (until the
mortgagee or beneficiary becomes the knant und~ this Le-ase)1 shall as:sume in writing aU
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obligm.inn~ of Tenant under this L~e and shall bc-.romc liable for the payment ofMonthfy
Rent~ Percentage Rent, Monthly Real P!'Operty Tax Paymt..'Tii.s and any other paymenls
n::qum::d under this Lease and fi:n-the due pcrforma!K!e ofall lhe terms~ covenants~ conditions
and agreements hen .. -in con1ained in tbis Lease un Tenant's part to be pcrfonned:, for the
remainder of the Lease Tenn. N<> assignment or transfer sha11 be binding on I.andlord unless
such as~i!+FI1CC. sublcscct or tmnsteree shall deliver to Landford an executed instrument
reasonably sa.tisfact.c.ny to Landlord that the assignee~ suhlesee OT mmsfcrcc so bccomcs
liable. The fai1tm: OTTCfusa.t of the assignee, s:uble.~ or tnm~fon.-e to ~ocutc sm:,h instrument
ofassum.ption shall not release or dischaTg.C the Tenant or assjgnee; or sublesee or tnmsfen::c
from liability under this l-C35c. In the event that at the lime uf the a,~ignmcnt, :s-ublcasc or
tnmsfer the a~igncc., sublcsce or transferee lrus a net worth 2 computed in accordance with
g,cn,eral accounting prindpJ~, equal to or greater than Ten Ma1lio-n OoUan; ($101000JM)0.00)1
adjus;too for increases in the cost of1iving w; hereinafter pmvidod, imd the assignee:> sublesee
or transferee has experience in operating a restaurant business s.ubstantially equal to or greater
than that ofTemmt, Tenant shall be released from any obligation to pay Monthly Rent and
for the due pertormance of all other tt..'TTJlS, ooycnants~ conditions and agreements he.rdn
co11tained in thiH L~c following the date of such assignment or transfer. The ru.lju~cnt of
the nd worth requirement shall be made by the folluwing fo.rrnula:
N ..,.. $1,000,000 x (B divided by l)
ln such formula, N means the-net worth that the assig.neeT sublesee or tn1miferee must. have in
ordt.."T for Tenant-to be released from liability"' I tneans. thi:: Consumer Price Index for the month
prior to the date of this Lease and B means 1hc Consumer Price Index for the n1-0nth prior to
the date of the propoHcd assignment, sublease or transfer.
28. l2smwl1-Ttmanl shall he in default hcrctmdCT and a default shall exist if any of
th~ following "-vents occur: if Tenant fails to make any payment of Monthly Rent!' Percentage
Rent, Monthly R(..-a[ Property ·rax Payment or otbe:r paymems required by the prm•isi.ons of
this Lease-within five (5} days fol1ow1ng \1,Tittcn notice from I.andfo-rd to m.-1:kc such payment_~
ifTcnant fails within fifteen ( I 5) da)'5 after written not-ice from Landlord to correct any breach
or default of the other covenants, tcffilS or conditions ofthls-Lease or such longer pe,riod if
such event is capable ofbe.ing cured and if a longerf.ll,"Tlod is re.a.,qcmably noodcd to effectuate
such cure; urifTemmt abandom-thc Premises before th-e end of the term La11dlord shall have
the right at any time thereafter until the default is cured to elect to tennim,.te this Leru;e and
Tenant1s right to possession hereun-ikr. Upon :Such k.'ffllination Landlord ~hall have the right
to rectn•er against Tenant
(a) The worth at the time ofaward of the unpaid payments due to Landlord
which had been e.amed at the time of tc.':TTilination;
(b} The worth at the time of award of the amimnt by which the unpaid
puymenli4 due lo landlord which would have been earned after termination until the time of
a,vard cxco..-..ds the amount of such renta1 loss that Tenant proves could have been reasonably
avoided;
(c) The worth ut the lime of award of the amount by which the unpaid
paymcntil due to L.1ndlord for the balaxtcc of the Lease Tenn after too time of award exceeds
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the amount of hi"Ueh rc.ntal loss that T cnant proves could be n..--asonably a voided; and
( d) The LiNorth at dlc time of award~. of t.he ainounl~ referred to in
paragraphs (a) and (b) above shali be CQmputed by aUowmg intc:rest at ten percent (10%) per
annum, or the maximum allowed by law. The worth at the time of award of the amount
referred to in paragraph (c) snail be computed by discounting such am,t1un:t at the discoUTii
rate of the Federal Reserve Bank of San Francisco at the time of award pll.18 <me pgccnt (1 %).
Notwithstanding any of the foregoing, the breach of this Lease by Tenan~
or an ahandomnent ofthe Promise.s by Tt!nant, shaH not constitute a termination of this
Lease, or of T Lwnant·.s. right of posses-..1:ii,on hereunder.,. unlt:' ... 't~ and until Landlord elec:l!i: to
du so~ and until such time, Landlord slla.U have the right to enforce aIJ of itli rights and
remedies u..oder this Lease .. and otherwise at Jaw~ including the right t(> n:covcr Monthly
Rent, Perec..-ntagc Rent1 Monthly Real Property Tax Payments and all other p--aymcnts to
be made by T ~thereunder, as they become due. The parties hereto agree that acts of
maintenance OT preservation ur effurt, to re .. lease .the Premi.iics~ or tbc appointtnenl of a
recdvcr upon tile initiative of Landlord to pmted it') interest under tltis Lease, sh.all not
constitute a k.-rrninatfon of this Lew;c orofTcnant's right of pns~e.i;.qfon for the purposes of
this Sec.ti on unless accompanied by a 1.\ITittcn notice from Landlord to Tenant ofLandlonfs
cfccdon to so terminate.
In the event of a default ofany payment of Monthly Rent,, Percentage Rent,
Monthly Real Property Tax Payrm:.nli:. or other payment due tu LandfoTd under this Lease1
Landlord may in Landlord's notice to Tenant of such default require that Tenant's payment
lo cure default be in cashl' cashier's check or certified check. T .and.lord and Tenant a.brrcc
that should Landf oTd so elect to require payment by cash, cashiers c-hcck or ccrtilied
check in Landlord's notice to Tenant, a tender of money in imme nthcr form to cure the
default shall be deemed. a failure to core the: default.
Nothing contained in this Article 28 shall in any v..-ay diminish OT be constrned
a.1t waiving any of Landlord's other remedies as provided elsc.whCTc in this Lease or by law
or in cQuity.
29. S\Jm;pdey of Lease. The voluntaty or other surrender of thii:: I..casc by Tenant,
or a mutual cancellation thereof. shall not work a merger, and shall, at the option of Landlord,
t~rminatc all or any existing subleaioic..-s or subtcnandes, or may1 at the optfon of Landlord~
operate as an ~igmncnt to Landlord of any or all uf such subleases or subtenandes.
30. Hold Hl{mlgs; Attomeys' fro; Arhit[:qion.
(a) ijotd Ha,m'\Jw If Landlord is involuntarily made a party defendant to
rmy litig.ation concerning or arising out of or relating to this Lease or the Premise.'> by reason
ofanyact or omission ofTenimt, then Tenant shall defend and hold harmk.~s landlord from
all liabi1ifiG; by reason thereo[
(b) Attorneys' Fees. Jf either Landlord or Tenant or tht:ir succc:sso:rg and
assign~ shal1 commence any legal proceedings either in court ('IT by arbitration against tlle
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other with respcet to the enforcement or intCJprctation of any of the terms and conditiuns of
this Lease.1 tbe non-prevailing party therein shall pay to n,e other all expen~cs of said
litigation, including reasonable attorneys' foes a5 may be fixed by the court or a1bitn1tor
hi.·fving jurisdiction over the matter.
(c) Arhjtrnlion. Any disput~ claim or controversy arising out of or relating
to tfris Lease or the brcaclt, termination, en forcement7 ink:rprctation or validity thereot
in.eluding the determination of the scope or applicability of thls paragraph, shaU be
dotcm1i.ncd by arbitration in Or,1Tlb11::: County~ California~ pursuant to the Streamlined .
. A.rbitration Rules and Pruc:~1.m:s of .TAMS. Judgu1cnt on the a\'\rard may be entered in any
oourt having jurisdiction, The JAMS arbitrator is directed lo Iimi1 the discovery to be
ronductcd by the partles following t11e disdosuTe of infurmation requircd by kutc 13
commensurate widi lheis.~uesraiscd bytbe panics and the amount in controversy, in the spirit
of Rufe 16.2 of JAMS~ Comprehensive Amitration Ruic.~ and Proccdl.frCS.
3 I. Ifoldjni Over. Any holding over by Tenant after the expiration of the Lease
Term, with the consent of landlord, shall be construed to he a tt..-rnmcy from month to month.
cam.:dlable upon thirty (30) days written notice by either Landlord or Tenant given to the::
othcrµ,.art)\ upon the same terms and conditions a,., exist during the la..,;t year of the l.casc
Te.nn. If Tenant. fail~ to sum.-ndcr the Premises upon the termination or expiration of this
Lea~, in addition to any other liabilities to Landlord accruing therefrom, Tenant hereby
agrees to indemnify and hold Landlord hannJess from loss or liability re.5uiting from such
failure including, hut not limited toi any claims made by any succeeding tenant based upon
Tcnanf:c: failure 10 $Urrcndcr,
32. ~ Al J notices required or permitted by this Lease shall be in writing and
may be delivered in person (by hand dcli-.,·cry or profcs..~iona1 mcs!:i,Cllgcr service) to either
party or may be !i.:.mt by registered or C(;rtificd mail, with postage prepaid, return receipt
requested or delivered by Express Mail, the U.S. Postal Service or Express J\faj] oT any othc;r
courier service guaranteeing overnight delivery, cbmgt.-s prcpai~ and arfdn.~st..-d IL~ follows:
If to Landlord:
With .a copy to:
Tf to T'cmmt:
Miktti Mo3.:h:,y~ili
2601 Restaurant and Muina~ LLC
36 TlccpSc-a
Newport Beaehr CA 92657
James F. Mc~. Esq.
Mt-"Gee & Associates
24 Corporate J>Jaza Drive, 2nd Floor
Newport Beach, CA 92660
Man1a.~s NPB, LP
3185 Ainvay Ave, Suite C2
Costa M~ CA 92626
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With a C(IJlY to: Talley Law Group,, LLP
Attn: Todd T. Tillman, F,}jq.
600 City Parkway West Suite 650
Orange, CA 92.868
Any such notice may b,c given by personal delivery to either party or any
officer or other representative of the party tc1 he notified or may be s.wit by recognized
over1tight' courier or cetti fied mail, return receipt requested, addrC5scd. postage prc?3id.
Notices and demandii ~hall be deemed to have been ghrcn upon the date of delivery provid:ed
that ihny party sh-all refuse delivery~ notices shall be deemed given when rnniled m-2 if made
by personal delivery or ovt:might couricr, then upon the delivery-except that notice of change
nf add~s for notices shall not be deemed m."ldc until received. Ally party either party may
change its address for plll'poses of this Article by giving notice to the other party as herein
provided.
33. Fgrce Maj5;yre. If eitht:T party h'--reto shall be delaye.d or prevented from the
pcrfonn:mcc of any act required hereunder by reason of acts of Godj strikes~ lockouts labor
troubles, inability to procure material~, -restrictive govemrmmtd luw5 or regulations or other
cm1se v-.~thou! fault md beyond the control of the party obligated hereunder (financial inability
excepted), performance of such act shall be excused for the period of the delay and the period
for the perf ornmnce of any such act !thaU he extended for a period equivalent to the p(.,"l-iod of
such delay; provided, however, nothing in this Article: 27 shall excuse Te.nant ftom the prompt
payment of" Monthly Rent or other cbarge required of Tenant hereunder except as may be
cxprt-,:ssl y provided elsewhere in this Lease.
34. partja1 Tnynljcijty lfany tcrm, covt.·mmt, condition orpn>vi1.itm of this Lcw;e is
held by a court of comp,ctcnt jurisdiction to be invalid. void or uncnfurccahlc~ the remainder
of the provisions hereof sl1aJ1 remain in full force mid effc:d and sliiJll in no way be affecte~
impaired or invalidated thereby.
35. Captjon, The various headings and numbers herein and the grouping of the
,PT0\11sions ofth;s Leare into ~-<t~t.e .iuricles. sections and p:uagmphs are for the puJJ1n.~ of
convenience onfy and shall not be considered a part hereof.
36. Iim£. Time is of the essence oftbis Lease.
37. No PriO[ or Othg Agreements. This Lease contains an ap-ccmcnl({ hctwci:.-n the
parties with r·espect to my matter mentioned herein and supcroodes aU prior or
crmtcmpomncous oral m wntk..-n ~rrecm1.mL-.; or utha un~nstandings.
38. Estc.}'1pt;] Certificate,~. Upon the request of either party~ the other party,, within
tw·enty {20) days thereafter, shaH deliver an cstopix:t ccrtifkme ccd.ifying (to the extent
accurate) (a) that this Leaire is in full force and effect, {b) the term and the eum::nt monthly
rent payable under the LcaseJ (c) that SU<:b party i~ not in dcfauJt of lhe tenns of this Lease
nor bas. any event oocurred which with the ghring of notice or the pIDis.ilge of tir.ne or both
wmdd become u default (ur specifying tll.e default or even~ if any), (d) that to it'I knowledge,
the other party is. not in default i.mdcrthc terms. of this Lease nor has any event occur.red which
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Vlith the l,riving ofnotit..-e or the p1:n;.1,Bb,"e of lime or both would become a default ( or spr,ccifying
the default or event 1 if any)1 ( e) that Tenant does not have any option to pure ha..~ the Pn.-mises
or any part thereof OI a.ny right of fir.st refusal applicable to too Premisa:s or any pa.rt thereot:
and (f) any other infonnation reasonably 1'equircd by the roq•Jcstmg party (the ~toppd
certificate shall identify this •Lease and any and aU amcndmmt..;; or rnodifications thereto}.
3 9. faifure to M.aion,in Parking Bsmw by tne C'-5mdit;onaJ Use Permit. In the
event that the City of Newport Beacb. gives notice to Tenant that it revokes, or intends to
revoke. Tcnantrs right to operate a rustaur.iml on tba:: Premises because of a failure of Tcmmt
to maintain the parking required by the CUP whfoh permits the operation of a restaurant on
the Premises~ then Landlord shall have tlte option to terminate this l.easc by !iriving written
notice to Tenant thereof. Upon such termination. each party 8hull be required to perform all
obligations which have accrued under this Lease on or before the termination date, and both
parties shall thereafter be freed and discharged of all further obligations. arising h-crcin after
the termination date~~ except for those which by their express k,'lTJlS h.'1.lrvivt:: tlie expiration or
earliertcm1mation. of-this T..ca.t;C Term.
40. S11hQ!"~ljnatiun. This Lease.:! is subject and subordimtw to all mortgages and
dcc<l.H of trust ur other encumbrances which DO\V affect the Pn::mtses or any portion
thcreo~ together with aH renewals, modifications~ consolidations, n.-plncem~nts and
extensions tbereot: provided if tbc holder or holder.s of any such mortgage. deed of tru.i;t
or any encumhr.i1:n1.:e shall advise Landlord that it or they de.sire to require this Lease to be
pr.lo!' and superior thereto, upc.m ,...-ritten reque.qt of Landlord to Tena~ Tenant ngre~ to
pmmptly execute,, acknowledge and dctivcrany and aU documents or instrument.~ which
Landford or such les:sor-, holder or holders deem ncce&"fill)' or desirable for purpos,;-.s
therefor. Any such [ender, shal1 provide tu Tenant a \vTittcn agreement by which T eoo.nt's
po.ssc.~sion of the Prernises under tbis Lca.scforthcremaindt::r of the Lease Tenn :i:;hall not
be disturbed so Jc.mg as Tenaril pays the Monthly Rent and all other payme.nts due to
Landlord under this Lease and pcrfomu; all of the other terms_~ covenants, concli tiuns and
agrc.cmcnts herein cc_mtaim:d un Tenant's part to be performed for the remainder of the
L~ase Term. Such "'irittcu agrc,i...""TI'lcnt shall he reasonably satistactory to T ernmt · This
Lease is forthe.'!l" ,;.nhjeet and m.hordinatc to (a} all cov~ftts. e1)t1-dition~~ rcf:trictfons.
cas,.-"ments and any other matters or dc,CUT11enls of record~ together with an ren~wuls,
modiffoati,oru;.~ consondations~ replacements and c:xtcn.~icms thereot; and (b) any wning
laws of tlte city~ county and state where the Premises is situated. Tenant hereby covenants
that Tenant, ancl all persons in. possession or holding under TenantJ wrn confomi to and
will not violate the tcm1s c.,f said maU.ers ofrecord.
So long a.5 the applicshl~ lender gives to ·tenant a non-disturbance agreement
as hereinafter pmvidt:ru~ Landlord shall have the right tu cause this Lease to be and bea1me
and r~mam subject and subordinate to any and all mortgagc.-s or deeds of trust or other
encumbrances which may hereafter be exccute.d covering the Premises, for the-full amount
of an advances made orto be made thereunder and witllout regard to the time or character of
such advance, togcthc.~ with interest thereon. and subject tn all of the terms and provih;tm.'i
th1L-rrof; and Te.nant agrees, within tt.w-n. ( lO) <lays after Landlord!s written re.quest tbercfor, to
execute, acknowJcdgt! and deliver upon rcquc.-st uny and all doc11mcn~ or imitruments
n..t:qu~ted by Landlord or necessary or proper toassurethc5ub0Tdinationoftbis l . .ca,,cto any
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such mortgages, deeds of* trus~ or ot'IN.."T t.~cumbranccs. Any such lender shall provide to
Temmt a ~-rittcn agrocmcnt by which Tenant'8 posses!t'lon of the Premises under this Lease
for the remainder of 6it:: Lt:a~ Tenn shall not be disturbed so kmg as Tenant pays the
Monthly Rent and performs an of the otht..T terms .• covenants, conditions and a~,teernent":i
hCTcin cont.aincd on Tenru1.t1s. part to b~ perfonncd for the remainder of the Lease Term. Such
written a&rri::ement shall be reasonably satisfactory to Tenant
N'O'lWltbstanding anything to the contrc1Ty set forth in this Article, Tcn:mt
hcrc,by attoms and agrees to attorn to any pi:nmn, firm or cotp0ration purchasing or
otbeiwise acquiring Landk•rd1s interest in Premises_.. at any sale or other proceeding or
pursuant totl1iecx.ercise of any fights, poweR, c>r n:mcdics under such mortgages or deeds
of trust or grourl:d ur underlying lc.ascs as if such. person, firm or corporation bad been
namt,'d as Landlord herein~ it being, intended hereby that, ifthis L.ea.~esruill bctcnninatcd.
e:utoft: or otherwise d~feated by reason of.any actor actions by the owner or holder of any
such mortgage or deed of trust~ then this Lease shall conti11ue jn full for1.~e aml l!ffecl
41. Cioycmjn~.1a·. This Lease:-and all provisions hereof, shall be con..'ilrued in
accordance with the Ia,1,rs of the Sta.le of f'.;alifomia.
42. Opiet Poyessigp Upon payment by Tenant of the Monthly Ran and all other
pa)'ments due i4.l Landlord for the .Premises and the perfor.t.nanee of all of the oovenanhi~
conditions and provisions on Tenmil's part to he ~1bst.--nrcd and pcrforn:ied tmckr this Lease.
Ttmanl shall have quiet possession of the Premises f01· the entire Lease Term, subject to all of
the p1-ovisions of this Lease.
43. Succgsors and Assigns. 1n the event of any assignment or trm:sfer of T1:mant1s
rights and obligations hereunder purnwmt to A rtic1c27, the rights, covenants. and obligations
cQntaincd in this LC8sc on the pan of Tenant shall hmre to the benefit ot: and a.re binding o~
its successun; and ashigns.
44. Interpret6Ui91l Tite parties uclnowlt::dge th1:1t this I.ease is the ~ult of
negotiation.Ii-between the pmtics and in construing this t .cac;:c~ o-r any amhiguity hereunder. no
presumption. shall be made in favo. of eitlwr party. Thi~ Lease shalt not b~ con~.trw:d agaim;t
~ither party IDi a result of the drafting <lftm!\ l..ca..lfc or any portion thereof.
45. Crnmf£ftPff.Iir.t. This Lease may be executed in multiple counterparts. each of
which shall eonstitutc an original_~ but all of whieh taken together shall constitute the same
agi-eement.
46. ~ Time is of the es..-.;ence witli respect to the performance of eacll of the
covenant.5 and agreements contained in this u:asc:~
47. Tate CbDJ¥Cli Tenant hereby acl-nowJcdgcs that late paymcni by Tenant to
Landlord of Monthly Rent~ Percentage Rent~ Monthly Real ProJJ'l.,--rt}' Tax Payments or o1hcr
sums due hereu.nder win cause Landlord to incur costs not contemplated by this Lease~ tile
exact arocnmt ofwbicb i~ extremely difficult to ascertain. Such cQh1s include~ hut are not
limited to 7 pn>eessing and accounting charges, attorneys~ tees and late charges which may be
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imposed upon .Landford by too tcnn."i of any mortgage or deed of trust ooYcring the Prcmii:.c.~.
Accordingly1 if any installment of Monthly Rent , Percentage Rent, Monthly Real Property
Tax Payments or any other sum due from T~nant shall not be received by l.andlord or
Landlord's designee within ten (10) days after the payment is, then Tenant shall pay to
Landlord a late charge equal to ten percent (10%) of the amount due~ provided thul ~uch
amount wiTI not exceed the maximwn rate peanittcd by law\ plu.i; any re1:1Sonable attorneys"
foe:,; incurred by landlord:. The parties hereby agree thal ~Ji late charge represents a fair and
reasonable ~timati:: of the costs that Landlord wiJI i11c11r by n.'mion of ihe late payment by
Tenant Acceptance of sm:h late charge by Landlord shall in no event cons,titute a waiver of
Tenant's default with re.~peet to such overdue amoun~ nQ. preve,nt Landlord from exercising
auy of the othc.r right1;1 and remedies granted hereunder.
48. ijxcrdpation .. Notwithmanding any other provision hcrcofT neither-Landlord nor
Landlord's constituent,. partners or m.embcm shall lutve any personal liability ht."TCUJld·t!r. If
Land lo-rd shaJT fail to perfom1 any covenant. term or c-0ndition of this. Lease upon Landlord's
part to be performed~ and if as a consequence uf such default Tenant shall rccove,r a money
judgment again5t I ..andlonl, ~uch judgment s-hall be sa:tisficd only out of the proceeds of sale
receiv-ed upon execution of such jut4.,~1ent and levied thereon a!_tram.1.il the right~ title and
interest ofI.andlortl in the Premises andlor out of Monthly Rtml or other sums rccGivahlc h)\
or received by~ u.ndlonl punn.wnt to this Lease and/or out of the ccmsidemtion receivable by.
or ri..~civcd by, LmdJonl from the sale or other di:!>position of aU or any part of l.Jmdlnrdts
right. title and intc.."reSl in tlie Premises, and neither Land1urd nor its employees, officas,
directors, partners, members\ shar~holdt--ra or affiliates shaU be liable for any deficiency~
exc-cpt pursuant to the expre~s terms of this Article 42.
49. Brokerage commission.,. NONE.
LSignature Page followsj
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.IN WITNESS WHEREOF. the parties have duly executed this Lease together with
the Exhibits attached hereto and referred to herein~ on the date first written above.
LANDLORD:
MAMA ~s NPB, T.P1 a Delawan: limited
partnership
By: MAMA 1 S BOYS~ LLC;, a Delaware limited
liability company
Its: General Partner
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EXH18£1' "A ~1
LEGAL DESCRIPTION Of PREMISES
·The following dt."!lcrihcd property in tbe City of Newpmt Beac~ Coumy of Orange_.
State of California:
·ne Northwe.~terly 50 feet ofthe Southeasterly 1300 feet ofI.ot T-i of'Tract No.
919, as pcT map recorded in Book 29, pag~ 31 to 34 inclusive of MisccUanc,ou.~
Maps, records of Orange County, Californi~ ~aid 1300 feet being measured
akmg tht: Southwesterly line of Lot H. the Northwcsll.-rly line of said
Northwesterly 50 fcct be pamHd with the Northwe-.sterly line of said Lot H.
The Southwesterly line of s.,id Lot H iH coinL"ldtml with the United States
Bulkhead line in Newport Ila.rbor as shown on a Map entitled ~'Harbor Lines,
New'J)ort Bay Harbor, CaJiforoia1
\ dated l'vfnrch 30, 1936~ File No. 958, on file
in the U.S. Engineer1s Office Los Angeles. California, betw~ U.S. Bulkhead
Stations 129 and t 30.
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EXfflllJT ttBtt
SITE PLAN SHOWING DOCK
111 __ 1
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I
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I
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