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HomeMy WebLinkAboutPerrigo, C.J. dba The Village Grille; 1992-01-01;•. ' H:\WPDATA\AGG\AGG91008.AD1 CI1Y OF CARLSBAD LEASE TO C.J. Perrigo-d.b.a. Village Grill OF PROPER1Y LOCATED AT 2833 State Carlsbad, CALIFORNIA FOR 2 YEARS COMMENCING Januazy 1, 1992 AND ENDING December 31, 1993 TABLE OF CONTENTS PREAMBLE ...........................•............. .' . . . . . . . . . . 1 1. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2. RENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 3. USE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 4. • EARLY TERMINATION .... ·. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 5. IMPROVEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . • . . 2 6. LIENS ................ , . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . 2 7. LEASE ENCUMBRANCE ..... , ..... • .... : • ....... _-. . . . . . . . . . . . . 3 8. ASSIGNMENT-SUBLEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • • 3 9. DEFAULT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . • . . . 4 10. BANKRUPTCY ......................................•• •• . . . 5 11. EMINENT DOMAIN ..................... ; . . . . . . . . . . . . . . . . . . 5 12. SUPERSEDURE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 13. USE OBLIGATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • • • . • • 5 14. MAINTENANCE AND REPAIR . . . . . . . . . . . . . . . . . . . . . . . . . . . • • • • • . 6 15. TAXES AND UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . • 6 16. CONFORMANCE WITH RULES AND REGULATIONS . . . . . . . . . . . . . • . . . 6 17. NON-DISCRIMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • • • 7 18. PARTIAL INVALIDITY ....................................... 7 19. HOLD HARMLESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • • 7 20. SUCCESSORS IN INTEREST . ................................ . 7 .. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. EASEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 WARRANTIES-GUARANTEES-COVENANTS . . . . . . . . . . . . . . . . . . . . . . . 9 DAMAGE TO OR DESTRUCTION OF PREMISES . . . . . . . . . . . . . . . . . . . . 9 QUITCLAIM OF LESSEE'S INTEREST UPON TERMINATION . . . . . . . . . . . . 9 PEACEABLE SURRENDER ...... : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 -WAIVER .................................. • ... • ........... 10 HOLD OVER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 SECTION HEADINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 ENTIRE UNDERSTANDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 TIME IS OF THE ESSENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 ATTORNEY'S FEES ............................... , . . . . . . . . . 11 NOTICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 REMOVAL OF MATERIALS . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . . 12 ACCEPTANCE OF PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 QUIET. POSSESSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 GENDER/SINGULAR/PLURAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 EQUAL EMPLOYMENT OPPORTUNITY . . . . . . . . . . . . . . . . . . . . . . . . . . 13 ABSTRACT OF LEASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 LEASE AGREEMENT THIS LEASE AGREEMENT, made and entered into this 1st day of January, 1992, by and between the City of Carlsbad, hereinafter called "City'', and C.J .. Perrigo-d.b.a • Village Grill, hereinafter called "Lessee", without reference to ·number or gender, whose address is 2833 State, Carlsbad, CA 92008, W I T N E S S E T H: WHEREAS, the City of Carlsbad is the owner of the real property delineated on Exhibit "A"· and • WHEREAS, Lessee desires use of said City Premises to operate a business (as defined below); NOW THEREFORE, it is understood and agreed by and between the parties hereto as follows, to wit: TO HAVE AND TO HOLD said leased premises for the term ofthis lease and upon the conditions as follows: 1. TERM: The term of the lease shall be for a period of 2 years commencing on January 1, 1992, and ending on December 31, 1993, unless sooner terminated as herein provided. Upon the expiration of this lease, the Lessee shall have the option to extend the term for three (3) additional one (1) year periods, upon the same terms and . conditions stated herein. Lessee must exercise this option in writing at least 120 days prior to the lease terms expiration. 2. RENT: (a) As and for the rent, Lessee agrees to pay to City the sum of nine hundred twenty two dollars and twenty five cents ($922.25) per month, payable in advance on or before the first day of each and every month during the term of.this Agreement. The initial rent is calculated at $1.19 per square foot for a total of 775 square feet as reflected in.Exhibit "A". (b) Rent shall be delivered to the Finance Department of the City of Carlsbad at 1200 Carlsbad Village Drive, Carlsbad, California 92008. The designated place of payment and filing may be changed at any time by City upon ten (10) days written notice to Lessee. Lessee assumes all risk of loss if payments are made by mail. (c) In the event Lessee is delinquent in remitting the rent due in accordance with the rent provisions of this lease, then the rent not paid when due 1 shall bear interest at the rate of Ten Per Cent (10%) per annum from the date due until paid. Provided, however, that the City Manager of City shall have the right to waive for good cause any interest payment upon written application of Lessee for any such delinquency period. (d) Once each year after the first year of this agreement, the monthly rent shall be subject to change in accordance with the Consumer Price Index, San Diego, as published by the U.S. Department of Labor, based on the.· percentage change in the index from the first month of this agreement to each succeeding anniversary thereof. 3.. USE: Lessee agrees that the leased premises shall be used only and exclusively for Restaurant and for no other purposes whatsoever without the written consent of City, evidenced by resolution, first had and obtained. 4. EARLY TERMINATIONS: CITY AND LESSEE SHALL EACH have the right to terminate and Lease anytime after completion of the FIRST YEAR of this lease by first giving one hundred twenty (120) days prior written notice to the other party. 5. IMPROVEMENTS: Lessee may, at its own expense, make any interior alterations or changes in the leased premises or cause to be built, made or installed thereon any structures, machines, appliances, utilities, signs or other improvements necessary or desirable for the _use of said premises and may alter and repair any such structures, machines or other improvements; provided, however, that no alterations and changes shall be made and no structures, machines, appliances, utilities, signs or other ·improvements shall be made, built or installed, and no major repairs thereto shall be made except upon obtaining all necessary and proper permits and in accordance with plans and specifications previously submitted to and approved in writing by the Utilities and Maintenance Director of City. Lessee further agrees that no banners, pennants, flags, eye-catching spinners or other advertising devices, nor any tempormy signs shall be permitted to be flown, installed, . placed, or erected on the premises except in accordance with the City of Carlsbad ordinance Chapter 21.41. • 6. LIENS: Lessee agrees that it will at all times save City free and harmless and indemnify it against all claims for labor or materials in connection with improvements, repairs, or alterations on the lease premises, and the costs of defending against such claims, including reasonable attorney's fees. 2 C In the event that any lien or levy of any nature whatsoever is filed against the lease premises or the leasehold interests of the Lessee there, the Lessee shall, upon written request of City, deposit with City a bond conditioned for the payment in full of all , claims upon which said lien oi:-levy has been filed. Such bond shall be acknowledged by Lessee as principal and by a corporation, licensed by the Insurance Commissioner of the State of California to transact the business of a fidelity and surety insurance company, as· surety. City shall have the right to declare this lease in default in the event the bond required by this paragraph has not been deposited with the City within ten (10) days after written request has been delivered to Lessee. 7. LEASE ENCUMBRANCE: Lessee understands and agrees that it cannot encumber the lease, leasehold estate and the improvements thereon by a deed of trust, mortgage or other security instrument to assure the payment of the promissory note of Lessee without the prior express written consent by resolution of said City in each instance. If any deed of trust, mortgage or other security instrument that encumbers the lease, leasehold estate and the improvements thereon is entered into by Lessee without City's prior express written consent, City shall have the right to declare this lease in default. If a deed of trust, mortgage, or other security instrument which City has consented by resolution, should at any time be in default, before Lessee's interest under said lease may be sold as part of any foreclosure or trustee's sale or be assigned in lieu of foreclosure, the prior express written consent by resolution of City shall be obtained in each instance. However, the original beneficiary of the deed of trust, the original mortgagee of the mortgage, and the original holder of the security instrument, which the City has consented to by resolution, may purchase the Lessee's interest at a foreclosure. or trustee's sale or accept assignment of the lease in lieu of foreclosure, without the requirement of any further consent on the part of City provided said party, as an express condition precedent, agrees in writing to assume each and every obligation under the lease. Furthermore, before any said original beneficiary, mortgagee, or holder of a security instrument, or any other consented-to assignee or purchaser may subsequently assign or sublet any of the leasehold or Lessee's interest, it shall obtain the City's prior written consent by resolution. The decision of the City Council of the City as to such assignee, purchaser, or subtenant shall be final. 8. ASSIGNMENT-SUBLEASE: Lessee shall not assign or transfer the whole or any part of this lease or any interest therein, nor sublease the whole or any part of the leased premises, nor contract for the management or operation of the whole or any part of the leased premises, nor permit the occupancy of any part thereof by any· other person, nor permit transfer of the. lease of possession of the leased premises by merger, consolidation or dissolution, nor permit sale of a controlling interest in the voting stock in said corporation without the consent of City, evidenced by resolution, first had and obtained in each instance. 3 No assignment, voluntary or involuntary, in whole or in part of the lease or any interest therein, and no sublease of the whole .or any part of the leased premises, and no contract for the management or operation of the whole or any part of the leased • premises, and no permission to any person to occupy the whole or without the consent of City, first had and obtained in each instance; provided, however, that nothing herein contained shall be construed to prevent the occupancy of said premises by any employee or business invitee of Lessee. 9. DEFAULT: It is mutually understood and agreed that if any default be made in the payment of rental herein provided or in the performance of the covenants, conditions, or agreements herein (any covenant or agreement shall be construed and considered·as---, a condition), or should Lessee fail to fulfill in any manner the uses and purposes for \ which said premises are leased as above stated, and such default shall not be cured \. within or ten (10) days after written notice thereof if default is in the performance of -•. the use obligation provisions pursuant to paragraph 11 of this lease, or thirty (30) days after written notice thereof if default is in the payment of rent, or sixty (60) days after written notice thereof if default is in the performance of any other covenant, condition and agreements (any covenant or agreement shall be construed and considered as a condition), City shall have the right to immediately terminate this lease; and that in the event of such termination, Lessee shall have no further rights hereunder and Lessee shall thereupon forthwith remove from said premises and shall have no further right to claim thereto, and City shall immediately thereupon, without recourse to the courts, have the right to reenter and take possession of the leased premises. City shall further have all other rights and remedies as provided by law, including without limitation the right to recover damages from Lessee in the amount necessary to compensate the City for all the detriment proximately caused by the Lessee's failure to perform his obligations under the lease or which in the ordinary course of things would be likely to result therefrom. In the event City consents to an encumbrance of the Lease for security purposes in accordance with paragraph 7 of this lease, it is understood and agreed that City shall furnish copies of all notices of defaults to the beneficiary or mortgagee under said encumbrance by certified mail contemporaneously with the furnishing of said notices to Lessee, and in the event Lessee shall fail to cure such default or defaults within the time allowed above, said beneficiary or mortgagee shall be afforded the right to cure such default at any time within fifteen (15) days following the expiration of the period within which Lessee may cure such default, provided, however, City shall not be required to furnish any further notice of default to said beneficiary or mortgagee. In the event of the termination of this lease pursuant to the provisions of this paragraph, City shall have any right~ to which it would be entitled in the event of the expiration or sooner termination of this lease. 4 ( 10. BANKRUPTCY: In the event Lessee becomes insolvent, makes an assignment for the benefit of creditors, files a petition in bankruptcy or becomes the subject of a bankruptcy proceeding, reorganization, arrangement, insolvency, receivership, liquidation, or dissolution proceedings, or in the event of any judicial sale of Lessee's interest under this lease, City shall have the right to declare this lease in default, The conditions of this paragraph shall not be applicable or binding on Lessee or the beneficiary in any deed of trust, mortgage, or other security instrument on the demised premises which is of record with City and has been consented to by resolution of said· City, or to said beneficiary's successors ~ interest consented to by resolution of City, as long as there remains any monies to be paid by Lessee to such beneficiary under the terms of such deed of trust; provided that ·such beneficiary or its successors in interest, continuously pay to the City all rent due or coming due under the provisions of this lease and the premises are continuously and actively used in accordance with paragraph 13 of this lease. • 11. EMINENT DOMAIN: If the whole or a substantial part of the premises hereby leased shall be taken by any public authority under the power ofeminent domain, then the term of this lease shall cease as to the part so taken, from the day the possession of that part shall be taken .for any public purpose, and the rent shall be paid up to that day, and from that day Lessee shall have the right either to cancel this lease and declare· . the same null and void or to continue in the possession of the remainder of the same under the terms herein provided, except that the minimum rent shall be reduced in proportion to the amount of the premises taken. All damages awarded for such taking shall belong to and be the property of City whether such damages shall be awarded as compensation for diminution in value to the lease hold or to the fee of the premises herein leased; provided, however, that City shall not be entitled to any award made for the taking of any installations or improvements on the leased premises belonging to Lessee. 12. SUPERSEDURE: This lease upon becoming effective shall supersede and annul any and all, leases or rental agreements heretofore made or issued for the leased premises between City and Lessee, and any such, leases or rental agreements shall hereafter be void and of no effect except as to any rentals and/or fees which may have accrued thereunder or any rights and remedies granted to City under such agreements. 13. USE OBLIGATION: Lessee shall actively and continuously use and operate the premises for the limited particular exclusive use as expressly provided for in the Use paragraph (3) of this lease, except for failure to so use caused by reason of wars, strikes, riots, civil commotion, acts of public enemies, and acts of God. Lessee, however, shall not and is expressly prohibited from using the premises for any other purpose or use whatsoever, whether it is purported to be in addition to or in lieu of the· particular exclusive use expressed in said'Use paragraph (3). 5 14. MAINTENANCE AND REPAIR: As part of the consideration for the·leasing thereof, Lessee agrees to assume full responsibility for the interior operation, maintenance, including painting, and repair of the premises, throughout the term and without expense to the City. Lessee will perform all interior maintenance, repairs and replacements, including glass, necessary to maintain and preserve the premiss in a good, safe, healthy and sanitary condition satisfactory to City and in compliance with all applicable laws. Lessee further agrees to provide approved containers for trash and garbage and to keep premises free and clear of rubbish and litter, or any other fire hazards. Lessee waives all right to make repairs at the expense of City as provided in Section 1942 of the California Civil Code and all rights provided by Section 1941 of said Code. Lessor shall be responsible for all exterior maintenance, including roof repairs. For the purpose of keeping the premises in a good, safe, healthy and sanitary condition, City shall have the right but not the duty, to enter, view, inspect, determine the condition of and protect its interests in, the premises. If inspection discloses that the premises are not in the condition described, Lessee must perform the necessary maintenance work within ten (10) days after written notice from City. Further, if at any time City determines that the premises are not in the condition described, City may require Lessee to file and pay for a faithful performance bond, to assure prompt correction without additional notice. The amount of this bond shall be adequate, in City's opinion, to correct the unsatisfactory condition. Notwithstanding, City shall not be required at any time to maintain or to make any improvements or repairs whatsoever on or for the benefit of the leased premises. The rights reserved in this section shall not create any obligations or increase any obligations for City elsewhere in this Lease. 15. TAXES AND UTILlTIES: This lease may result in a taxable possessory interest and be subject to the payment of property tmces. Lessee agrees to and shall pay before delinquency all tmces and assessments of any kind assessed or levied upon Lessee or the leased premises by reason of this lease or of any buildings, machines, or other • improvements of any nature whatsoever erected, installed or maintained by Lessee or by reason of the business or other activities of Lessee upon or in connection with the leased premises. Lessee shall also pay any fees imposed by law for licenses or permits for any business or activities of Lessee upon the leased premises or under this lease, and shall pay before delinquency any and all charges for utilities at or on the leased premises. If lessee fails to pay said tmces, City may declare default in accordance with paragraph 9. Lessee shall be responsible for payment of all utilities. 16. CONFORMANCE WITH RULES AND REGULATIONS: Lessee agrees that in all activities on. or in connection with the leased premises and in all uses thereof, including the making of any alterations or changes and the installation of any machines or other improvements, it will abide by and conform to all ordinances, rules and regulations prescribed by the City of Carlsbad, including the Building Code, and any applicable laws of the· State of California and Federal Government, as any of the same now exist or may hereafter be adopted or amended. 6 ( 17. NON-DISCRIMINATION: Lessee agrees not to discriminate against any person or class of persons by reason of sex, color, race, religion, or national origin. If the use provided for in this lease allows the lessee to offer accommodations or services to the public, such accommodations or services shall be offered by the Lessee to the public on fair and reasonable tenns. • 18. PARTIAL INVALIDITY: If any term, covenant, condition, or provision of this lease is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby. • 19. HOLD HARMLESS: Lessee shall defend, indemnify, and hold harmless City, its officers and employees against causes of action, liability, damage, and expense, including reasonable attorney's fees, for judicial relief of any kind, for damage to proper:;, of any kind whatsoever and to whomever belonging, including without limitation Lessee or its employees, or injury or death of any person or persons, including without limitation Lessee or its employees, resulting directly or indirectly from granting and perfonnance of this lease or arising from the use and operation of the leased premises or any defect in any·part thereof. 20. SUCCESSORS IN INTEREST: Unless otherwise provided in this lease, the terms, covenants and conditions herein shall apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto, all of whom shall be jointly and severally liable hereunder. 21. EASEMENTS: This lease and all rights given hereunder shall be subject to all easements and rights-of-way now existing or heretofore granted or reserved by City in, to or over the leased premises for any purpose whatsoever, and shall be subject to such rights-of-way for reasonable access, sewers, pipelines, conduits and -;uch telephone, cable television, telegraph, light, heat or power lines as may from • • ne to time be detennined by City to be in the best interests of the development ,.;, the tidelands. City agrees that such easements and rights-of-way shall be so located and installed as to produce a minimum amount of interference to the business of Lessee. 22. INSURANCE: Lessee shall maintain insurance acceptable to City in full force and effect throughout the term of this lease. The policies for said insurance shall, as a minimum, provide the following fonns of coverage: A. Comprehensive General Liability (covering premises and operations) in the amount of not less than One Million Dollars ($1,000,000) combined single limit. This policy shall cover any injury or damage, including death, suffered by any party, for any act, committed by anyone, including City. 7 B. Property Insurance -Lessee agrees· to provide coverage for tenant improvements, betterments and personal property. Additionally, lessee will provide business interruption coverage to ensure that lease payments will continue uninterrupted in the event of the partial or total loss of the building. Lessor will be responsible for providing coverage for the structure itself, exclusive of the items required to be covered by lessee's insurance policy. C. Evidence of Insurance -Certificates in a form acceptable to City evidencing the existence of the necessary insurance policies shall be kept on file with City during the entire term of this lease. All insurance policies will name City as an additional insured, protect City against any legal costs in defending claims and will not terminate without written notice to City. All insurance companies providing coverage pursuant, to this agreement must meet City's minimum standards and be licensed to do business in California. City shall retain the right at any time to review the coverage, form, and amount of the insurance required hereby. If, in the opinion of the City, the insurance provisions in this lease do not provide adequate protection for City and/or for members of the public using the leased premises, City may require Lessee to obtain an insurance sufficient in coverage, form and amount to provide adequate protection. City's requirements shall be reasonable but shall be designed to assure protection from and against the kind and extent of risk which exist at the time a change in insurance is required. City shall notify Lessee in writing of changes in the insurance requirements and, if Lessee does not deposit certificates evidencing acceptable insurance policies with City incorporating such changes within sixty (60) days of receipt of such notice, this lease shall be in default without further notice to Lessee, and City shall .be entitled to all legal remedies. The procuring of such required policies of insurance shall not be construed to limit Lessee's liability hereunder, not to fulfill the indemnification provisions and requirements of this lease. Notwithstanding said policies of insurance, Lessee shall be obligated for the full and total amount of any damage, injury, or loss caused by negligence or neglect connected with this lease or with the use or occupancy of the leased premises. 8 I • Lessee agrees not to use the premises in any manner, even if use is for purposes stated herein, that will result in the cancellation of any insurance City may have on the premises or on adjacent premises, or ~t will c_ause cancellation of any other insurance coverage for the premises or adjoining premises. Lessee further agrees not to keep on the premises or permit to be kept, usetl, or sold thereon, anything prohibited by any fire or other insurance policy covering the premises. Lessee shall, at its sole cost and expense, comply with any and all requirements, in regard to premises, of any insurance organization necessary for maintaining fire and other insurance coverage at reasonable cost. 23. WARRANTIES-GUARANTEES-COVENANTS:. City makes no warranty, guarantee, covenant, including but not limited to covenants of title and quiet enjoyment, or declaration of any nature whatsoever concerning the condition of the leased premises, including the physical condition thereof, or any condition which may affect the leased premises, and it is agreed that City will not be responsible for any loss, damage or costs which may be incurred by Lessee by reason of any such condition or conditions. 24. DAMAGE TO OR DESTRUCTION OF PREMISES: In the event of damage to or destruction by fire,. the elements, acts of God, or any other cause, of the improvements located within the demised premises or in the event the improvements located within the demised premises are declared unsafe or unfit for use or occupancy by a public entity with the. authority to make and enforce such declaration, Lessee shall, within ninety (90) days, commence and diligently pursue to completion the repair, replacement, or reconstruction of improvements necessary to permit full use and occupancy of the demised premises for the purposes required by this lease. Repair, replacement or reconstruction of improvements within the demised premises shall be accomplished in a manner and according to plans approved by City; provided, however, Lessee shall not be obligated to repair, reconstruct or replace the improvements following their destruction in whole or substantial part except to the extent the loss is covered by insurance required to be carried by Lessee pursuant to paragraph 22 of this Lease ( or would be covered whether or not such required insurance is actually in effect). If Lessee elects not to restore, repair or reconstruct as herein provided, then the Lease shall terminate. 25. QUITCLAIM OF LESSEE'S INTEREST UPON TERMINATION: Upon termination of this lease for any reason, including but not limited to termination because of default by Lessee, Lessee shall execute, acknowledge and deliver to City within thirty (30) days after receipt of written demand therefor a good and sufficient deed whereby all right, title and interest of Lessee in the demised premises is quitclaimed to City. Should Lessee fail or refuse to deliver the required deed to City, City may prepare and record a notice reciting the failure of Lessee to execute, acknowledge and deliver such deed and said notice shall be conclusive evidence of the termination of this lease and of all right of Lessee or those claiming under Lessee in and to the demised premises. 9 26. PEACEABLE SURRENDER: Upon the expiration of this lease or sooner termination or cancellation thereof, as herein provided, Lessee will peaceably surrender said premises to City in as good condition as said premises were at the. date of this lease,· ordinary wear and tear excepted. If the Lessee fails to surrender the premises at the expiration of this lease or the earlier termination or cancellation thereof, Lessee shall • defend and indemnify City from all liability and expense resulting from the delay or failure to surrender, including, without limitation, any succeeding Lessee's claims based on Lessee's failure to surrender. 27. WAIVER: Any waiver by City of any breach by Lessee of any one or more of the covenants, conditions, or agreements of this lease shall not be nor be construed to be. a waiver of any subsequent or other breach of the. same or any other covenant, condition or agreement of this lease, nor shall any failure on the part of City to require or exact full and complete compliance by Lessee with any of the covenants, conditions, or . agreements of this lease be construed as in any manner changing the terms hereof or to prevent City from enforcing the full provisions hereof. The subsequent acceptance of rent hereunder by City shall not be deemed to be waiver of any preceding breach by Lessee of any term, covenant, or condition of this lease, other than the failure of Lessee to pay the particular rental so accepted, regardless of City's knowledge of such preceding breach at the time of acceptance of such rent. 28. HOLD OVER: This lease shall terminate without further notice at expiration.of the term. Any holding over by Lessee after either expiration or termination shall not constitute a renewal or extension or give Lessee any rights in or to the leased premises. If Lessee, with City's consent, remains in possession of the leased premis~ after expiration or termination of the term or after the date in any notice given by .City to . Lessee terminating this lease, such possession by Lessee shall be deemed to be a month- to-month tenancy terminable on thirty (30) days notice given at any time by either party. During any such month-to-month tenancy, lessee shall pay all rent required by this \ease, and if percentage rent is required by the lease, it shall be paid monthly on or before the first day of each month. All provisions of this lease, except those pertaining to term, shall apply to the month-to- month tenancy. 29. SECTION HEADINGS: The Table of Contents and section headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provision thereof. 10 30. ENTIRE UNDERSTANDING: . This lease contains the entire and only understanding and agreement of the parties, and Lessee, by accepting the same, acknowledges that there is no other written or oral understanding or agreement between the parties with respect to the demised premises and that this lease supersedes all prior negotiations, discussions, obligations and rights of the parties hereto. No waiver, modification, amendment or alteration of this lease shall be valid unless it is expressly in writing and signed by authorized persons of the parties hereto. Each of the parties to this lease acknowledges that no other party, nor any agent or attorney of any other party, has - made any promise, representations, waiver or warranty whatsoever, expressed or implied, which is not expressly contained in writing in this lease, and, each party further acknowledges that it has not executed this lease·in reliance upon any collateral . promise, representation, waiver or warranty, or in reliance upon any belief as to any fact not expressly recited in this lease. 31. TIME IS OF THE ESSENCE: Time is of the essence of each and all of the terms and provisions of this lease and this lease shall inure to the benefit of and be binding upon the parties hereto and any successors of Lessee as fully and to the same extent as though specifically mentioned in each instance, and all covenants, stipulations and agreements in this lease shall extend to and bind any assigns and sublessee of Lessee. 32. ATTORNEY'S FEES: In the event any suit is commenced by City against Lessee to enforce the payment of any rent due or to enforce any of the terms 'and conditions hereof, or in case City shall commence summary action under the laws of the State of California relating to the unlawful detention of property, for the forfeit of this Lease, and the possession of said premises, provided City effects a recovery, Lessee shall pay City all costs expended in any such action, together with a reasonable attorney's fee to be fixed by the Court. 33. NOTICES: Notices given or to be given by City or Lessee to the other may be personally serviced upon City or Lessee or any person hereafter authorized by either in writing to receive such notice or may be served. by certified letter addressed to the appropriate address hereinafter set forth or to such other address as City and Lessee may hereafter designate by written notice. If served by certified mail, forty-eight ( 48) hours after deposit in the U.S. Mail, service will be considered completed and binding on the party served. • To City City of Carlsbad Utilities and Maintenance Director 405 Oak Avenue Carlsbad, California 92008 11 To Lessee C.J. Perrigo c/ o Village Grill 2833 State Street Carlsbad, CA 92008 Said notices shall also be served by certified letter to the beneficiary of any deed of trust, mortgage, or other security instrument of record with City and consented to by resolution of City who has notified City in writing of its desire to receive said notice. 34. REMOVAL OF MATERIALS: Lessee hereby agrees that upon the ·expiration of this lease or the sooner termination as herein provided, it will remove within sixty (60) days debris, surplus arid salvage materials from the land area forming a part of or adjacent to the leased premises, so as to leave the same in as good condition as when first occupied by Lessee; provided, however, that if any said debris, surplus and salvage materials shall not be so.removed within sixty (60) days by the Lessee, City may remove, sell and destroy the same at the expense of Lessee. and Lessee hereby agrees to pay to City the reasonable cost of such removal, sale or destruction; or at the ciption of City, the title to said debris, surplus and salvage materials not removed shall become the property of City without cost to City and without any payment to Lessee. During any period of time employed by Lessee under this paragraph to remove debris, surplus and salvage materials, Lessee shall continue to pay the full rental to City in accordance with this lease which said rental shall be prorated daily. 35. ACCEPTANCE OF PREMISES: By signing this Lease, Lessee represents and warrants that it has independently inspected the premises and made all tests, investigations arid observations necessary to satisfy itself of the condition of the premises. Lessee agrees it is relying solely on such independent inspection, tests, investigations and observations in making this Lease. Lessee further acknowledges that premises are in the condition called for by this Lease, that City has performed all work with respect to premises and that Lessee does not hold City responsible for any defects in premises. 36. QUIET POSSESSION: Lessee will at all times during .the terms of this Lease occupy the premises quietly and not commit any act, waste or nuisance which disturbs the quiet enjoyment of the property for the City, public, any neighbor or other tenant of City. 37. GENDER/SINGULAR/PLURAL: The neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter, and the feminine includes the masculine and neuter, and each includes corporation, partnership, or other legal entity when the context so requires. The singular number includes the plural whenever the context so requires. 12 ,,/~UAL EMPLOYMENT OPPORTUNITY: Lessee shall not discriminate against any .-employee or applicant for employment because of race, color, religion, sex or national .· :' origin and shall take affirmative action to assure applicants are employed and that employees are treated during employment without regard to race, color, religion, sex or national origin. Except during the time Lessee is exempt pursuant to written policy of City, Lessee shall submit to City for review and approval a written affirmative action program to attain improved employment for racial and ethnic minorities and women and during the term of this lease shall further make available employment records to City upon request. Lessee shall certify in writing to City that Lessee is in compliance and throughout the term of this lease will comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices Act, and any other •• applicable Federal, State, and local law, regulation and policy .(including without limitation those adopted by City) relating to equal employment opportunity and affirmative action programs, including any such law, regulation, and policy hereinafter • enacted. Compliance and performance by Lessee of the equal employment opportunity and affirmative action program provision of this lease is an express condition hereof and any failure by Lessee to so comply and perform shall be a default as provided in said lease and City may exercise any righ~ as provided therein and as otherwise provided by law. 39. ABSTRACT OF LEASE: This is the final paragraph and abstract of the lease dated January 29, 1992, between City of Carlsbad, City, and C.J. Perrigo-d.b.a.Village Grill, Lessee concerning the premises described in Exhibit "A" attached hereto and by this reference made a part hereof. For good and adequate consideration, City leases the premises to Lessee, and Lessee hires them from City, for the term and on the provisions contained in the lease, including without limitation provisions prohibiting assignment, subleasing, and encumbering said lease without the express written consent of City in each instance, all as more specifically set forth in said Lease, which said Lease is incorporated in this abstract by this reference. The term is 5 years, beginning January 1, 1992, and ending December 31, 1997. 13 This abstract is not a complete summary of the lease. Provisions in the abstract shall not be used in interpreting the lease provisions. In the'event of conflict between the abstract and other parts of the lease, the other parts shall control. Execution hereof constitutes execution of the lease itself. APPROVED as to form and legality City Attorney LESSEE CITY OF CARLSBAD e_......,,·~➔~---a,.,.k=~=;::~-6,...,_, __ ,1--?tf• ., 2 C.J. Perrigo d.b.a. Village Grill Date ;; " " '§ 0 u ~ ,: " g, E " .... Signatures of Lessee and Lessor must be notorized. ~----·-, -• -->-·~ z C ~ -~ . ;:::: -,--·~ \" z z < ~~ -"' ·-" -:.J -:J :i: e Individual AcKnowledgment STATE OF CAl,,_IF.ORNI-'¾) C l COUNTY OF ]/IN {YI '1, (rU ( ss. On this 311.(2 day of ft~ v ,JI(// , in the year 19!/.c._, before me, the undersigned, a Notary Public in and for said County and State. personally appeared C. ;;{. f if./(/lt 6-0 personally known to me (or proved to me on the basis of satisfactory evidence) to be the person_ II JP. whose name _ _J/c.....'.zc..__ subscribed to this instrument and acknowledged that ~"=''-~ __ executed it. Notary Seal -------, ~ ' -Notary Public in and for said County and State -. . . i I EXHIBIT A VILLAGE GRILL 2829-2833 STATE STREET CARLSBAD, CA 92008 STATE 35'10" RESTAURANT APPROXIMATaY 775 SQ, FT. STREET N 8:::::::---. ORTH 1/rt' = 1'