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HomeMy WebLinkAboutCAR 2019-0001; JOES ON THE NOSE; Carts and Kiosks (CAR)(city of Carlsbad FOOD CARTS AND KIOSKS INFORMATION SHEET P-19 Development Services Planning Division 1635 Faraday Avenue (760) 602-4610 www.carlsbadca.gov Project Address: 5909 Sea Otter Place, Carlsbad, C4 92010 (Located 4c.1Jacent to 5909) JOTN Inc/ Joes on the Nose Project Name: 4/11 /19 Date Submitted: JOTN Inc. Owner Name: 4231 Balboa Avenue, Suite 219 Owner Address: San Diego, CA 92117 David Wasserman Applicant Name: 6521 Bamburgh Drive Applicant Address: San Diego, CA 92117 858-373-8001 Applicant Phone Number: _________________________ _ ~-'l v-1\..,,k. C \ ...... ~ Project Planner: -" 1l... PROCEDURES 1. Apply for a Business License at one of our cashier stations, and they will route your request to the appropriate City Divisions/Departments. 2. Complete the attached information sheet; and submit a letter and simple plot plan to the Planning Division at 1635 Faraday Avenue, Carlsbad. Your letter and plot plan should contain the information specified below under Submittal Requirements. 3. Generally, within seven days of receipt of your letter, staff will notify you of the decision to approve or deny your request. It may be possible to approve your request immediately. 4. Upon approval, Planning Division staff will sign off your business license application when we receive it from the Finance Department. If applicable, you should also submit applications for electrical or other required permits to the Building and Code Enforcement Division. You may also be required to obtain a permit from the Health Department. P-19 Page 1 of2 Revised 12/14 SUBMITTAL REQUIREMENTS Your letter and plan should include the following information: 1. The proposed location of the cart, customer area, proposed utility hookups, existing buildings on the site, parking areas, and vehicle and pedestrian circulation. 2. Photographs of the site showing the proposed location of the cart. 3. Photographs, brochures, and/or elevation drawings of the proposed cart, including proposed colors, awnings and signs. 4. A description of the proposed products and type of preparation done at the pushcart. The signature of the property owner(s) or property manager (for shopping centers) must be included on the plans or in a separate letter as proof of permission to operate and approval of proposed location. GUIDELINES FOR FOOD CARTS & KIOSKS The following design guidelines apply to all requests to establish a food cart or kiosk for specialized food sales. These criteria and the procedures outlined below are applicable to requests for food carts or kiosks in the C-1, C-2, C-L, C-T, P-M, Mand C-M zones. Proposals in the Village are subject to the requirements of the Village Master Plan. Food carts located within buildings are exempt from these guidelines. DESIGN GUIDELINES 1. Carts and kiosks will be permitted as an accessory use to an existing principal use on the property and will not require an amendment to existing discretionary approvals. 2. Carts and kiosks may be used for the incidental sale of packaged food and beverages only. No on- site preparation of food is allowed. The sale of alcoholic beverages is prohibited. 3. The applicant shall submit a letter of permission from the submit property owner authorizing the location and operation of the proposed cart or kiosk. 4. Carts and kiosks shall not function as drive-thru businesses and shall not be located in areas that: a. Reduce the number of required parking spaces; b. Interfere with vehicle or pedestrian circulation; c. Present a traffic hazard; d. Result in the removal of mature landscaping (unless additional landscaping area is provided elsewhere); or e. Are closer than 50 feet from any public street right-of-way. 5. Signs (if any) shall be attached to the cart and shall not exceed a cumulative total of 9 square feet in area (including canopy, awning, and umbrella signs, etc. but not including small menu signs). No one sign shall exceed a maximum size of 6 square feet. The size of the signs shall be in scale with the size and mass of the cart. No off-site advertising or signage shall be permitted. 6. Show location of restroom facilities for employees and provide letter from property owner indicating that kiosk employees will have access to restroom facilities during kiosk business operational hours. P-19 Page 2 of2 Revised 12/14 JOTN Inc. Coffee Cart Menu Items/ Preparations 5909 Sea Otter Place Carlsbad, CA 92010 Menu Items: Brewed Drip Coffee Espresso Drinks Hot Tea Blended Coffee Drinks Chips, Packaged Snacks Contact: David Wasserman david@joesonthenose.com 858-373-8001 Pre-packaged Salads & Panini Sandwiches Pastries Smoothies Type of Preparation for Menu: -Grinding and Brewing of Coffee -Espresso Bean Grinding & Milk Steaming for Espresso Drinks -Unwrapping and Warming of Panini Sandwiches on Panini Grill ~ountp of ~an mtego DEPARTMENT OF ENVIRONMENT AL HEAL TH -FOOD AND HOUSING DMSION P.O. BOX 129261, SAN DIEGO, CA 92112-9261 Phone: (858) 505-4>900 • (800) 253-9933 • FAX: (858) 505-4;848 • www.sdcdeh.org MOBILE FOOD FACILITY LOCATION OF OPERATION INFORMATION • ,..~,Ofs~.,~% . c-• ... ;;. .,, ~ ,. ~ ,. < .. "' 'I, .:t ~ ~ 'I" .,, ,\: , . .,v,RO'•"· Mobile Food Facility Name: JOTN Inc. -Joes on the Nose Health Permit#: _________________ _ Mailing Address: 8360 Clairemont Mesa Blvd Suite 112 San Die.9.0 92111 Street# Street Name City Zip Code Contact Phone #: ( ) 858-373-8001 Contact Cell Phone#: ( ) 858-373-8001 Contact Email: david@joesonthenose.com Vehicle Identification#: _____________ _ license Plate#: _________ _ Website: _______ ___,._;__ ____ _ Commissary Name and Permit#: _______________ Commissary Address: _______________________ _ Street# Street Name City Zip Code FOR MOBILE CARTS APPROVED TO BE STATIONED AT A SINGLE OPERATING SITE (SOS): *Note: All locations must be within 200 ft. of approved toilet facilities. Name of location: Atlas at Carlsbad -'-'=:..=;_::,,;:::;..:.;;;=::-..------Location Address: 5909 Sea Otter Place Street# Street Name Carlsbad City 92010 Zip Code Days of Operation: Monday-Friday Hours of Operation: _7_A ..... M_-__ 3 ___ P_M__.(J......__B_D.._) ______________________ _ MOBILE FOOD TOILET FACILITIES LETTER OF AGREEMENT: This section must be completed by the Toilet Facility Owner for all Single Operating Site (SOS) facilities and all Mobile Food Facilities whose vehicles stop at one location for longer than one (1) hour. This permission letter must be renewed annually. The above mobile food facility has my permission to use my permanent toilet facilities, which include hot and cold water, soap, and towels or air dryer. Name (Print): CR Sea Otter. LLC Name (Signature):~~ Title:-EVP Date: 5 / 16/ 17 Facility Name and Address: Atlas at Carlsbad 5909 Sea Otter Place. Carlsbad CA 92010 Street# Strl!f!t Name City Zip Code Contact Phone#: ( 310) 806-9807 Contact Fax #: ( 310) 806-9801 Contact Email: mb @ reqentproperties.com I understand and agree that if I make any changes to my route or business location, I must notify the Food and Housing Division (FHD) within 30 days. Revised route information may be provided by Fax: 858-505-6848, E-mail: fhdpermits@sdcounty.ca.gov, in person to 5500 Overland Avenue, San Diego, CA 92123 or by U.S. Mail to P.O. Box 129261, San Diego, CA 92112-9261, Attn: FHD Mobile Food Inspection Program. Failure to notify FHD of any changes may result in an administrative citation, suspension or revocation of tOe He,lth Penn• Issued to meto operate this Mob;le Food~~ _ CR Sea Otter, LLC =----------5 / 16 / 17 Owner Name (Print) owner me~ Date DEH:FH-265 (Rev. 04/15) ~ountp of &an l)tego DEPARTMENT OF ENVIRONMENTAL HEALTH ENVIRONMENTAL HEALTH PERMIT PO BOX 129261 SAN DIEGO. CA 92112-9261 • (8581 5056700 ',:l'!/4JfJ, 253-9933 'FAX (8581 505-6848 www sdcr.leh org Owner/Operator Name: Facility Name: Facility Located at: Ma1hng Address JOES ON THE NOSE JOTNINC JOTNINC JOES ON THE NOSE 5909 SEA OTTER PL, CARLSBAD. CA 92010-667 4 4231 BALBOA AVE STE 219 SAN DIEGO. CA 92117-5504 EliH Rothschild Director Record Number: DEH2017-FFMP.001165 ATTENTION PERMIT TO OPERA TE SINGLE OPERA TING SITE Expiration Date: 8/31/2019 RENEWAL IS REQUIRED BEFORE EXPIRATION DAT!= • Post in a Conspicuous Place. • A copy of this permit must be maintained at the facility location. • Permit is not valid for any facility location or owner not listed above. • This permit is not transferable. Any change in the above owner, location or mailing address or business activity must be reported by submitting a written change to the department. • This is not a City or County use permit, nor a permit to operate under any other regulatory program. Other permits may be required for these operations at this location. This permit is provisional. The Director or des1gnee of the Director may order the permit or any permit element , be denied, suspended or revoked for violation of any relevant requirement established or provided by law. This · permit does not excuse any owner or operator from complying with all applicable federal, state. county or local 1 raws. ordinance or regulations. The owner or operator is required to determine if another permit or approval · from any other agency or department is necessary. The County, by issuing this permit. does not relinquish its · right to enforce any violation of law. LEASE This Lease ("Lease") is dated as of the Effective Date and is entered into by and between CR SEA OTTER, LLC, a Delaware limited liability company ("Landlord"), and JOTN INC., a California corporation dba JOBS ON THE NOSE ("Tenant"). Each reference in this Lease to any of the following Fundamental Lease Provisions ("Fundamental Lease Provisions") shall be deemed and construed to incorporate all of the terms thereof. A. Date: This Lease is dated as of May 12, 2017 ("Effective Date"). B. Premises/Building/Project (Article 1 ): The premises consist of the storage crate, as set forth in ExhibitA attached hereto, located in area of the multi-building project known as "Atlas" (the "Project") to be designated by Landlord. The Project consists of the building located at 5909 Sea Otter Place, Carlsbad, California (also known as the "Alpha Building") and adjacent building located at 5919 Sea Otter Place, Carlsbad; California (also known as the "Beta Building"). c. D. Landlord and Landlord's Address for Notices (Section 17.3): Tenant and Tenant's Address for Notices (Section 17.3): CR SEA OTTER, LLC, a Delaware limited liability company c/o Regent Properties 11990 San Vicente Boulevard, Suite 200 Los Angeles, California 90049 Attention: Matthew Benbassat With a copy to: Advisors LLP 11911 San Vicente Boulevard, Suite 265 Los Angeles, California 90049 Attention: Robert Piatkowski JOES ON THE NOSE 8360 Clairemont Mesa Blvd. Suite 112 San Diego, CA 92111 Attn: David Waserman E. Permitted Use (Section 4.1.1): Tenant shall use the Premises solely for the following use(s): cafe serving coffee and other non-alcoholic beverages, smoothies, "grab & go" food items such as pastries, fruits, salads, panini sandwiches and· other similar "grab & go" food items. No alcohol may be sold or distributed from the Premises. F. Term (Article 2): The term of this Lease (the "Term") shall be for a period of thirty-six (36) months, commencing on the Rent Commencement Date (defined in Paragraph G below) and ending on July 31, 2020 ("Term Expiration Date"). G. Rent Commencement Date (Article 2): August 1, 2017 ("Rent Commencement Date"). .j. H. Rent (Section 3.1): Tenant shall pay rent ("rent") to Landlord in the amount of $1,000.00 per month in the event Tenant's "Gross Sales," as defined in Section 3.2 of this Lease, are equal to or in excess of $850.00 per day (based upon Tenant opening for the "Required Operating Hours," as defined below), calculated based upon the total Gross Sales amount for each quarterly period (subject to reconciliation at the end of each year as provided in Section 3.2 of this Lease). In the event Tenant's Gross Sales are equal to or less than $525.00 per day based upon the total Gross Sales amount for each quarterly period (and subject to reconciliation at the end of each year), then (i) Tenant shall not be charged monthly rent for such period and (ii) provided that Tenant has remained opened at all times during the "Required Operating Hours," as defined below and is not otherwise in default under this Lease, Landlord shall pay to Tenant a subsidy (the "subsidy") in an amount equal to the difference between the Gross Sales for such quarterly period and $525.00 per day (it being acknowledged and agreed that such amount is a subsidy provided by Landlord to Tenant in order to provide Tenant with a daily Gross Sales total of $525.00 per day). Neither party will have any obligation to pay the other party any rent or subsidy, as applicable, in the event Tenant's Gross Sales are between $525.00-$850.00/per day calculated based upon a quarterly period (and subject to annual reconciliation). For purposes of determining amounts due hereunder from either Tenant or Landlord, such daily rate shall be based upon Tenant opening for business to the public daily (without interruption) Monday through Fridays from 7:00 a.m.-2:00p.m. which minimum required hours of operation may be modified by Landlord from time to time upon mutual agreement of Tenant excluding holidays (the "Required Operating Hours"). In the event Tenant fails to open for business during any of the Required Operating Hours or is otherwise in material default under this Lease, Landlord shall have no obligation to provide or pay to Tenant for any such subsidy for any such day of closure or for any period in which Tenant is in material default under this Lease. Any rent due from Tenant herein or subsidy due from Landlord herein shall be paid to the other party on a quarterly basis pursuant to Section 3 .1 of this Lease. [intentionally left blank] -ii- ARTICLE 1. PREMISES Landlord hereby leases to Tenant and Tenant hereby hires from Landlord the Premises described in Paragraph B of the Fundamental Lease Provisions upon the terms and conditions contained in this Lease. ARTICLE 2. TERM; OPTION TO EXTEND 2.1 In General. The Term shall commence on the Rent Commencement Date and continue for the period set forth in Paragraph F of the Fundamental Lease Provisions (the last day of such period is referred to as the "Term Expiration Date"). 2.2 Option to Extend. 2.2.1 Option Right. Subject to the terms hereof, Landlord hereby grants to the Tenant originally named in this Lease ("Original Tenant") one (1) option (the "Option") to extend the Term for a period of three (3) years' ("Option Term"), which Option shall be exercisable only by written notice delivered by Tenant to Landlord as set forth below; provided that, as of the date of delivery of such notice, (i) Tenant is not then in default under this Lease (beyond the applicable notice and cure periods), (ii) Tenant has not been in default under this Lease (beyond the applicable notice and cure periods) more than once during the prior twelve (12) month period and (iii) Tenant has not been in default under this Lease (beyond the applicable notice and cure periods) more than three (3) times during the Lease Term. Upon the proper exercise of such option to extend, and subject to Tenant's compliance with all of the foregoing conditions, then the Term, as it applies to the Premises, shall be extended for a period of three (3) years. The rights contained in this Section 2.2 shall be personal to the Original Tenant, and may only be exercised by the Original Tenant (and not any assignee, sublessee or other transferee of the Original Tenant's interest in this Lease) if the Original Tenant is in occupancy of the entire Premises. 2.2.2 Option Rent. The rent payable by Tenant during the Option Term (the "Option Rent") shall be equal to $1,100.00 per month. 2.2.3 Exercise of Optiqn. The Option contained in this Section 2.2 shall be exercised by Tenant, if at all, only by delivering written notice to Landlord, on or before the date -occurring six (6) months prior to the expiration of the initial Term, irrevocably exercising the Option. All other terms and conditions of this Lease shall apply during the Option Term except for the Option Rent and Tenant shall accept the Premises in its then existing as-is condition (and Landlord shall have no obligation to provide or pay for any improvements in the Premises). ARTICLE3.RENT;GROSSSALES 3.1 Minimum Rent. Any monthly Minimum Rent due under this Lease shall be paid by Tenant on or before the ten ( 1 0)th business day after the expiration of each quarter in the amount set forth in Paragraph H of the Fundamental Lease Provisions. 3.2 Gross Sales. The term "Gross Sales" as used herein shall mean the gross selling price, less any sales tax charged and collected separately from customers and any refunds issued to customers, of everything sold upon, resulting from business conducted in, on, from or in connection with the Premises or generated from internet sales generated from, fulfilled from, or relating to goods or products manufactured or produced at, the Premises, whether for cash or on credit, or partly for cash -1- and partly on credit, or in like kind, of all sales or rentals, including, without limitation, food, beverages, goods, wares, inerchandise, services, and all credit charges and all other receipts and revenues of business conducted in or from the Premises, from Tenant, its subtenants, licensees and concessionaires, including, without limitation, internet sales, any catering, sales and services, either for cash or on credit, with the full amount of credit sales being reported as Gross Sales in the month in which such sales are made and for any sales or transfer of goods or products produced at the Premises to any affiliate of Tenant. 3.2.1 Calculation of Gross Sales. Commencing on the Rent Commencement Date and continuing thereafter throughout the Term, Tenant shall pay to Landlord on a quarterly basis any Minimum Rent due to Landlord under this Lease as provided in Paragraph Hof the Fundamental Lease Provisions (or, if applicable, Landlord shall pay to Tenant on a quarterly basis any subsidy due to Tenant under this Lease as provided in Paragrnph Hof the Fundamental Lease Provisions). Within ten (10) business days after the end of each quarter during the Term, Tenant shall pay (concurrently with Tenant's delivery of the quarterly Gross Sales report to Landlord pursuant to Section 3.2.2.2 of this Lease) to Landlord the estimated amount of Minimum Rent due under this Lease during the immediately preceding quarter (or, if applicable, Landlord shall pay to Tenant any subsidy due pursuant to Paragraph Hof the Fundamental Lease Provisions). Within ninety (90) days after the close of each calendar year, an accounting of Gross Sales during such year and the estimated quarterly installments paid by Tenant to Landlord as Minimum Rent ( or subsidy paid by Landlord to Tenant) during such year shall be made by Tenant and Landlord. Upon such accounting, adjustment reconciliation shall be made with respect to total Minimum Rent paid by Tenant for such year (or total subsidy paid by Landlord to Tenant for such year) and the actual annual Minimum Rent (or subsidy) due under this Lease for such year such that if Tenant shall have paid to Landlord an amount greater than Tenant is required to pay pursuant to Paragraph H of the Fundamental Lease Provisions (or Landlord shall have paid to Tenant a subsidy in an amount greater than Landlord is required to pay pursuant to Paragraph Hof the Fundamental Lease Provisions), Tenant shall be entitled to a credit of any such excess Minimum Rent actually paid to Landlord (which overpayment will be applied against any Minimum Rent next due under this Lease) and Landlord shall be entitled to a credit of any such excess subsidy actually paid to Tenant (which overpayment will be applied against any subsidy next due under this Lease), or if Tenant shall have paid an amount less than the rent required to be paid by Tenant pursuant to Paragraph H of the Fundamental Lease Provisions, Tenant's accounting shall be accompanied by a payment to Landlord equal to the amount of such deficiency ( or if Landlord shall have paid an amount less than the subsidy required to be paid by Landlord pursuant to Parasraph H of the Fundamental Lease Provisions, Landlord shall pay to Tenant an amount equal to the amount of such deficiency within 30 days of such determination). 3.2.2 Tenant Records. 3.2.2.l At the time of a sale or other transaction, Tenant shall record the sale or other transaction in a cash register with sealed continuous tape, or on a computer, or by using any other method of recording sequentially numbered purchases and keeping a cumulative total. Tenant shall prepare and keep full, complete and proper books and source documents, in accordance with generally accepted accounting principles ("GAAP") (or other accounting standards reasonably agreed to by Landlord), consistently applied, of the Gross Sales, whether for cash, credit or otherwise, of each separate department at any time operated in the Premises and of the operations of any concessionaire. The books of account and records kept and maintained by Tenant for audit purposes shall include, without limitation, all records, receipts, journals, ledgers, true copies of all Federal, State and local sales tax returns and reports, records of inventories and receipts of merchandise, daily receipts from all sales and other pertinent original sales records (including without limitation, cash register tapes(or the computerized equivalent thereof), serially pre numbered sales slips, the original records of all mail and telephone orders, settlement report sheets of transactions with concessionaires, original records indicating that merchandise returned by customers was purchased at the Premises by such customers, memorandum receipts or other records of merchandise taken out on approval and records of any other transactions at the Premises). Tenant shall record at the time of each sale all receipts, whether for cash, credit or otherwise, in a cash register or cash registers with sealed continuous tape, or other computerized point of sale system and/or equipment, or by using any other method of recording sequentially numbered purchases and keeping a cumulative total which shall be sealed in a manner reasonably approved by Landlord. All of the foregoing books, source documents and records shall at all reasonable times upon fifteen (15) days' notice be open to the inspection of, and may be copied, or extracted from in whole or in part by, Landlord or Landlord's Parties for a period of at least two (2) years after the expiration of each year. In addition, upon request for Landlord, Tenant agrees to furnish to Landlord a copy of Tenant's sales tax return (State and Local Sales and Use Tax Return. 3.2.2.2 Within ten (10) business days after the end of each calendar month, Tenant shall deliver to Landlord, a Monthly Sales Statement (in a form approved by Landlord) specifying the Gross Sales made for the preceding calendar month. In addition, Tenant agrees to furnish to Landlord, within ten (10) business days after the expiration of each quarter, a report of the amount of Gross Sales made from the Premises during said period, certified by a responsible officer of Tenant as true and complete in a form to be provided by or approved by Landlord. Tenant also agrees that it will furnish to Landlord, within thirty (30) days after the expiration of each year, a report showing in reasonable detail the amount of such Gross Sales made by Tenant from the Premises during the preceding year, certified as true and complete by an independent certified public accountant engaged by Tenant, or by an authorized financial officer of Tenant. The aggregate amount of Minimum Rent payable by Tenant for each quarter of the year as set forth in the Annual Sales Statement shall be compared to the total amount of Minimum Rent paid by Tenant during each quarter of the Lease Year covered by such Annual Sales Statement. If Tenant shall owe any additional Minimum Rent, the Annual Sales Statement shall be accompanied by payment of such amount. If Tenant has overpaid Minimum Rent, then Tenant shall be credited the amount of such overpayment against the next monthly payment(s) of Minimum Rent until such overpayment has been exhausted, any such excess sums not previously credited shall be refunded to Tenant within thirty (30) days following Landlord's receipt of the Annual Sales Statement. All sales statements delivered to Landlord herein are Tenant's confidential information and provided to Landlord for the sole purpose of Landlord calculating any amounts due under this Lease. Landlord shall not disclose Tenant's financial information provided in such sales statements to other person, entity or institution ( other than in connection with calculating the amounts due under this Lease to its employees, consultants, accountants, legal advisors, or as required by law). 3.4.3 Inspection Rights. Even if Landlord accepts payments purporting to be all of the Minimum Rent that is due, Tenant agrees that Landlord shall have the right to all Minimum Rent and other charges actually due hereunder, and the right to examine, make extracts from and copy all books, source documents and accounts, in order to verify the amount of Gross Sales from the Premises. 3.4.4 Audit. At its option, Landlord may, at any time, but no more than on two (2) occasions in any twelve (12) month period, upon fifteen (15) days prior notice to Tenant, cause a complete audit (including a physical inventory if applicable) to be made, by an auditor selected by Landlord, of the entire records and operations at the Premises for the period covered by any statement. If such audit discloses that Gross Sales, as previously reported for the period audited, were understated, Tenant shall .3. immediately pay to Landlord: (i) the additional Minimum Rent. If such audit discloses that Gross Sales, as previously reported for the period audited, were overstated, Landlord shall credit to Tenant the amount of such overpayment received by Landlord against the Minimum Rent next coming due under this Lease. ARTICLE 4. USE; EXCLUSIVE USE 4.1 Use of the Premises. Tenant shall use the Premises only for the Permitted Use. 4.2 Tenant's Exclusive Use. Subject to the terms hereof, effective as of the Rent Commencement Date ("Restriction Effective Date") and continuing thereafter throughout the Term, Landlord shall not enter into a direct lease in the Project ( owned by the Landlord identified in Paragraph C above with a tenant whose operation of its business in space located in the Project pursuant to a lease entered into after the Restriction Effective Date is primarily for the "Exclusive Use," as those terms are defined herein (the "Restriction"). For purposes of this Paragraph, the "Exclusive Use" shall mean the operation of a cafe serving the items identified in Paragraph E above. The Restriction set forth in this Paragraph shall not apply to: (a) any lease in effect on or before the Restriction Effective Date including, any renewals, extensions of such leases, replacements of such tenants, or any other transfer of any such tenant's leases, (b) any sit-down restaurants or any food market or any catering services. The Restriction set forth in this Paragraph shall be personal to the Original Tenant and may not be exercised by any assignee, sublease or transferee of Tenant's interest in this Lease or the Premises and such Restriction (and right of Tenant hereunder) shall automatically terminate and be of no further force or effect on the earlier of the date any of the following events occur: (i) the date Tenant fails to be open to the public and operating its business in the entire Premises or fails to continuously be open for business during the Required Minimum Hours, in each case, for more than 15 consecutive days during any calendar year during the Term (or 60 days in the aggregate during any twelve (12) month period during the Term) for the Permitted Use; (ii) the date Tenant operates all or any portion of the Premises for a use other than the Permitted Use (provided, however, that the foregoing shall not constitute Landlord's consent to any change in the use of the Premises); (iii) the date Tenant is in default under this Lease (beyond the expiration of any notice and cure period); or (iv) the expiration or earlier termination of the Lease. ARTICLE 5. DELIVERY OF POSSESSION; TENANTS OBLIGATIONS; SIGNAGE; HAZARDOUS MATERIALS; OWNERSHIP OF IMPROVEMENTS 5.1 Delivery of Possession. Landlord shall deliver possession of the Premises ("Delivery of Possession") to Tenant by tendering the keys to the Premises in its "as is" condition as of the Rent Commencement Date. Notwithstanding the foregoing, Landlord will install, at Landlord's cost, the improvements and equipment generally depicted and outlined in the Pricing Quote attached to this Lease as Exhibit B. 5.2 Tenant's Obligations Respecting Any Tenant's Work. After the Rent Commencement Date, Tenant shall be responsible, at Tenant's sole cost and expense, for the purchase and installation of any other furniture, fixtures and equipment needed for Tenant's operation at the Premises and for the completion of any other work desired by Tenant ("Tenant Work"). 5.3 Signage. Landlord shall be allowed to put a "for lease" sign on the side window of the Premises within Ninety (90) days of.Lease expiration and to show Premises to potential tenants with reasonable prior notice. Tenant shall have the right to install signage on its Premises, at Tenant's sole cost, subject to Landlord's approval. All signage shall be at Tenant's expense. -4- 5.3 Compliance With Laws. Tenant and its agents, contractors, employees, assignees, sublessees, licensees, concessionaires, and invitees shall strictly comply with, and shall maintain the Premises and use the Premises for the Permitted Use in compliance with all applicable laws, including Hazardous Materials Laws. Tenant shall at all times be required to maintain an ·"A" Health Rating from the Health Department (if applicable in San Diego County) or other comply with the health codes applicable to the operation of the business at the Premises. 5.4 Ownership of Improvements 5.4.1 Ownership of Improvements. Existing improvements at the time of delivery are owned by Landlord. Any improvements constituting Tenant's Work and any other improvements to the Premises made by Tenant as permitted by this Lease, including any and all fixtures (including trade fixtures) attached to or integrated with improvements to the Premises, shall be owned by Tenant until the expiration of the Term or sooner termination of this Lease. 5.4.2 Waste. Tenant shall not waste or destroy all or any portion of the Premises, the Building or the other improvements thereon or remove, alter or modify any of the same, except as permitted or contemplated by this Lease. 5.4.3 Removal at End of Term. Tenant shall remove all of its removable personal property (which shall not include improvements to the Premises made by Tenant or fixtures, including trade fixtures, integrated with improvements to the Premises) at the end of the Term. Landlord may require Tenant to remove, at Tenant's sole cost and expense, any or all improvements and fixtures made to or affixed to the Premises by Tenant. ARTICLE 6. COMMON AREA 6.1 Tenant's Right to Use. Landlord hereby grants to Tenant and Tenant's employees and invitees, during the Term, the right to use the Common Area on a non-exclusive basis in common with Landlord and all other occupants and tenants of the Project and their respective employees and invitees. ARTICLE 7. REPAIRS AND MAINTENANCE; DAMAGE AND DESTRUCTION 7.1 Tenant's Obligations. Except as set forth in Section 7.2, Tenant shall, from and after Rent Commencement Date, at Tenant's sole cost and expense, repair and maintain the Premises in a clean, orderly and well-kept condition and free of vermin. In addition, Tenant shall observe and comply with all health and policy regulations relating to the Premises and its operations therein. In addition, Tenant shall be responsible for plate glass and storefront. 7.2 Landlord's Obligations. Landlord shall be under no obligation to make any repairs, alterations, renewals, replacements or improvements to or upon the Premises or the Building at any time except as may be expressly provided in this Lease. Notwithstanding, Landlord will keep in good condition and repair the structural components of the premises and the electrical and mechanical systems (to points of connection within the premises), sewer and water mains, fire sprinklers, fire alarms and HV AC systems. 7 .3 Emergency Repairs. In the event of emergency repairs, Landlord may enter the Premises at any time, without prior notice to Tenant. • 5. 7.4 Rubbish Removal. Tenant shall keep the Premises clean, both inside and outside (that is, any outside area comprising a part of the Premises as well as any areas adjacent to the entrances to and exits from the Premises), at its sole cost and expense and shall remove the garbage, and other refuse therefrom. 7.5 Casualty. 7.5.1 No Obligation to Repair. If the Premises is damaged or destroyed by a substantial casualty loss, then this Lease shall terminate immediately upon delivery of notice ("Notice of Election to Terminate") by either party to the other. A "substantial" casualty loss shall mean the damage or destruction to over 30% of the Premises. In the event that the casualty is not substantial (less than 30%) and the cost to repair and/or restore such damage to the Premises is fully covered by Landlord's insurance and provided Tenant is not in default under this Lease, Landlord shall have the obligation to repair and/or reconstruct the Premises. · ARTICLE 8. UTILITY SERVICES 8.1 Utilities. The Minimum Rent is inclusive of utility costs for electrical, water and gas at the Premises. Tenant shall be solely responsible for providing for and paying for its own janitorial services at the Premises. ARTICLE 9. INSURANCE 9.1 Fire and Extended Coverage Insurance. At all times during the Term, Tenant, at no cost or expense to Landlord, shall keep or cause to be kept, for the mutual benefit of Landlord and Tenant, a policy of standard fire insurance, with extended coverage and vandalism and malicious mischief endorsements, insuring Tenant's Work, all alterations in the Premises, and all of Tenant's furniture, fixtures, equipment and other tangible personal property located in or on the Premises. The amount of insurance required hereunder shall in no event be less than one hundred percent (100%) of the full replacement cost of the Alterations, improvements, furniture, fixtures, equipment and other tangible personal property which Tenant is required to insure. 9.2 Worker's Compensation Insurance. Tenant shall procure and maintain workers compensation insurance as required by law covering all persons employed in connection with Tenant's business in the Premises. 9.3 Public Liability Insurance. From and after the Rent Commencement Date, Tenant shall maintain, at no cost or expense to Landlord, comprehensive broad form general public liability insurance against claims and liability for personal injury, death, or property damage arising from the use, occupancy or condition of the Premises, which insurance shall provide combined single limit protection of at least One Million Dollars ($1,000,000), per occurrence, for bodily injury or death to one or more persons, and combined single limit protection of at least One Million Dollars ($1,000,000), per occurrence, for property damage. Such insurance shall also provide coverage respecting the ownership, maintenance and operation of any automotive equipment owned, hired and non-owned. ARTICLE 10. PARKING 10.1 Parking. Tenant shall have the right to rent, at no additional charge during the initial Lease Term from Landlord three (3) unreserved parking passes on a monthly basis for employee -6- parking only in an area of the parking facilities serving the project to be designated by Landlord. Tenant's continued right to use to parking passes is conditioned upon Tenant abiding by all rules and regulations which are prescribed from time to time at the project. Landlord specifically reserves the right to change the location, size, configuration, design, layout and all other aspects of the parking facility in question, including the discontinuance of the valet parking system, at any time and Tenant acknowledges and agrees that Landlord may, without incurring any liability to Tenant and without any abatement of Rent under this Lease, from time to time, close-off or restrict access to the parking facility in question for purposes of permitting or facilitating any such construction, alteration or improvements. The parking passes rented by Tenant pursuant to this Article are provided to Tenant solely for use by Tenant's own personnel (not including Tenant's invitees and guests) and such passes may not be transferred, assigned, subleased or otherwise alienated by Tenant without Landlord's prior approval. ARTICLE 11. DEFAULT 11.1 Default. The occurrence of any of the following shall constitute a default of this Lease by Tenant: 11.1.1 Any failure by Tenant to pay any Rent or any other charge required to be paid under this Lease, or any part thereof, within five (5) business days of notice that the same is due, which notice shall be in lieu of any notice required under California Code of Civil Procedure Section 1161 or any similar or successor law; or 11.1.2 Any failure by Tenant to observe or perform any other provision, covenant or condition of this Lease to be observed or performed by Tenant, including the failure to comply with laws (including applicable health codes pursuant to Section 5.3 of this Lease), where such failure continues thirty (30) days after written notice thereof from Landlord to Tenant shall be deemed a material default under this Lease; provided however, that any such notice shall be in lieu of, and not in addition to, any notice required under California Code of Civil Procedure Section 1161 or any similar or successor law; or 11.1.3 Tenant's failure to operate and open for the business to the public for the Required Operating Hours uninterrupted for 15 consecutive days shall be deemed a material default under this Lease. 11.2 Remedies Upon Default. Upon the occurrence of a default by Tenant, Landlord shall have, in addition to any other remedies available to Landlord at law or in equity, the option to pursue any one or more of the following remedies, each and all of which shall be cumulative and nonexclusive, without any notice or demand whatsoever. 11.2.1 Terminate this Lease, in which event Tenant shall immediately surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy which it may have for possession or arrearages in rent, enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying the Premises or any part thereof, without being liable for prosecution or any claim or damages therefor; and Landlord may recover from Tenant the following (if applicable): (i) The worth at the time of award of any unpaid rent which has been earned at the time of such termination; plus (ii) The worth at the time of award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus (iii) The worth at the time of award of the amount by which the unpaid rent for the balance of the Lease Term after the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided; plus (iv) Any other amount necessary to compensate Landlord for all the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, specifically including, but not limited to, brokerage commissions and advertising expenses incurred, expenses of remodeling the Premises or any portion thereof for a new tenant, whether for the same or a different use, and any special concessions made to obtain a new tenant; and (v) At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable law. The term "rent" as used in this Section shall be deemed to be and to mean all sums of every nature required to be paid by Tenant pursuant to the terms of this Lease. As used in subsections (i) and {ii}, above, the "worth at the time of award" shall be computed by allowing interest at the maximum rate permitted by law. As used in subsection (iii) above, the "worth at the time of award" shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent (l % ). 11.2.2 Landlord shall have the remedy described in California Civil Code Section 19~1.4 (lessor may continue lease in effect after lessee's breach and abandonment and recover Rent as it becomes due, if lessee has the right to sublet or assign, subject only to reasonable limitations). Accordingly, if Landlord does not elect to terminate this Lease on account of any default by Tenant, Landlord may, from time to time, without terminating this Lease, enforce all of its rights and remedies under this Lease, including the right to recover all rent as it becomes due. 11.3 Subleases of Tenant. If Landlord elects to terminate this Lease on account of any Default by Tenant, Landlord shall have the right to terminate any and all subleases, licenses, concessions or other consensual arrangements for possession entered into by Tenant and affecting the Premises or may, in Landlord's sole discretion, succeed to Tenant's interest in such subleases, licenses, concessions or arrangements. In the event of Landlord's election to succeed to Tenant's interest in any such subleases, licenses, concessions or arrangements, Tenant shall, as of the date of notice by Landlord of such election, have no further right to or interest in the rent or other consideration receivable thereunder. ARTICLE 12. MISCELLANEOUS 12.1 Notices. All notices, requests, demands, consents and other communications under this Lease shall be in writing and shall be served either personally, by certified mail, or by a reputable courier service such as Federal Express and United Parcel Service. 12.2 Entire Agreement. This Lease constitutes the entire agreement between the Parties herein and supersedes and cancels any and all previous negotiations, arrangements, brochures, letters of intent, agreements and understandings, written or oral, if any, between Landlord and Tenant with respect to the subject matter hereof. 12.3 Disclosure. Tenant hereby acknowledges that, as of the date of this Lease, the project, the Building and the Premises have not undergone inspection by a Certified Access Specialist (CASp) (defined by California Civil Code Section 55.52). A Certified Access Specialist (CASp) can inspect the Premises and determine whether the Premises comply with all of the applicable construction- related accessibility standards under state law. Although state law does not require a CASp inspection of the Premises, the commercial property owner or lessor may not prohibit Tenant from obtaining a CASp inspection of the Premises for the occupancy or potential occupancy of the tenant, if requested by the Tenant. The parties shall mutually agree on the arrangements for the time and manner of the -8- CASp inspection following such request by Tenant (if applicable). The parties hereby mutually agree that the payment of the fee for any such CASp inspection of the Premises and the cost of making any repafrs necessary to c.o~ violations of construction-related accessibility standards within the Premises shall be borne solely by the Tenant (not the Landlord}. This disclosure is made pursuant to California Civil Code Section 1938. IN WITNESS WHEREOF, the parttes have executed this Lease as of the date first above written. 1ENANT; JOTN L!ltlC.., a California corporation. dba JOES ON IHE NOSE Ky: //L. ______ _ Name:/ David Wassennan Title: Director LANDLORD: CR Sl:A OTTER, l~LC, a DclaWIIIC limitcd liabil~ Hy:~ Name: H#kbtw ~.uJ Tjtle: l':r'f: .9 - -