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HomeMy WebLinkAboutRP 03-05; Wine Thief The; Redevelopment Permits (RP) (2)City of Carlsbad Housing & Redevelopment Department June 28, 2004 ADAM CARRUTH VILLAGE BUZZ 519 GRAND AVE CARLSBAD, CA 92008 Re: The Wine Thief - 519 Grand Avenue (RP 03-05) Thank you for applying for a land use permit in the City of Carlsbad. The Housing & Redevelopment Department along with all other appropriate departments have reviewed your administrative redevelopment permit, application no. RP03-05, as to its completeness for processing. The application is complete as submitted. Although the initial processing of your application may have already begun, the technical acceptance date is acknowledged by the date of this communication. The City may, in the course of processing the application, request that you clarify, amplify, correct, or otherwise, supplement the basic information required for the application. In an effort to continue to process the application in the most expeditious manner as possible, a list of issues identified by staff during the initial project review phase has been included with this correspondence. All Issues must be addressed and resubmitted to our office for review for permit approval. Please notify our office within 30 days of the date on this letter by resubmitting plans to our office addressing the issues. If you decide not to address the issues, please submit a written statement requesting an application withdrawal. Please contact my office at (760) 434-2813, if you have any questions or wish to set up a meeting to discuss the proposed project. Sincerely, REBECA VAZQUEZ Planning Technician c: David Rick, Engineering Mike Strong, Planning Pat Kelley, Building Gregory Ryan, Fire 2965 Roosevelt St., Ste. B • Carlsbad, CA 92008-2389 • (760) 434-2810/2811 • FAX (760) 720-2037 @ ISSUES OF CONCERN RP 03-05 Staff has completed a review of the subject project for issues of concern. The following items need to be resolved or adequately addressed prior to staff making a final determination on the proposed project: (Please note, the issues are listed under the department which identified them as an area of concern.) Housing & Redevelopment: 1. Proposed use needs to provide nine (9) parking spaces. Site plan shows eight (8) spaces. 2. Need to provide a van accessible parking stall. This should be the closest stall and provide an 8 foot loading / unloading zone and a path of travel to the main entrance to the retail component. Fire: The Flre Department has completed its review of this project and shall require the following information and propose the following requirements/changes if applicant desires to proceed with this application. Based on the square footage alone the occupant load is in excess of the proposed seating arrangement. This question of proposed versus available will certainly require the strictest conditions and it shall be understood that this permit shall be revoked if it is ever determined that the occupant load exceeds the proposed (or approved) number of twenty-seven (27). The table outside of the public right-of-way is the exception. To discuss all Fire Department related concerns, please contact Deputy Fire Marshal Gregory Ryan at (760) 602-4663. Building: The Building Department has the following comments regarding the proposed project: 1. New restaurant should be provided with two accessible restrooms. To discuss all Building Department related concerns, please contact Building and Code Enforcement Manager Pat Kelley at (760) 602-2716. Engineering: All required fees, if any, will be collected as a condition of required building permits. April 5,2004 RECEIVED ZWHAPR-S P l.-Ob CITY OF CA.USBAD Dear City of Carlsbad, Cc Craig Ruiz -Redevelopment District Cc Pat Kelley -Building Department The partners of The Wine Thief Inc. are making this appeal in order to allow our business to expand its day use as an espresso bar to a complimentary use as a wine bar in the evening. It is our position that the wine bar part of the business will enhance the atmosphere of Carlsbad Village proper. Our goal is to complement similar businesses in the Village by providing a sophisticated space to taste fme wine and appetizers. At the crux of accomplishing our goal are two issues: One is the ordinance stating that no bar shall be within 500 hundred feet of any other bar in Carlsbad. This is a respectable rule, although our village is very small and we are situated in the center of the Village at 519 Grand Ave. If you were to draw a 500 foot radial line out from the comer of State and Grand it would encompass the majority of our Village. Please recognize that it is not our intent to be a "watering hole". The other issue is that of having a single restroom. The Wine Thief Inc. currently operates as an espresso bar/ coffee shop. We have only a single restroom used by both genders. It is also handicap accessible. I must say that we have one of the nicest bathrooms in the entire Village of Carlsbad. We have discussed the issue of providing only one restroom with nearly every level of govemment. The state, ABC, Alcohol Beverage Control, initially expressed concem but stated that the controlling govemment body was with the County of San Diego, Health Department. The county has stated in writing that a tavern/wine bar may open with a single restroom. Our earliest communications with the City of Carlsbad showed that by limiting our occupancy to 15 persons inside the 540 square foot unit and 15 persons on the patio would allow us to obtain the C.U.P. and eventually open for business. We have spoken to Mr. Peterson regarding our early communications and he apologized for the error in information. At the present time. The Wine Thief Inc. is striving to open not only the espresso bar, but also as a wine bar. We have a 540 square foot unit of which 300 feet is usable customer floor space. If we were to add a restroom, we would lose 20% or 60 square feet of this space. We have such a small unit; it would not be practical to allocate this space to an extra bathroom. We cordially invite you to visit our business to have an espresso and to view our space restraints. Our initial C.U.P application to City of Carlsbad Redevelopment, in March of2003 detailed our business intentions. The response from the City made no statement regarding the need of an additional restroom. We sincerely believed that by acconunodating the strict parking requirements set by the City that we would qualify for the C.U.P. In January of2004, we finally found a way to meet the parking requirements of 14 spaces. By adding a bathroom, and subsequently square footage, we will increase the parking requirement by two spaces, putting us into again another restricted situation. Please also note, there was no mention of an ordinance restricting a new bar within 500 feet of the other 3 bars in town in the initial City response. The City of Carlsbad, represented by Lori Rosenstein, has also recommended that we open as a restaurant. The County Health Dept. would then require us to become a "bona fide" eating establishment, providing at least, two fiill menus per day and a grill, hood and refiigeration and also require the extra bathroom space. Our estimates are that we would have to build out a fiill kitchen and extra bathroom which may cost upwards of $50,000. This would be a serious financial burden to our new business, such a heavy burden, that we would probably have to close the doors. We also want to note that we only have a 540 sq. ft. unit, and our agreement with our landlord doesn't include renovating the property into a restaurant. Furthermore, we don't want to be a restaurant. Our tme goal is to create a unique European style cafe, with art displayed all over the walls, a business that will enhance downtown living and be a cultural asset to the Village ambience. Our original intention was as it is now; Espresso Bar by Day Wine Bar by Night. Please recognize our desire to make Carlsbad Village even more special than it already is. We humbly request that you grant us the C.U.P. If at all possible, I would be quite happy to discuss in person any questions you may have regarding our appeal. Time is critical as the State, ABC, will require us to witiidraw our application in two weeks as they are awaiting the approved C.U.P. Sincerely, The Wine Thief Inc. Adam Carmth Secretary Citv of Carlsbad Housing & Redevelopment Department March 3, 2004 ADAM CARRUTH VILLAGE BUZZ 519 GRAND AVE CARLSBAD, CA 92008 Re: The Wine Thief - 519 Grand Avenue (RP 03-05) The items requested from you earlier to make your Administrative Redevelopment Permit, application no. RP 03-05, complete have been received and reviewed by the Housing and Redevelopment Department along with other appropriate City departments. It has been determined that the application is now complete for processing. However, due to the unique nature of the proposed use the following issues still require resolution: 1. The Building Department has indicated that the change in use to a drinking establishment (bar) will necessitate the need for two restrooms, one for each gender. This is based on an occupant load of 30 square feet per occupant, which is the standard used to determine occupancy for sanitary purposes when there are loose tables and chairs indicated on the floor plan. Furthermore, both restrooms must meet ADA accessibility standards. 2. The Village Redevelopment Master Plan contains location and development criteria for bars and cocktail lounges. The definition of bar and cocktail lounge is any establishment serving an alcoholic beverage that does not meet the definition of, or requirements for, a bonafide public eating establishment (definition from the Carlsbad Municipal Code is attached). The proposed use meets all nine location and development criteria for bars and cocktail lounges except for the following two criteria: a. No bar/cocktail lounge shall be located within 500 feet of any other bar/cocktail lounge. The subject property is located within 500 feet of the following bars/cocktail lounges: Alley Bar, Village Pub, Boar's Crossing. b. Any structure housing such operation shall meet all applicable building code provisions prior to occupancy. In this case, the requirement for restroom facilities is still outstanding. 1. It is my understanding that the Carlsbad Police Department has denied your request for an alcohol license and the ABC will be following up with some potential conditions for the Police Department's consideration. Given the combination of these outstanding issues it is my suggestion that you consider modifying your plans for a bar and consider turning the use into a bonafide eating establishment. Please refer to the attached definition for further details. This will result in many positive changes. First, you will be able to satisfy your entire parking requirement on-site, which will prevent your shared parking agreement from being 2965 Roosevelt St., Ste. B • Carlsbad, CA 92008-2389 • (760) 434-2810/2811 • FAX (760) 720-2037 ^ restricted by the future development plans of your neighbor. Secondly, the same number of restroom facilities will also be required for a bonafide eating establishment. Thirdly, by creating a bonafide eating establishment, restrictions by the ABC won't preclude persons under 21 years of age from entering the premises. Please note that Building Code information has been confirmed by both Pat Kelley and Mike Peterson in the Building Department. If you would like to discuss the Building Department conditions further, please contact Pat Kelley at 760-602-2716. In my absence, Craig Ruiz can assist you with the final processing of the Administrative Redevelopment Permit. He can be reached at 760-434-2817. It has been a pleasure working with you. I wish you much success in your business. Sincefeiv, LORI H. ROSENSTEIN Management Analyst Craig Ruiz, Housing & Redevelopment Pat Kelley, Building Department 21.04.056 Bona fide public eating establishment. Page 1 of 1 Title 21 ZONING^ Chapter 21.04 DEFINITIONS 21.04.056 Bona fide public eating establishmenL "Bona fide public eating establishmenf means any establishment at which the primary business is the preparation, service and retail sale of meals comprising a varied selection of foods and nonalcoholic beverages prepared, served and consumed on the premises. To be classified as a bona fide public eating establishment, an establishment which engages in the sale of beer, wine or distilled spirits for consumption on the premises shall meet the following requirements: (1) Be designed and operated in such a way that the sale of alcoholic beverages is incidental to the primary restaurant operation; (2) On any day the restaurant is open to the public for business and engaged in the incidental sale of alcoholic beverages, restaurant services shall be available to the public for the evening meal for a period of not less than five hours, or for not less than four hours, if the morning or noon meal is also served to the public for a period of not less than two hours; (3) Restaurant service shall include, but not be limited to, an offering of a varied menu of foods or not less than five main courses with appropriate nonalcoholic beverages, desserts, salads and other attendant dishes; (4) The sale of any food prepared for consumption off the premises shall be occasional only and clearly incidental and subordinate to the on-premises restaurant operation; (5) No more than twenty-five percent of the interior area of the restaurant shall be designed, arranged or devoted to a use commonly associated with a bar or other establishment primarily engaged in the on-premises sale of alcoholic i)everages. The interior area shall include only those portions of the establishment devoted to regular use by the public; (6) A minimum of twenty percent of the gross floor area of the establishment shall be used solely for food storage, preparation, maintenance and storage of eating utensils, dishes and glassware and shall include refrigeration, cooking, warming and dishwashing equipment, and any other equipment necessary for a fully equipped restaurant kitchen; (7) During the above specified minimum hours for restaurant services, there shall be not less than one employee per two hundred and fifty square feet of floor area devoted to food service use. Said employee or employees shall be on the job during the specified minimum hours for the restaurant service as described in subsection (2) of this section. The city coupcil may waive the above requirements relating to hours, menus, alcoholic beverage area, kitchen area, employee^ §nd equipment jf they find a proposed restaurant will provide equivalencies, meets the oth||1' requirements of this section and will, in fact, be operated as a bona fide restaurant. ' Uses not specifically name^ |0 this section but which are of substantially the same general type and chufacter and are within'thelntent and purpose of this section may be permitted; provided, howiyer, that the Ijurqlen of proving the same shall rest with the person seeking to establish that m if^rci, 9527 §g (part), 197|) http://ordlink.com/codes/carisbad/_DATA/TITLE21/Chapter_21_04_DEFINITIONS/21.... 10/21/2002 LAW OFFICE OF SAMUAL KELSALL V 2921 Roosevelt Street Carlsbad, CA 92008 Telephone: (760) 434-6750 Facsimile: (760 434-2102 January 27, 2004 Adam Carruth Kenneth Miller 519 Grand Avenue Carlsbad, CA 92008 Re: Draft of Sublease Agreement for Parliiiig Dear .Adam: Pursuant to our discussion on January 16, 2004, please fmd enclosed proposed Sublease Parking Agreement. Please review it to ensure that it is acceptable. If it is acceptable, please return a check in the amount of $450.00 as a deposit. Thereafter, I will ha\'e the Sublease Parking Agreement executed and notify the City of Carlsbad accordingly. Please note that I believe that the insurance requirement should be $2 Million per person and $5 Million on the aggregate. If this is not acceptable, please let me know. Also, please note that pursuant to Paragraph 24,1 believe that a common usage fee is appropriate for gardening, trash removal, etc. Since a portion of the parking lot is grass, more usage will require more attention and resodding, so I believe that such should be shared by your company. I estimate that cost at $25 per month. If this is a problem, please let me knovv'. If I can be of assistance with the City, please let me know. We look for\\"ard to working with you in the future. Sanuiel Kelsall V Attorney at Law SKV:dw Enclosure SUBLEASE AGREEMENT FOR PARKING This Sublease Agreement ("Sublease") is made as of February 1, 2004, by and between 104-205 Trust ("Sublandlord") and The Wine Thief Inc, a Califomia Corporation ("Subtenanf). RECITALS This Sublease is made with regard to the following facts. Sublandlord is the tenant under the Office Lease (the "Master Lease"); reference dated April 2001 with 2921 Roosevelt Ltd., a California Business Trust (the "Master Landlord"). Pursuant to the Master Lease, Sublandlord leases 2921 Roosevelt St., Carlsbad, CA 92008, from 2921 Roosevelt, Ltd., (A California Business Trust) ("Premises") inclusive of the house and all buildings located behind the house for a period of 15 years with 12 years remaining thereon. The House (the "Building") located at 2921 Roosevelt St., Carlsbad, CA 92008 is leased to Sublandlord by Master Landlord pursuant to the terms of the Master Lease. Subtenant desires to sublease from Sublandlord a portion of the Premises ("Subleased Premises") for parking only after 5:00 p.m., which Subleased Premises is more particularly identified on the space plan attached as Exhibit 1 to this Sublease. Sublandlord has agreed to sublease the Subleased Premises to Subtenant on the terms, convenents and conditions stated in the Sublease. In compliance with the City of Carlsbad parking requirements, the Parties hereto agree that the Sublandlord and Sublandlord's other tenants shall be entitled to use the Subleased Premises (5 parking spaces) at 2921 Roosevelt Street in Carlsbad, California, from 6:00 a.m. until 5:00 p.m. daily and that the Wine Thief shall be entitled to use the Subleased Premises from 5:00 p.m. until 6:00 a.m. daily during the term of the Sublease. All future leases shall include permitted hours of operation. If this Sublease Agreement is ever terminated by either party, the Wine Thief shall be responsible for finding alternative parking arrangements or the business will cease all operations. The parties hereto understand that a summary hereof will be recorded against both properties subject to this Sublease Agreement. The Parties hereto agree that the recitals set forth herein are part and parcel of this Sublease Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained in the Sublease, and for valuable consideration, the receipt and sufficiency of which are acknowledged by the parties, the parties agree as follows: SECTION 1 Sublease: Sublandlord subleases to Subtenant and Subtenant subleases from Sublandlord the Subleased Premises subject to the terms, convenants, and conditions contained in this Sublease. Sublandlord and Subtenant agree that the Subleased Premises consist of four (4) regular parking spaces and one (1) handicap parking space numbered and identified on the space plan attached as Exhibit 1. The terms and provisions of this Sublease shall be 1 effective between Sublandlord and Subtenant as of the date of this Sublease. The term of this Sublease will be a one-year lease, unless sooner terminated as provided herein or pursuant to the Master Lease, and will commence on delivery of the Subleased Premises to Subtenant by Sublandlord, on the date Subtenant receives approval of its pending ABC license but not later than 120 days after execution thereof SECTION 2 Base Rent: Subtenant will pay base rent during the term of this Sublease in the initial amount of for the Subleased Premises per month, payable monthly in advance on the 1^' day of each month. In the event that the term of this Sublease begins or ends on a date that is not the first day of a month, base rent will be prorated as of that date. Concurrent with Subtenant's execution of this Sublease, Subtenant will deliver to Sublandlord the first month's base rent in the amount of One Hundred Fifty Dollars ($150.00) to be held by Sublandlord without interest. Subtenant shall pay Sublandlord a deposit of Three Hundred Dollars ($300.00) as first and last months' rent as a security deposit. The security deposit shall be payable in the amount of One Hundred Fifty Dollars ($150.00) due by February 15, 2004. The amount of base rent is confidential and shall not be disclosed by Subtenant to any others including but not limited to other subtenants of Sublandlord. SECTION 3 Returned Check Charges: In the event any check delivered by Subtenant to Sublandlord in pa}'ment of rent or any other amount due under this Sublease Agreement is returned for lack of sufficient funds. Subtenant shall pay to Sublandlord a returned check charge in the amount of $25.00. In addition Sublandlord shall have the right to insist that all subsequent rent payments be made by cashiers checks, money orders, or the equivalent. SECTION 4 Subtenant agrees to use the Subleased Premises as parking spaces for their adjacent wine business and for no other purpose: Subtenant shall not do or keep anything in or about the premises that will obstruct or interfere with the common areas of the entire premises or public spaces available to other subtenants and to Sublandlord. The following is a nonexclusive list of uses which, in the sole discretion of Sublandlord, will be considered unacceptable: trash or refuse from Subtenant's patrons; disruptive noise; burdensome and/or disproportionate use of the property, not accurately recording Subtenants' charges on the honor system; creating or maintaining smells; theft, and unreasonable subtenant relations. SECTION 5 Master Lease: As applied to this Sublease, the words "Landlord" and "Tenant" in the Master Lease will be deemed to refer to Sublandlord and Subtenant, respectively, under this Sublease. Except as otherwise expressly provided in Section 7 of this Sublease, the covenants, agreements, provisions, and conditions of the Master Lease to the extent that the}- relate to the Subleased Premises and to the extent that they are not inconsistent with the terms of this Sublease are made a part and the incorporated in this Sublease as if recited in full in this Sublease. The rights and obligations of the Master Landlord and the Tenant under the Master Lease will be deemed the rights and obligations of Sublandlord and Subtenant, respectively, under this Sublease, and will inure to the benefit of, and be binding on. Sublandlord and Subtenant, respectively. As between the parties to this Sublease only, in the event of a conflict between the terms of the Master Lease and the terms of this Sublease, the terms of this Sublease will control. Performance by Sublandlord; Status of Master Lease. Sublandlord's performance is conditioned on Master Landlord's Performance. Subtenant recognizes the Sublandlord is not in a position to render any'of the services or to perform any of the obligations required of Master Landlord by the terms of the Master Lease. Therefore, despite anything to the contrary in this Sublease, Subtenant agrees that performance by Sublandlord of its obligations under this Sublease is conditioned on performance by the Master Landlord of its corresponding obligations under the Master Lease, and Sublandlord will not be liable to Subtenant for any default of the Master Landlord under the Master Lease. Subtenant will not have any claim against Sublandlord based on the Master Landlord's failure or refusal to comply with any of the provisions for the Master Lease unless that failure or refusal is a result of Sublandlord's act or failure to act. Despite the Master Landlord's failure or refusal to comply with any of those provisions of the Master Lease, this Sublease will remain in full force and effect and Subtenant will pay the base rent and additional rent and all other charges pro\'ided for in this Sublease without any abatement, deduction or setoff Except as expressly provided in the Sublease, Subtenant agrees to be subject to, and bound by, all of the covenants, agreements, terms, provisions, and conditions of the Master Lease, as though Subtenant was the Tenant under the Master Lease. SECTION 6 Obtaining Master Landlord's Consent: Whenever the consent of the Master Landlord is required under the Master Lease, and whenever the Master Landlord fails to perform it's obligations under the Master Lease, Sublandlord agrees to use its reasonable, good faith efforts to obtain, at Subtenant's sole cost and expense, that consent or performance on behalf of Subtenant. SECTION 7 Preservation of Master Lease: Subtenant will refrain from any act or omission that would result in the failure or breach of any of the covenants, provisions, or conditions ofthe Master Lease on the part of the Tenant under the Master Lease. SECTION 8 Variations from Master Lease: As between Sublandlord and Subtenant, the terms and conditions of the Master Lease are modified as stated below. SECTION 9 Base Rent; Term; Security Deposit: Despite anything to the contrary stated in the Master Lease, the term of this Sublease, base rent and additional rent payable under this Sublease, and the amount of the security deposit required of the Subtenant are as stated in sections 2, 3, and 4 above. SECTION 10 No Brokers: The parties to this Sublease represent and warrant to each other that neither party dealt with any broker or finder in connections with the consummation ofthis Sublease and each party agrees to protect, defend, indemnify, and hold the other party hannless from and against any and all claims or liabilifies for brokerage commissions or finder's fees arising out ofthat party's acts in connection with this Sublease. The provisions of this section 10 shall survive the expiration or earlier termination ofthis Sublease. SECTION 11 Insurance and Condemnafion Proceeds: Despite anything contained in the Master Lease to the contrary, as between Sublandlord and Subtenant only in the event of damage to or condemnation of the Subleased Premises, all insurance proceeds or condemnation awards received by Sublandlord under the Master Lease will be deemed to be the property of Sublandlord, and Sublandlord will have no obligation to rebuild or restore the Subleased Premises on behalf of Subtenant. SECTION 12 Notices: Any notice that may or must be given by either party under this Sublease will be delivered personally, by certified, return receipt requested, or by a nationally recognized overnight courier, addressed to the party to whom it is intended. Any notice given to Sublandlord or Subtenant shall be sent to the respective address set forth on the signature page below, or to such other address as that party may designate for service of notice by a notice given in accordance with the provisions ofthis section 12. A notice sent pursuant to the terms of this section shall be deemed delivered when delivery is attempted, if delivered personally, three business days after deposit into the United States mail, or the day following deposit with a nationally recognized overnight courier. SECTION 13 Amounts Payable: All amounts payable under the Sublease by Subtenant are payable directly to Sublandlord in person at 2921 Rooseveh Street in Carlsbad, Califomia, or such other address as directed in writing by Sublandlord. SECTION 14 "As Is": Sublandlord will deliver the Subleased parking space Premises to the Subtenant in their current "as is" condition, with the follov/ing excepfion: Subtenant shall not modify any wall, ceiling, floor or other surface in the Subleased Premises or the Premises. Subtenant shall not add or change an}'thing about the parking lot premises. Subtenant agrees to (a) keep the premises in good order and repair and upon terminafion ofthe tenancy, to return the premises to Sublandlord in a condition idenfical to that which exist when Subtenant took occupancy, except for ordinary wear and tear, (b) immediately notify Sublandlord of any defects or dangerous conditions in and about the premises of which Tenant becomes aware and (c) reimburse Sublandlord, on demand by Sublandlord, for the cost of the repair to the premises damaged by Subtenant or its guest(s) or invitee(s). SECTION 15 Subtenant agrees to install one (1) parabolic mirror if such is prudent or reasonable for the use of the parking lot or if requested or required by the City of Carlsbad. SECTION 16 Signage for Parking Spaces: Sublandlord shall, at Subtenant's expense, install five (5) signs indicating "Wine Thief Parking after 5:00 p.m." Subtenant shall promptly reimburse Sublandlord for such expense plus ten percent (10%). In the event of any damage to parking signage, replacement thereof shall be done by Sublandlord promptly at Subtenant's expense. SECTION 17 Reser\^ed: SECTION 18 No Copier, Conference Room or Postage Usage: Subtenant shall not have rights to use of the Sublandlord's copy machine, conference room or postage machine. SECTION 19 Compliance with Citv of Carlsbad Requirements: Subtenant represents that at its sole expense, it shall undertake all activity to comply with City of Carlsbad requirements for the parking lot. In the event the City requires any changes, modifications or improvements to the parking lot. Subtenants agree to pay for such in advance of the performance of work. Sublandlord and Subtenant have discussed the fact that persons using the parking lot shall back out into a blind alley. Subtenants accept all responsibility and any and all consequential liability arising from any accident resulting from Subtenant or its patrons or invitees backing out into the alley as well as any other liability arising from use of the parking lot pursuant to this Agreement. Subtenant agrees to indemnify and hold Landlord, Sublandlord and Samuel Kelsall V harmless from any consequence of use of the parking lot by Subtenant, Subtenants, guests, patrons or invitees. This indemnification by Subtenant shall include an express duty to defend any and all claims against Landlord, Sublandlord and/or Samuel Kelsall V. SECTION 20 Signage: Subtenant will not be given signage in the building directory. SECTION 21 Use of Sublandlords Staff Sublandlord will not make its legal staff available to Subtenant to pro\'ide secretarial or paralegal services. SECTION 22 Parking: Subtenant will be allowed five (5) parking spaces at the Premises commencing at 5:00 p.m. daily until 6:00 a.m. SECTION 23 Late Fee: If Subtenant fails to pay the rent in full when due. Subtenant Tenant shall pay Sublandlord a late charge of $50.00 plus $10.00 for each addifional day that the rent continues to be unpaid. The total charge for any one-month shall not exceed $250.00. By this provision, Sublandlord does not waive the right to insist on payment of the rent in full on the day it is due. Nor does Sublandlord waive the right to deem the late payment of rent a material breach of this Lease Agreement. SECTION 24 Common Usage Fee for Trash Removal and Parking Lot Maintenance: Subtenant will pay on a monthly basis in addition to the base payment an amount equal to one-fifth (1/5) of monthly expenses for trash removal, gardening, security and other common gross net expenses for commercial office space in Carlsbad, California, for operation ofthe Building at 2921 Roosevelt Street, Carlsbad, Califomia, estimated to be $25 per month. Sublandlord shall have the right to adjust subtenants portion of the billing expenses according to occupancy in the building at Sublandlord's sole discretion, trash created by Subtenant's patrons' use of the parking lot. SECTION 25 Additional Remedies Upon Ddfault: In addition to any other remedies provided under the law or in equity, upon the failure of Subtenant to pay rent upon the failure of Subtenant to pay rent and/or additional rent when due. Sublandlord has the right to terminate Subtenants use ofthe parking lot. SECTION 26 Non-Solicitation of Employees: Subtenant agrees not to solicit any employee or independent contractor of Sublandlord or any of its subtenants during the term of the lease and for a one-year period thereafter. SECTION 27 Indemnity: Subtenant agrees to protect, defend, indemnify, and hold Sublandlord harmless from and against an}' and all liabilities, claims, expenses, losses and damages, including reasonable attorney fees and costs, that may at any time be asserted against Sublandlord by (a) the Master Landlord for failure of Subtenant to perform any of the covenants, agreements, terms, provisions, or conditions contained in the Master Lease that Subtenant is obligated to perform under the provisions of this Sublease; or (b) any person including Subtenant, his/her staff, clients, guests or invitees, as a resuh of Subtenant's use or occupancy ofthe Subleased Premises, except to the extent any of the foregoing is caused by the negligence or willful misconduct of Sublandlord. The provisions of this section will survive the expiration or earlier termination of the Master Lease or this Sublease. SECTION 28 Cancellation of Master Lease: In the event the Master Lease is canceled or terminated for any reason, or involuntarily surrendered by operation of law before the expiration date of this Sublease, Subtenant agrees, at the sole options of the Master Landlord, to attorn to the Master Landlord for the balance of the term of this Sublease on the then executory terms of this Sublease. The attornment will be evidenced by an agreement in form and substance reasonably satisfactory to the Master Landlord. Subtenant agrees to execute and deliver such an agreement at any time within ten (10) business days after request by the Master Landlord. Subtenant waives the provisions of any law now or later in effect that may provide Subtenant any right to terminate this Sublease or to surrender possession of the Subleased Premises in the event any proceeding is brought by the Master Landlord to terminate the Master Lease. SECTION 29 Certificates: Each party to this Sublease will, from time to time as requested by the other party, on not less than ten (10) days prior written nofice, execute, acknowledge, and deliver to the other party a statement in writing certifying that this Sublease is unmodified and in full force and effect (or it there have been modifications that this Sublease is in full force and effect as modified and stating the modifications). That statement will certify the dates to which base rent, additional rent, and any other charges have been paid. That statement will also state whether, to the knowledge of the person signing the certificate, the other party is in default beyond any applicable grace period provided in this Sublease in the performance of any of its obligations under this Sublease. If the other party is in default beyond any applicable grace period, the statement will specify each default of which the signer then has knowledge. It is intended that this statement may be relied on by other with whom the party requesting that certificate may be dealing. SECTION 30 Assignment or Subleasing: Subject to the right of the Master Landlord and the restrictions contained in the Master Lease in connection with a Transfer, Subtenant is not entitled to assign this Sublease or to sublet all or any portion of the Subleased Premises without the prior written consent of Sublandlord. That consent will not be unreasonably be with held by Sublandlord in its sole discretion. SECTION 31 Severability: If any provision of this Sublease or the application of any provision of this Sublease to any person or circumstance is, to any extent, held to be invalid or unenforceable, the remainder of this Sublease or the application of that provision to persons or circumstances other than those as to which it is held invalid or unenforceable, will not be affected, and each provision of this Sublease will be valid and be enforced to the fullest extent permitted by law. SECTION 32 Entire Agreement; Waiver: This Sublease constitutes the final, complete and exclusive agreement between the parties to this Sublease pertaining to the Subleased Premises, supersedes all prior and comtemporaneous understandings or agreements of the parties, and is binding on and inures to the benefit of their respective heirs, representatives, successors, and assigns. No party has been induced to enter into this Sublease by, nor is any party relying on any representation or warranty outside those expressly set forth in this Sublease. Any agreement made after the date ofthis Sublease is ineffective to modify, waive, release, terminate, or effect an abandonment of this Sublease, in whole or in part, unless that agreement is in wxiting, is signed by the parties to this Sublease, and specifically states that agreement modified this Sublease. SECTION 33 Captions: Captions to the sections in this Sublease are included for convenience only and do not modify any of the terms of this Sublease. SECTIONS 34 Further Assurances: Each party to this Sublease will at its own cost and expense execute and deliver such further documents and instruments and will take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of this Sublease. SECTIONS 35 Goveming Law: This Sublease will be govemed by and in all respects constmcted in accordance with the laws of the State of Califomia. Venue for any disputes shall be San Diego County, North County Judicial District. SECTION 36 Consent of Landlord: The Maker Landlord's written consent to this Sublease is a condition subsequent to the validity of this Sublease. SECTION 37 Capitalized Terms: All terms spelled with initial capital letters in this Sublease that are not expressly defined in this Sublease will have the respective meanings given such terms in the Master Lease. SECTIONS 38 Word Usage: Unless the context clearly requires otherwise, (a) the plural and singular numbers will each be deemed to include the other; (b) the masculine, feminine, and neuter genders will each be deemed to include the others; (c) "shall," "will," "must." "agrees," and "covenants" are each mandatory; (d) "may" is permissive; (e) "or" is not exclusive; and (f) "includes" and "including" are not limiting. SECTION 39 Possession of Premises: The failure of Subtenant to take possession of the premises shall not relieve Subtenants obligation to pay rent. In the event Sublandlord is unable to deliver possession ofthe premises to Subtenant for any reason not within the Sublandlords control, including but not limited to the failure of the prior occupants to vacate as agreed or required by law, or partial or incomplete construction of destruction of the premises, Sublandlord shall not be liable to Subtenant, except for the return of all sums previously paid by Subtenant to Sublandlord, in the event Subtenant chooses to terminate this Lease Agreement because of Sublandlords inability to deliver possession. SECTION 40 No animal or other pet shall be kept on or about the Premises or Subleased Premises without Sublandlord's prior wTitten consent. SECTION 41 Insurance: Sublandlord shall not insure Subtenant or Subtenant's Invitees, guests or patrons for any personal injur}' or property damage, including that caused by an act or omission of any third party, or by any criminal act or activity, war, riot, insurrection, fire or Act of God. Subtenant shall obtain and pay for the same insurance coverage required of Sublandlord under the Master Lease, naming the Master Landlord, The Law Offices of Samuel Kelsall V and the Sublandlord as additional insureds. Subtenant shall obtain his/her own renter/property insurance, or negotiate with Sublandlord to be named as an additional insured on Sublandlord's existing policy to comply with the provisions of this paragraph in an amount of not less than $2 Million per occurrence and $5 Million in the aggregate. SECTION 42 Personal Propertv Remaining on Premises After Subtenant Vacates the Premises either by: (a) expiration of this tenancy term, (b) termination of the tenancy pursuant to notice, or (c) abandonment or surrender, Sublandlord may reenter and retake possession of the premises and store subtenant's personal property for period of 30 days. If subtenant fails to pick up said personal property, which Sublandlord will turn over to Subtenant cost, free during said 30-day period, Sublandlord may dispose of any or all of such personal property in any manner that Sublandlord, in its sole discretion, deems appropriate. SECTION 43 Attomey Fees: In the event action is brought by any party to enforce any terms of this Sublease Agreement or to recover possession of the premises, the prevailing party shall recover from the other party reasonable costs and attorney fees incurred in connection with such action. SECTION 44 Wai\-er of Breach: Sublandlord's failure to require strict compliance with the conditions of this Lease Agreement, or to exercise any right provided herein, shall not be deemed a wai\ er by Sublandlord of such condition or right. Sublandlord's acceptance of rent with knowledge ofany default under this Sublease Agreement by Subtenant shall not be deemed a waiver of such default, nor shall it limit Sublandlord's right with respect to any subsequent default. SECTION 45 Treble Damages for Willful Holding Over: If Subtenant willfully and maliciously remains in possession of the premises after expiration or termination of the tenancy; Sublandlord may recover three times the amount of any damages and rent due as liquidated damages because it is difficult to determine at this time the actual damages which ay be incurred, rental rates and the cost of re-renting the sublet premises SECTION 46 Service of Notice: Notices, demands and service of process for Sublandlord may be served on: Samuel Kelsall V The Law Offices of Samuel Kelsall V 2921 Rooseveh Street Carlsbad, CA 92008 Sublandlord reserves the right to change the location for service upon reasonable notice. Notice, demands and service of process for Subtenant may be served on Subtenant at the address next to it/his/her signature below. SECTION 47 Validity: If any pro\ ision of this Agreement is held to be invalid, such invalidity shall not affect the validity or enforceability of any other provision of this Agreement. SECTION 48 Subtenant represents that it has taken all necessary legal action in order to be lawfully authorized to enter into this Sublease and shall provide a copy of minutes of its Board of Directors meeting confirming such authorization by the officer signing this Sublease upon request by Sublandlord. Sublandlord: 104-205 Trust an Irrevocable Trust Samuel Kelsall IV Trustee Subtenant: The Wine Thief Inc., A California Corporation By: Address: Please print name Telephone Number: Eniail address Person to notify in case of emergenc}' phone no. PERSONAL GUAR.ANTY: I, the undersigned, have read the entirety of this Sublease Agreement and agree to personally guaranty the obligations required of the Subtenant under the Sublease Agreement. Dated: Adam Carruth PERSONAL GUAR^ANTY: I, the undersigned, ha\'e read the entirety of this Sublease Agreement and agree to personally guaranty the obligations required of the Subtenant under the Sublease Agreement. Dated: Kenneth Miller 10 5^ECEIVED 06/06/2003 CityofCarlsbad JUN 0^ 2003 2965 Roosevelt St. Ste. B (OUSiG&RiEvlfoRMEr Carisbad, Ca 92008-2389 "^FPARTMEN Re The Wine Thief- 519 Grand Avenue (RP 03-05) Dear City of Carlsbad- Housing and Redevelopment, The Wine Thief Inc., DBA the Village Buzz has opted for a shared parking arrangement between the owners of neighboring properties. Clarke Family Trust, the owner of the building situated on the S.E. comer of State St. and Grand Ave. including 2906 State St., 507 Grand Ave., & 519 Grand Ave. and Mr. Marvin Humphry, the owner of the building on the S.W. comer of Roosevelt St. and Grand Ave. - including units - 555,565,575,585,595 Grand Ave., will be entering into a limited shared parking agreement. The agreed hours of operation for the wine bar are determined by the current operating hours of each respective business. Currently, the Comer Collage operates between the 11:00 a.m.- 5:00 p.m. daily; the Jewelry Source operates between 11:00 a.m.- 5:00 p.m.; The Wine Thief/Village Buzz will operate fi'om 6:30 a.m. and 2:30 p.m. as a espresso bar and re-open as a wine bar @ 5:00 p.m. to close @l\:00 p.m. Sea Waves Salon opens @ 8:00 and closes at 5:00 p.m. Ginger Grayham Fine Arts & Framing operates from 10:00 a.m. to 5:00 p.m. Secrets & Treasures also operates between 10:00 a.m. and 5:00 p.m. Andrews Optical operates fi'om 9:30 to 6:00 p.m. Mon.-Thurs. and closes @ 5:30 p.m. and 5:00p.m. Friday and Saturday, respectively. The Grand Deli operates fi'om 6:30 to 4:00 p.m. daily. As indicated above, the majority of the business', other than the Wine Thief Inc. close at approximately 5:30 p.m. This leaves four parking spaces on Mr. Humphrey's property unused by any of the businesses. Within the shared parking arrangement, the businesses @ 555,565,575,585, & 595 would be able to use four parking spaces on the property of Clarke Family Tmst during the hours of 2:30 p.m. and 5:00 p.m. time fi'ame, after the coffee bar closes and before the wine bar opens. -All future lease agreements will include permitted hours of operafion. -Ifthe shared parking agreement is ever terminated by either Marvin Humphrey or Clarke Family Tmst, the wine bar, know as the Wine Thief Inc., will be responsible for fmding altemative parking arrangements or the business will cease all operations as a wine bar. -It is understood by both parties that the agreement will be recorded against both properties. Citv of Carlsbad Housing & Redevelopment Department April 3, 2003 ADAM CARRUTH 3193 SEABURY ST CARLSBAD, CA 92008 Re: The Wine Thief - 519 Grand Avenue (RP 03-05) Thank you for applying for a Land Use Permit in the City of Carisbad. The Housing and Redevelopment Department, together with other appropriate City departments, has reviewed your Administrative Redevelopment Permit, application no. RP 03-05, as to its completeness for processing. The application is incomplete, as submitted. The attached list includes information that must be submitted to complete your application. This list of items must be submitted directly to the Housing & Redevelopment Office. All list items must be submitted simultaneously and a copy of this list must be included with your submittal. No processing of your application can occur until the application is determined to be complete. When all required materials are submitted to the Redevelopment Office, the City has an additional thirty (30) days to make a determination of completeness. If the application is determined to be complete, processing for a decision on the application will be initiated. In addition, please note that you have six months from the date the application was initially filed, March 3, 2003, to either resubmit the application or submit the required information. Failure to resubmit the application or to submit the materials necessary to determine your application complete shall be deemed to constitute withdrawal of the application. If an application is withdrawn or deemed withdrawn, a new application must be submitted. Please contact my office at (760) 434-2813, if you have any questions or wish to set up a meeting to discuss the application. Sincefely,.^^..^^ Isd:^^'—. LORI H. ROSENSTEIN Management Analyst c: Debbie Fountain, Housing & Redevelopment Director Chris Sexton, Planning John Maashoff, Engineering Pat Kelley, Building Greg Ryan, Fire 2965 Roosevelt St., Ste. B • Carlsbad, CA 92008-2389 • (760) 434-2810/2811 • FAX (760) 720-2037 LIST OF ITEMS NEEDED TO COMPLETE THE APPLICATION No. RP 03-05 Housing & Redeveiopment: 1. In accordance with the Carisbad Village Redevelopment Master Plan and Design Manual, an applicant for a land use change is required to satisfy the on-site parking requirements set forth in said document. The proposed project is located in a center where three separate uses share the same parking lot. The proposed use, a wine bar, has a parking requirement equivalent to one parking space for every 50 square feet of gross floor area. The remainder of the uses on the property are retail uses with a parking requirement equivalent to one parking space for every 300 square feet of gross floor area. Based on the information submitted on the site plan the proposed use occupies 540 square feet. The remainder of the uses occupy 865 square feet (1,405sf - 540sf). The total parking requirement for the entire property with the change in use is 14 parking spaces. Required Parkinq Calculation Retail parking = 865 -300 = 2.8 Bar parkinq =540^50 =10.8 Total parking = 13.6 = 14 spaces Presently there are only 8 parking spaces on-site and some of them do not meet current engineering standards. In order for the project to be approved you must be able to show you have 14 parking spaces available for your use. The existing parking lot must be reconfigured to current engineering standards and the remainder of the parking may be provided through a shared parking arrangement with another property within 300 feet of the subject property or participation in the Parking In-Lieu Fee Program. The shared parking arrangement would limit the hours of operation on the participating property so the uses on that property could not operate during the same hours as the wine bar. Housing and Redevelopment staff does not support limiting the hours of retail uses, because it goes against the goal of encouraging more retail uses to stay open later in the evening to compliment existing night-time uses. Therefore, as we have stated in the past, we recommend a shared parking arrangement with an office use located within 300 feet of the subject property. If you choose the shared parking arrangement option then a written agreement between the property owner of the subject property and the participating property owner will be required outlining the following: • agreed to hours of operation for all uses on each property; • a statement indicating all future lease agreements will include permitted hours of operation; • a statement that if the agreement is ever terminated by either party the wine bar will be responsible for finding alternative parking arrangements or the business will cease all operations; and • a written statement that both parties understand that the agreement will be recorded against both properties. Should you choose to satisfy the parking arrangement through participation in the Parking In-Lieu Fee Program, please note that participation is not guaranteed and you must request Housing and Redevelopment Commission/City Council approval for participation in the program. The current fee for the Parking In-Lieu Fee Program is $11,240 per space needed and it is a one-time fee. 2. Please note the site plan is very difficult to read. Much of the information shown on the floor plan and in the table can be incorporated into the site plan. Also, a scale of 1" = 10' is typically standard and will assist staff in reviewing your modified parking arrangement. 3. Please submit 5 sets of revised plans, drawn at a scale of 1" = 10" with the following information: a. Location and dimensions of vehicular access and all off-street parking spaces designed to current engineering standards. b. Add to the summary table the following: • Number of parking spaces required and provided; and • Number of seats inside and number of seats outside. Fire: The Fire Department has completed its review of this project and shall require the following information and propose the following requirements/changes if applicant desires to proceed with this application. 1. Based on the information provided, the area both indoor and on the patio calculates to an occupant load of 74 total persons. This number, because it is in excess of 50 persons, will prompt a change of occupancy classification from a B to an A-3. 2. This change of occupancy, A-3 shall prompt several requirements with regard to EXIT doors and door hardware but also the 'Means of Egress' components. These requirements are in Uniform (Carisbad) Building Code Article 10. In addition, it may be found during the formal Plan Review process that additional requirements may be necessary based on the type of construction and the building setbacks. 3. Discuss with the applicant the need for clear, concise and organized information on the plans. There are several informational items missing that are necessary to thoroughly conduct a plan review. Please have the applicant review the requirements of UBC Article 1, Section 106. A copy of which may be found at the Public Library. To discuss all Fire Department related concerns, please contact Deputy Fire Marshal Gregory Ryan at (760) 602-4663. Building: The Building Department has the following comments regarding the proposed project: 1. The 84" fence requires a building permit. 2. The back patio must be accessible to the disabled. 3. No lattice will be permitted over the patio space next to the property line. To discuss all Building Department related concerns, please contact Building and Code Enforcement Manager Pat Kelley at (760) 602-2716. Engineering: All required fees, if any, will be collected as a condition of required building permits. November 15, 2002 Dear Mr. Humphreys, The purpose ofthis letter is to request shared parking between our neighboring businesses, Sea Waves Salon and the new cafe/bar, The Wine Thief Inc . This agreement will allow Sea Waves Salon, located at 555 Grand Ave., to use any three parking spaces between the hours of 1 lam and Spm daily. Likewise, the partners of The Wine Thief, at 519 Grand Ave., will be able to utilize, if necessary, the three parking spaces adjacent to the salon between the hours of 5pm and 11pm daily. As a long time landlord in the Carlsbad Village, 1 realize that you would much rather have a less formal agreement. Unfortunately, at this day and age, the city requires this formality. As a handshake would sujEfice years ago, signed letters must be submitted in order to placate Carlsbad's strict laws regarding parking requirements for new businesses. I believe that this agreement will not only help my new tenants in their new endeavor, but wiU also help Sea Waves Salon patrons by providing safe, familiar and nearby parking. The new business, The Wine Thief, has oflFered to clean your parking lot on a weekly and on an as needed basis, in exchange for your spaces. The Wine Thief is a cafe/bar. Their business hours will be 5pm to 11pm daily. This establishment will provide its patrons with fine wines, hors d'ouvres and desserts. The Wine Thief invites you and your loved ones as guests to enjoy an evening with them at their grand opening. Thank you for your consideration. Please do not hesitate to caU me with any questions, comments, or concerns. By signing this letter you are granting us permission for shared parking to be reviewed by the city of Carlsbad. Sincerely, Mrs. H.V. Clarke Marvin Humphreys Harold & Catherine Clarke Trust 555 Grand Avenue 519 Grand Avenue, PO Box 2354 Carlsbad CA 92018 Carlsbad CA 92008