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HomeMy WebLinkAboutSP 25C; ROCKWELL'S; Specific Plan (SP) (2)0 CITY OF CARLSBAD PLANNING DEPARTh{ENT/RBCORDS MANAGEMENT DOCUMENT MANAGEMENT SYSTEM SCANNED/IMAGED SHEET The following documents are scanned and indexed into the Document Management System: INITIAL DOCUMENT(S) IMAGED BY IMAGED DATE (7 ( C' or CALCEAD ILANNtNG DEPARTMENT ADDED DOCUMENT(S) IMAGED BY IMAGED DATE PAGE Revised March 30,2001 '[LAND US& PLANNING A411PLICAT1N DISCRETIONARY ACTIONS REQUEST Ozone Change CgSpecific Plan O General Plan Amendment []Site Development Plan 0 Tentative Tract Map Conditional Use Permit 0 Major Planned Unit Development Dvariance C] Master Plan EIPlannirg Commission Determination O Major Redevelopment Permit DSpecial Use Permit o Minor Redevelopment Permit OStructure Relocation o Precise Development Plan ElMajor Condominium Permit (check other boxes if appropriate) QCoastal Permit (Portion of Pedeve1ont Area Only) Complete Description of Project (attach additional sheets if necessary) AemvsEp 2ES7A'IL* r/ 1&e / e,434ET wit/I 7 YPf 4/7 Lit,e,' L,CENJE. 1AU SERVICE 9r4e12v7 WiP?V VIDEO MUSIC Z/1/VC/'A/a ) JP€73 LrvE WI 1/! Li,zg JCA!EEiv 7/ AND eNrt.e74,,vMENT. Legal Description (complete) SE ,1r,cNE2 1 Assessors Parcel Number /5-_/80-_'IV Zone General Plan Existing Land Use C -1 77q V5 SE2 V/C ES E57u,4I1 7" Proposed Zone Proposed General Plan 'Site Acreage C. -z 1114 vL SEA'irs (MM. 3ça?o SQ. aLT. Owner Applicant Name (Print or Type) Name (Print or Type) SETA '&YAD31At4 Mailing Address Mailing Address qo Reinj LAWE 3'6o /,;1/0 pleo 27€. City and State Zip Telephone City and State Zip Telephone LA SOL14 CA. q 20 .37 - e,?e4S34D4 9!e,4 72990-el I CERTIFY THAT I AM THE LEGAL OMER AND I CERTIFY THAT I AM THE OWNER'S RPRESENTkTIVF THAT ALL THE ABOVE INFORMATION Is TRUE AND ThXr ALL THE ABOVE INFORMATION IS TRUE AND CORRECT TO THE BEST OF MY KNOWLEDGE. AND CORRECT TO THE BEST OF MY KNOWLEDGE. sIGpiurE DATE SiG, Date lication Rec'd Received By eceived Receipt No. - /OF3— - )te Application Rec'd Staff Assigned JCase Number IS 7474 El Cajon Blvd./La Mesa, CA 92041/P.O. Box 15517/San Diego CA 92115/Telephone (619) 464-5353 PRELIMINARY REPORT • MIKE MARTINVILL, ATTORNEY Your No. • 7373 University Ave. #115 Our No. 855218–K • La Mesa, CA Date November 13, 1985 K /pgh Attention: DIANE Copies to: In response to the above referenced application for a policy of title insurance, TERRA TITLE Company hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a Policy or Policies of Title Insurance describing the land and the estate or interest therein hereinafter set forth, insuring against loss which may be sustained by reason of any defect, lien Cr encumbrance not shown or referred to as an Exception below or not excluded from coverage pursuant to the printed Schedules Conditions and Stipulations of said policy forms. The printed Exceptions and Exclusions from the coverage of said Policy or Policies are set forth in Addendum 1 attached Copies of the Policy forms should be read. They are available from the office which issued this report. This report (and any supplements or amendments hereto) is issued solely for the purpose of facilitating the issuance of a polic> of title insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issuance of a policy o title insurance, a Binder or Commitment should be requested. Dated as of November 8th , 19 85 at 7:30 A.M. V.'VILO4RI~—~ RA TL C MP Y Agent for USLIFE TITLE INSURANCE Company of Dallas Title to said estate or interest at the date hereof is vested in: SETA BOYADJIAN, a married woman as her sole and separate property NOTE: It is our understanding that title to said estate or interest in said policy is to be vested in: The estate or interest in the land hereinafter described or referred to in this Report is: A FEE The land referred to in this report is described as follows: Parcel B, in the City of Carlsbad, County of San Diego, State of California, as shown at Page 3598 of Parcel Maps, recorded in the office of the County Recorder of San Diego County, February 28, 1975. At the date hereof exceptions to coverage in addition to the printed Exceptions and Exclusions contained in said policy form would be as shown on page 2 et. seq. attached hereto. C-11-TT Rev S- . . PRELIMINARY REPORT CONTINUED ORDER NO. 855218-K PAGE TWO K /pgh 1. General and special taxes, the first installment now due and payable, the second installment now payable, but not yet due, for the fiscal year 1985-86. 2. The lien of supplemental taxes, if any, assessed pursuant to the provisions of Chapter 3.5 (commencing with Section 75) of the Revenue and Taxation Code of the State of California. 3. The fact that the ownership of said land does not include any rights or ingress or egress to or from highway contiguous thereto, said rights having been relinquished by deed recorded February 29, 1968 as File No. 34361 of Official Records. 4. The fact that the ownership of said land does not include any rights or ingress or egress to or from highway contiguous thereto, said rights having been relinquished by deed recorded June 2, 1972 as File No. 140789 of Official Records. 5. The fact that the ownership of said land does not include any rights or ingress or egress to or from highway contiguous thereto, said rights having been relinquished by deed recorded June 19, 1972 as File No. 156150 of Official Records. 6. An agreement for improvements in a public right of way dated June 27, 1972, executed by the City of Carlsbad and CARLSBAD INVESTMENT CORPORATION as owner, recorded June 27, 1972 as File No. 164594 of Official Records, wherein said owner grants said City a lien upon the land herein described and agrees, covenants and promises, upon the terms, covenants and condtions therein contained to install and construct or cause to be installed or constructed certain public improvements. 7. An easement above or below ground for utilities and purposes incidental thereto, as granted to the San Diego Gas and Electric Company, by deed recorded August 4, 1972 as File No. 204783 of Official Records. Affects: A portion of said land 8. A non-exclusive easement or lesser right for parking purposes sufficient to accomodate 50 automobiles, including necessary ingress and egress as granted to City of Carlsbad, a municipal corporation. Said easement is restricted in use to the hours between 2 a.m. and 6 a.m. Said easement shall terminate in the event that the ordinance of the City of Carlsbad no longer requires the provision of said amount of parking spaces in connection with the use being made of the subject property. 9. An agreement to which reference is hereby made for full particulars, dated May 8, 1974 by and between CARLSBAD INVESTMENT CORPORATION and COLONIAL HALL, LTD., a limited partnership, regarding Joint Parking Facilities and Grant of Reciprocal Parking Easements, recorded May 20, 1974 as File No. 74-131027 of Official Records. And as modified by an instrument recorded January 13, 1982 as File No. 82-008986 of Official Records. Reference is made to said document for full particulars. 10Oontinued on page 3 attached . . PRELIMINARY REPORT CONTINUED ORDER NO. 855218-K PAGE THREE K /pgh A Deed of Trust to secure an indebtedness of $320,000.00, and any other amounts payable under the terms thereof recorded October 2, 1978, under Recorder's File No. 78-417838 of Official Records; Dated: September 27, 1978 Trustor: ROBERT L. WATSON AND MARJORIE L. WATSON, husband and wife Trustee: FIRST NATIONAL BANK OF SAN DIEGO COUNTY, a national banking association Beneficiary: FIRST NATIONAL BANK OF SAN DIEGO COUNTY, a corporation 11. A Deed of Trust to secure an indebtedness of $594,000.00, and any other amounts payable under the terms thereof recorded June 24, 1982, under Recorder's File No. 82-195249 of Official Records; Dated: June 8, 1982 Trustor: SETA BOYZWJIAN, a married woman Trustee: FIRST AMERICAN TITLE INSURANCE COMPANY, a California corporation Beneficiary: ROBERT L. WATSON AND MARJORIE L. WATSON, husband and wife as community property 12. A lien for $34.69 due the San Diego County Tax Collector, as evidenced by Certificate of Tax Lien recorded April 19, 1982 as File No. 82-108647 of Official Records. Taxpayor: MARENGO JEAN CLAUDE dba THE MAD CREEK We are unable to determine if this is our party and we do not find a release recorded in the Office of the County Recorder. 13. A lien for $1,205.41 due the San Diego County Tax Collector, as evidenced by Certificate of Tax Lien recorded May 26, 1982 as File No. 82-159830 of Official Records. Taxpayor: MARENGO JEAN CLAUDE dba THE MAD CREEK We are unable to determine if this is our party and we do not find a release recorded in the Office of the County Recorder. 14. An abstract of judgment issued out of Municipal Court, San Diego Judicial District, San Diego County, in Case No. 266161 against JEAN CLAUDE MARENGO, in favor of AUTOMATIC SPRINKLER CORPORATION OF AMERICA, a corporation, in the amount of $601.77, recorded June 6, 1979 as File No. 79-232550 of Official Records. We are unable to determine if this is our party and we do not find a release recorded in the Office of the County Recorder. 15. An abstract of judgment issued out of Municipal Court, San Diego Judicial District, San Diego County, in Case No. 280406 against JEAN CLAUDE MARENGO aka J.C. MARENGO IND. & dba THE MAD CREEK, in favor of PROFESSIONAL SPORTS PUBLICATIONS, INC., in the amount of $2,024.92, recorded July 18, 1980 as File No. 80-227084 of Official Records. We are unable to determine if this is our party and we do not find a release recorded in the Office of the County Recorder. 16. An abstract of judgment issued out of Municipal Court, San Diego Judicial District, San Diego County, in Case No. 257049 against JEAN CLAUDE MARENGO, Continued on page 4 attached . PRELIMINARY REPORT CONTINUED ORDER NO. 855218-K PAGE FOUR K /pgh in favor of SAN DIEGO SIGN COMPANY, in the amount of $2,712.02, recorded March 13, 1980 as File No. 80-087397 of Official Records. We are unable to determine if this is our party and we do not find a release recorded in the Office of the County Recorder. 17. A lien for $40.68 due the San Diego County Tax Collector, as evidenced by Certificate of Tax Lien recorded January 17, 1979 as File No. 79-027196 of Official Records. Taxpayor: JEAN CLAUDE MARENGO dba THE MAD CREEK 18. Any claims of lien that may be filed against said land by reason of a work of improvement thereon as disclosed by a Notice of Non-Responsibility recorded October 14, 1985 as File No. 85-380859 of Official Records. 19. Any facts, rights, interest or claims which may be shown by an inspection of the land or which may be disclosed by inquiry of persons in possession of said land. 1985-86 TAX INFORMATION: CODE AREA : 09000 PARCEL NO. : 156-180-44 1st INSTALLMENT : $2,748.63 NOT PAID 2nd INSTALLMENT : $2,748.63 NOT PAID LAND VALUE : $260,100.00 IMPROVEMENTS : $234,090.00 EXEMPTIONS : $-0- The form of Policy of Title Insurance contemplated by this report is: CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY - 1973. The charge for a CLTA Standard Coverage Policy with a liability of $TO COME, is $TO COME. . . CLTA PRELIMINARY TITLE REPORT ADDENDUM 1 CALIFORNIA LAND TITLE ASSOCIATION STANDARD COVERAGE POLICY-1973 SCHEDULE B This policy does not insure against loss or damage, nor against costs, attorneys fees or expenses, any or all of which arise by reason of the following: Part I 1. Taxes or assessments which are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the public records. Proceedings by a public agency which may result in taxes or assessments, or notices of such proceedings, whether or not shown by the records of such agency or by the public records. 2. Any facts, rights, interests or claims which are not shown by the public records but which could be ascertained by an inspection of the land or by making inquiry of persons in possession thereof. 3. Easements, liens or encumbrances, or claims thereof, which are not shown by the public records. 4. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, or any other facts which a correct survey would disclose, and which are not shown by the public records. 5. (a) Unpatented mining claims; (b) reservations or except- ions in patents or in Acts authorizing the issuance thereof; (C) water rights, claims or title to water. 6. Any right, title, interest, estate or easement in land beyond the lines of the area specifically described or re- ferred to in Schedule A, or in abutting streets, roads, avenues, alleys, lanes, ways or waterways, but nothing in this paragraph shall modify or limit the extent to which the ordinary right of an abutting owner for access to a physi- cally open street or highway is insured by this policy. 7. Any law, ordinance or governmental regulation (includ- ing but not limited to building and zoning ordinances) re- stricting or regulating or prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimen- sions or location of any improvement now or hereafter erected on the land, or prohibiting a separation in owner- ship or a reduction in the dimensions or area of the land, or the effect of any violation of any such law, ordinance or governmental regulation. 8. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears in the public records. 9. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the insured claimant; (b) not shown by the public records and not otherwise excluded from coverage but known to the insured claimant either at Date of Policy or at the date such claimant acquired an estate or interest insured by this policy or acquired the insured mortgage and not disclosed in writing by the insured claimant to the Company prior to the date such insured claimant became an insured hereunder, (c) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; or (e) resulting in loss or damage which would not have been sustained if the insured claimant had been a purchaser or encumbrancer for value without knowledge. AMERICAN LAND TITLE ASSOCIATION RESIDENTIAL TITLE INSURANCE POLICY-1979 EXCLUSIONS In addition to the exceptions in Schedule B, you are not insured against loss, costs, attorneys' fees and expenses resulting from: 1. Governmental police power, and the existence or violation of any law or government regulation. This includes building and zoning ordinances and also laws and regulations concerning: land use improvements on the land land division environmental protection This exclusion does not limit the zoning coverage described in Items 12 and 13 of Covered Title Risks. 2. The right to take the land by condemning it, unless a notice of taking appears in the public records on the Policy Date. 3. Title Risks: that are created, allowed, or agreed to by you that are known to you, but not to us, on the Policy Date—unless they appeared in the public records. that result in no loss to you that first affect your title after the Policy Date—this does not limit the labor and material lien coverage in Item 8 of Covered Title Risks 4. Failure to pay value for your title. 5. Lack of a right: to any land outside the area specifically described and referred to in Item 3 of Schedule A or in streets, alleys, or waterways that touch your land. This exclusion does not Imit the access coverage in Item 5 of Covered Title Risks. S CLTA PRELIMINARY TITLE REPORT ADDENDUM 1 (CONTINUED) AMERICAN LAND TITLE ASSOCIATION LOAN POLICY-1970 WITH A.L.T.A. ENDORSEMENT FORM 1 COVERAGE (AMENDED 10-17-70) SCHEDULE OF EXCLUSIONS FROM COVERAGE The following matters are expressly excluded from the coverage of this policy. 1. Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulating or prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions or location of any improvement now or hereafter erected on the land, or prohibiting a separation in ownership or a reduction in the dimensions or area of the land, or the effect of any violation of any such law, ordinance or governmental regulation. 2. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears in the public records at Date of Policy. 3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company and not shown by the public records but known to the Insured claimant either at Date of Policy or at the date such claimant acquired an estate or interest insured by this policy or acquired the insured mortgage and not disclosed in writing by the insured claimant to the Company prior to the date such insured claimant became an insured hereunder (C) resulting in no loss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy (except to the extent insurance is afforded herein as to any statutory lien for labor or material or to the extent insurance is afforded herein as to assessments for street improve- ments under construction or completed at Date of Policy). 4. Unenforceability of the lien of the insured mortgage because of failure of the insured at Date of Policy or of any subsequent owner of the indebtedness to comply with applicable "doing business" laws of the state in which the land Is situated. AMERICAN LAND TITLE ASSOCIATION OWNER'S POLICY FORM B-1970 (AMENDED 1047-70) SCHEDULE OF EXCLUSIONS FROM COVERAGE 1. Any law, ordinance or governmental regulation (including but not limited to building and zoning ordinances) restricting or regulating or prohibiting the occupancy, use or enjoyment of the land, or regulating the character, dimensions or location of any improvement now or hereafter erected on the land, or prohibiting a separation in ownership or a reduction in the dimensions of area of the land, or the effect of any violation of any such law, ordinance or governmental regulation. 2. Rights of eminent domain or governmental rights of police power unless notice of the exercise of such rights appears in the public records at Date of Policy. 3. Defects, liens, encumbrances, adverse claims, or other matters (a) created, suffered, assumed or agreed to by the insured claimant; (b) not known to the Company and not shown by the public records but known to the insured claimant either at Date of Policy or at the date such claimant acquired an estate or interest insured by this policy and not disclosed in writing by the insured claimant to the Company prior to the date such insured claimant became an insured hereunder; (C) resulting in no lOss or damage to the insured claimant; (d) attaching or created subsequent to Date of Policy; (e) resulting in loss or damage which would not have been sustained if the insured claimant had paid value for the estate or interest insured by this policy. / •1 /4 .c f. 111M / I, 'J I" '* q /?4RCEZ A /4 R CL A-lAP 410 3598 .AL / F (.'C . _10 ,ARCEZ ,144/' c C4 ,/ 4L7, c/7r 747 . .4'II4 .77 Al.4 /,*W 7'dS'4/ '# /4/ rWC cic/ce .-W4 441 ?4'4/FF'. e(.64.y / .5.451.5 2' . --AAF 7 Al7e oor .v-ce/ Alc%jp 4./c. /? 17 ,'..4- of,'d f ,4erdc.- / ,dgc 'i'• Y.',., ,n.ø -'171 /,/c,c'Pd 6. /77e a'• . ba id c'' a ,'./d 4.'r.ey .'.- ,',4- ,.,h -*-- -4b,,'/ J4•55 -d - e 5 -.41 i7 k 1' W A4 •-a - ,.- Al ' 7Y .5ac i''c- ,yS7. cf hc S..ód,risi.' A Ac, '? 7 - V7 J S d _26 a,,' ,7,% g //iE t-cq c , -V øIøi QUALITY ORIGINAL (S) CITY OF CARLSBAD 1200 ELM AVENUE CARLSBAD, CALIFORNIA 92008 4385621 / RECD, FROM DATE_______________ ACCOUNT NO. DESCRIPTION AMOUNT co so RECEIPT $0. 55596 TOTAL,- 4 DISCLOSURE FORM APPLICANT: Name 5 /iP4E_LA/c. vidual, Irtnership, P,o P/co Z venture, corporation, syricat 42/ AD. 64. 92t4 729- 9tW Telephone Number AGENT: OCD (&47 Name g311 4 ,9A/ '9 YE., A ME4 / Business Address b?7-7S47 Telephone Number 2/7 0 ,f44AeE5ELVA WA 'e.7tNE€ MEMBERS: Z)c %S4A D/Eô Ci. 'aisg Name (individual, partner, joint Home Address venture, corporation, syndication) 3eJb 'o Pe'co D1e. C,&s &i (4. Qze Business Address I 72'?- Of 0 ' - 5-757—Z45-59 Telephone Number Telephone Number Name Home Address qz// Ico /J. Bus 574-772-3 729-ô9oy' ____________________ Telephone Number Telephone Number (Attach more sheets if necessary) The applicant is required to apply for Coastal Commission Approval if located in the Coastal Zone. I/We declare under penalty of perjury that the information contained in this disclosure is true and correct and that it will remain true and correct and may be- relied upon as being true and correct until amended. APPLICANT Aqent, Owner, Partner ' •491- - - -- LEGAL DESCRIPTION Parcel B, in the City of Carlsbad, County of San Diego, State of California, as shown at Page 3598 of Parcel Maps, recorded in the Office of the County Recorder of San Diego County, February 28, 1975. •HT' LEASE This Lease Agreement is entered into this day of 1985, by and between SETA BOY ADJ:[AN, a married woman, hereinafter referred to as Lessor, and JAMES D. r$L:ITCFIER and C. HARRIS HARTIMAN, herein collectively referred to as Lessee. Lessor and Lessee are hereinafter referred to as the Parties. RECITALS WHEREAS, Lessor desires to lease the premises :knon as 3050 Pio Pica Drive in the City of Carlsbad, County of San D:iego, State of California; hereinafter referred to as "Premises consisting of the land, buildings, and improvements now or hereafter situated upon said land and more particularly described in Exhibit A; and WHEREAS, Lessee desires to lease said premises from Lessor; and WHEREAS, Lessor and Lessee shall cause an escrow to open currently with the execution of this document, Lessor conveying to Lessee all Lessor's personal property including trade fixtures, currently located on the premises, belonging to Lessor. AGREEMENT 1.1 Term of Lease This lease is and shall be for a term of fifteen (15) years (the "term"), commencing on the day Lessee obtains the temporary ABC License pursuant to paragraph 4.1 herein, the execution of this lease, and payment of sums due Lessor by Lessee, and expiring at midnight fifteen (15) years thereafter. The parties agree to enter the date of commencement and termination ____________ upon compliance with the above. Should Lessee be issuance of a permanent ABC license, this lease is null and void, and the parties shall thereafter execute all appropriate documents to reflect termina- tion of thise lease and the escrow. 1.2 Option to Extend A. Lessor hereby grants to Lessee the option to extend the term of this lease for 1 fiv- year period commencing when the prior term expires upon each of the following terms and conditions: 1. Lessee gives to Lessor and Lessor receives written notice of the exercise of the option to extend this Lease for said additional term no earlier than nine (9) months and no later than six (6) months prior to the time that the option period would commence if the option were exercised, time being of the essence. If notification of the exerciseof said option is not given and received, this option shall automatically expire; 2. The provisions of this Lease relating to default of Lessee are conditions of this option; 11) 3. All of the terms and conditions of except where specifically modified by this option shall apply. \ LET 'PRLUF ff 1.3 Right of First Refusal A. Lessor shall not, at any time prior to the expiration of the term of this Lease, or any extension thereof, sell the Premises, or any interest therein, without first giving written notice thereof to Lessee, which notice is hereinafter referred to as "Notice of Sale." B. The Notice of Sale shall include the exact and complete terms of the proposed sale andshall have attached thereto a photocopy of bona fide offer and counteroffer, if any, duly executed by both Lessor and the prospective purchaser. . •r C. For a period of ten (10) business days after receipt by Lessee of the Notice of Sale, Lessee shall have the right to give written notice to Lessor of Lessee's exercise of Lessee's right to purchase the Premises, or the interest proposed to be sold, on the same terms, price and conditions as set forth in the Notice of Sale. In the event that Lessor does not receive written notice of Lessee's exercise of the right herein granted within said ten (10) day period, there shall be a conclusive presumption that the Lessee has elected not to exercise Lessee's right hereunder, and Lessor may sell the Premises, or the interest proposed to be sold, on the same terms set forth in the Notice of Sale. D. In the event that Lessee declines to exercise its right to first refusal after receipt of the Notice of Sale, and, thereafter, Lessor and the prospective purchaser moify by more than 5%, (1) the sales price, (ii) the amount of down payment, or (iii) interest charged, or in the event that the sale is not consummated within 160 days of the date of the Notice of Sale, then Lessee's right of first refusal shall reapply to said transaction as of the occurrence of any of the aforementioned events. 2.1 Minimum Rent Lessee shall pay to Lessor, without notice, demand, deduction, or offset of any kind, except as set out herein, as minimum rent (the "Minimum Rent") for the term, and any extentions thereof, in lawful money of the United States, at the address indicated below, advance monthly installments of $5,920.00. Lessee shall pay to Lessor, upon issuance of the temporary ABC License, execution of the hereinabove referenced escrow, and execution of this lease, a percentage of said $5,920.00 figure, computed on the days remaining in the initial month of occupancy, payable on the effective date of this lease. For example, if Lessee occupies said premise on the 20th day of a 30 day month, Lessee shall pay 1/3 of $5,920.00. Thereafter, Lessee shall pay to Lessor, the advance monthly installment of $5,920.00, each and every month thereafter, continuing on the first day of each succeeding month throughout the term of any extensions thereof. A. Late Charge . Lessee hereby acknowledges that late payment by Lessee to Lessor of rent due hereunder will cause Lessor to incurr costs not contemplated by this lease; the exact amount of which will be extremely difficult to ascertain. Accordinly, if any installments of rent due from Lessee shall not be received by Lessor or Lessor's designee within ten (10) days after such amount shall be due, then, without any requirement for notice to Lessee, Lessee shall pay to Lessor a late charge equal to 4% of such overdue amount. 2.2 Deposit Lessee will deposit with Landlord, upon close of escrow, the sum of $11,840.00 as security for the full performance of all the provisions of this Lease. If at any time during the Term hereof, or any extension hereof, Lessee shall be in default in payment of rent or any other sum due Lessor hereunder, Lessor may apply all or a part of the security deposit for such payment. Lessor may also apply all or a part of the deposit to repair damages to the Premises which occur during the Term, or exist upon termination of the Term. In such event, and from time to time, Lessee shall pay to Lessor a like sum as additional security such that the balance of such deposit shall be equal to the sum of the original security deposit. If Lessee is not in default at the termination of this Lease, Lessor shall return the balance of the deposit to Lessee. Lessor shall not be required to keep this security deposit separate from its general funds, and Lessee shall not be entitled to interest on such deposit. Notwithstanding the foregoing, should Lessor fail to return all or any portion of the security deposit to Lessee when and if due, said sum or the unreturned portion thereof, as the case may be, shall bear interest at the rate of 10 percent per annum from the date due until received by Lessee. 2.3 Rent -Cost of Living Adjustment The monthly rent provided for in Paragraph 2.1 of the Lease entitled "Minimum Rent" hereinafter ("Base Rent") shall be subject to adjustment in the following manner. -2-- At the commencement of the fourth year of the term and each successive year thereafter the Consumer Price Index for Urban Wage Earners and Clerical Workers for the Los Age1€s/Long Beach Metropolitan Area published by the Department of Labor, Bureau of Labor Statistics, United States Government, all items, 1967=100, as it exists on the Adjustment Date in question shall be compared with the index as the same existed on the commencement date of the lease ("Base Index") In the event the Index as of such Adjustment Date is higher than the Base Index, the monthly rent until the next Adjustment Date, or until the expiration of the lease term as the case may be, shall be increased by multiplying the Base Rent by a fraction the numerator of which is the index as the same exists on such Adjustment Date, and the denominator of which is the Base Index. In no event shall the monthly rent at any time during the term be 1s than the monthly rent payable immediately prior to the Adjustment Date in question, and the Lease shall continue to pay the rent for the prior period until the Index is made public. When the Index is made public, Lessee shall immediately pay to Lessor the deficiency in rent due to the time lag upon Lessor's submission to Lessee of a statement setting forth the adjusted monthly rent reflecting the increase in the Index. Upon adjustment of the monthly rent as herein provided, the parties will forthwith execute a letter agreement reflecting the new monthly rent. If, in the future, the Index shall be changed so that the base year differs from 1967=100, the Index shall be converted in accordance with the conversion factor published by the United States Department of Labor, Bureau of Labor Statistics. In the event the Index is discontinued or revised during the term hereof, such other governmental index or computation with which it is replaced shall be used in order to obtain substantially the same result that would be obtained if said present index had not been discontinued or revised. In the event the Index is not replaced with another governmental index or computation, Lessor and Lessee shall accept comparable statistics on the purchasing power of the consumer dollar as published at the time of said discontinuance by a responsible financial periodical or recognized authority chosen by the parties. If the parties cannot agree upon a financial periodical as the source of comparable statistics after attempting for twenty (20) days to reach such agreement, the percentage increase for the ensuing period shall be determined by arbitration according to the rules of the American Arbitration Association and the decision of the arbitrators shall be binding on the parties. 3.1 Percentaae Rent In addition to the Minimum Rent to be paid by Lessee, Lessee shall pay to Lessor, at the times hereinafter required, the sum, if any, by which the total of six (6) percent of the gross receipts generated in, upon or from the restaurant or any other portion of the premises during any lease month, or any portion of any lease month during the term, exceeds the minimum rent paid by Lessee to Lessor for such lease month or such portion of a lease month. If the minimum rent for any month is greater than said percentage of Lessee's gross receipts, Lessee shall be obligated to pay the minimum rent as set forth in Article 2.1. 3.2 In each month immediately suceeding the month following commencement of the term, Lessee shall prepare a statement in writing, certified by Lessee to be correct, showing the total gross receipts made in, upon, or from the premises during the immediately preceding month, and shall pay to Lessor a sum equal to the total of said hereinabove stated percentages of the monthly gross receipts made in, upon, or from the premises during each month, less the minimum rent for such prior month if previously paid. Said statement and payment shall be delivered to Lessor forthwith upon preparation of such statement, but in no event later than the first day of the second month immediately succeeding the month for which such statement is prepared. Within 60 days after the end of each year of the term, Lessee shall furnish to Landlord a statement in writing, certified to be correct by a certified public accountant licensed to practice in the State of California, showing (1) the total gross receipts by months made in, upon, or from the restaurant and any other portion of the premises, at which time an adjustment shall be made between Lessor and Lessee to the end that the total percentage rent paid for each such year shall be a sum equal to the total of said hereinabove stated percentages of the gross receipts made in, upon, or from the premises during each year of the term less the minimum rent for each such year, if previously paid, so that the percentage rent, although payable monthly, shall be computed and adjusted on an annual basis. .3 The term "gross receipts" as used in this Lease shall include the entire gross receipts of every kind and nature from sales and services made in, upon, or from the premises, whether upon credit or for cash, whether operated by the Lessee or by a subtenant or subtenants, or by a concessionaire or concessionaires, .--.-.---- 10 .1 , excepting therefrom any gratuitit.es, rcbates, and/or refunds to customers and the amount of all sales tax receipts which has to be accounted for by :Lessee to any government, or any governmental agency. Sales upon credit shall be deemed cash sales and shall be included in the gross receipts for the period which the merchandise is delivered to the customer, whether or not title to the merchandise passes with delivery. 3.4 Lessee shall keep full, complete and proper books, records and accounts of its daily gross receipts, both for cash and on credit. Conditioned upon Lessor giving Lessee at least 48 hours prior oral or written notice, Lessor and its agents and employees shall have the right at any time and all times, during the regular business hours, to examine and inspect all of the books, records and accounts, including any sales tax reports pertaining to the business conducted in, upon, or from the Premises, for the purpose of investigating and verifying the accuracy of anytatement of gross receipts. The Lessor may, once in any calendar year, cause an audit of the business of Lessee to be made by an accountant of Lessor's selection and if the statement of gross receipts previously made to Lessor shall be found to be inaccurate, then ardin that event, there shall be an adjustment and one party shall pay to the other on demand such sums as may be necessary to settle in full the accurate amount of said percentage rent that should have been paid for the period or periods covered by such inaccurate statement or statements. Tenant shall keep all said records for three years. If said audit shall diclose that the amount of gross receipts received by Lessee exceeds by more than 2 percent the amount of gross receipts reported by Lessee to Lessor for the period of said report, then Lessee shall immediately pay to Lessor the cost of such audit; otherwise, the cost of such audit shall be paid by Lessor. If such audit shall disclose(1) any willful inaccuracy, or (2) that, for any reason, the amount of actual gross receipts received by Lessee exceds by more than 5 percent the amount of actual gross receipts reported by Lessee to Lessor for the period of said report, this Lease may thereupon be canceled and terminated, at the option of Lessor. 3.5 Lessee shall continuously and uninterruptedly occupy and use the entire premises for the purposes specified in this Lease. In general, Lessee shall employ its best judgment, efforts and abilities to operate the business conducted by it on the premises in a manner cal- culated to produce the maximum profitable and practical volume of sales and transactions obtainable. 4.1 Possession and Use of Premises Lessee shall be entitled to the possession of the premises .immediately upon (1) execution of this lease and (2) evidence of :insurance per paragraph 9.1 herein. 4.2 Lessee shall use the premises exclusively for restaurant, bar and cabaret purposes. Use of the premises for any other purpose shall require written approval of Lessor. 4.3 Lessee shall at its sole cost and expense, comply with all Federal, State, and Municipal statutes, ordinaces, and regulations in force during the term or any option thereof. Should any governmental agency notice Lessor or Lessee that alterations, or additions and or changes be required by law, which cost shall exceed $5,000.00, Lessor shall pay the excess of said sum. 4.4 Notwithstanding the foregoing, Lessee or Lessor, as the case may be, shall have the right to contest, in good faith and by appropriate and timely legal proceedings, the legality of any alterations, additions and/or changes tothe Premises, of a structural nature, cost-n in( in excess of $5,000.00. Lessor or Lessee, as the case may be, shall reasonably cooperate with the other in the prosecution of such contest, provided that all expenses of same (including, without limita ion, all attorneys' fees court and other costs) are paid by the party initiating such action. -4- 5.1 Taxes and Assessments Lessee shall pay, prior to the delinquency each installment of general and special taxes, improvement bonds and assessments which are liens upon the premises or become due during the term of any extentions thereof. Lessee shall evidence each installment to satisfaction of Lessor. "Taxes" and "assessments" shall mean any tax or excise, however described, including any tax or excise levied on account of the rent reserved hereunder, whether or not as a substitute for taxes on land or improvements. However, "taxes" and "assessments" shall not include(i) income tax upon Lessor by reason of rent income (as such tax is understood and applied at the time of execution hereof) or (ii) gift, inheritance, estate or income tax arising'by reason of conveyance or.-devolution of the reversionary interest hereunder. 5.2 Lessee shall have the right to contest, in good faith, the legality, assessed valuation or amount of any tax or assessment; by paying said amount in full and thereafter bring an action for refund of the disputed amount. 5,3 The parties herein agree to prorate all taxes and assessments for the fiscal year in which the term begins. 6.1 Utilities Tenant shall pay, prior to delinquency, all charges for water, gas, electricity, sewer service, disposal, telephone, and other utilities during the term. 7.1 Alterations and Additions Lessee shall not, without Lessor's prior written consent make alterations, improvements, additions, on or about the premise, except for constructural and painting alterations not exceeding $5,000.00. Any alterations, improvements, or additions which Lessee desires to make shall be presented to Lessor in written form. Upon consent and approval of permit application, Lessee may commence work. Lessee covenants all work performed shall be done in a workmanlike manner in accordance with the jurisdictional building codes. 7.2 Lessee shall pay, when due all claims for labor or materials furnished to the premises. Should Lessee contest the validity of any claim or lien, Lessee shall, provided if Lessor desires, a surety bond in the amount of the dispute. Lessee shall notice Lessor within ten (10) days of knowledge, of any and all liens encumbering the premises as a result of alterations. 8.1 Maintenance_a ,airs Lessee, at Lessee's expense, shall keep in good order, condition, drepair the premises and every part thereof, unless otherwise exempted herein. 8,2 Lessor shall, at Lessor's own expense, keep in good order, condition, and repair, the foundation. Lessor shall not, however, be obligated to paint such exterior, nor shall Lessor be required to maintain the interior surface of exterior walls, windows, doors or plate glass. 8.3 Lessor herein warrants that -the roof shall be maintained solely at Lessor's expense for a period of three (3) years from the date of execution of thic Sh J.d Lessee notice Lessor of any problems with thereof, ad Lessor not satisfy said defective condition, within " thirty (30) days, Lessee shall have the right to repair said roof and deduct said expense from his rent, unless damage to the roof is caused by Lessee. 9.1 Public Liability Insu rance Lessee shall, at Lessee's expense, obtain and keep in force during the term of this Lease, and any ptions, a policy of Insurance, insuring Lessee and Lessor against any liability arising out of the use or occupancy of the premises and all appurtenant areas thereto. Such -5- insurance shal an amount not less th three million dollars ($3.000 e 000.00) per occurrance. 9,2 Lessee shall, at Less&s expense obtain and keep in force during the term of this lease, fire insurance policies with broad-form coverage ("all risk") for the full replacement value of the Premises, naming Lessor as an additional insured. 9.3 Lessee shall cause a Certificate of Insurance to be sent to Lessor, and direct that Lessor' be noticed 10 days prior to termination or cancellation of any insurance policy. 9.4 The fire insurance enumerated in paragraph 9.2 shall include "rent loss" insurance to cover 100% of all rents payable by Lessee for a period of twelve months. The Parties herein agree that Lessee shall procure said "rent loss" insurance, however Lessor shall pay all premiums and costs for the coverage entitled rent loss to Lessee as the same become due. Should Lessor not pay the amont due for said insurance coverage, Lessee shall do so, and deduct the amount paid for "rent loss" coverage from the next month's rent. 10.1 Damage or Destruction A. Definitions. (1) "Premises Partial Damage" shall herein mean damage or destruction to the Premises to the extent that the cost of repair is less than 50% of the fair market value of the Premises immediately prior to such damage or destruction. "Premises Building Partial Damage" shall herein mean damage or destruction to the building of which the Premises are a part to the extent that the cost of repair is less than 50% of the fair market value of such building as a whole immediately prior to such damage or destruction. (2) "Premises Total Destruction" shall herein mean damage or destruction to the premises to the extent that the cost of repair is 50% or more of the fair market value of the premises immediately prior to such damage or destruction. "Premises Building Total Destruction" shall herein mean damage or destruction to the building of which the premises are a part to the extent that the cost of repair is 50% or more of the fair market value of such building as a whole immediately prior to such damage or destruction. (3) "Insured Loss" shall herein mean damage or destruction which was caused by an event required to be covered by the insurance described in paragraph 9. B. Partial Damage - insured Loss. Subject to the provisions of this lease, if at any time during the term of this Lease there is damage which is an Insured Loss and which falls into the classification of Premises Partial Damage or Premises Building Partial Damage, then Lessor shall, at Lessor's sole cost, repair such damage, but not Lessee's fixtures, equipment or tenant improvements, as soon as reasonably possible and this Lease shall continue in full force and effect. C. Partial Damage - Uninsured Loss. Subject to the provisions of this lease if there is damage which is not an Insured LOSS and which falls within the classification of Premises Partial Damage or Premises Building Partial Damage, unless caused by a negligent or willful act of Lessee (in which event Lessee shall make the repairs at Lessee's expense), Lessor may at Lessor's option either 0) repair such damage as soon as reasonably possible at Lessor's expense, in which event this lease shall continue in full force and effect, or (ii) give written notice to Lessee within thrity (30) days after the date of the occurrence of such damage of Lessor's intention to cancel and terminate this Lease, as of the date of the occurrence of such damage. In the event Lessor elects to give such notice of Lessor's intention to cancel and terminate this Lease, Lessee shall have the right within ten (10) days after the receipt of such notice to give written notice to Lessor of Lessee's intention to repair such damage at Lessee's expense, without reimbursement from Lessor, in which event this Lease shall continue in full force and effect, and Lessee shall proceed to make such repairs as soon as reasonably possible. If Lessee does not give such notice within such 10-day period this Lease shall be cancelled and terminated as of the date of the occurrence of such damage. AMU D. Total Destruction. If at any time during the term of this Lease there is damage, whether or not an Insured Loss, (including destruction required by any authorized public authority) , which falls into the classifica- tion of Premises Total Destruction or Premises Building Total Destruction, this Lease shall automatically terminate as of the date of such total destruction. E. Abatement of Rent; Lessee's Remedies. A. In the event of damage described in paragraph 10.13 or 10. 1C, and Lessor or Lessee repa irs or restores the Premises pursuant to the provisions of this Paragraph 10, the rent payable hereunder for the period during which such damage, repair or restoration continues s1'i1i be ahat' 3. 1n p:oport.ion to the degree to which Lessee's use cf the Premises is impaired. Except for abatement of rent, if any, Lessee shall have no claim against Lessor for any damage suffered by reason of any such damage, destruction, repair or restoicibion, B. If Lessor shall be obligated to repair or restore the Premises under the provisions of this Paragraph 10 and shall not commence such repair or restoration within 90 days after such obligations shall accrue, Lessee may at Lessee's option cancel and' terminate this Lease by giving Lessor written notice of Lessee's election to do so at any time prior to the commencement of such repair or restoration. In such event this Lease shall terminate as of the date of such notice. 11.1 Indemnification A. If Lessee fails to pay any charge or assessment required hereby to be paid by it or to do any act required hereby to be done, by it, Lessor may (but shall not be required to ) pay said charge or assessment or do said act, and the cost thereof to Lessor (including any attorneys' fees, court and all other costs incurred by Lessor), together with interest on such costs at the rate of ten percent per annum from the date of incurrence thereof, shall upon delivery of written notice thereof to Lessee, be immediately due and owing with the next--following installment of rent. B. Lessee shall, at Lessee's sole expense (including, with- out limitation, all attorneys' fees, court and other costs of defense) defend against and indemnify and save harmless Lessor from all liability and claims for damages by reason of any injury to any person(s) or property of any kind or in any way connected with the premises or the sidewalks, streets, alleys, parking lots, buildings, improvements and other premises (if any) adjacent thereto or the use or occupancy thereof during the term of this Lease, including any extensions. 12.1 Assignment and Subletting A. Lessor's consent to an assignment of'this lease or a partial or total subletting of the leased premises by Lessee herein shall not be required. B. Lessee shall, however: 1. Provide Lessor with a copy of Sublessee/Assignee's financial statement. 2. Require Sublessee/Assignee to maintain the same levels of liability insurance as Lessee herein shall have in effect, at the time of Sublease or Assignment. 3. Require Sublessee/Assignee to become jointly and severally liable along with Lessee herein to Lessor herein under the terms of this Lease. 4. Divide equally with Lessor herein any payment for rent to Lessee which is in excess of the minimum rent (pursuant to paragraph 2.1) then in effect. -7- 13.1 Condemnation • A. If the premises or any portion thereof are taken under the power of eminent domain, or sold under the threat of exercise of said power (all of which are herein called "condemnation"), this Lease shall terminate as to the part so taken as of the date of the condemning authority takes title or possession, whichever /// ,'1/ -7. a- MON first occurs. If more than 10% of the floor area of the building on the Premises, or more than 25% of the land area of the premises which is not occupied by any building, is taken by condemnation, Lessee may, at Lessee's option, to be exercised in writing only within ten (10) days after Lessor shall have given Lessee written notice of such taking (or in the absence of such notice, within ten (10) days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority takes such possession. If Lessee does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the premises remaining, except that the rent shall be reduced in the proportion that the floor area of the building taken bear's to the total floor area of the building situated on the premises. No reduction of rent shall occur if the only area taken is that which does not have a building located thereon. Any award for the taking of all or any part of the premises under the power of eminent domain or any payment made under threat of the exercise of such power shall be the property of Lessor, whether such award shall be made as compensation for diminution in value of the leasehold or for the taking of the fee, or as severance damages; provided, however, that Lessee shall be entitled to any award for loss of or damage to Lessee's trade fixtures and removable personal property. In the event that this Lease is not terminated by reason of such condemnation, Lessor shall to the exient of severance damages received by Lessor in connection with such condemnation, repair any damage to the premises caused by such condemnation except to the extent that Lessee has been reimbursed therefor by the condemning authority. Lessee shall pay any amount in excess of such severance damages required to complete such repair. 14.1 Defaults; Remedies A. Defaults. The occurrence of any one or more of the following events shall constitute a material default and breach of this Lease by Lessee: 1. The vcating or abandonment of the premises by Lessee; 2. The failure by Lessee to make any payment of rent or any other payment required to be made by Lessee hereunuer, as and wbci due. 3. The failure by Lessee to obse've or perform any of the covenants, conditions or provisions of this Lease to be observed or performed by Lessee, other than described in paragraph (2) above, where such failure shall continue for a period of 30 days after written notice hereof from Lessor to Lessee; provided, however, that if the nature of Lessee's default is such that more than 30 days are reasonable required for its cure, then Lessee shall not be deemed to be in default if Lessee commenced such cure within said 30-day period and thereafter diligently prosecutes such cure to completion; 4. (a) The making by Lessee of any general arrangement or assignment for the benefit of creditors; (b) Lessee becomes a "debtor" as defined in 11 U.S.C. 001 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within 60 days); (c) the appointment of a trustee or receiver to take possession of substantially all of Lessee's assets located at the premises or of Lessee's interest in this Lease, where possession is not restored to Lessee within 30 days; or (d) the attachment, execution or other judicial seizure of substantially all of Lessee's assets located at the premises or of Lessee's interest in this Lease, where such seizure is not discharged within 30 days. Provided, however, in the event that any portion of this paragraph 14.1 (4) is contrary to any applicable law, such provision shall be of no force or effect. 5. The discovery by Lessor that any financial statement given to Lessor - by Lessee, any assignee of Lessee, any subtenant of Lessee, any successor in interest of Lessee or any guarantor of Lessee's obligation hereunder, and any of them, was materially false. B. Remedies. In the event of any such material default or breach by Lessee, Lessor may at any time thereafter, with or without notice or demand and without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of such default or breach: I. Terminate Lessee's right to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession of the Premises to Lessor. In such event Lessor shall be entitled to recover from Lessee all damages incurred by Lessor by reason of Lessee's default including, but not limited to, the cost of recovering possession -8- 0 UlI 0 of the Premises; expenses of reletting, including necessary renovation and alteration of the premises, reasonable attorney's fees, and any real estate commission actually paid; the worth at the time of award by the court having jurisdiction thereof of the amount by which the unpaid rent for the balance of the term after the time of such award exceeds the amount of such rental loss for the same period that Lessee proves could be reasonably avoided; that portion of the leasing commission paid by Lessor pursuant to this lease. 2. Maintain Lessee's right to possession in which case this Lease shall continue in effect whether or not Lessee shall have abandoned the premises, in such event Lessor shall be entitled to enforce all of Lessor's rights and remedies under this Lease, including the right to recover the rent as it becomes due he r.e,under. 3. Pursue any other remedy now or hereafter available to Lessor under the laws or judicial decisions of the state wherein the premises are located. Unpaid installments of rent and other unpaid monetary obligations of Lessee under the terms of this Lease shall bear interest from the date due at the maximum rate then allowable by law. C. Default by Lessor. 1. Lessor shall not be in default unless Lessor fails to perform obligations required of Lessor within a reasonable time, but in no event later than thirty (30) days after written notice by Lessee to Lessor and to the holder of any first mortgage or deed of trust covering the Premises whose name and address shall have theretofore been furnished to Lessee in writing, specifying wherein Lessor has failed to perform such obligation; provided, however, that if the nature of Lessor's obligation is such that more than thirty (30) days are required for performance then Lessor shall not be in default if Lessor commences performance within such 30--day period and thereafter diligently prosecutes the same to completion. 15.1 Trade Fixtures A. Lessee hereby grants to Lessor the right and option to purchase and acquire any trade fixtures installed by Lessee during the term at a price equal to their then current fair market value as determined by an appraiser acceptable to both parties. If the parties are unable to agree on an appraiser within 20 days following Lessor's exercise of the option, each party shall name its own appraiser. The original appraisers shall appint a. third and the decision of any two appraisers acting together shall be final. The parties shall share equally the fees and expenses of the appraisers. B. Lessor's rights under this paragraph 15.1 shall be and become assigned to any assignee of Lessor hereunder, notwithstanding the omission of said rights from the instrument of assignment or anything to the contrary therein contained. Any purported assignment of said rights independent of such an assignment of the entire interest of Lessor hereunder shall be null and void. 16.1 EstoppelG,ertificate A. Lessee shall at any time upon not less than ten (10) days prior written notice from Lessor execute, acknowleuge and deliver to Lcssoi' a statement in writing (1) certifying that this Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Lease, as so modified, is in full force and effect) and the date to which the rent and other charges are paid in advance, if any, and (2) acknowledging that there are not, to Lessee's knowledge, any uncured defaults on the part of Lessor hereunder, or specifying such defaults if any are claimed. Any such statement may be conclusively relied upon by any prospective purchaser or encunibrancers of the premises. B. At Lessor's option, Lessee's failure to deliver such statement within such time shall be a material breach of this Lease or shall he conclusive upon Lessee (1) that this Lease is in full force and effect, without modification, except as may be represented by Lessor, (2) that there are no uncured defaults in Lessor's performance, and (3) that not more than one month's rent has been paid in advance or such failure may be considered by Lessor as a default by Lessee under this Lease. C. If Lessor desires to finance, refinance, or sell the Premises, or any part thereof, Lessee hereby agrees to deliver to any lender or purchaser designated by Lessor such financial statements of Lessee as may be reasonably required by such lender or purchaser. Such statements shall include the past three years' financial statements of Lessee. All such financial statements shall be received by •Lessor and such lender or purchaser in confidence and shall be used only for the purposes herein set forth. 162 Subordination. A. This lease, at Lessor's option, shall be subordinate to any ground lease, mortgage, deed of trust, or any other hypothecation or security now or hereafter placed upon the real property of which the Premises are a part and to any and all advances made on the security thereof and to all renewals, modifications, consolidations, replacements and extensions thereof. Notwithstanding such subordination, Lessee's right to quiet possession of the Premises shall not be disturbed if Lessee is not in default and so long as Lessee shall pay the rent and observe and perform all of the provisions of this Lease, unless this Lease is otherwise terminated pursuant to its terms. If any mortgagee, trustee or ground lessor shall elect to have this Lease prior to the lien of its mortgage, deed of trust or ground lease, and shall give written notice thereof to Lessee, this Lease shall be deemed prior to such mortgage, deed or trust, or ground lease, whether this Lease is dated prior or subsequent to the date of said mortgage, deed of trust or ground lease or the date of recording thereof, B. Lessee agrees to execute any documents required to effectuate an attornment, a subordination or to make this Lease prior to the lien of any mortgage, deed of trust or ground lease, as the case may be. Lessee's failure to execute such documents within 10 days after written demand shall constitute a material default by Lessee hereunder, or, at Lessor's option, Lessor shall execute such documents on behalf of Lessee as Lessee's attorney-in-fact. Lessee does hereby make. constitute and irrevocably appoint Lessor as Lessee's attorney-in-fact and in Lessees name, place and stead, to execute such documents in accordance with this paragraph 16.213. 17.1 Notices A. Unless otherwise specifically provided herein, all notices, demands or other communications given hereunder shall be in writing and shall be deemed to have been given as of the second business day after mailing by United States registered or certified mail, return receipt requested, postage prepaid, addressed as follows: If to Lessor, to: Seta Boyadjian 8690 Robinhood Lane La Jolla, California 92037 If to Lessee, to: Poell' s Ste-Se or 3050 Pio Pico Drive Carlsbad, California 92008 Attn:—Doug Butcher & G.Hax Doug Butcher c/o Welch's House of Music 1722 A Sweetwater Road National City, CA 92050 or, to such other address or to such other person as any party shall designate to the other in the manner hereinabove set forth. 18.1 Attorney Fees A. If either party, named herein brings an action or declare rights hereunder, the prevsi]inR party fri appeal, shall be entitled to his reasonable attorney's party as fixed by the court. 19.1 Quiet Possession to enforce the terms hereof any such action, on trial or Zees to be paid by the losing A. Upon Lessee paying tbn rer fo" the premises and observing and performing all of the coveiiants, conditions and provisions on Lessee's part to be observed •i b and performed hereunder, Lessee shall have quiet possession of the premises for the entire term hereof subject to all of the provisions of this Lease. 20.1 Severability A. The invalidity of any provision of this Lease as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof. 21.1 Quitclaim Deed. A. Promptly after (i) expiration of the Term or (ii) the termination of Lessee's rigtt of possession pursuant to the Article entitled "Defaults; Remedies" Lessee, Without necessity of demand or request therefor, shall deliver to Lessor a quitclaim deed to Lessor as grantee, signed and acknowledged in recordable form by Lessee and declaring that its purpose is to extinguish all the rights, title, and interest of Lessee hereunder. 22.1 General Provisions A. Any holding over after the expiration of the Term, with the express or implied consent of Lessor, shall be construed to be a tenancy from month to month only, at the same rental and other terms and conditions as are herein set forth. The term shall be construed to include any extension thereof. B. Time is of the essence of this Lease. C. This Lease and all of the covenants and conditions herein contained shall be binding upon and shall inure to the benefit of the heirs, executors, administrators, assigns and other successors in interest of each of the parties; nothing contained in this paragraph shall alter or affect the provisions of the Articles entitled "Assignment and Subletting" and "Defaults and Remedies". D. The titles of the articles of this Lease are for reference purposes only and have no effect upon the construction or interpretation of any part hereof. The use herein of the singular number includes the plural, and vice versa, and the use herein of the neuter gender includes the masculine and the feminine, and vice versa, veneveL aiid wiieever the context so requries. E. This Lease sets forth the entire understanding between the parties hereto with respect to all matters referred to herein and the provisions hereof may not be changed or modified except by an instrunicnt ii writing signed by both parties hereto. F. This Lease is made and delivered within the State of California and shall be construed and enforced in accordance with the laws of the State of California. G. The waiver by Lessor of any breach (as the same is defined in the Article entitled "Defaults;Remedies") shall not be deemed to he a waiver of any such subsequent breach, The subsequent acceptance of rent hereunder by Lessor shall not be deemed to be a waiver of any preceding breach by Lessee, other than the failure of Lessee to pay the particular rent so accepted, regardless of Lessor's knowledge of such preceding breach at the time of acceptance of such rent. : Al H. All exhibits attached hereto are hereby made a part of and are incorporated into this Lease. This Lease has been sign.d in duplicate in San Diego County, California as of the date acconpanying each s.icfnature. LESSOR: LESSEE Dated: SETA BOY10J1 2 Dated: G. HARRIS IJARM?N JAMES D. B07CHER / / mm -12- iH :J - -. ri LEGAL DESCRIPTION Parcel B, in the City of Carlsbad, County of San Diego, State of California, as shown at Page 3598 of Parcel Naps, recorded in the Office of the County Recorder of San Diego County, February 28, 1975. - I I! II EXHIBIT A V RETURN R[CORDIi) UCT TO: 74-131027 City of Carlsbad 200K 1974 l?QO Llm Avenue 803 ;E(.GROEDRE3UESIOF Carlsbad. California 92038 CITY :LEldc 4AT) 10 20 A9'14 .AGREEStC)IT FOR JOINT PARKINC FACILITIES _N DIEGO COUNTY.CALIF. AND (;R\NT OF RECIPROCAL PARI(INC EASEMENTS HARLCYF.BLOOM - RECORDER THIS AGREI*IEWT is made this 9_ day of 1 9'4, between C,\I{LSBAE) INVESTMENT CORPORATION (hereinafter referred to as Party A) and COLONIAL MALL, LTD., a Limited Partnership, (hereinafter referred tf , as Party 13) , both of Carlsbad, California. R E C I T A L S: WHEREAS, t -ic parties own adjoining parcels of real estate in the City of Carlsbad, County of San Diego, State of California, described as follows: i. Parcel A i. owned by Party A and is described in Exhibit "A" attached hereto. - 2. Parcel 13 is owned by Party B and is described in Exhibit "B" attached hereto. WHEREAS, Party A has constructed a restaLrant on Parcel A known as The -Wayside Inn. The principals of Party A are also the principals of Party B aid desire to develop Parcel j3 for a Colonial Mall shopping and professional complex; and WIIEP.LAS, there LS insufficient parking or. Parcel B to accommodate the proposed development; and 11IEREAS, Section 21.44.160 of the Carlsbad Municipal Code provides for the jojLL Use of parking facilities in ssessorc "arcel ;o'-.. 15C'--l'0-39 156-1-21 and 1!;F-1-38 - /'//9 certain circumsta:.es. rn this case, the restaurant opera- tion on Parcel A has been determined to be primarily a nighttime use. 'therefor'-, under the terms of the ordinance a portion of the parking spaces on Parcel A may be made wail le to satisfy the parking requirement on Parcel B, which has ben clissifed primarily as a daytime use: and W-IEREAS, ?arty A and Party B have asked that the City of Carlsbad pro',e said joint use of parking facilities in order to facilitate the planned development, it is a condi- tion of sich approval that the parties exchange mutual agreements and covenants and easements to insure that the parking spaces will be available in the future; NDW, THEREFORE, the parties agree as follows: -" 1. Part' A hereby grants to Party 13 an casement in favor of Parcel B over Parcel A as follows: The ease- ment is nnexclusive and the owner of Parcel B shall have the right to utilize up to a maximum of 50 parking spaces located on Parcel A, including any necessary rights of access. 2. Party B hereby grants to Party A an easement in favor of Parcel A over Parcel B as follows: The ease- ment is nonexclusive and the owner of Parcel A shall have the right to utilize up to a maximum of 50 parking spaces located on Parcel B, including any necessary rights of access. 2. MI AU 805 3. These rutual easements are superior and para- mount to the rights of any of the parties heieto in the respective servient estates so created, and the parties furth - agree that these covenants shall run with both par- cels of land described herein and may not be removed or modified without the consent of the City of Carlsbad. 4. In order to insure that the mutual exchange of easements is mcaninqful and insures adequate parking to meet the ordinance recuirernents of the City of Carlsbad is available to both parcels at all times, the parties further agree as follows: (a) Party A will at all times in the future keep in good repair all driveway and parking facilities located upon Parcel A, including any capital improvements made with respect thereto. All such repairs and improvements shall be made at the expense of Party A. (b) Party B will at all times in the future keep in good repair all driveway and parking facilities located upon Parcel B, ircirding any capital improvements made with respect thereto. All such repairs and improvements shall be made at the expense of Party B. (c) These mutual covenants are superior and para- mount to the rights of any of the parties in the respective servient estates so created, and the parties further agree that these covenants shall run with both parcels of land described herein. The City of Carlsbad retains the right 3. ..j pII,4 a bOG to seex enforcement of th&se covenantF. IN WITNESS WHEREOF, the parties hereto have executed thisa,,-cement at Carlsbad, California, the day and year first above written. - - CASLSD I STMENT CORPORATN.' a calVdrn a corporation By I 42, - 5 NL t. Watson,Pres.Party i CMAL , D., a Limited P ip B. Rt L. Jatson, Party 13 Gene al Partner Acknowledgments STATE OF CALIFORNIA) ss. COUNTY OF SAN DIEGO) On May 8, 1974, before me, the undersigned, a Notary Public in and for said State, personally appeared Robert L. Watson, known to me to be the President of the corporation that executed the within instrument, known to me to be the person who executed the within instrument on behalf of the corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its bylaws or a resolution of its board of directors. JiITNISSm,Mrid and official seal. V..L 'SEAL 7C. NOTARY PUBLICPUBLIC _STATE OF CAL IFQR$) - )-9ss. COUNTY OF SAN DIEGO) On May 8, 1974, before me, the undersigned, a Notary Public in and for said State, personally appeared Robert L. Watson known to me to be the General Partner of the Limited Partnership that executed the within instrument and acknowl- edged to me that such partnership executed the same. WITNESS my hand and official seal. / NOTARY PUBLIC 4. (J I '\.) . . EXIICi3IT "A" ~01 Parcel "A" of Parcel Map No. 1007, in the City of Carlsbad, County of San Diejo, State of California, according to Map r...co •d in the c€fico of rhe County Recorder September 25, File No. 256552, being a portion of Tr.ct 115 of Carlsbad ac'cordir; t Amended Map of the Town Cf Cerlsbd, Map Mo. 775, fil1 in the office of the County Recorder of San Diego County, February 15, 1894. CD I bob C'3NAL NLL, L2. of Lc.:.; 7 zo 24 ir. 3.oc 26 o. T.ir. of 1;-. uhc. Cc.nty of San State of C1ifcrnia,c.crorri:ç to I-p thzreo Nc. 535, filed in D:ce of the o..n:y 25c0:d3r of San Diego County, Nay 2, 32; CCEi 7I- oron of 'rcct 15 of the Town cf in t.-.a County of San Dieco, State of California, according to ? teo: No. 775, filed in the of dice of Coanty 71ccorder of .Sar. Diego Conz:', ery 15, _C94, ea az :oew: t o1 ca e:. So the :t..rl' line of taroon Nc..a 527'0." Et.t, 13C1.9 feet ~cn :-str:J of Tr act :. 1:5 zL shc•.;n on thoreod No. 6. of Crlthac Lnnd., filad in the office of t: Cotaty ecordar of San iego Cctnty, Narch 1, ISIS, ;.id ?3.t eir.g the es: cthe:1y co:aer of land d ciood in e.acd to Ccorcjc ?no, at ux, in deed co::_-!:d in 2cc.. 2311, Pagce 005 of CicizL :e:ord.; thence along the Ceth- easterly lir.o of ia Prucc's land North 55273" East, 162.0 foot to a oint distant croon South 55°27'00" vest, 79.00 feet frcn the mo: t7cstary tamer of lane scriad an deed to Gecrge E. Leach, recorded Docor±er 21, 1927 in oo< 1393, Page 243 of oeds; thence South 3433'00" East, 20.00 feat to the Sottheater1y line of said Lot 24; thsrce alor.g the Southeasterly line of said Lot 24 and the Sout'.- wester.y proicngazion thereof, Sout -. 55 0 27 1 00' West, 162.30 feet; thence North 34°33'03' West, 00.10 feet to the Point of Beginning. T:NG therefroa that portion dcscried as follows: 2oginaing at a point on the So -theasterly line of Elm Aye- r.ue, distar.t thereon North 55 0 27 1 00" East, 1141.93 feet from the rost Weste:1y corner of Tract 115, as showr, on Nap thereof No. 1(61 of Carlahad Lands, filed in the office of the County Record-,r of San Diego County, March 1, 1915; thence North 3°27'D0" East along said Southeasterly line 102.30 foot; thenac South 34 0 33'00" East, 2.00 feet; thence South 53 1 270C" West, 102.30 feet; thence North 31°33'OC' West, 2.03 fet to the Point of Doginning. ALSO EXCEPTING thor2frcr. those portions described in deeds to the State f California, recorded March 12, 1968 as File No. 41121 and Dcccr,ber 10, 1968 as File No. 215586. -.1 2' S ,t RECORDING REQUESTED BY AND ) WHEN RECORDED MAIL TO: ) ) CITY OF CARLSBAD ) 1200 Elm Avenue ) Carlsbad, California 92008 ) Space above this line for Recorder's use Documentary transfer tax: $ 21.00 Signature of declarant determining tax-firm name City of Carlsbad Parcel No. AGREEMENT BETWEEN DEVELOPER-OWNER AND THE CITY OF CARLSBAD FOR THE PAYMENT OF A PUBLIC FACILITIES FEE THIS AGREEMENT is entered into this 26thday of November , 1985 by and between NITELIFE, INC. (name of developer-owner) a corporation , hereinafter referred to as (Corporation, partnership, etc.) "Developer" whose address is 3050 Pio Pico Drive (street) Carlsbad, California 92008 and THE CITY OF (City, state, zip code) CARLSBAD, a municipal corporation of the State of California, hereinafter referred to as "City", whose address is 1200 Elm Avenue, Carlsbad, California, 92008. W I T N E S S E T H: WHEREAS, Developer is the owner of the real property described on Exhibit "A:, attached hereto and made a part of this agreement, hereinafter referred to as "Property"; and WHEREAS, The Property lies within the boundaries of City; and WHEREAS, Developer proposes a development project as follows: REV 4-2-82 sP-c(c P,n on said Property, which development carries the proposed name of Rockwell's. a full service restaurant/bar/cabaret and is hereafter referred to as "Development"; and WHEREAS, Developer filed on the 25th day of November 1985 , with t-1e Cit y a request for a conditional use permit and an amendment to specific plan 25 (B) hereinafter referred to as "Request"; and WHEREAS, the Public Facilities Element of the City General Plan requires that the City Council find that all public facilities necessary to serve a development will be available concurrent with need or such development shall not be approved (said element is on file with the City Clerk and is incorporatedby this..reference); and WHEREAS, Developer and City recognize the correctness of Council Policy No. 17, dated April 2, 1982, in file with the City Clerk and incorporated by this reference, and that the City's public facilities and services are at capacity and will not be available to accommodate the additional need for public facilities and services resulting from the proposed Development; and WHEREAS, Developer has asked the City to find that public facilities and services will be available to meet the future needs of the Development as it is presently proposed; but the Developer is aware that the City cannot and will not be able to make any such finding without financial assistance to pay for such services and facilities; and therefore, Developer proposes to help satisfy the General Plan as implemented by Council Policy No. 17 by payment of a public facilities fee. -2- REV 4-2-82 NOW, THEREFORE, in consideration of the reals and the covenants contained herein, the parties agree as follows: 1. The Developer shall pay to the City a public facilities fee in an amount not to exceed 2% of the building permit valuation of the building orTstrctures to be constructed in the Development pursuant to the Request. The fee shall be paid prior to the issuance of building or other construction permits for the development and shall be based on the valuation at that time. This fee shall be in addition to any fees, dedications or improvements required pursuant to Titles 18, 20 or 21 of the Carlsbad Municipal Code. Developer shall pay a fee for conversion o f existing building or structures into condominiums in an amount not to exceed 2% of the building permit valuation at the time of conversion. The fee for a condominium conversion shall bepaidprior to the issuanceof a condominium conversion permit as provided in Chapter 21.47 of the Carlsbad Municipal Code. Condominium shall include community apartment or stock cooperative. The terms "other construction permits", "other construction permit" and "entitlement for use" as used in this agreement, except in reference to mobilehome sites or projects, shall not refer to grading permits or other permits for the construction of underground or street improvements unless no other permit is necessary prior to the use or occupancy for which the development is intended. Developer shall pay to City a public facilities fee in the sum of $1,150 for each mobilehome space to be constructed pursuant to the Request. The fee shall be paid prior to the issuance of building or other construction permits for the development. This fee shall be in addition to any fees, dedications or improvements required according to Titles 18, 20 or 21 of the Carlsbad Municipal Code. -3- REV 4-2-82 E-1A 2. The Developer may offer to donate a site or sites for public facilities in lieu of all or part of the financial obligation agreed upon in Paragraph 1 above. If Developer offers to donate a site or sites for pubic -facilities, the City shall consider, but is not obligated to accept the offer. The time for donation and amount of credit against the fee shall be determined by City prior to the issuance of any building or other permits. Such determination, when made, shall become a part of this agreement. Sites donated under this paragraph shall not include improvements required pursuant to Titles 18 or 20 of the Carlsbad Municipal Code. 3. This agreement and the fee paid pursuant hereto are required * to ensure the consistency of the Development with the City's General P:lan. If the fee is riot paid as provided herein, the City will not have the funds to provide public facilities and services, and the development will not be consistent with the General Plan and any approval or permit for the Development shall be void. No building or other construction permit or entitlement for use shall be issued until the public facilities fee required by this agreement is paid. 4. City agrees to deposit the fees paid pursuant to this agreement in a public facilities fund for the financing of public facilities when the City Council determines the need exists to provide the facilities and sufficient funds from the payment of this and similar public facilities fees are available. 5. City agrees to provide upon request reasonable assurances to enable Developer to comply with any requirements of other public agencies as evidence of adequate public facilities and services sufficient to accommodate the needs of the Development herein described. -4- REV 4-2-82 S 6. All obligations hereunder shall terminate in the event the Requests made by Developer are not approved. 7. Any notice from one party to the other shall be in writing, and shall be dated and signed by the party giving such notice or by a duly authorizd, representative of such party. Any such notice shall not be effective for any purpose whatsoever unless served in one of the following manners: 7.1 If notice is given to the City of personal delivery thereof to the City or by depositing same in the United States Mail, addressed to the City at the address set forth herein, enclosed in a sealed envelope, addressed to the City for attention of the City Manager, postage prepaid and certified. 7.2 If notice is given to Developer by personal delivery thereof to Developer or by depositing the same in the United States Mail, enclosed in a sealed envelope, addressed to Developer at the address as may have been designated, postage prepaid and certified. 8. This agreement shall be binding upon and shall inure to the benefit of, and shall apply to, the respective successors and assigns of Developer and the City, and references to Developer or City herein shall be deemed to be reference to and include their respective successors and assigns without specific mention of such successors and assigns. If Developer should cease to have any interest in the Property, all obligations of Developer hereunder shall terminate; provided, however, that any successor of Developer's interest in the property shall have first assumed in writing the Developer's obligations hereunder. 9. This agreement shall be recorded but shall not create a lien or security interest in the Property. When the obligations of this agreement have been satisfied, City shall record a release. -5- REV 4-2-82 S I IN WITNESS WH-EREOF, this agreement is executed in San Diego County, California as of the date first written above. DEVELOPER-OWNE-R: Nitelife, Inc. name) BY Harris CITY OF CARLSBAD, a municipal corporation of the State of California City Manager President (Title) BYDoug Butcher 7 Secretary - Treasurer (Title) ATTEST: ALETHA L. RAUTENKRANZ, City Clerk APPROVED AS TO FORM: VINCENT F. BIONDO, JR., City Attorney (Notarial acknowledgement of execution by DEVELOPER-OWNER must be attached.) I REV 4-2-82 STATE OF CALIFORNIA ) COUNTY ............................ ) SS. 198 . On , before me, the undersigned, a Notary Public in and for said State, personally appeared ............................known to me to be the.................................... President, and.. known to me to be the .................. .......... Secretary of the Corporation that executed the within Instrument, known toto be the persons who executed the within Instrument on behalf of the Corporation therein named, and acknowledged to me that sme uch Corporation executed the same, and acknowledged to me that such Corporation executed the within Instrument pursuant to its by-laws or a resolution of its board of directors. - WITNESS my hand and official seal. OFFICIAL SEAL' (Seal) NANCY M. MARTINEZ NOTARY PUBLIC-CALIFORNIA Public's Signature) -- -. . SAN bIEG0 COUNTY LjY Commission Expires Nov, 3o,l7 023077 7_77* 25 PS Corporation Notarial Acknowledgment . EXHIBIT "A" LEGAL DESCRIPTION Parcel B, in the City of Carlsbad, County of San Diego, State of California, as shown at Page 3598 of Parcel Maps, recorded in the Office of the County Recorder of San Diego County, February 28, 1975. SITE PLAN ROCKWELL'S ELM AVENUE COLONLAL MALL ;Lwwij: LJ / - I - Site I, Rockwell - Area :35570 so It 4 Scale: i : 20 -. Existing Zoning : 0-2 Proposed 1.100 Ua.rRsstaoranh/Sir/CabarC uo - Bldg Food Drink : 5500 sell - Landscaping 5% Parking Tabulation Area Existing Restaurant (without patio) 5,130 iq It - - Existing Patio PatIo 1054 sq It 104'i 13 8' 80055 Easement Patio Total 7,154 sq It - OR 204153 -- 3178 ParkIngpronldsd on site j Parking reserved at Colonial Mail Parking Span.. Required --1--.- 104 - __ 4o' Total provided 118 - (1 Vicinity Map Vehicular Access R.olrIot.d OR 155150 Applicant : NitsIits,lnc 3050 Plo PloD OAK AVE Carlsbad CA 92008 Doug Butcher (519)729-0904 Prepared by : Jam., A.Hutchlaon a Associates 8324 Allison, Ave., La M.si,CA CA 92041 (619)097-0445 Nonwnb.r,1a55 I /57ao Cl ol a)1 I 97OO/ WI. 4&x -'I Las Flores 9 10,0 ,0~&,. YO .7 4; .~071e:il-#, .000 1/5 3OO 0 - 01 os,-, ckwell' 10 C. \' \(,,V 1040L'x2 I iei 157,3oa Legend - 1985 Traffic, ADT /6,500 f Project Traffic, ADT 30,0 0 Ultimate Traffic, ADT PreDared_for Nitelife Inc. James A.,-Hutchison & Assoc. TRAFFICVOLUME ROCKWELL'S Carlsbad, Calif. Nov. 1985 JN 486 LOCATION MAP ROCKWELL'S Prepared for Nitelife inc. Carlsbad, Calif. By James Hutchison & Assoc. Nov. 1985 JN 486