HomeMy WebLinkAbout2006-01-24; City Council; Resolution 2006-0111 RESOLUTION NO. 2006-011 Exhibit
2 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, APPROVING AND
3 AUTHORIZING THE CITY MANAGER TO EXECUTE THE
4 AGREEMENT ASSOCIATED WITH THE LEASE OF 2833
STATE STREET. CARLSBAD
5 "WHEREAS, City of Carlsbad is the owner of real property located at2»33 State Street;
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7 WHEREAS, the existing lessee, Dale Perrigo dba the Village1 Grille has entered into
8 .escrow for the sale of his business interest to Thomas Powers;
9 WHEREAS, Dale Perrigo is requesting that the City consider Thomas Powers as a
10 replacement tenant for the property located at 2833 Slate Street to operate the Board & Brew
11 restaurant; and
12 /WHEREAS, City staff has reviewed financial information provided by Thomas Powers, and the
( \ /Board & Brew restaurant, and is recommending that the City accept Mr. Thomas as a
14 replacement tenant by entering into a three (3) year lease agreement between the City and Tom
15 \ \Powers d.b.a the Boarcb&NJBreW; and
16 WHEREAS, the City will receive lease revenue totaling approximately $ 52,628.
17 ^NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Carlsbad,
18 California as follow^:
19 1. Thaf the above recitations are true and correct.
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2. That the attached lease agreement, Exhibit 2, between the City of Carlsbad
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and Thomas Powers d.b.a. the Board & Brew is approved.
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3. That the City Manager is authorized to execute all documents related to
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leasing 2833 State Street.
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PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council on the
day of 2006, by the following vote to wit:
AYES:
NOES:
ABSENT:
CLAUDE^LEWIST
Mayor
ATTEST:
/
/
LORRAINE M. WOOD
City Clerk
(SEAL) /-x
Exhibit 2
CITY OF CARLSBAD
LEASE TO
THOMAS POWERS - DBA Board & Brew
OF PROPERTY LOCATED AT
2833 STATE STREET
CARLSBAD, CALIFORNIA 92008
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into this day of , 2006,
by and between the City of Carlsbad, hereinafter called "Lessor," and Thomas Powers d.b.a The
Board & Brew, hereinafter called "Lessee," without reference to number or gender, for property
located at 2833 State Street, Carlsbad, California, 92008.
WITNESETH:
WHEREAS, the City of Carlsbad is the owner of the real property located at 2833 State Street,
Carlsbad, California, 92008; and
WHEREAS, existing Lessee Dale Perrigo dba The Village Grille will sell his business interest to
Thomas Powers;
WHEREAS, The Lessor has reviewed financial information for Thomas Powers and the Board &
Brew and finds them in good order and acceptable;
WHEREAS, Lessor and Lessee desire enter into a new lease for the premises for a three (3) year
term, with two (2) one (1) year options to renew.
NOW, THEREFORE, it is understood and agreed by and between the parties hereto as follows,
to wit:
TO HAVE AND TO HOLD a portion of said leased premises for the term of this lease and upon
the conditions as follows:
1. TERM: The term of the lease shall be for a period of three (3) years beginning on March
1, 2006, and ending on February 28, 2009. Upon expiration of the lease, Lessee may
request to extend the term for two (2) additional one (1) year periods, provided Lessor
gives its consent to such extension, and there is mutual agreement upon the rental amount
for the additional periods. Lessee must request such extension in writing at least 120
days prior to the lease term expiration.
2. EARLY POSSESSION: On or before February 1, 2006. Early possession by
Lessee, as well as commencement of this lease, is contingent upon receipt by Lessor of
security deposit and evidence of insurance (See also Paragraph 25). All other terms of
this Lease (including but not limited to the obligations to pay Real Property Taxes and
Insurance premiums and to maintain the Premises) shall, however, be in effect during
such period. Any such early possession shall not affect the Expiration Date.
3. RENT:
(a) Lessee agrees to pay to Lessor the sum of one thousand four hundred eighty
nine dollars and thirty cents ($1489.30) per month, payable in advance on or
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before the first day of each and every month during the term of this
Agreement.
775 square feet Restaurant @ $1.42:
648 square feet Storage @ $.60
Total Rent
$1100.50
$ 388.80
$1489.30
(b) Rent shall be delivered to the Finance Department of the City of Carlsbad at
1635 Faraday Avenue, Carlsbad, California, 92008. The designated place of
payment and filing may be changed at any time by Lessor upon ten (10) days
written notice to Lessee. Lessee assumes all risk of loss if payments are made
by mail.
(c) In the event Lessee is delinquent in remitting the rent due in accordance with
the rent provisions of this lease, then the rent not paid when due shall bear
interest at the rate of Ten Per Cent (10%) per annum from the date due until
paid. Provided, however, that the Manager of Economic Development and
Real Estate shall have the right to waive for good cause any interest payment
for any such delinquency period upon written application of Lessee
(d) Total Rent payment for month 13 shall be abated, provided Lessee has had no
breach of contract, has not given notice of termination, has made no late
payments and has completed approved tenant improvements scheduled for
completion in months 1-12 (See also Paragraph 7(b)). Total Rent payment
for month 25 shall be abated provided Lessee has had no breach of contract,
has not given notice of termination, has made no late payments and has
completed all Lessor approved tenant improvements.
(e) Commencing on the anniversary date of this lease, in years two (2) and three
(3) rent shall increase as follows:
Year 2: One thousand five hundred and forty-eight dollars, and eighty-
seven cents ($1548.87) per month.
Year 3: One thousand six hundred and ten dollars and eighty-three cents
($1610.83) per month.
4. SECURITY DEPOSIT: Lessee shall deposit with Lessor upon execution hereof the
Security Deposit as security for Lessee's faithful performance of its obligations under this
Lease. If Lessee fails to pay Rent, or otherwise Defaults under this Lease, Lessor may
use, apply or retain all or any portion of said Security Deposit for the payment of any
amount due Lessor or to reimburse or compensate Lessor for any liability, expense, loss
or damage which Lessor may suffer or incur by reason thereof. If Lessor uses or applies
all or any portion of said Security Deposit, Lessee shall within ten (10) days after written
request therefore deposit monies with Lessor sufficient to restore said Security Deposit to
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the full amount required by this Lease. If the Rent increases during the term of this
Lease, Lessee shall, upon written request from Lessor, deposit additional moneys with
Lessor so that the total amount of the Security Deposit shall at all times bear the same
proportion to the increased Rent as the initial Security Deposit bore to the initial Base
Rent. Should the Agreed Use be amended to accommodate a material change in the
business of Lessee, Lessor shall have the right to increase the Security Deposit to the
extent necessary, in Lessor's reasonable judgment, to account for any increased wear and
tear that the Premises may suffer as a result thereof. Lessor shall not be required to keep
the Security Deposit separate from its general accounts. Within fourteen (14) days after
the expiration or termination of this Lease, if Lessor elects to apply the Security Deposit
only to unpaid Rent, and otherwise within thirty (30) days after the Premises have been
vacated, Lessor shall return that portion of the Security Deposit not used or applied by
Lessor. No part of the Security Deposit shall be considered to be held in trust, to bear
interest or to be prepayment for any monies to be paid by Lessee under this Lease.
5. USE:
(a) Lessee agrees that 775 square feet of leased premises designated as restaurant
shall be used by Lessee only and exclusively for operation of a restaurant and
for no other purpose whatsoever without the written consent of Lessor.
Lessee agrees that an additional 500 square feet of leased space designated as
storage, shall be used exclusively for storage and restroom facilities and for no
other purpose whatsoever without the written consent of the Lessor.
(b) Lessee shall not and is expressly prohibited from using the premises for any
other purpose or use whatsoever, whether it is purported to be in addition to or
in lieu of the particular exclusive use.
(c) Lessee shall actively and continuously use and operate the premises for the
limited particular exclusive use as expressly provided for in Paragraph 3 (a) of
this lease, except for failure to do so caused by acts of God.
6. EARLY TERMINATION: Lessee shall have a right to terminate this lease by first
giving one hundred twenty (120) days prior written notice to Lessor.
7. IMPROVEMENTS:
(a) Subject to Lessor approval, Lessee may, at its own expense, make interior
alterations or changes in the 1275 square feet of leased premises or cause to be
built, made or installed thereon any structures, machines, appliances, utilities,
signs or other improvements necessary or desirable for the use of said
premises and may alter and repair any such structures, machines or other
improvements; provided, however, that no alterations and changes shall be
made and no structures, machines, appliances, utilities, signs or other
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improvements shall be made, built or installed, and no major repairs thereto
shall be made except upon obtaining all necessary prior approvals from Lessor
and proper permits from the City of Carlsbad.
(b) Lessee shall provide Lessor with an Improvement Plan Schedule that shows a
time table for planned improvements for months 1-12, no later than April 1,
2006, in order to be eligible to receive rent abatement for month 13 (See Also
Paragraph 3(d)).
8. OWNERSHIP; REMOVAL; SURRENDER/RESTORATION:
(a) Ownership. Lessor shall have the right to require removal or elect ownership
of all alterations and utility installations made by Lessee, except for trade
fixtures, which shall be owned and removed by Lessee. Unless otherwise
instructed per Paragraph 6(b) hereof, all Lessee owned alterations and utility
installations shall, at the expiration or termination of this Lease, become the
property of Lessor and be surrendered by Lessee with the premises.
(b) Removal. By delivery to Lessee of written notice from Lessor, Lessor may
require that any or all Lessee constructed alterations or utility installations be
removed by the expiration or termination of this Lease. Lessor may require
the removal at any time of all or any part of any alterations or utility
installations made without the required consent.
(c) Surrender/Restoration. Lessee shall surrender the premises by the
expiration date or any earlier termination date, with all of the improvements,
parts and surfaces thereof broom clean and free of debris, and in good
operating order, condition and state of repair, ordinary wear and tear excepted.
"Ordinary wear and tear" shall not include any damage or deterioration that
would have been prevented by good maintenance practice. Lessee shall repair
any damage occasioned by the installation, maintenance or removal of trade
fixtures, alterations and/or utility installations, furnishings, and equipment
installed by or for Lessee and the removal, replacement, or remediation of any
soil, material or groundwater contaminated with hazardous substance (as
defined in Paragraph 22) by Lessee. Trade fixtures shall remain the property
of Lessee and shall be removed by Lessee. The failure by Lessee to timely
vacate the premises pursuant to this Paragraph 6 (c) without the express
written consent of Lessor shall constitute a holdover under the provisions of
Paragraph 29 below.
9. REPRESENTATIONS AND INDEMNITIES OF BROKER RELATIONSHIPS:
Lessor represents itself in this leasing transaction and has not enlisted the services of any
real estate brokerage related to this transaction. Lessor shall not be responsible for
payment of any compensation to any real estate brokerage that may be involved in this
leasing transaction or any subsequent options to renew. Any leasing commission(s)
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associated with this lease transaction, or any future lease transactions, including the
exercise of options to renew, shall be borne entirely by Lessee.
Lessee hereby agrees to indemnify, protect, defend and hold harmless from and against
liability for compensation or charges which may be claimed by any such unnamed
broker, finder or other similar party by reason of any dealings or actions of the Lessee
and/or Lessor, including any costs, expenses, or attorney's fees reasonably incurred with
respect thereto.
10. WAIVER OF RELOCATION BENEFITS: Lessee understands this lease agreement is
entered into for a specified period of time in order to provide interim use of the property.
Lessee therefore agrees to waive any and all relocation benefits defined in the California
Relocation Assistance Law (Government Code, Section 7260, et, seq.) after having the
opportunity to consult with legal counsel about potential entitlements.
11. LIENS:
(a) Lessee agrees that it will at all times hold Lessor free and harmless and
indemnify it against all claims for labor or materials in connection with
improvements, repairs, or alterations on the lease premises, including the costs
of defending against such claims, and reasonable attorney's fees incurred
therein.
(b) In the event that any lien or levy of any nature whatsoever is filed against the
lease premises or the leasehold interests of the Lessee, the Lessee shall, upon
written request of Lessor, deposit with Lessor a bond conditioned for the
payment in full of all claims upon which said lien or levy has been filed. Such
bond shall be acknowledged by Lessee as principal and by a corporation,
licensed by the Insurance Commissioner of the State of California to transact
the business of a fidelity and surety insurance company, as surety, and in
accordance with the City of Carlsbad's bonding requirements. Lessor shall
have the right to declare this lease in default in the event the bond required by
this paragraph has not been deposited with the Lessor within ten (10) days
after written request has been delivered to Lessee.
12. LEASE ENCUMBRANCE: Lessee understands and agrees that it cannot encumber the
lease, leasehold estate and the improvements thereon by a deed of trust, mortgage or
other security instrument. If any deed of trust, mortgage or other security instrument,
which encumbers the lease, leasehold estate and the improvements thereon is entered into
by Lessee, Lessor shall have the right to declare this lease in default.
13. ASSIGNMENT-SUBLEASE: Lessee shall not assign or transfer the whole or any part
of this lease or any interest therein, by merger, consolidation, dissolution or otherwise,
nor sublease the whole or any part of the leased premises, nor contract for the
management or operation of the whole or any part of the leased premises, nor permit the
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occupancy of any part thereof by any other person or business entity, nor permit transfer
of the lease by merger, consolidation or dissolution.
14. DEFAULT:
(a) It is mutually understood and agreed that if any default be made in the
payment of rental herein provided or in the performance of the covenants,
conditions, or agreements herein (any covenant or agreement shall be
construed and considered as a condition), or should Lessee fail to fulfill in any
manner the uses and purposes for which said premises are leased as above
stated, and such default shall not be cured within thirty (30) days after written
notice thereof if default is in the performance of the use obligation provisions
pursuant to Paragraph 3 of this lease, or ten (10) days after written notice
thereof if default is in the payment of rent, or in the performance of any other
covenant, condition and agreements, Lessor shall have the right to
immediately terminate this lease; and that in the event of such termination,
Lessee shall have no further rights hereunder, the Lessee shall thereupon
forthwith remove all personal property from said premises and shall have no
further right to claim thereto, and Lessor shall immediately thereupon, without
recourse to the courts, have the right to reenter and take possession of the
leased premises. Lessor shall further have all other rights and remedies as
provided by law, including without limitation the right to recover damages
from Lessee in the amount necessary to compensate the Lessor for all the
detriment proximately caused by the Lessee's failure to perform its
obligations under the lease or which in the ordinary course of things would be
likely to result there from.
(b) In the event of the termination of this lease pursuant to the provisions of this
paragraph, Lessor shall have any rights to which it would be entitled in the
event of the expiration or sooner termination of this lease.
15. BANKRUPTCY: In the event Lessee becomes insolvent, makes an assignment for the
benefit of creditors, files a petition in bankruptcy or becomes the subject of a bankruptcy
proceeding, reorganization, arrangement, insolvency, receivership, liquidation, or
dissolution proceeding, or in the event of any judicial sale of Lessee's interest under this
lease, Lessor shall have the right to declare this lease in default.
16. MAINTENANCE AND REPAIR:
(a) As part of the consideration for the leasing thereof, Lessee agrees to assume
full responsibility for the interior operation and maintenance throughout the
term and without expense to the Lessor. Lessee will perform all interior
maintenance, repairs and replacements, including glass, necessary to maintain
and preserve the premises in a good, safe, healthy and sanitary condition
satisfactory to Lessor and in compliance with all applicable laws. Lessee
agrees to keep premises free and clear of rubbish and litter, or any other fire
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hazards. Lessor shall be responsible for all exterior maintenance and
landscaping, except for maintenance and repair of storage area, including roof
structure.
(b) For the purpose of keeping the premises in a good, safe, healthy and sanitary
condition, Lessor shall have the right but not the duty, to enter, view, inspect,
determine the condition of and protect its interests in, the premises. If
inspection discloses that the premises are not in the condition described,
Lessee must perform the necessary maintenance work within thirty (30) days
after written notice from Lessor. Further, if at any time during the term of the
lease for the premises Lessor determines that the premises are not in the
condition described, Lessor may require Lessee to file and pay for a faithful
performance bond, to assure prompt correction without additional notice. The
amount of this bond shall be adequate, in Lessor's opinion, to correct the
unsatisfactory condition. The rights reserved in this section shall not create
any obligations or increase any obligations for Lessor elsewhere in this Lease.
17. TAXES AND UTILITIES: This lease may result in a taxable possessory interest, and
be subject to payment of property taxes. Lessee agrees to and shall pay before
delinquency all of the possessory taxes and assessments of any kind assessed or levied
upon Lessee or the leased premises by reason of this lease or of any structures, machines,
or other improvements of any nature whatsoever erected, installed or maintained by
Lessee, or by reason of the business or other activities of Lessee upon or in connection
with the leased premises. Lessee shall also pay any fees imposed by law for licenses or
permits for any business or activities of Lessee upon the leased premises or under this
lease. Lessee shall be responsible for payment of all maintenance and operating expenses
including insurance, taxes and all electricity and any other utilities to the premises, and
shall pay before delinquency any and all charges for utilities at or on the leased premises.
If Lessee fails to pay said possessory taxes, Lessor may declare default in accordance
with Paragraph 12. Lessee shall be responsible for payment of all utilities.
18. CONFORMANCE WITH RULES AND REGULATIONS: Lessee agrees that in all
activities on or in connection with the leased premises and in all uses thereof, including
the making of any alterations or changes and the installation of any machines or other
improvements, it will abide by and conform to all ordinances, codes, laws, rules and
regulations prescribed by the City of Carlsbad, including those of the County Health
Department, the State of California and Federal Government, as any of the same now
exist or may hereafter be adopted or amended.
19. NON-DISCRIMINATION: Lessee agrees not to discriminate against any person or
class of persons by reason of sex, color, race, religion, or national origin. If the use
provided for in this lease allows the Lessee to offer accommodations or services to the
public, such accommodations or services shall be offered by the Lessee to the public on
fair and reasonable terms.
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20. PARTIAL INVALIDITY: If any term, covenant, condition, or provision of this lease
is held by a court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the provisions hereof shall remain in full force and effect and shall in no
way be affected, impaired, or invalidated thereby.
21. HOLD HARMLESS: Lessee shall defend, indemnify, and hold harmless Lessor, its
officers and employees from liability, damage, and expense of any kind, including
reasonable attorney's fees, arising from all claims or causes of action of any kind
including but not limited to injury to or death of any person or persons, including Lessee,
its employees, and invitees resulting directly or indirectly from granting and performance
of this lease or arising from the use and operation of the leased premises or any defect in
any part thereof.
22. SUCCESSORS IN INTEREST: Unless otherwise provided in this lease, the terms,
covenants and conditions herein shall apply to and bind the heirs, successors, executors,
administrators, and assigns of al the parties hereto, all of whom shall be jointly and
severally liable hereunder.
23. EASEMENTS: This lease and all rights given hereunder shall be subject to all
easements and rights-of-way now existing or heretofore granted or reserved by Lessor in,
to or over the leased premises for any purpose whatsoever, and shall be subject to such
rights-of-way for reasonable access, sewers, pipelines, conduits and such telephone, cable
television, telegraph, light heat or power lines as may from time to time be determined by
the Lessor. Lessor agrees that such easements and rights-of-way shall be so located and
installed as to produce a minimum amount of interference to the business of Lessee.
24. HAZARDOUS SUBSTANCES: The term "Hazardous Substance" as used in this
Lease shall mean any product, substance, or waste whose presence, use, manufacture,
disposal, transportation, or release, either by itself or in combination with other materials
expected to be on the premises, is either: (i) potentially injurious to the public health,
safety or welfare, the environment or the premises, (ii) regulated or monitored by any
government authority, or (iii) a basis for potential liability of Lessor to any governmental
agency or third party under any applicable statue or common law theory. Lessee shall not
cause or permit any Hazardous Substance to be spilled or released in, on, under, or about
the premises (including through the plumbing or sanitary sewer system) and shall
promptly, at Lessee's expense, take all investigatory and/or remedial action reasonably
recommended, whether or not formally ordered or required, for the cleanup of any
contamination of, and for the maintenance, security and/or monitoring of the premises or
neighboring properties, that was caused or contributed to by Lessee, or pertaining to or
involving any Hazardous Substance brought onto the premises during the term of this
Lease, by or for Lessee, or any third party.
25. INSURANCE: Lessee shall obtain and maintain for the duration of this lease agreement
and any and all amendments, insurance against claims for injuries to persons or damage
to property which may arise out of or in connection with use of the subject building and
provision of services by Lessee. The insurance will be obtained from an insurance carrier
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admitted and authorized to do business in the State of California. The insurance carrier is
required to have a current Best's Key Rating of not less than "A-V". The policies for
said insurance shall, as a minimum, provide the following forms of coverage:
(a) Comprehensive General Liability - (covering premises and operations in
the amount of not less than One Million Dollars ($1,000,000) combined single
limit per occurrence for bodily injury, personal injury and property damage. If
the submitted policies contain aggregate limits, general aggregate limits will
apply separately under this lease or the general aggregate will be twice the
required per occurrence limits. Lessor shall be named as an additional insured
entitled to primary coverage.
(b) Property Insurance — Lessee shall obtain and maintain insurance coverage
on all of Lessee's personal property, trade fixtures, alterations and utility
installations. Such insurance shall be full replacement cost coverage with a
deductible of not to exceed $5,000.00 per occurrence. The proceeds from any
such insurance shall be used by Lessee for the replacement of personal
property and trade fixtures as well as alterations and utility installations.
Lessor will be responsible for providing coverage for the structure itself,
exclusive of the items required to be covered by Lessee's insurance policy.
(c) Business Interruption - Lessee shall obtain and maintain loss of income and
extra expense insurance in amounts as will reimburse Lessee for direct or
indirect loss of earnings attributable to all perils commonly insured against by
prudent lessees in the business of Lessee or attributable to prevention of
access to the premises as a result of such perils.
(d) Evidence of Insurance - Certificates and endorsements in a form acceptable
to Lessor evidencing the existence of the necessary insurance policies shall be
kept on file with Lessor during the entire term of this lease. All insurance
policies shall be primary coverage, and will name Lessor as an additional
insured, protect Lessor against any legal costs in defending claims and will
not terminate without thirty (30) days written notice to Lessor.
(e) Lessor shall retain the right at any time to review the coverage, form, and
amount of the insurance required hereby. If, in the opinion of the Lessor, the
insurance provisions in this lease do not provide adequate protection for
Lessor and/or for members of the public using the leased premises, Lessor
may require Lessee to obtain insurance sufficient in coverage, form and
amount to provide adequate protection. Lessor's requirements shall be
reasonable but shall be designed to assure protection from and against the kind
and extent of risk, which exist at the time a change in insurance is required.
(f) Lessor shall notify Lessee in writing of changes in the insurance requirements
and, if Lessee does not deposit certificates/endorsements evidencing
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acceptable insurance policies with Lessor incorporating such changes within
thirty (30) days of receipt of such notice, this lease shall be in default without
further notice to Lessee, and Lessor shall be entitled to all legal remedies.
(g) The procuring of such required policies of insurance shall not be construed to
limit Lessee's liability hereunder, nor to fulfill the indemnification provisions
and requirements of this lease. Notwithstanding said policies of insurance,
Lessee shall be obligated for the full and total amount of any damage, injury,
or loss caused by negligence or neglect connected with this lease or with the
use or occupancy of the leased premises.
(h) Lessee agrees not to use the premises in any manner, even if use is for
purposes stated herein, that will result in the cancellation of any insurance
Lessor may have on the premises, or on adjacent premises, or that will cause
cancellation of any other insurance coverage for the premises, or adjoining
premises. Lessee further agrees not to keep on the premises or permit to be
kept, used, or sold thereon, anything prohibited by any fire or other insurance
policy covering the premises. Lessee shall, at its sole cost and expense,
comply with any and all requirements, in regard to premises, of any insurance
organization necessary for maintaining fire and other insurance coverage at
reasonable cost.
26. WARRANTIES-GUARANTEES-COVENANTS: Lessor makes no warranty,
guarantee, covenant, including but not limited to covenants of title and quiet enjoyment,
or declaration of any nature whatsoever, concerning the condition of the leased premises,
including the physical condition thereof, or any condition which may affect the leased
premises, and it is agreed that Lessor will not be responsible for any loss, damage or costs
which may be incurred by Lessee by reason of any such condition or conditions.
27. DAMAGE TO OR DESTRUCTION OF PREMISES: In the event of damage to or
destruction by fire, the elements, acts of God, or any other cause, of twenty five percent
(25%) or less of the improvements located within the premises Lessee shall, within ninety
(90) days, commence and diligently pursue to completion the repair, replacement, or
reconstruction of improvements necessary to permit full use and occupancy of the
demised premises for the purposes required by this lease. Repair, replacement or
reconstruction of improvements within the demised premises shall be accomplished in a
manner and according to plans approved by Lessor; provided, however, Lessee shall not
be obligated to repair, reconstruct or replace the improvements following their
destruction in whole or substantial part (more than 25% of improvements) except to the
extent the loss is covered by insurance required to be carried by Lessee pursuant to
Paragraph 24 of this Lease (or would be covered whether or not such required insurance
is actually in effect). If Lessee elects not to restore, repair or reconstruct as herein
provided, then the Lease shall terminate. Rent shall not be abated during the repair
period, except to the extent that Lessor is compensated by Lessee's insurance for rental
loss. Lessor shall be entitled to any insurance proceeds and other compensation for the
loss.
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28. QUITCLAIM OF LESSEE'S INTEREST UPON TERMINATION: Upon
termination of this lease for any reason, including but not limited to termination because
of default by Lessee, Lessee shall execute, acknowledge and deliver to Lessor within
thirty (30) days after receipt of written demand thereof a good and sufficient deed
whereby all right, title and interest of Lessee in the demised premises is quitclaimed to
Lessor. Should Lessee fail or refuse to deliver the required deed to Lessor, Lessor may
prepare and record a notice reciting the failure of Lessee to execute, acknowledge and
deliver such deed and said notice shall be conclusive evidence of the termination of this
lease and of all right of Lessee or those claiming under Lessee in and to the demised
premises.
29. PEACEABLE SURRENDER: Upon the expiration of this lease or sooner termination
or cancellation thereof, as herein provided, Lessee will peaceably surrender said premises
to Lessor in as good condition as said premises were at the date of this lease, ordinary
wear and tear excepted. If the Lessee fails to surrender the premises at the expiration of
this lease or the earlier termination or cancellation thereof, Lessee shall defend and
indemnify Lessor from all liability and expense resulting from the delay or failure to
surrender, including, without limitation, any succeeding Lessee's claims based on
Lessee's failure to surrender.
30. WAIVER: Any waiver by Lessor of any breach by Lessee of any one or more of the
covenants, conditions, or agreements of this lease shall not be, nor be construed to be, a
waiver of any subsequent or other breach of the same or any other covenant, condition or
agreement of this lease, nor shall any failure on the part of Lessor to require or exact full
and complete compliance by Lessee with any of the covenants, conditions, or agreements
of this lease be construed as in any manner changing the terms hereof or to prevent
Lessor from enforcing the full provisions hereof. The subsequent acceptance of rent
hereunder by Lessor shall not be deemed to be waiver of any preceding breach by Lessee
of any term, covenant, or condition of this lease, other than the failure of Lessee to pay
the particular rental so accepted, regardless of Lessor's knowledge of such preceding
breach at the time of acceptance of such rent.
31. NO RIGHT TO HOLD OVER: Lessee has no right to retain possession of the
premises or any part thereof beyond the expiration or termination of this lease. In the
event that Lessee holds over, then the Base Rent shall be increased to one hundred fifty
percent (150%) of the Base Rent applicable during the month immediately preceding the
expiration or termination. Nothing contained herein shall be construed as consent by
Lessor to any holding over by Lessee.
32. QUIET POSSESSION: Lessee will at all times during the terms of this Lease occupy
the premises quietly and not commit any act, waste or nuisance which disturbs the quiet
enjoyment of the property for the Lessor, public, any neighbor or other tenant of Lessor.
33. ENTIRE UNDERSTANDING: This lease contains the entire and only understanding
and agreement of the parties, and Lessee, by accepting the same, acknowledges that there
2833 State Street
Thomas Powers d.b.a. the Board & Brew
City of Carlsbad-1/11/06
is no other written or oral understanding or agreement between the parties with respect to
the demised premises and that this lease supersedes all prior negotiations, discussions,
obligations and rights of the parties hereto. No waiver, modification, amendment or
alteration of this lease shall be valid unless it is expressly in writing and signed by
authorized persons of the parties hereto. Each of the parties to this lease acknowledges
that no other party, nor any agent or attorney of any other party, has made any promise,
representations, waiver or warranty whatsoever, express or implied, which is not
expressly contained in writing in this lease, and each party further acknowledges that it
has not executed this lease in reliance upon any collateral promise, representation, waiver
or warranty, or in reliance upon any belief as to any fact not expressly recited in this
lease.
34. TIME IS OF THE ESSENCE: Time is of the essence of each and all of the terms and
provisions of this lease.
35. NOTICES: Notices given or to be given by Lessor or Lessee to the other may be
personally serviced upon Lessor or Lessee or any person hereafter authorized by either in
writing to receive such notice or may be served by certified letter addressed to the
appropriate address hereinafter set forth or to such other address as Lessor and Lessee
may hereafter designate by written notice. If served by certified mail, forty-eight (48)
hours after deposit in the U.S. Mail, service will be considered completed and binding on
the party served.
TO LESSEE TO LESSOR
Thomas Powers d.b.a Manager of Economic Development &
Board & Brew Real Estate
2833 State St. 1635 Faraday Avenue
Carlsbad, CA 92008 Carlsbad, CA. 92008
Carlsbad, CA 92008
34. ABSTRACT OF LEASE: This is the final Paragraph and Abstract of Lease dated
2006, between the CITY OF CARLSBAD, Lessor and Thomas Powers -
d.b.a. The Board & Brew, concerning the Leased Premises, referenced more specifically in
Exhibit "A" ABSTRACT OF LEASE.
2833 State Street
Thomas Powers d.b.a. the Board & Brew
City of Carlsbad-1/11/06
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH
TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE
SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES
HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS
LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND
PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.
The parties hereto have executed this Lease at the place and on the dates specified above their respective
signatures.
Executed at: QA&xs64f). <*" _ Executed at: _
on:
By LESSEE
LVfo A--
By: _
Name Printed:
Title:
By: _
_
: 'T
Name Printed:
Title:
Address:
Telephone:
Facsimile:
M lOu)**-^
. fW/«~^ (3 «*:/•«.
cr-
on:
By LESSOR:
THE CITY OF CARLSBAD
By:
Name Printed: Raymond R. Patchett
Title: City Manager. City of Carlsbad
Address: 1200 Carlsbad Village Drive
Carlsbad. CA 92008
Telephone: (760 ) 434-2821
Facsimile: (760) 720-9461
Approved:
By:
RONALD R. BALL
CITY ATTORNEY
Date:
2833 State Street
Thomas Powers d.b.a. the Board & Brew
City of Carlsbad-1/11/06
RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:
Carlsbad City Clerks Office
1200 Carlsbad Village Drive
Carlsbad, CA 92008
ABSTRACT OF LEASE
This Abstract of Lease, hereinafter "Abstract", dated ^A**' '13- 2006, between
the CITY OF CARLSBAD, Lessor and Tom Powers d.b.a THE BOARD N BREW, Lessee, concerning
the Leased Premises at 2833 State Street, Carlsbad, CA 92008.
For good and adequate consideration, Lessor leases the Leased Premises to Lessee, and Lessee
hires for them from Lessor, for the term and on the provisions contained in the Lease dated
-3*rJ- »- 2006, the Abstract of which is recorded by the San Diego County Recorder's
Office, including without limitation provisions prohibiting assignment, subleasing, and encumbering said
leasehold, as more specifically set forth in said Lease, which said lease is incorporated in this Abstract by
this reference.
The term of this lease is three (3) years, beginning March 1,2006, and ending February 28,2009.
This Abstract is not a complete summary of the Lease. Provisions in this Abstract shall not be
used in interpreting the Lease provisions. In the event of conflict between this Abstract and other parts of
the Lease, the other parts shall control. Execution hereof constitutes execution of the Lease itself.
IN WITNESS WHEREOF, each of the undersigned has executed mis Abstract as of the dates set
forth in the respective notary acknowledgements attached hereto.
Executed at: C&A- Executed at:
on: ^ .!*+•• !*..«-> * on:
By LESSEE: ,. By LESSOR:
THE CITY OF CARLSBAD
By: ' (jrf^j cngg-'"*- By:
Name Printed: .'"/ V.r\ I .OW<A~> , Name Printed: Raymond R. Patchett
Title: OlJAjeA - 1 fVu<P- ^ ^acffrZ' Title: City Manager. City of Carlsbad
Address: Sl<3*— &*-l/*v*^ CT- Address: 1200 Carlsbad Village Drive
&• * *if>-i?Ja Carlsbad CA 92008
Telephone:(tf sty rS I ~IU}~\ Telephone:(7601434-2821
Facsimile: ftfftft t if r a /C?fc» Facsimile: (7601720-9461
APPROVED:
2833 State Street
Thomas Powers d.b.a. the Board & Brew
City of Carlsbad-1/11/06
BY:
RONALD R. BALL
CITY ATTORNEY
DATE:
2833 State Street
Thomas Powers d.b.a. the Board & Brew
City of Carlsbad-1/11/06
STATE OF CALIFORNIA)
COUNTY OF SAN DIEGO)
On I//AV '^. t^-o *> before me,
_, personally appeared.
personally known tu mu (or proved to me on the basis of satisfactory evidence) to be the
person(S) whose name(s) is/aw subscribed to the within instrument and acknowledged to me
that he/she/they executed the same in his/hecfthek authorized capacrty(iec), and that by
his/hw/their signature^ on the instrument the person(s), or the entity upon behalf of which the
persons) acted, executed the instrument.
WITNESS my hand and official seal.
Signature.
OFFICIAL SEAL
RUFUS M. ABELSOHN „
.NOTARY PUBLIC-CALIFORNIAS1 COMM. NO. 1597106 ^
SAN DIEGO COUNTY |
MY COMM. EXP. AUG. 8,20091
2833 State Street
Thomas Powers d.b.a. the Board & Brew
City of Carlsbad-1/11/06