Old City Hall - Saffron Restaurant Consent to Assignment and Assumption of Lease
CONSENT TO ASSIGNMENT AND ASSUMPTION OF LEASE
THIS CONSENT TO ASSIGNMENT AND ASSUMPTION OF LEASE ("Consent") is
made as of this first (1 st) day of October, 2008 by and among THE CITY OF GILROY, a
California municipal corporation ("Landlord"), CHIPS N SALSA, INC., a California corporation
("Assignor"), and SAFFRON RESTAURANT GROUP, LLC, a California limited liability
company ("Assignee").
RECITALS
A. Pursuant to that certain Single Tenant Lease, dated for reference purposes only
May 6, 2003, between Landlord, as landlord, and Assignor's predecessor in interest, Old City
Hall, LLC, a California limited liability company, as tenant, as amended by First Amendment to
Lease dated as of September 30, 2008 between Landlord and Tenant (collectively, the "Lease"),
Landlord currently leases to Assignor, and Assignor leases from Landlord, certain premises
("Premises") commonly known as Old City Hall located at 7400 Monterey Street, Gilroy,
California (Assessor's Parcel No. 841-06-061 and 841-08-044) and more particularly described
in Exhibit "A" to the Lease.
B. Assignor has assigned all of its right, title and interest under the Lease to
Assignee, and Assignee has assumed all of the obligations of Assignor under the Lease, pursuant
to that certain Assignment and Assumption of Lease, dated as of September 30, 2008 (the
"Assignment Date"), a copy of which is attached hereto as Exhibit "A" ("Assignment").
C. Pursuant to Section 9 of the Lease, Assignor and Assignee have requested
Landlord's consent to the assignment of the Lease to Assignee.
Landlord hereby consents to the Assignment, subject to and upon the following terms and
conditions, to each of which Assignor and Assignee expressly agree:
1. Neither the Assignment nor this Consent shall release or discharge Assignor from
any liability under the Lease and Assignor shall remain fully liable and responsible for the full
performance and observance of all of the provisions, covenants and conditions set forth in the
Lease on the part of the tenant to be performed and observed under the Lease,
2. Assignee hereby expressly assumes and agrees for the benefit of Landlord to
perform and comply with each and every obligation of Assignor arising under the Lease on or
after the Assignment Date. In the event of any default by Assignee under the Lease, Landlord
may proceed directly against Assignee, or anyone else liable under the Lease without first
exhausting Landlord's remedies against any other entity liable under the Lease.
3. Except as expressly set forth in this Consent, nothing contained in this Consent
shall either (a) modify, waive or affect any of the provisions, covenants or conditions in the
Lease, any obligations of the tenant under the Lease, or any rights or remedies of Landlord under
the Lease, or otherwise, or enlarge or increase Landlord's obligations or the tenant's rights under
the Lease or (b) waive any present or future breach or default on the part of tenant under the
Lease.
4. In connection with the foregoing, Landlord represents for the benefit of Assignee
that Landlord is not aware of any existing event of default under the Lease or any condition that
with notice and the passage of time or otherwise might ripen into an event of default under the
Lease. Landlord acknowledges that Assignee is relying upon the representations set forth in this
paragraph in executing the Assignment.
INJJI773476,1
092508-04706132
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5. Concurrently with the execution of this Consent, Assignee shall furnish to
Landlord the certificates of insurance required pursuant to Section 7 of the Lease.
6. This Consent shall not be construed as a consent to any further assignment of the
Lease or subletting of the Premises and does not relieve Assignee or any person claiming under
or through Assignee of the obligation to obtain the consent of Landlord pursuant to Section 9 of
the Lease.
7. Assignee hereby waives any and all claims Assignee may have against Landlord
arising out of the assignment of the Lease by Assignor to Assignee or the negotiations preceding
the assignment of the Lease,
8, Each individual executing this Consent on behalf of Assignor or Assignee
represents and warrants that he/she is duly authorized to execute and deliver this Consent on
behalf of such party, and that this Consent is binding upon such party. Concurrently with the
execution and delivery of this Consent, each of Assignor and Assignee shall provide Landlord
with a certificate of incumbency or other evidence satisfactory to Landlord that the individual
executing this Consent on behalf of such party is authorized to execute this Consent and bind
such party.
9. This Consent contains the entire agreement of the parties with respect to the
subject matter hereof and may not be changed or terminated orally or by course of conduct. This
Consent shall be governed by the laws of the State of California, and venue in the event of any
action in any court of law shall proper only in Santa Clara County.
10. This Consent may be executed in counterparts, each of which shall be deemed an
original and all of which together shall be deemed one and the same instrument.
[signatures appear on next page]
INJJ\773476.1
092508-04706132
- 2 -
IN WITNESS WHEREOF, the parties hereto have duly executed this Consent as of the
day and year first above written.
LANDLORD:
Dated: jCN}jJC~()!o '6
GILROY,
municipal
By:
ATTEST:
fi;iJJJlX 11 m
Dated:... .J~(
APPJ;:;~:ORM
~+-.~ Unda P. Callon, City Attorney
7
ASSIGNOR:
Dated:
CHIPS N SALSA, INC., a California
Corporation
Dated:
By:
Jim Angelopoulos
Dated:
ASSIGNEE:
SAFFRON RESTAURANT GROUP, LLC,
a California limited liability company
Dated:
By:
Gary Walton,
Managing Member
INJJ\773476.1
092508-04706132
- 3 -
...
IN WITNESS WHEREOF, the parties hereto have duly executed this Consent as of the
day and year first above written.
LANDLORD:
THE CITY OF GILROY,
a California municipal
corporation
Dated:
By:
Thomas 1. Haglund,
City Administrator
ATTEST:
Dated:
Shawna Freels, City Clerk
APPROVED AS TO FORM:
Dated:
Linda A. Call on, City Attorney
ASSIGNOR:
Dated:
I D J J-1 /0 <:J
,
CHIPS N SALSA,
Corporation
Dated:
0'1
ASSIGNEE:
SAFFRON RESTAURANT GROUP, LLC,
a California limited liability company
Dated:
(Dj-P7 / 6 ct
,
By:
//J~1-.
I
qary W
Manag'
INJJI773476,1
092508-04706132
- 3 -
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment of Lease") is
executed as of this 15t day of October, 2008 (the "Assignment Date"), by and between CHIPS N
SALSA, INC, a California corporation ("Assignor") and SAFFRON RESTAURANT GROUP,
LLC, a California limited liability company ("Assignee").
For good and valuable consideration, receipt of which is hereby acknowledged, Assignor
hereby assigns to Assignee all of its right, title and interest as the tenant in and under that certain
Single Tenant Lease for reference purposes only dated May 6, 2003, by and between the City of
Gilroy and Assignor's predecessor in interest, Old City Hall, LLC, a California limited liability
company, as amended by First Amendment to Lease dated September 30, 2008 by and between
the City of Gilroy and Assignor (collectively, "Lease") for certain property located at 7400
Monterey Street, in the City of Gilroy, Santa Clara County, (Assessor's Parcel Numbers 841-06-
061 and 841-08-044), and more particularly described in the Lease, a copy of which is attached
hereto as Exhibit "A" and incorporated herein by this reference.
Assignee hereby accepts the foregoing assignment and assumes and agrees to perform all
of the obligations of Assignor arising under the Lease on or after the Assignment Date in
accordance with all of the terms, covenants and conditions of the Lease on the part of Tenant..
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment and
Assumption of Lease as of , 2008.
ASSIGNOR:
CHIPS N SALSA, INC., a California
Corporation,
Dated:
By:
Its:
ASSIGNEE:
SAFFRON RESTAURANT GROUP, LLC,
a California limited liability company
Dated:
By:
Gary Walton
Its: Managing Member
INJJ\773475,1
092508-D4706132
EXH!BIT A
- 1 -
'. .
SINGLE TENANT LEASE
THIS LEASE for reference purposes only dated May 6, 2003, is entered into by and
between THE CIty OF G~OY C~dlord") and 0/.,( C ,. Iy ..51" /~ LL(,....
J . D . 'm, e &i I ~ I ("Tenant").
( om.f'It.~
J. PREMISES. LandJord hereby leases to Tenant and Tenant hereby hires from
Landlord that certain real property" together with the improvements constructed thereon and
Landlord's Property (defined in Paragraph 6.3) therein, consisting of a free standing building,
with appurtenant garden area and parking lot, commonly known as Old City Hall located at 7400
Monterey Street, Gilroy, California as shown on EXHIBIT A attached hereto (Assessor's Parcel
No. 841-06-061 and 841-08-044) ("Premises") upon all of the conditions and agreements set
forth herein.
!l 2. LEASE ~~ of this Lease ("Tenn") .ha1J be for a tena of sixty (60)
months, commencing on € ~,')2003 (the "Commencement Date"), subject to any renewal
1ttIt option granted he!ei~ and earlier term~nat~on as p~ovided in this Lease. "Lease Termination"
'r shall.mean the eXpiratIOn or sooner temunatlOn of thIS Lease.
I
2.1 Delivery of Possession. If Landlord is unable to deliver possession of the
Premises to Tenant on the Commencement Date, Landlord shall not be subject to liability
therefor, nor shaH such failure affect the validity of this Lease or the obligations of Tenant or
extend the Commencement Date; provided however that the expiration date of the Lease shall be
extended by the number of days Landlord delays in delivering possession of the Premises to
Tenant, and Tenant's payment of Rent and Real Property Taxes shall be abated beginning on the
Commencement Date for a period equal to the period of as to any such delay, unless delay in
deJivering possession of the Premises was caused or contributed to by Tenant or Tenant's agents,
officers, employees, contractors, servants or invitees (colle~tively "Tenant Agents").
Possessions shall be deemed to have occurred on the date the Premises could have been
delivered to Tenant but for such delay. Notwithstanding the foregoing., jf Landlord has not
delivered possession of the Premises within sixty (60) days after the Commencement Date,
Tenant may, at Tenant's option, terminate this Lease by delivering to Landlord written notice of
termination, which notice shall be delivered prior to the date that Landlord delivers or is deemed
to have delivered possession of the Premises to Tenant. As to any delay caused or contributed to
by Tenant or Tenant's Agents, there shall be no extension of the expiration .ja~e or abatement cf
Rt;r;r and Real Property Taxes.
'":' ') Inserted for numbering purposes only.
2,3 Acceptance. By taking possession of the Premises; Tenant shall be
deemed to have accepted the Premises as being in good and sanitary order. condition and repair
and in the condition required by the Lease. subject to all applicable Lav,IS, and subjeci tc;
Paragraph 6 J be/ow. Landlord shaH have no obligation to construct any improvements within
the Premises for the benefit of T enam. Neither Landlord nor Landlord's agents makes any
\t'JIJH~~;f;0~~ !.
representation or warranty as to the suitability of the Premises for the conduct of Tenant's
business the condition of the Premises, or the use of occupancy which may be made thereof and
Tenant has i'.'dependently investigated and i. satisfied that the Premises are and will b<i)roitable
for Tenant's mtended use.
2.4 Notice to Tenant of Construction Work. Landlord hereby advises Tenant
and Tenant acknowledges that during the Tenn of this Lease, the City of Gilroy will undertake
major street construction projects along and adjacent to Monterey Road ("Construction Work"),
During constroction, access to Old City Hall will be restricted which may have a significant
adverse impact upon the business of Tenant. In consideration for the mutual.,promises herein,
Tenant shall release and discharge Landlord and its officers and' employees~ from any and all
claims, of any and every kind, nature and character, known and unknown, suspected or
unsuspected, arising from or in any way related to such Construction Work, inc1udingany and all
claims for attorneys' fees and costs which Tenant either may at any time have against Lan~:Uord
and its officers and employees. This release includes, but. ist:lot limited to." the following claims:
any and all claims, rights, demands, and causes of action for personal injury Or property damage,
nuisance, trespass, intentional or negligent infliction of emotional distress, interference with
economic advantage, business interruption or lost profits, breach of contract, breach of the
covenant of good faith and fair dealing, or violation of any and all statutes, rules, regulations or
ordinances whether state, federal or local. California Civil Code Section 1542 provides as
follows:
A general release does not extend to claims, which the creditor
does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have
materiaJly affected his settlement with the debtor.
Tenant acknowledges that Tenant understands the statutory language of Section
] 542 of the Civil Code of the State of California and, having been so apprised, agrees
nevertheless to waive any and all rights or benefits which Tenant in the future may have under
the terms of Section 1542 of the California Civil Code or any similar provision of any state or
federal law.
2.5 E:>.1ended Term. Landlord hereby grants to Tenant three (3) options to
extend the Term (collectively, "Option(s)") and each individually an "Option"), each for a
ccnsecutive period of time as described below in Paragraph 3,1, immediately following the
expiration of the initial Tenn (collectively, the "Extended Terms" and each individually an
"E>,,1ended Term"), upon the following terms and conditions:
(a) Tenant shall give Landlord written notice of its exercise of an
Option to ex1end the Tenn not later than ninety (90) days before the date the Term would end but
for said exercise.
....
\N'JH\~^~ t
I
been in default.
(b) Tenant shaH not have the right to exercise any Option if Tenant has
(c) All tenns and conditions of this Lease shall apply during an
Extended Term, except that Rent. shall be determined as provided below in Paragraph 3.1, and
there shaH be. no extension of this Lease beyond the three (3) Extended Tenns granted pursuant
to Paragraph 3.1.
3. RENT.
3. ] Rent. During each month of -the Term, Tenant shall pay to Landlord as
Rent the amount set forth beJow, subject to the provisions of Paragraph 2.1 above:
>
Time Period
. Initial Sixty (60) Month Tenn
First Option Tenn (Sixty (60) months) O<\,
J)'1\
. Amount
Three Thousand Dollars ($3,000) per month
for the first term.
Three Thousand DoJlars ($3,000) per m~:>nth
for the first year plus four'percent (4~)ofthe
previous year's rent for each additional year.
Four Thousand Dollars ($4,000) per month for
the first year plus four percent (4%) of the
previous year's rent for each additional year.
Five Thousand DoJlars ($5,000) per month for
the first year plus four percent (4%) of the
previous year's rent for each additional year
Second Option Term (Sixty (60) months)
Third Option Term (Sixty (60) months)
Rent shall be paid in advance on the first day of each calendar month throughout
the Term without offset, deduction, prior notice or demand, except that a full month's Rent shalJ
be paid upon the execution of this Lease by Tenant. Rent sball b. prorate<! t..o"1 tbirty (30),
day month for any partial calendar month of the Tenn., ./'':' . .,. /,.. .,~ I l. . ,
3.2 Rent Reimbursement. City may reduce the rent amount due for the first
two (2) terms only by Two Thousand Dollars ($2,000.00) per month to reimburse Tenant for
actual physical improvements made to the Premises, which improvements are to become
Landlord's property at Landlord's option upon tenl1ination of the Lease 1\:ot\\ithstanding the
;'-Grcgoi"g, no monies expended after the first two hundred seventy (270) days of the first term
\...ill be credited to any rent reduction, and total reimbursements shall not exceed the Tenant's
total cost of physical improvements made to the Premises. The Tenant shall provide to Landlord
receipts for all work done. As a condition precedent to Rent reimbursement under this Paragraph
3.2, Tenant shall obtain prior written approval from Landlord for the work Tenant intends to
pertorm and v..ritten confirmation that such work qualif}l and costs for reimbursement pursuant to
this Paragraph 3.2,
\.IWH',!,)J60~ ~
3.3 Rentals. "Rentals" as used in this Lease shall mean Rent, together with
Additional Rent and all other sums owed to Landlord under this Lease, which shall constitute
additional rent hereunder. All Rentals shall be paid in lawful money or the United S1ates to
Landlord at the address specified in this Lease for purposes of notice, or to such other pefsons or
at such other places as may be designated in writing by Landlord from time to time. All Rentals
shall Qe paid without dedpction or offset and, except as otherwise expressly provided in this
Lease, without prior notice or demand.
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3.4 Late Charges. If Rent is unpaid after tHe fifth day after the due date, Tenant
shall pay a late charge of ten percent (10%) of the amount overdue. The parties ~ee that ~s late
thargerepresents a fair and reasonable estimate of the costs that Landlord will incur by reason of
the late payment by Tenant. In no event shall this provision for a late charge be deemed to grant to
Tenant a grace period or extension of time within which to pay any installment of Rent or prevent
Landlord from exercising any right or remedy available to Landlord upon Tenant's failure to pay
such amounts when due, including, without limitation, the right to terminate this Lease. Any
installment of Rent or Rentals not received by Landlord by the. thirtieth (30th) day after its due date
shall bear an additional late charge of ten percent (10%) of the amount overduecoImnencing on
the thirty-first (31 st) day after the due date for such installment. An additional late charge of ten
percent (10%) of the amount overdue shall apply commencing on the first (1st) day of each month
until the amount overdue is paid in full.
3.5 Additional Rent. All amounts which Tenant is required to pay under this
Lease, and all damages, costs and expenses which Landlord may incur by reason of any default by
Tenant under this Lease shall be deemed to be additional rent hereunder (" Additional Rent").
Upon nonpayment of Additional Rent, Landlord shall have all of the rights and. remedies with
respect thereto as Landlord has for the non-payment of Rent. "Rentals" as used in this Lease shall
mean Base Rent and all. Additional ~ent. All Rentals shall be paid in lawful money of the United
States to Landlord at the address specified in this Lease for purposes of notice,or to such other
persons or at such other places as may be designated in writing by Landlord from time to time. All
Rentals shall be paid without deduction or offset and, except as otherwise e"pressly provided in
this Lease, without prior notice or demand.
4. TAXES.
4.1 Real Property Taxes, The Tenant shall pay all applicable Real Property
Taxes before the same become delinquent. AI, used in this Lease, the tenn "Real Property
Taxes" means any tonn of assessment, license fee. rent tax, levy, possessory interest or other tax
(other Ihan net income, estate, successor or inheritance taxes). now or' hereafter imposed by any
authority having the direct or indirect power to tax or by any city, county, state or federal
Qovern~ent or any improvement or other district or division thereof, whether or not now
~ustomary or within the contemplation of the parties, ordinary or extraordinary, general or
special, ~r resulting from increased rate or valuation, together with any taxes levied or assessed
in lieu of, in substitution for, or in addition to existing taxes and assessments against the
Premises. In accordance with California Revenue and Taxation Code Section 107 ,6(a), Landlord
advises Tenant that by entering into this Lease. a possessory interest subject to property ta-"{es
may be created. Tenant PI' any other palty in whom the possessory interest is vested may be
subject to the payment of property taxes levied on such interest.
.~
'lNH\.l)H6(Y.iA 4
4.2 Tax on Leasehold or Personality. Tenant shall be responsible for and shall
pay before delinquency all municipal, county ~r state taxes, levies and fees of every kind and
nature applicable to Tenant by virtue of its leasing the Premises including, but not limited to,
generaJ or speciaJ assessments assessed during the Tenn against any leasehold interest or trade
fixtures or personaJ property of any kind, owned or leased by or pJaced in,.. upon or about the
Premises by Tenant. Tenant agrees to pay before delinquency the amount of all taxes levied
upon or measured by the rent payable hereunder; whether as a so-caIJed sales tax, transaction
privilege tax, excise tax, or otherwise. If. such taxes, levies or fees are assessed, levied, or
imposed upon Landlord or any portion of the Premises, Landlord shaJJ give Tenant a statement
of the applicable to the Premises. If a separate assessment of the improvements is Dot available
from the appropriate governmental authority, Landlord's good firith allocation shall be binding
on Tenant. In such event, Tenant shall pay Landlord on demand for .such taxes, levies and fees
applicable to the Premises. .
5. CONDUCT OF BUSINESS BY TENANT.
I
5.1 Use of the Premise~. Tenant shall use the Premises as a bona fide eating
place, as that term is defined in Section 23038 of the California Business & Professions Code or
a successor statute. Tenant shaIJ hold the Premises open as a bona fide eating pllU:e for regular
meal service for a minimum five (5) evenings per week, City hoJidays excepted. during the hours
from 5:00 p.m. until 8:00 p.m. Nothing contained herein shall be construed to restrict the days
and times that Tenant may hold open the Premises if more days or hours are permitted under a
valid pennit issued by the City of Gilroy. In addition, Tenant may use the Premises for the
foJ1owing purposes so Jong as Tenant continues to also use the Premises as a bona fide eating
place: culinary school; Jive theatre; private parties and meetings; .area for service of alcoholic or
non-alcoholic- beverag~; and office space for Tenant's use only. Tenant shaJJ not use the
Premises for any other purposes without the prior written consent of Landlord, which approval
shall not be unreasonably withheld.
5.2 Compliance with Law. Tenant at its expense shall comply promptly with
aU applicable laws regulating the use by Tenant of the Premises, which, subject to Articles 6, 8
and ) 0, shall include required structural alterations. Tenant at its expense shaH take all steps
required to cause the Premises to be kept, maintained, used and occupied in compliance with the
American With Disabilities Act of 1990, as the same may be amended from time to time
("ADA").
Tenant shall not use or pennit tht use of the Premises in any manner that will tend
to create a nuisance or tend to injure the reputation of the Premises. Tenant shall place no loads
upon the floors, walls or ceilings in excess of the maximum designed load detennined by
Landlord or which endangers the structure; nor place an); harmful liquids in the drainage
systems' nor dump or store waste materials or refuse or allow such to remain outside the
. ,
Premises proper, except in the enclosed trash areas provided, if any. Tenant shall not store or
pennit to be stored or otherwise placed any other material of any nature whatsoever outside the
Building. Tenant and Tenant's Agents shall not use, store or dispose, or allow the use, storage or
disposal of, any Hazardous Materials on any portion of the Premises. Tenant shall indemnify,
\NVH\.~ l
J:
defend, and hold Landlord and Landlord's employees, agents and partners hannless from and
against any and all claims, losses, damages; liabilities, or expenses (Including withoUt limitation
attorneys' fees) arising in connection with the breach of the obligations deScribed in the tfevious
sentence. As used in this paragraph, Hazardous Materials means any chemical, subsUmce or
material which has been or is hereafter' detennined by any federal, state or local governmental
authority to be capable of posing risk of injury to health or safety, including without limitation,
petroleum, asbestos, polychlorinated biphenyls, radioactive materials and radon gas. Tenant's
obligation to defend, hold hannless and indemnify pursuant to this Paragraph shall survive Lease
Termination. '
If required by Chapter 1 (commencing with sectioi11720) of part '7 ofDivi~ion 2
of the California State Labor Code, Tenant shall pay not less than the prevailing rate .of per diem.
wages for construction work to an workers as required by that Chapter.
6. M.AI'NlliliANCE. REPAIRS. AND ALTERATIONS.
6.1 Landlord's Responsibility. Subject to the provisions of Article 8, Landlord
shall, during the Term, keep in good order, condition and repair the Building's roof. structure
and exterior fa~de, except for an damage thereto caused by the negligence or willful misconduct
of Tenant or Tenant's Agents, and except for reasonable wear and tear; provided, however ~ that
Landlord shall have no obligation to repair until a reasonable time after the receipt by Landlord
of a written notice of the need for repairs. City shall have the right in its sole discretion. The
cost and expense incurred by Landlord in maintaining the Building's roof, structure and exterior
fayade shall be paid for by Landlord, except to the extent that any costs are incurred as a result of
the acts or negligence of Tenant or Tenant's Agents, in which event Tenant shall reimburse
Landlord for such costs and expenses upon ",,'Titten demand for payment by Landlord.
In addition, Landlord will make reasonable effort to maintain and repair the main
clock mechanism comprising a portion of the Premises, at Landlord's cost, except to the extent
repairs or maintenance are required due to the negligence or willful misconduct of Tenant or
Tenant's Agents, in which event it shall be Tenant's cost. In no event shall Landlord be required
to keep the clock in operating condition. Tenant shall have the obligation to wind clock.
pursuant to instructions previously provided by Landlord, but Tenant shall not otherwise have
the right or responsibility of maintaining, repairing, altering or moving the clock: Tenant Vllaives
the provisions of California Civil Code Sections 1941 and 1942 and any similar Law now or
;1ereafter in effect
Landlord shall have no obligation TO make any repairs required of Landlord until a
reasonable time after the receipt by Landlord of a wrlt,ten notice of the need for repairs.
6.2 Tenant's Responsibilitv, Except as provided in Paragraph 6.1 above,
Tenant shal1, during the Term, keep in good order, condition and repair the Premises and every
part thereof, including, without limitation, all fixtures. interior walls and interior surface of
exterior walls, exterior walls (excluding stJUctural repairs), landscaped areas, sidewalks, parking
area and other exterior common areas, electrical and plumbing systems, heating, ventilating and
c.
1I.1I/~\"~R.')"f! ~
j
air conditioning system, aU equipment, windows, plate glass, downspouts, gutters, ceilings,
floors, and floor c()verings, and doors. Tenant's obligations under this Paragraph shaD include
the obligation to replace any of the foregoing items, or any portion thereof, which cannot be fuUy
repaired. The Premises shall be maintained by Tenant in an attractive, safe, and fully operative
condition at all times during the Term. In no event shall Landlord have any repair or
maintenance responsibility except as expressly set forth in Paragraph 6. 1 above. The Tenant is'
responsible for removing any and all graffiti or other unauthorized markings on the ~orof
the building or on the Premises within twenty-four (24) hours of when such markings were first
observed or should have been observed or were brought to the attention of Ten ant.
The Tenant shall be responsible for alf mairit~ance, repairs and replacement of all
parts of the building and its equipment, exceP.t as provided for in Section 6. l, including the
heating, ventilating and air conditioning (HV AC) systems. If during the first term of their lease .
but after the first two hundred seventy (210) days, there is, a major repair .or reconstruction of the
HV AC systems which exCeeds Two Thousand Five Hun9red DoJJars ($2,500) in cost, the T enanf
will be entitled to a rent reduction for up to Five Hundred DoJJars ($500) per month until any
amount over Two Thousand Five Hundred Dol1ars, ($2,500) has been fully reimbursed to Tenant.
If Tenant fails to perform its obligations under this Paragraph 6.2,
notwithstanding any other provision hereof and without waiving any other right or remedy
Landlord may have, Landlord may, at its option, after five (5) days written notice to Tenant,
enter upon the Premises and put the same'in good order, condition and repair and at Landlord's
further option, continue such maintenance and repair obligation for the remainder of the T erin,
and the cost thereof shall become due and payable as Additional Rent by Tenant to Landlord
upon demand. .
6.3 Condition Upon Surrender. On Lease Termination, Tenant shall remove
its personal property and trade fixtures .from the Premises, surrender the Premises to Land] ord in
the same condition as when received (except that with respect to those portions of the Premises
improved by Landlord following the Commencement Date, without obligation on the part of
Landlord to do so, such portions shaH be in the condition existing immediately fonowing such
work by Landlord), damage by fire or the elements (except to the extent not covered by Net
Insurance Proceeds and caused by Tenant or Tenant's Agents) and ordinary wear and tear
excepted. At Landlord's option, Landlord shall have the right to require that Tenant remOVe any
and all alterations, additions, signs or improvement~ made by Tenant and perfonn any necessary
repair caused by such removal. All improvements, trade fix1ures, fixiures, furniture, fumi shings
and equipment located in the Premises at the time the Premises are actually delivered to Tenant
shall at all times be the Property of Landlord and shall be surrendered to Landlord on Lease
T t:rmination as required by this Paragraph 6.3, including, without limitation, all such
improv~ments, fixiures, trade fixtures, furniture, furnishings added to the facility. Tenant shall
have the right to use Landlord's Property during the Term. Landlord's Property is being
delivered to Tenant "AS IS" and without representation or warranty of any kind, express or
implied. If a third party claims that prior to the Delivery Date it had an ownership interest in any
of the Landlord's Property, then upon ten (J 0) day prior written notice to Tenant, undJord shall
have the rieht to remove and take possession of such items of Landlord's Property, at Landlord's
cost. ln ~no event such Tenant's obligations under this be affected by such removal or
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repossession nor shall Landlord have any liability to Tenant in connection with such removal or
repossession, except that Landlord shall repair any damage caused to the Premises br such
removal. ,.
. 6.4 Improvements by Tenant. Tenant shall not, without prior written consent
of Landlord, not to be unreasonably withheld '(except as provided below), make any alterations,
improvements, or additions (collectively, "Alterations") to the Premises or to fixtures installed
therein in accordance with approved fixture plans, or mark, paint, nail, drill or in any way def~
any portion of the Premises. Tenant acknowledges and agree's that the Premises (both interior
and exterior) is a registered National Historic Landmark, being a unique and fragilebUllding, and.
Tenant is subject to any additional restrictions which may be neCessary or desirable to preserve
the features of the Building relating to its historic designation. In no event shall Tenant make
any structural Alterations or any Alterations, which would have any' impact on the National
Historic Landmark status of the Building without Landlord's approval, which Landlord. ,may
withhold in its sole discretion. Without limiting the foregoing prohibition, Tenant understands
and agrees that Landlord may reasonably restrict proposed Construction that is riq~ totally free
standing from the historic building structure and interior surfaces, and may. require special
precautions be taken with regard to improvements affecting the structure and interior surfaces of
the building. Before commencing any Alterations, Tenant shall submit plans and specifications
to Landlord for Landlord's approval. At least ten (10) days prior to undertaking construction of
any Alterations, Tenant shall give written notice to Landlord setting forth the date work is to
commence. Landlord shall have the right at all reasonable times to. post and keep posted on the
Premises such notices of nonresponsibility as Landlord may deem necessary for the protection of
Landlord and the Premises from mechanic's and materialman's liens. All Alterations shall be
installed at Tenant's sole expense, in compliance with all applicable Laws, pennit requirements
and any covenants, conditions or restrictions of record and shall be done in a good and
workmanlike manner conforming in quality and design with the Premises existing as of the date ..
the Premises are delivered to Tenant, and' shall not diminish the value of the Premises. All
Alterations made by Tenant shall be and become the property of Landlord upon instanation and
shall not be deemed Tenant's personal property; provided, however, that Landlord may, at its
option, require that Tenant, at Tenant's expense, remove any or atl Alterations installed by
Tenant and return the Premises to their condition as of the Commencement Date (except that
with respect to those portions of the Premises improved by Landlord or Tenant following the
Commencement Date, without obligation on the part of Landlord to do so, such portions shall be
returned in the condition existing immediately follov.~ng such work by Landlord), nonnal wear
and tear excepted. Tenant shall be solely responsible for the maintenance and repair of any
,6Jterations made by Tenant to the Premises.
To the fuJlest extent permitted by law, Tenant shall defend through counsel
approved by Landlord (which approval shall not by unreasonably withheld), indemnify and hold
hannless Landlord, its officers, representatives, agents and employees against any and all suits,
damages, costs, fees, claims, demands, causes of action, losses, liabilities and expenses,
including without limitation attorneys' fees, to the e>.1ent' arising or resulting directly or
indirectly from any act or omission of Ten ant or Tenant's assistants, employees, or contractors or
agents related to the construction of Tenant's improvements or the improvements themselves,
including all claims relating to the injury or death of any person or damage to any property.
o
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This provision shaII survive the expiration or SQoner termination of this Lease.
6.5 Sanitary ConditiQn. Tenant shall keep the Premises at all times in a neat,
clean and sanilaJy condition, shall neither commit nor permit any waste or nuisance thereon. and
shan keep the walks and all e>.1erior areas thereto free from Tenant's waste or debris.
6. Fi>.:tures. Tenant shall properly use and operate all electrical, gas, and
plumbing fixtures, and shall immediately notity Landlord of any condition needing repair.
7. INSURANCE AND INDEMNITY.
7.] . Tenant to Maintain. Tenant shall at, all times during the Tenn, at Tenant's
cost and expense, maintain in effect workers compen~tion insurance in the minimum amountS.
required by Jaw, and comprehensive general liability and property damage insurance in the
minimum amounts of One Mi))jon DoJIars ($],000,000) per occ4rrence and aggregate, combined
single limit for both bodily injul)' and property damage which includes blanket contractual
"'<fA liability, broad fonn property damage, personal iqjury, completed operations, liquor liability,
/od/ ~ . products Jjah~ and fire dam~~e IflalJ~hicb 9,re. damage legal amount shall not be less than
"'lIA"3- ~~~ Wt us.Ad DoUar1 ~ :00 .OOJ):'''. The minimum limits specified abo", are the
?SP minimum amounts required by Landlord, and may be reaSonably revised by Landlord from time
. . to time to meet changed circumstances, including without limitation changes in the p~rchasing
.-- power of the do1Jar, approved changes in Tenant's use, and changes consistent with the standards
required by. other landlord in the county in which the Premises is located. All such insurance
shall specifically insure Tenant's performance of the indemnity, defense and hold harmless
agreements contained in Paragraph 7.5, although Tenant's obligations pursuant to Paragraph 7.5
shall not be limited to the amount of any insurance required of or carried by Tenant under this
Paragraph 7.] and Tenant is responsible for insuring that the amount ofJiabiJ.ity insurance carried
by Tenant is sufficient for Tenant's purposes.
7.2 Insurance of Personality and Plate Glas~. Tenant shalJ at all times during
the Term, at its cost and expense, maintain in effect policies of insurance covering its trade
fixtures, personal property and equipment located on the Premises, Landlord's Property, and aJJ
Alterations made to the Premises by Tenant, in an amount not less than their full replacement
value, providing protection on an "All Risk" basis, which shall include, without limitation,
insurance against sprinkler damage, vandalism and malicious mischief The proceeds or such
ir.surance, so long as this Lease remains in effect, shall be used to repair or replace the fixtures,
personal property, equipment, plate glass and Alterations so insured. Following Lease
Termination, any proceeds of insurance covering Alterations, which become the property of
Landlord upon Lease Termination shaU be paid Over to Landlord.
7.3 Landlord Approval. AU insurance required to be carried by Tenant
hereunder shall be in companies, on fonns and with loss payable clauses satisfactory to Landlord
and copies of policies of such insurance, certified by the insurer to be a true and correct copy of
the jnsurance policies, evidencing such insurance shall be delivered to Landlord by Tenant prior
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to Tenant's entry on the Premises; a new certified policy shall be delivered to Landlord at least
thirty (30) days before expiration of the old poHcy. No policy shall be cancelable ex;t after
thirty (30) days' written notice to Landlord. All policies to be carried by Tenant under Lease
shall name Landlord and its agents and designated lenders as additional insureds! Such
insurance shall be the primary insurance as respects Landlord and shall contain a cross liability
endorsement. Such policies shall provide coverage on an occurrence basis and not on a claim
made basis. In no event shall the . limits of such policies be considered as limiting the liability of
Tenant under this Lease. .
7.4 Waiver of Liability. Landlord and Tenant each hereby waives any and all
rights of recovery against the officers, partners, employees and agents of such other party fOT 'loss
of or damage to such waiving party or its property or the property of others under its contro~
arising from any cause to the extent insured against under any insurance policy carried by such
, waiving party and to the extent such waiver is pennitted under' such insurance policy and, does
not prejudice coverage under such policy. Tenant shall obtain and furnish evidence to Landlord
of the waiver by Tenant's insurance carriers of any right of 51:lbrogation against Landlord.
7.5 Tenant to Hold Landlord Hannless. Subject to, the .last sentence of
Paragraph 7.4 above, Tenant hereby agrees to defend, indemnify and hold harmless Landlord and
Landlord's employees and agents from and against any and all claims, damage, loss, liability or
expense, including without limitation attorneys' fees and legal costs, due to any cause including
without limitation, bodily. injury and property damage, to the extent arising out of or related to
the use or occupancy of the Premises or any part thereofby Tenant or Tenant's ,Agents, the acts
or omissions of Tenant or Tenant's Agents or Tenant's breach of this Lease, 'except to the extent
caused by the willful misconduct or negligence of Landlord. This provision'shaJI survive the
expiration or sooner termination of this Lease.
7.6 Landlord's Disclaimer. Landlord shall not be liable for injury or damage
which may be sustained by the person, goods, wares, merchandise or property of Tenant, its
employees, invitees or customers or any other person in or about the Premises caused by or
resulting from fire, steam, electricity, gas, water or rain which may leak or flow or into any part
of the Premises, or from the breakage, leakage" obstruction or other defects of the pipes,
sprinklers, wires, appliances, plumbing, air conditioning or lighting fixtures of the same, or from
any other cause, whether such damage or injury results from conditions arising upon the
Premises or from other sources.
8. REP AIRS MTI RESTORATION.
8,1 lnsubstantial Insured Damag.e. Subject to the provisions of Paragraph 8.3,
if at any time during the Term the Premises are damaged and such damage is not "Substantial" as
that term is defined in Paragraph 8.6, and insurance proceeds net of costs of recovery (HNet
lnsurance Proceeds") are available to cover the cost of restoration, then Landlord shall promptly
repair such damage at Landlord's expense and this Lease shall continue in full force and effect.
8.2 Substantial or Uninsured Damage, Subject to the provisions of Paragraph
8.3, if at any time during the Term the Premises are damaged and (a) if such damage is
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"Substantial" as defined in Paragraph 8.6, or (b) if such damage was caused by a casualty for
which no insurance proceeds are available or the Net Insurance Proceeds are insufficient to meet
the cost of restoration, then Landlord may at its option either (i) promptly repair such damage at
Landlord's expense, in which event this Lease shall continue in full force and effect, or (11)
cancel and tenninate this Lease, by giving Tenant written notice of its election to do so within
sixty (60) days after the date of occurrence of such damage.
8.3 Damage Near End of Tenn. If the PremiseS are damaged during'the last
nine (9) months oftbe Tenn, and the estimated cost of repair exceeds ten percent (IOOIo) of'the
Rent then remaining to be paid by Tenant for the balance of the Term, Landlord may at its option
cancel and terminate this Lease upon written notice to Tenant. If Landlord does not eJect to so'
tenninate this Lease, the repair of such damage shall be governed by P~agraph 8.1 or Paragraph
8.2, as the case may be.
8.4 Notice. Rent Abatement. Refixturing; Tenant shaIJnotifY Landlord in
writing immediately upon the occurrence of any damage or destruction to all or any .portion of
the Premises. If the Premises are damaged and Landlord repairs or restores them pursuant to the
provisions of this Article, Tenant shall continue the operation of its business in the Premises to
the extent reasonably practicable from the standpoint of prudent business management, and the
Rent payable hereunder for the period during which such damage, repair or restoration continues
shall be abated in proportion to the degree to which Tenant's use of the Premises is impaired, as
reasonably detennined by Landlord. There shall be no abatement of other Rentals payable
hereunder and Tenant shall have no claim against Landlord for any damage suffered by Tenant
by reason of any such damage, destruction,. repair or restoration. Upon completion of such repair
or restoration Tenant shalJpromptJy refixture the Premises to the condition prior to the casualty
and shall reopen for business if closed by the casualty. In no event shall any damage,
destruction, restoration or repair of ~y portiori of the Premises result in an extension of the
expiration date of the Lease.
8.5 Tenant's Option to Cancel. IfLandJord is obligated to repair or restore the .
Premises under the provisions of this Article and does not commence such repair or restoration
withiri sixty (60) days after such obligation accrues, Tenant may at its option cancel and
temllnate this Lease by giving Landlord written notice of its election to do so at any time prior to
the commencement of such repair or restoration, which termination shall be effective on the date
such notice is received by Landlord.
8.6 "Substantial" Defined. For the purpose of this Article, "Substantial"
damage to the Premises shall mean damage to the Premises, the estimated cost of repairs of
which exceed one-fifth (l/5) of the then estimated replacement cost of the same. The
determination in good faith by Landlord of the estimated cost of repair of any damage andlor of
the estimated replacement costs shalJ be conclusive for the purpose of this Article. In no event
shall Landlord be obligated to repair or restore any Alterations made by Tenant or equipment,
trade fix1ures, inventory, fixtures or personal property in or about the Premises. Tenant waives
the provisions of California Civil Code Section 1932 and 1933(4) and any similar law now or
hereafter in effect.
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9. ASSIGNMENI AND SUBLE'J"IlNG.
9.1 Landlord's Consent Required. Tenant shall not, either voi/ntarily,
involuntarily or by operation of law (i) assign, sell or otherwise transfer all or any pari of the.
Tenant's interest in this Lease or in the Premises, or (Ii) permit any part of the Premises 1:0 be
sublet, occupied or used by anyone other than Tenant or (tit) pennit any person to succeed to '8IlY
interest in this Lease or the Premises, (all of the foregoing being collectively referred to as a
uTransfer"), without Landlord's prior written consent in each instance, which consent shall not
be unreasonably withheld. Consent by Landlord to one or more Transfers shall not operate to
~ exhaust Landlord's rights under this Article to receive consent to subsequent Transfers.' The
voluntmy or other surrender of this Lease by Tenant or a mutu81 cancellation- hereof shall"'not
work a merger and Landlord shall have the option of tenninating all or any existing subtenancies
or Transfers or shall operate as an assignment to Landlord of all or any such subtenancies or
Transfers. If Tenant is a corporation which, under the then current guidelines published by the
Conunissioner of Corporations of the State of California, is not deemed a public corporation, any
dissolution, merger, consolidation or reorganization of Tenant, the trimsfer, ~gmnent or
hypothecation of any stock or interest in such corporation in the aggregate in exceSs of twenty-
five percent (25%), or the sale (cumulatively) of fifty percent (50010) or more of the value of
Tenant's assets shall be deemed a Transfer. If Tenant is a partnership, a withdraw-at or
substitution of any partner(s) owning twenty-five percent (25%) or more of the partnership
(cumulatively), any assignment(s) of twenty-five p~rcent (25%) or more (cumulatively) of any
interest in the capital or profits of the partnership, the sale ( cumulatively) of fifty percent (5 ()oA)
or more of the value of Tenant's assets, or the dissolution of the partnership shall be deemed a
,Transfer. Tenant agrees to reimburse Landlord for Landlord's reasonable costs and attorneys'
fees incurred in conjunction with the processing and documentation of any requ~sted Transfer,
whether or not consent is granted. In no event shall Tenant hypothecate, mortgage, pledge or
encumber Tenant's interest in this Lease or in the Premises or otherwise use the Lease as a
security device in any manner, nor shall Tenant transfer any right appurtenant to ~s Lease or the
Premises separate from a permitted Transfer, without the consent of Landlord, whiCh consent
Landlord may withhold at its sole discretion. Tenant expressly agrees that the provisions of this
Article are not unreasonable standards or conditions for purposes of Section 1951.4(bX2) of the
California Civil Code, as amended from time to time, under the federal. Bankruptcy Code, or for
any other purpose.
9.2 Notice to Landlord. If Tenant desires at any time to effect a Transfer, it
shall first notify Landlord of its desire to do so and submit in writing to Landlord (a) the name of
the proposed Transferee; (b) the nature of the proposed Transferee's business to be carried on in
the Premises; (c) the tenns and provisions of the proposed Transfer; (d) such reasonable financial
infonnation, including financial statements, and infonnation regarding the Transferee's
experience as Landlord may request concerning the proposed Transferee; and (e) such other
infonnation as Landlord may reasonably request to evaluate the Transfer and Transferee.
9.3 Bonus Rent. !ffor any proposed Transfer, Tenant receives rent or any other
consideration, either initially or over the tenn of the Transfer in excess of the Rent called for
hereunder, or, in case of the sublease of a portion of the Premises, in excess of such Rent fairly
allocable to such portion, Tenant shall pay to Landlord as Additional Rent hereunder one.half (1/2)
,,.,
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of the excess of each such payment of rent or other consideration rec;eived by Tenant protn.ptIy
after its receipt
9.4 Co))ection of RentaI~. Tenant irrevocably assigns to Landlord, 8! security
for Tenant's obligations under this Lease. all rent and other consideration payoblc by ..
Transferee and not othernise payable to Landlord by reason of any Transfer. I.aadIorcJ...
assignee of Tenant, or a receiver for Tenant' appointed on Landlord's appliCation, may collect
such rent and other consideration and apply it toward Tenant', obligations under thiI Lease;
provided, however, that until the occurrence of any default by Tenant,T enant shall ha", the right.
to collect such rent and other consideration.
, 9.5 Tenant Not Releas~. No Transfer, even with the consent of Landlord,
shall relieve Tenant of its obligation to pay the Rentals and perform all of the other obligations to
be performed by Tenant hereunder. The acceptance. of Rentals by Landlord from any other
person shall not be deemed to be a waiver by.Landlord of any provision of this Lease or to be a,
consent to any Transfer. , .
10. . EMINENT DOMAIN.
I
10.1 Automatic Termination. If the entire Premises, or,so much ofeitber as to
make the Premises not reasonably adequate for the conduct of Tenant's business in Landlord's
reasonable judgment notwithstanding restoration by Landlord as hereinafter provided, shall be
taken under tbe power of eminent domain, this Lease shall automatically tenninate as of the date
on which the condemning authority takes possession. .
10.2 Rent' Abatement. Upon any taking of any portion of the Building under
the power of eminent domain which does not result in a tennination of this Lease, the Rent
payable hereunder shall be reduced, effective as the date on which the condemning authority
takes possession, in the same proportion which the Rentable Area of the portion of the Building
taken bears to the Rentable Area of the entire Building prior to the taking. Landlord shall
promptly at its expense restore the portion of the Premises not taken to as. near its ronner
condition as is reasonably possible, and this Lease shall continue in full forCe and effect.
10.3 Condemnation A ward. Any award for any taking of aJI or any part of the
Premises under the power of eminent domain shaJI be the property of Landlord, whether such
award shall be made as compensation for diminution in vaJue of the leasehold or for taking of the
fee. Nothing contained herein, however, shall be deemed to preclude Tenant from obtaining, or
to give Landlord any interest in, any award to Tenant for loss of or damage to Tenant's trade
fixtures and removaJ of personal property and Tenant's loss of goodwill and moving expenses.
10.4 Sale Under Threat of Condemnation. A sale by Landlord to any authority
having the power of eminent domain, either under threat of condemnation or while
condenmation proceedings are pending, shall be deemed a taking under the power of eminent
domain for all purposes under this Article. Each party waives the provisions of California Code
of Civil Procedure Section 1265.130 allowing either party to petition the Superior Court to
terminate this Lease in the event of a taking.
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11. J)TILITY SERVICES. Tenant shall arrange for) and shali timely pay dirJctly to
the appropriate utility or service supplier all charges for water, gas, heat, ligbt,po"",l~,
electricity, refuse and water disposal, telephone) janitorial service, kitchen and refrigeration
seJVice, elevator, fire alarm system, or any other service or utility metered, supplied or provided
to the Premises during the Term of this Lease. Landlord shall not be liable in damages or
.otherwise for any failure or interruption of any utility or service being furnished to the Premises
and no such failure or interruption shall entitle Tenant to terminate this Lease. or shaD oth~se
affect Tenant's obligations under this Lease. Landlord shall be entitled to cooperate voluntarily
and Tenant agrees to cooperate, with the efforts of governmental authorities or utility suppliers in
reducing energy or other resource consumption.
12. DEFAULTS. REM:EI2IES.
12.1 Defaults. The occurrence of anyone or more of the following events shall
constitute a default hereunder by Tenant:
12.1.1 The abandonment of the Premises by Tenant. Abandonment is
defined to include, but is not limited to, any absence by Tenant from the Premises for five (5)
consecutive days or longer. .
12.1.2 The failure by Tenant to make any payment of Rent or other
Rentals as and when due.
12~ 1.3 The failure by Tenant to timely obserVe or perform any of the .
express or implied covenants or provisions of this Lease to be observed or performed by Tenant,
other than as specified in Paragraph 12.1.1 or 12.1.2 above.
12.1.4 (a) The making by Tenant of any general assignment, for the
benefit of creditors; (b) the appointment of a trustee or receiver to take possession of
substantially all of Tenant's assets located at the Premises or of Tenant)s interest in this Lease)
where possession is not restored to Tenant within thirty (30) days, or (c) the attachment)
execution or other judicial seizure of substantially all of Tenant's assets located at the Premises
or of Tenant's interest in this Lease, where seizure is not discharged within thirty (30) days.
12.2 Remedies. Upon a default, Landlord shall have the following remedies, in
addition to all other rights and remedies provided by law or otherwise provided in this Lease, to
which Landlord may resort cumulatively or in the alternative:
12.2.1 Landlord may continue this Lease in full force and effect7 and
this Lease shall continue in full force and effect as long as Landlord does not terminate this
Lease, and Landlord shall have the right to collect Rent and Rentals when due. No act by
Landlord other than giving written notice to Tenant shall tenninate this Lease. Acts of
maintenance, efforts to relet the Premises or the appointment of a receiver on Landlord's
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initiative to protect Landlord's interest under this Lease shall not conStitute a termination of
Tenant's right to possession.
12.2.2 Landlord may tenninate this Lease and Tenant's right: to
possession of the Premises at any time if (i) such default is in the payment of Rentals and it is not
' cured within three (3) days after written notice from Landlord, or, (it) with respect to the deraults
referred to in Paragraph 12.1.1, or 12.1.3 such default is not cured within thirty (30) days a.:tier
written notice from Landlord; provided, however, that if the nature of Tenant's defiwlt is such
that more than thirty (30) days are reasonably required for its cure, ifTenam does not COIJUI1ence
to cure the default within the thirty (30) day period or does not diligently and in good faith
prosecute the cure to completion within a reasonable time, thereafter, or (w) with respect to. the
default specified in Paragraph L2.1.4, such defauh is not cured within the respective time
specified in that paragraph. The parties agree that any notice given bY Landlord to Tenant .
pursuant to this Paragraph 12.2.2 shall be sufficient notice for purposes of California Code of
CiyiJ Procedure Section 1161and Landlord shall not be required to give any additional DOtice in
order to be entitled to commence an unlawful detainer proceeding. On tennination, Landlord has
the right to remove all Tenants' personal property, signs arid trade fixtures and store'satne at
Tenant's cost and to recover from Tenant as damages: .
I
(a) The worth at the time of award of unpaid Rentals and other
sums due and payable which had been earned at the time of termination; plus
(b) The worth at the time of award of the amount by which the
unpaid Rentals and other sums due and payable which would have been payable after
tennination until the time of award exceeds the amount of such Rentals loss that Tenant proves
could have been reasonably avoided; plus
(c) The worth at the time of award of the amount by which the
unpaid Rentals and other sums due and payable for the balance of the Tenn after the time of
award exceeds the amount of such Rentals loss that Tenant proves could be reasonably avoided;
plus
(d) Any other amount necessary to. compensate LandJord for aU
the detriment proximately caused by Tenant's faiJureto perfonn Tenant's obligations under this
Lease, or which, in the ordinary course of things, would be likeJy to result there from, including,
without limitation, any costs or expenses incurred by Landlord: (a) in retaking possession of the
Premises; (b) in maintaining, repairing, preserving, restoring, replacing, cleaning, altering or
rehabilitating the Premises or any Portion thereof, including such acts for reletting to a new
tenant or tenants; (c) for leasing commissions; or (d) for any other cost necessary or appropriate
to relet the Premises; plus
(e) Such other amounts in addition to or in lieu of the
foregoing as may be permitted fom time to time by the Jaws of the State ofCaJifomia.
The "worth at the time of award" of the amounts referred to in Paragraph 12.2.2.1
and 12.2.22 is computed by allowing interest at the Stipulated Rate. The "worth at the time of
award" of the amount referred to in Paragraph 12.2.2.3 is computed by discounting such amount
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at the discount rate of the federal Reserve Bank of San Francisco at the time of award plus one
percent (1%). .
12.~.3 No delay or ~mi.sion of Landlord to exercise any right of/remedy
shall be construed as a WaIver of any such nght or remedy or of any default by Tenant hereunder.
12.3 Default by Landlord. Landlord shall not be deemed to be in defauh in'the
performance of any obligation required to be perfonned by it hereunder unless and until it has
failed to perfonn such obligation within thirty (30) days after written notice by Tenant to
Landlord specifying wherein Landlord has failed to perfonn such obligation; provided, however,
that if the nature of Landlord's obligation is such that more than thirty (30) days are required for
its perfonnance then Landlord shall not be deemed to be in defauh if it shall comm~ such
perfonnance within such thirty-day period and thereafter diligently prosecute the same to
completion. Notwithstanding any other provision of thi$ Lease, in no. event shall Landlord be
liable to Tenant for consequential damages, or loss of or interference with Tenant's business,
including without limitation lost profits. .
12.4 Expenses ofPrevaiJing Party. If either party incurs any expense, including
reasonable attorneys' fees, in connection with any action or proceeding instituted by either party
arising out of this Lease, the party prevailing in such action or proceeding shall be entitled to
recover its reasonable expenses including attorneys' fees from the other party.
13. P ARI<.lliG. Landlord shall have the right to close all or any portion of the
parking areas at reasonable times' to prevent a dedication thereof: or the accrual of rights in .any
person or the public therein. The parking areas shall not be used by Tenant or Tenant's Agents
for any purpose other than the parking of motor vehicles and the ingress and egress of
pedestrians and motor vehicles without Landlord's written consent, which consent may be
withheld in Landlord's sole discretion,
14. SIGNS. Tenant shall not, without Landlord's prior written consent (which
consent may be withheld in Landlord's sole discretion), install or affix to any portion of the
Premises, any exterior or interior window, door, or other area, signs, lettering, placards or the
like (collectively "Signs"). If Landlord consents to the erection of any Signs, such Signs shall
comply with any sign criteria imposed by Landlord and all Laws.
'15. TENful\fT STATEMENlS.
15.1 Estoppel Certificate. Tenant shall at any time and from time to time upon
not less than seven (7) days prior written notice from Landlord execute, acknowledge and deliver
to Landlord a statement in writing (a) 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 fun force and effect) and the dates to which the Rent and other charges are
paid in advance, if any, (b) acknowledging that there are not, to Tenant's knowledge, any
uncured defaults on the part of Landlord hereunder, or specifying such defaults if any are
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,;::
claimed and (c) certifying and acknowledging. such other facts as may be reasonably requested
by Landlord. Any such statement" may be relied upon by any prospective ,purchaser or
encumbrancer of the Premises or of all or any portion of the real property of which the Premises
are a part. Tenant's failure to deliver such statement within such time shall, in I}ddition to
constituting a default under this Lease, be conclusive upon Tenant (1) that this Lease is in fun
force and effect, without modification except as may be represented by Landlord, (iJ) that there
are no uncured defauhs in Landlord's performance, and (ill) that not more than one month's Rent
has been paid in advance." . .
16. RIGHT OF ENTRY. Landlord and its agents shall have free aCcess to the
Premises during all reasonable hours for the purpose of examining the same to asceruiin if they ,
'are in good repair, making repairs, or installations which Landlord maybe required or permitted
to make hereunder, performing Landlord's obligatioqs 'under this Lease, including providing
maintenance services, protecting the Premises, posting notices of nonresponsibility>> and
exhibiting the same to prospective purchasers, lenders or tenants.
II
17. TRANSFER OF LANDLORD'S INTEREST. Upon any transfer or transfers of
Landlord's interest in the Premises, the transferor shall be automatically relieved of any and all
obligations and liabilities on the part of Landlord accruing from and after t~e date of such
transfer, provided that the transferee is liable for any and all obligations and liabilities on the part
of Landlord accruing from the after the date of such transfer. Tenant shall attorn to any
transferee of Landlord's interest in the Premises.
18. MISCELLANEOU~.
18.1 Time of Essence. Time js of essence with respect to the performance of
every provision oftrus Lease (except delivery of possession of the Premises to Tenant).
18.2 Captions. The article and paragraph captions contained in this Lease are
for convenience onJy and shall not be considered in the construction or interpretation of any
provision hereof.
18.3 Entire Agreement and Amendments. This Lease contains all of the
agreements of the parties hereto with respect to any matter covered or mentioned in this Lease,
and no other agreement or understanding pertaining to any such matter shalI be effective for any
purpose. No provision of this Lease may be amended or added to except by an agreement in
writing signed by the parties hereto or their respective successors in interest.
18.4 Notice. Any notice required or permitted to be given hereunder shall be in
writing and may be served personally or by mail. Any notice so given by mail shall be deemed
effectively given three (3) days after being deposited in the United States mail, registered or
cenified, postage prepaid and addressed as specified herein. Either party may by written notice
to the other specifY a different address for notice purposes. Notwithstanding the foregoing, any
INVHI.~ A
'''7
legal notices required to be sent by one party to the other (including without limitation, a notice
pursuant to California Code of Civil Procedure Section 1161) shall be delivered in the manner
required or allowed by law. . ., I .
18.5 Holdover. This Lease shall terminate without further notice at the
expiration of the Term. Any holding over after Lease Tennination with the consent of Landlord
shall be construed to be a tenancy from month to month, at one hundred twenty-five percent
(125%) of the Rent for the month immediately preceding Lease Tennination in addition to all
other Rentals payable hereunder, and shall otherwise ~ on the tenns and conditions herein
specified insofar as applicable. If Tenant remains in possession of the Premises after Lease
Terrninatio~ without Landlord's consent, Tenant shall indemnify, defend an~ hold Landlord .~
Landlord's employees and agents hannless from and against any claim, loss, damagc,.expense or
liability resulting from Tenant's failure to surrender the Premises, including without limitation,
any claims made by any succeeding tenant based upon delay in the availability of the Premises.
18.6 Holdover. Ternirit warrants and represents that it has had no dealings with
any real estate broker or agent in connection with the negotiation of this Lease. Teriant agrees to
defend, indemnifY and hold Landlord and Landlord's employees and agents hannless from and
against any and allliabiJities or expenses, including attorney's fees and costs, arising out of or in
connection with claims made by any other broker or individual for commissions or fees resulting
from Tenant's execution of this Lease.
18.7 Acceptance. Delivery of this Lease, duly executed by Tenant, constitutes
an offer to .lease the Premises, and under no circumstances shall such ,delivery be deemed to
, create an option or reservation to lease the Premises for the benefit otThnant. This lease shall
only become effective and binding upon full execution hereof by Landlord and delivery of a
signed copy to Tenant.
18.8 Waiver. The waiver by Landlord of any breach of any tenD, condition or
covenant of this Lease shall not be deemed to be a waiver of such provision or any subsequent
breach of the same or any other term, condition or covenant of this Lease. The subsequent
acceptance of Rentals hereunder by Landlord shall not be deemed to be a waiver of any
preceding breach at the time of acceptance of such payment. No covenant, term or condition of
this Lease shall be deemed to have been waived by Landlord unless such waiver is in writing
signed by Landlord. .
18.9 Separability. If one or more of the provisions contained herein, except for
the payment of Rentals, is for any reason held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect any other provision of this
Lease, but this Lease shaH be construed as if such invalid, illegal or unenforceable provision had
not been contained herein.
18.10 Liens. Tenant shall pay for all labor and services perfonned for, and all
materials used by or furnished to Tenant or Tenant's Agents and keep the Premises free from any
liens arising out of work penormed, materials furnished, or obligations incurred by Tenant or
Tenant's Agents with respect to the Premises. Tenant shall indemnify, hold harmless and defend
Landlord and Landlord's employees and agents from and against any liens, demands, claims,
\NVHI.~ ~
10
I
judgments or encumbrances (mcJuding all attorneys' fees) .arising out of any work or sew-ices
perfonnedfor or materials used by or furnished to Tenant or Tenant's Agents with respect t<> the
PremiSes. Tenant shall do all things necessary to prevent the filing of any mechanic's or D~er
liens against the Premises or any part thereof by reason of work, labor, services or materials
supplied or claimed to. ~ve been supplied.to Tenant, or anyone holding the Premises, or aDy part
thereot: through or under Tenant. H' any such lien shall at any time be filed against the Prem..i:ses,
Tenant shall either cause the same to be discharged of record within ten (10) days after the dBte
of filing of the same, or, if Tenant in Tenant's discretion and in good faith detennines that such
lien should be e:ontested, Tenant shall furnish such security as may be necessary or required to
(a) prevent any foreclosure proceedings against the Premises during the pendency of such
contest, and .(b) cause a mutually satisfactory title cOmpany .to remove such lien as a matter
affecting title to the Premises. If Tenant shall fail to discharge such lien within such period or
fail to furnish such security, then, in addition to any other right or remedy ofLandIord resu.Iting .
from Tenant's said default, Landlord may, but'shaII not beobIigated to, discharge the same eIther
by paying the amount claimed to be due or by proCuring the discharge of such lien by gi. ving'
security .or in such other manner as is, or may be, prescribed by law. Tenant shall repa.y to
Landlord on demand all sums deposited or disbursed by Landlord pursUant to the foreg oing
provisions of this Paragraph 19.10 including Landlord's costs, expenses and reasonable
attorneys' fees incurred by Landlord in connection therewith, with interest thereon at the
StipulattXJ Rate. Nothing contained herein shall imply any consent or agreement on the pa...rt of
Landlord to subject Landlord's estate to liability under any mechanics' or the lien Jaw. Tenant
shaIl give Landlord adequate opportunity and Landlord shaIl have. the right to post such nC>1:ices
ofnonresponsibility as are provided for in the mechanics' lien lawsofCalifomia.
18.11 Subordination. This Lease is subject and subordinate to ground and
unqerlying leases, mortgages, deeds of trust and other monetary liens (collectively
"Encumbrances") which may now affect the Premises, to any covenants, conditions or
n;strictions of record, and to all renewals, modifications, consolidations, replacements and
extensions thereof; provided, however, if the holder or holders of any such Encumbrance
("Holder") shaIl require that this Lease be prior and superior thereto, within seven (7) days after
mitten request of Landlord to Tenant, Tenant shan execute, have acknowledged and deliver any
and all documents or instruments, in the form presented to Tenant, which Landlord or Holder
deems necessary or desirable for such purposes.' Landlord shall have the right to cause this
Lease to be and become and r~main subject and subordinate to any and all Encumbrances ""bich
are now or may hereafter be executed covering the Premises or any renewals, modiiica:t.ions,
consolidations, replacements or extensions thereof, for the full amount of aU advances made or to
be made hereunder and without regard to the time or character of such advances, together with
interest thereon and subject to aU the tenns and provisions thereof; provided only, that in the
event of termination of any such lease or upon the foreclosure of any such mortgage or deed of
trust, Holder agrees to recognize Tenant's rights under this Lease as long as Tenant is no then in
default and continues to pay the Rentals and observe and perform all the provisions of this Lease
to be observed and performed by Tenant. Within ten (10) days after Landlord's writ1en request,
Tenant shaH execute any and all documents required by Landlord or the Holder to make this
Lease subordinate to any lien of the Encumbrance. If Tenant fails to do so, then in addition to
such failure constituting a default by T enan~ it shall be deemed that this Lease is so subordinated
to such Encumbrance. Notwithstanding anything to the contrary set forth in this paragraph,
Tenant hereby attoms and agrees to attorn to any entity purchasing or otherwise acquiring the
WVH\.'iAffi5Il 4
11"1
Premises at any sale or other proceeding or pursuant to the exercise of any other rights, pO'Wer5
or remedies under such Encumbrance.
"
18.12 Landlord's Right to perfonn Tenant's Covenants. If Tenant failstb make
any payment or perform any other act on its part to be made or perfonned under this Lease,
Landlord may, but shall not be obligated to and without waiving or releasing Tenant from any
obligation of Tenant under this Lease, make such payment or perform such other act to the extent
Landlord may deem desirable, and in connection therewith, pay expenses and employ counsel.
All sums so paid by Landlord and all penalties, interest and. costs in connection therewith . shall
be due and payable by Tenant immediately on demand, together with interest ~ the Stipulated.
Rate from the date of payment by Landlord to the date of payment by Tenant to Landlord, plus
collection costs and attorneys' fees. .
18.13 Tenant's Remedy. If: because of a default by Landlord under this Lease,
Tenant recovers a money judgment against Landlord, such judgment shall be satisfied only out
of the proceeds of sale received upon execution of such judgment and levled thereon against the
right, title and interest of Landlord in the Premises and out of rent Of other incOme from the
Premises receivable by Landlord, and neither Landlord, its partnerS. nor its, agenu shall be
personally liable for any deficiency. Neither Landlord's partners nor agents, nor any other
person or entity other than Landlord, nor any of their respective assets, shall be liable fOf
Landlord's breach of this Lease.
18.14 Exhibits. The Basic Lease Information, and all exhibits, amendments,
riders and addenda attached hereto are hereby incorporated herein and made a part hereof.
18.15 Conditions. All agreements of Tenant contained in this Lease, whether
expressed as conditions or covenants, shall be construed to be both conditions and covenants, .
conferring upon Landlord, in the event of a breach thereof, the right to tenninate this Lease.
18.16 No Partnership or Joint Venture. Nothing in this Lease shall be construed
as creating a partnership or joint venture between Landlord, Tenant, or any other party, or cause
Landlord to be responsible for the debts or obligations of Ten ant or any other party.
18.17 Construction. This Lease shall not be construed either for or against
Tenant or Landlord, but shall be construed in accordance with the laws of the State of California.
18.]8 Joint and Several Liability. If Tenant consists of more than 000(1) person
or entity, the obligations of each Tenant under this Lease shall be joint and several.
] 8.19 Binding Effect. Subject to the provisions of Paragraph ] 7 and Article 9,
aU of the provisions hereof shall bind and inure to the benefit of the parties hereto and their
respective heirs, legal representatives, successors and permitted assigns.
18.20 Recording. Concurrently with Tenant's execution and delivery of this
Lease to City, Tenant shall execute in recordable fonn and deliver to City the Memorandum
attached hereto as Exhibit "B" acknowledging the existence of this Lease, which may be
recorded by City in the Official Records of Santa Clara County, California upon execution of this
\t-NH\.'iAmiR 4
"l"
Lease by City. Following Lease Tennination, Tenant shall, promptly following demand from
Landlord, execute a quitclaim deed in favor of Landlord quitclaiming aIJ of Tenant's right, title
and interest under this Lease; provided, however, that Tenant's failure to deliver such cpJitclaim
deed when requested shall not delay or prevent, or otherwise affect the expiration or terIhination
of this Lease. ,
WVI.NiAtiOM 4
'"l1
TIllS LEASE is effective, as of the date that last signatory necessary to execute the Lease
shall have executed this Lease.
Dated:
Dated:
Dated:
Dated:
TENANT:
() It/' t,I;/ /Ic/t L'ie, a Cl.//~f'-d~ L;,'... :tJ
4 L~hJ,P~"Y
By: P-LA-A.. ~ "
/"
Daniel Barduzzi ,;%" t;.. (t /;t <" '*l'Lffide)
(/ ./ .
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Dated: I, - .:2.. - 0 ~
Dated: (t) --). - 0 ~
Dated:
WH\.'iAfi05A "
By:' ~4/~' ~
/. .'
Glen Gurries ;%... A J~:-ZJ 11..._-6." r . (Title)
By:
Nam~.::
(Title)
By:
(Title)
LANDLORD:
(Title)
AITE~ 2
; // /'
"-=--1'\ / , WAr fA~A j
Rh0I1da A. Pellin, City Clerk
APPROVED AS TO FORM:
;/-~~L,
Linda A. Callon, City Attorney ~
""
EXHIBIT A
PREMISES DESCRIPTION
The real property commonly known a. ~he Old Clty Hall, locatad at
7400 Honter.y Str.et; in the Clty Of Gl1roy, Callfornla, .t the
northe..t COrner of Mont.r.y .treet and 'lath str.et, witb the Old
Clty Hall buildlng of .pprox1aatelr 8,~OO .quare tNt,' lncllldill9 the
.dj.cent patio .nd r..r parking u.... ".....or.. P.=.l HUlIIber.
841-06.061.
In'.ddition, the unp.Vad'y.c.nt lot to be utili&ad for parking
at the corn.r of Sixth Str..t .nd Railro.d Street, in theCitT
of Gilroy, C.Ufornia. ".....or.. P.rcel "ullber. 1141-06-044...,
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EXHIBIT A
I
EXHIBIT "B"
MEMORANDUM
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of GDroy
7351 RosllDDa Street
Gilroy, California 95020
AttD: City Clerk
RECORDING REQUESTED PURSUANT TO
GOVERNMENT CODE SECTIONS 6103 AND
27383. ..
SPACE ABOVE TInS LINE F9R RECORDER'S USE
MEMORANDUM'
THIS MEMORANDUM is entered into as of 2003, by and between the CITY OF GD...R..OY~
municipal corporation ("Landlord") and (')/ / (/~/' .J/,,~L .{c. a California L / hr .;~.( L'~ ~ ~'. / c,~#'~
("Tenant"), with respect that certain Lease dated of eve date her .th by and between Landlord and Tenant. .
Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, certain real property located in
the City of Gilroy, County of Santa Clara, State of California, as more particularly described in Exhibit "A. attached
hereto ("Premises"), upOn the tenns and conditions of the Lease. The tenn oftbe Lease shall be for sixty (60)
months commencing on the Commencement Date (as defined in Paragraph 2 of the Lease), which term sluill be
subject to three (3) sixty (60) month extension periods, as described in the Lease, subject to sooner termination' as set
forth in the Lease.
This Memorandum shall incorporate all of the provisions of the Lease as though fully set forth herein. This '
Memorandum is entered by the parties for purposes of recordation and shall not be deemed to modify, amend, alter,
limit or otherwise change any of the provisions of the Lease. In the event of any conflict or ambiguity betWeen the
terms of this Memorandum and the terms of the Lease, the terms of the Lease shall prevail. .
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Memorandum as of the date first
set forth above.
CITY OF Gll..ROY,
a municipal corporation
At1est:
By:
Its
By:
Rhonda Pellin, City Clerk
Approved as to fonn:
By:
Linda A. Callon, City At10mey
//L (' 9 . " .,
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On
personally appeared
o personally known to me -OR- 0 proved to me on the basis
, ,
of satisfactory evidence to be the
person(s) whose name(s) is/are
subscribed to the within
instrument and 'acknowledged to
me that he/she/they executed the
same in hislher/their authorized
capacity(ies), and that by
hislher/their signature(s) on the
instrument the person(s), or the
entity upon behalf of which the
person(s) acted, executed the
instrument.
'.
STATE OF CALIFORNIA
COUNTY OF
} ~.
, before me,
4.
'\
,WHl.~ 1
WITNESS my hand and official
seal.
SIGNATIJRE OF
NOTARY
I
CAl' ACITY CLAIMJID BY SlGNJQi
Though IlI2u$e dOCII no(..dIe Notary
to fiB in 1be cbta below, doq 10->'
ptIW iIMJuabJe to pcnciIII Jdyias OIl tho
.documca. .
o INDIVIDUAL
o CORPORATE OFFICER.8(S)
. TrtJe(.)
o PAR1'NER(S) 0 UNITED.'
. 0 GENERAL
o AlTORNEY-IN-FAcr '
o TRtJSTEF.(S) . .
o OUARDIANICONSEllVATOR
o OIlIER: .
SIGNER IS REPRESENTING:
Name ofPcnoo(a) cr Emt,(1II)
IN WITNESS WHEREOF, the parties hereto have duly executed this Consent as of the
day and year first above written,
LANDLORD:
Dated: m,4 L.j '1, L ~ 0 S-
I ~
Administrator
Dated: .J"/L/p ~
,
ASSIGNOR:
OLD CITY ~, LLC, a California
limited Jia~company _
By: /~ A -' .kJ
,..{)aniel Barduzzi
Its: Managing Member
-
Dated: 1- 2- ~ - 0 S
By. e~ -Z . "::...
Glen G 'es
Its: Managing Member
ASSIGNEE:
CHIPS N SALSA, INC., a California
Corporation /
Dated:
4_ /1_
--
'-' :'
By:
Jim
L- " ~, (.-
-;; - l, - tL.)
Armsy /- .)
~" / j ] I I /
~---/ C~{ 'l(', (,- ,,1 ...-f.( ~C'</\
Rhonda Pellin, City Clerk
Dated:
5 ~/l)-ZS----
APPROVED AS TO FORM:
~ d. e~
Linda A. Callon, City Attorney
Dated:
WV."i',654496.2
OHl4110541706083
-3-
Exhibit "A"
Assi2Dment and Assumption of Lease
INVH\654496.2
01-041105-04 706083
-4-
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment of Lease'') is
executed this 2. 8 M day of April, 2005, by and between OLD CITY HALL, LLC, a California
limited liability company ("Assignor") and CHIPS N SALSA, INC., a California Corporation
("Assignee").
For good and valuable consideration, Assignor hereby assigns to Assignee all of its right,
title and interest in and under that certain Single Tenant Lease for reference purposes only.dated
May 6, 2003, by and between the City of Gilroy and Assignor ("Lease") relative to certain
property located in the City of Gilroy in Santa Clara County more particularly described in the
Lease, a copy of which is attached hereto as Exhibit "An and incorporated herein by this
reference.
Assignee hereby accepts the foregoing assignment and assumes and agrees to perform in
accordance with all of the tenus, covenants and conditions of the Lease on the part of lessee and
attoms to the City of Gilroy as lessor.
This Assignment of Lease is to be effective as of H(l\./ I ,2005.
.
ASSIGNOR:
Dated: .r I 0/0 J'--
Old City Hall, LLC,
a California Limited Liability Company
BY:~
ffaniel Barduzzi
Its: Managing Member
Dated: Y - L- <(~ t' J
BY:~Z~~
Glen Gurri~
Its: Managing Member
s-
ASSIGNEE:
CHIPS N SALSA. ~C., a California
Corporation,
4. I I - L >
By: .
Dated:
INVH\654481.3
-1-
CONSENT TO ASSIGNMENT AND ASSUMPTION OF LEASE
THIS CONSENT TO ASSIGNMENT AND ASSUMPTION OF LEASE ("Consent") is
made as of this ~t;lt~i:JLJ day of April, 2005 by and among THE CITY OF GILROY~ a
California municip corporation ("Landlord"), OLD cm HALL, LLC, a California limited
liability company ("Assignor"), and CHIPS N SALSA, INC., a California Corporation
("Assignee").
RECITALS
/
A. Pursuant to that certain Single Tenant Lease, dated for reference purposes only
dateq May 6, 2003 and having a scheduled commencement date of July I, 2003, between
Landlord, as landlord, and Assignor, as tenant ("Lease"), Landlord currently leases to Assignor,
and Assignor leases from Landlord, certain premises ("Premises') commonly known as Old City
Hall located at 7400 Monterey Street, Gilroy, California (Assessor's Parcel No. 841-06-061 and
841-08-044) and more particularly described in Exhibit "A" to the Lease.
B. Assignor has assigned all of its rights, title and interest under the Lease to
--- ~ Assi~;; has assumed all of the obligations of Assignor under the Lease, pursuant
~~htJ:.~t :~~~t and Assumption of Lease, executed on April ~2005, a copy of
which is attached hereto as Exhibit "A" ("Assignment").
C. Pursuant to Section 9 of the Lease, Assignor and Assignee have requested
Landlord's consent to the assignment of the Lease to Assignee.
Landlord hereby consents to the Assignment, subject to and upon the following terms and
conditions, to each of which Assignor and Assignee expressly agree:
1. Neither the Assignment nor this Consent shall release or discharge Assignor from
any liability under the Lease and Assignor shall remain fully liable and responsible for the full
performance and observance of all of the provisions, covenants and conditions set forth in the
Lease on the part of the tenant to be performed and observed under the Lease;.
2. Assignee hereby expressly assumes and agrees for the benefit of Landlord to
perform and comply with each and every obligation of Assignor under the Lease. In the event of
any default by Assignee under the Lease, Landlord may proceed directly against Assignee, or
anyone else liable under the Lease without first exhausting Landlord's remedies against any other
entity liable under the Lease. .
3. Except as expressly set forth in this Consent, nothing contained in this Consent
shall either (a) modify, waive or affect any of the provisions, covenants or conditions in the
Lease, any obligations of the tenant under the Lease, or any rights or remedies of Landlord under
the Lease, or otherwise, or enlarge or increase Landlord's obligations or the tenant's rights und~r
the Lease or rb) waive any present or future breach or default on the part of tenant under the
Ll:ase, The parties acknowledge that Landlord shall not be bound by any of the provisions,
covenants or conditions of thc Assignment, othcr than the assignment provisions thereof.
4. Concurrently with the execution of this Consent, Assignee shall furnish to
Landlord the certificates of insurance required pursuant to Section 7 of the Lease.
5. This Consent shall not be construed as a consent to any further assignment of the
Lease or subh.:tting of the Pn.wises and does not relieve Assignee or any person claiming under
INVH\654496.2
OH)41105-04706083
-1-
or through Assignee of the obligation to obtain the consent of Landlord pursuant to Section 9 of
the Lease.
6. Each individual executing this Consent on behalf of Assignor or Assignee
represents and warrants that he/she is duly authorized to execute and deliver this Consent on
behalf of such party, and that this Consent is binding upon such party. Concurrently with the
execution and delivery of this Consent, each of Assignor and Assignee shall provide Landlord
with a certificate of incumbency or other evidence satisfactory to Landlord that the individual
executing this Consent on behalf of such party is authorized to execute this Consent and bind
such party.
7. This Consent contains the entire agreement of the parties with respect to the
subject matter hereof and may not be changed or terminated orally or by course of conduct. This
Consent shall be governed by the laws of the State of California, and venue in the event of any
action in any court oflaw shall proper only in Santa Clara County.
8. This Consent may be executed in counterparts, each of which shall be deemed an
original and all of which together shall be deemed one and the same instrument.
III
III
\11'. ",-J1C.tAAO~'"
-2-
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Gilroy
7351 Rosanna Street
Gilroy, California 95020
Attn: City Clerk
RECORDING REQUESTED PURSUANT TO
GOvERNMENT CODE SECTIONS 6103 AND
27383.
SPACE ABOVE TIllS LINE FOR RECORDER'S USE
MEMORANDUM OF ASSIGNMENT OF LEASE
TIllS MEMORANDUM OF ASSIGNMENT OF LEASE is entered into as of April J. 9 , 2005,
by and between the CITY OF Gll..ROY, a municipal corporation ("Landlord") and OW CITY HALL,
LLC, a California limited liability company ("Tenant"), with respect to that certain Single Tenant Lease
("Lease") dated for reference purposes only May 6, 2003, and that Memorandum dated May 19, 2003
referencing said Lease, which was recorded in the Official Records of Santa Clara County, California on
June 30,2003 as Document No. 17147093. The Lease and this Memorandum of Assignment of Lease
regard the rights and responsibilities of Landlord and Tenant with regard to that certain real property
commonly known as Old City Hall located at 7400 Monterey Street, Gilroy, California in the County of
Santa Clara (Assessor's Parcel Numbers 841-06-061 and 841-08-044).
For good and valuable consideration, by that certain Assignment and Assumption of Lease
executed <m..April ~~, 2005, by and between OLD CITY HALL, LLC, and CHIPS N SALSA, INC., a
California Corporation, Tenant assigned to CHIPS N SALSA, INC., all of its rights in the Lease. By that
certain Consent to Assignment and Assumption of Lease made as of April '1 tJ, 2005 by and among
Landlord, Tenant and C HIPS N SALSA, INC., the parties thereto consented t 0 said a ssignment and
assumption of the Lease. Tenant and Landlord acknowledge that as of the date fIrst stated above, no lease
is recorded against that certain real property described above.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Memorandum of
Assignment of Lease.
-j .- ~
Altest:. /J/ . /) ,
B\~~l . Ie/]. (l{ r- l r {. f j
Rh;nda Pdlin, City Clerk
Dated: (V~at \ Ci ,2005
c
r..
Dated: p. f'~1 L 28,2005
. I ..,.'~_
APproPle as .... Fo.nn:
;j ~ //
By: {f . ~~~
Linda A, Callon, City Attorney
OLD CITY HALL, LLC, a limited liability
company
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y ---.---- --------
Its: Managing Me ber
'J'NHI656410,2
-1-
STATE OF CALIFORNIA )
)ss.
COUNTY OF SANTA CLARA )
TITLE OF DOCUMENT: Memorandum of Assignment of Lease
On May 9, 2005, before me, Rhonda Pellin, Notary Public, personally appeared Jay Baksa
personally known to me to be the person whose name is subscribed to the within instrument and
acknowledged to me that he executed the same in his authorized capacity, and that by his
signature on the instrument the person or the entity upon behalf of which the person acted,
executed the instrument.
~SS7Yhand ~~. ,
~ -1-',_
Signature of Notary blic
,,","'- RHoNaAJIEl.l.It _~_
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i...;.~-, ":, . "., PubDo. CdtonaI
L'~&' &ntaClq~~f
· :-~ ~~~.~1~
per GC Sec. 40814; CC Sec, 1181
(Notary SeaJ)
~~LL.PURPOSE ACKNO~~~_I?~~~~
County of
April 28, 2005
Santa Clara
} ss
State of California
On
before me,
Susan R. Johnson, Notary Public
Name and Tille 01 OIfIcer (e,II., . Jane Doe, Nolaty Public")
Dale
personally
appeared
Glen Gurries
Name(s) of S1ll1'sr(s)
~ersonallY known to me
~~- :=i~"i=04~ ,
1- -_..-, I
~--~~~~~
o proved to me on the basis of satisfactory evidence
to be the person(s) whose name(s) is/are subscribed
to the within instrument and acknowledged to me that
he/she/they executed the same in hislher/their
authorized capacity(ies), and that by hislher/their
signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted.
executed the instrument.
Place Notaty Seal Abovo
Description of Attached Document
Title or Type of Document: Memorandum of Assignment of Lease
Document Date:
Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: Glen Gurries
Individual
cupordte Ot:icer - ::t!('\s): M"tDilg.inz. _~[!;TILbgJ-:
p~.Ht"er -- Limited General ~
Attorney In Fact l.,p .~, !~ "",,, :...,,, i
~TM~ '
Guardian or Conservator
U Other:
Signer's Name: _._____ --------------
1- Individual
U Corporate Officer -- Titlel,s): _________-
.] Partner _.- . . L..;iTI;ted G".:f~(..r.:ll
Attorrey in Fact
Trustee
i 1 Guardian or Consorvutor
Other:
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---.---------
I
L___
Signer Is Representing: -------.--- I
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Signer Is Representing: ---'--
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,t)2004 Na~onal Nolaty AssoXl31J0n' 9350 De SOh) A'IC" PO, 50' 2~"~' U.ab'N<OI;l:, e,\ 913\:1-,.102 tom '10, ,,-;07 ;'l'lc'Jer' Ca'1 [oil.Free l'oOO.Bi'j.'j~2';
FIRST AMENDMENT TO SINGLE TENANT LEASE
This FIRST AMENDMENT TO SINGLE TENANT LEASE ("First Amendment") is
made as of September 30, 2008 ("Effective Date") by and between THE CITY OF GILROY
("Landlord"), and CHIPS N SALSA, INC., a California corporation ("Tenant").
RECIT ALS
A. Landlord and Tenant's predecessor in interest, Old City Hall, LLC, a California
limited liability company ("Original Tenant") entered into that certain Single Tenant Lease dated
May 6, 2003 for those certain premises commonly know as the Old City Hall and located at 7400
Monterey Street, Gilroy, California (Assessor's Parcel Numbers 841-06-061 and 841-08-044)
("Lease") and more particularly defined in the Lease as the "Premises." A Memorandum of the
Lease was recorded in the Official Records of Santa Clara County, California on June 30, 2003
as Document No. 17147093 ("Memorandum").
B. Original Tenant assigned all of its rights under the Lease to Tenant pursuant to
that certain Assignment and Assumption of Lease dated April 28, 2005. Landlord consented to
said assignment pursuant to that certain Consent to Assignment and Assumption of Lease dated
as of April 28, 2005 and executed by Landlord, Original Tenant and Tenant.
C. A dispute arose between Landlord and Tenant concerning an alleged default and
Landlord contended that it terminated the Lease as a result. Further, Tenant did not exercise the
first Option to extend the term of the Lease for the first Extended Term in accordance with
Paragraph 2.5 of the Lease.
D. Landlord and Tenant desire to reinstate the Lease and to provide for Tenant's
exercise of the first Option to extend the term of the Lease for the first Extended Term. In
addition, Tenant desires to assign the Lease to Saffron Restaurant Group, LLC, a California
limited liability company ("Assignee"), The parties desire to amend certain terms and
conditions of the Lease, all on the terms and conditions set forth in this First Amendment.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Landlord and Tenant hereby modify, supplement and amend the Lease as
follows:
1. Reinstatement of Lease; Option Exercise. Landlord and Tenant hereby agree to
reinstate the Lease as of July 1, 2008, In addition, Landlord and Tenant hereby agree that,
notwithstanding the lapse of any time period to exercise the first Option as specified in
Paragraph 2.5 of the Lease, Tenant shall be deemed to have timely exercised the first Option to
extend the Lease term for the first Extended Term ("First Extended Term") such that the term of
the Lease has been extended effective as of July 1,2008 to June 30, 2013. Landlord and Tenant
acknowledge that the Lease, as extended by the First Extended Term is in full force and effect.
2. Use of Premises. Paragraph 5.1 of the Lease is hereby deleted and the folloviing
substituted in its place:
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"Tenant shall use the Premises as a bona fide eating place, as that term is defined
in Section 23038 of the California Business & Professions Code or a successor statute. Tenant
shall hold the Premises open as a bona fide eating place for regular meal service for a minimum
five (5) evenings per week, City holidays excepted, during the hours from 5:00 pm. until 8:00
p.m. Notwithstanding the foregoing, Tenant shall be entitled to close its business in the Premises
without being in default of its obligations under this paragraph under any of the following
circumstances (collectively, "Permitted Closures"): (i) if such closure is necessary to perform
emergency repairs or maintenance to the Premises or Tenant's equipment; (ii) for a period not to
exceed ten (10) days if necessary to perform ordinary maintenance or necessary repairs in, on or
about the Premises and/or Tenant's equipment provided that Tenant shall give Landlord not less
than thirty (30) days written notice of such Permitted Closure; (iii) if Tenant is unable to operate
its business in the Premises due to strike or labor troubles, acts of war, terrorism or other cause
beyond the reasonable control of Ten ant; and (iv) for a reasonable period, not exceeding four (4)
consecutive calendar months in any seven (7) year period, for the purpose of remodeling or
redesigning the restaurant provided that Tenant shall give Landlord not less than thirty (30) days
prior written notice of such Permitted Closure. Nothing contained herein shall be construed to
restrict the days and time that Tenant may hold open the Premises if more days or hours are
permitted under a valid permit issued by the City of Gilroy; provided, however, Tenant's primary
use of the Premises shall at all times be that of a bona-fide eating place in accordance with this
Paragraph 5.1. Tenant shall not operate the Premises in violation of any section of this Lease or
local, state or federal law. Tenant may use the Premises for the following purposes so long as
Tenant continues the primary use of the Premises as a bona fide eating place: culinary school;
live theater in conformance with the Gilroy Zoning Code; private parties and meetings; area for
service of alcoholic or non-alcoholic beverages; and office space for Tenant's use only. Tenant
shall maintain a family-oriented atmosphere in its operation of the Premises. Tenant shall not
use the Premises for any other purpose, including but not limited to use as a nightclub, bar or
other form of entertainment business in which alcohol sales and consumption is a primary
business operation, without the prior written consent of Landlord, which approval may be
withheld by Landlord in its sole and absolute discretion. In no event shall Tenant conduct or
permit any special events or promotions in the Premises that encourage or promote excessive
consumption of alcoholic beverages, the use of illegal drugs or controlled substances or that
promote adult-oriented themes or entertainment based on sexual themes. If Tenant obtains, or
otherwise acquires a permit (hereinafter "ABC Permit") for the sale of alcohol from the
California Department of Alcohol Beverage Control (hereinafter "ABC"), a violation of the
terms and conditions of the ABC Permit that results in an enforcement action by the ABC against
Tenant with respect to the ABC Permit shall be a material breach of this Lease."
3. Default. Paragraph 12.1.3 of the Lease is hereby deleted and the following
substituted in its place:
"12.1.3 lne failure by Tenant to timely observe or perform any of the express or
implied covenants or provisions of this Lease to be observed or performed by Tenant, other than as
specified in Paragraphs 12.1.1, 12.1.2 or 12.1.5 hereof."
4.
Default. Paragraph 12.1.5 is hereby added to the Lease as follows:
18CI770185,1
082108-04706132
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"12.1.5 Tenant's failure to cure a violation of the terms of Paragraph 5.1 of the
Lease within ten (10) days after receipt of written notice from Landlord specifying the violation;
provided, however, if Landlord gives Tenant written notice of Tenant's violation of the terms of
Paragraph 5.1 of the Lease three (3) times in any calendar year, then any subsequent violation of
the terms of Paragraph 5.1 during the term of the Lease shall be deemed a non-curable default by
Tenant."
5. Assignment and Assumption of Lease. Concurrently with the execution and
delivery of this First Amendment, Tenant shall assign all of its rights and obligations under this
Lease to Assignee, and Assignee shall assume all of Tenant's rights and obligations under the
Lease, pursuant to that certain Assignment and Assumption of Lease in the form attached hereto as
Exhibit A ("Assignment and Assumption Agreement"). Upon full execution thereof, Tenant and
Assignee shall deliver to Landlord a fully executed counterpart original of the Assignment and
Assumption Agreement. In addition, Tenant and Assignee shall execute and deliver to Landlord
three counterpart originals of the Consent to Assignment and Assumption of Lease among
Landlord, Tenant and Assignee in the form attached hereto as Exhibit B ("Landlord's Consent").
Upon Landlord's receipt of a counterpart original of the Assignment and Assumption Agreement
and the three counterpart originals of the Landlord's Consent executed by both Tenant and
Assignee, Landlord shall execute three counterpart originals of the Landlord Consent and deliver an
executed counterpart original to each of Tenant and Landlord.
6. Memorandum of Assignment. Concurrently with the execution of this First
Amendment, Landlord, Tenant and Assignee shall execute and acknowledge the Memorandum of
Assignment of Lease in the form attached hereto as Exhibit C ("Memorandum Amendment") to
amend the Memorandum to reference Tenant's assignment of the Lease to Assignee. Promptly after
the Effective Date, Landlord shall cause the Memorandum Amendment to be recorded in the
Official Records of Santa Clara County, California.
7. Effect of First Amendment. Except as modified herein, the terms and provisions
of the Lease shall remain unmodified and continue in full force and effect. In the event of any
conflict between the terms and provisions of this First Amendment and the terms and provisions
of the Lease, the ternlS and provisions of this First Amendment shall govern and control the
intent and agreement of the parties.
[signatures appear on next page]
\SC\770185.1
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment as of
the date first set forth above.
TENANT:
By:
Its:
Printed N am
By:
Its:
Printed Name:
LANDLORD:
THE CITY OF GILROY,
a California municipal corporation
Dated:
By:
Thomas J. Haglund,
City Administrator
ATTEST:
Dated:
Shawna Freels, City Clerk
Approved as to form:
Dated:
Linda A. Callon, City Attorney
ISCI770185.1
082108-04706132
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IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment as ofthe date first set forth above,
Dated~)\2 zr&
ATTEST:
Dated(jfJJ.m (ft)2
Dated:
/SC/7701851
082108-04706123
TENANT:
CHIPS n SALSA, INe.,
California Corporation
By:
Its:
Printed Name:
By:
Its:
Printed Name:
LANDLORD:
THE CITY OF GILROY,
a Cali ia municipal corporation
By:
APP~~
_./...~~
Linda' A. Cal on, City Attorney
v\-c '" V)
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EXHIBIT A
ASSIGNMENT AND ASSUMPTION OF LEASE
THIS ASSIGNMENT AND ASSUMPTION OF LEASE ("Assignment of Lease") is
executed as of this 15t day of October, 2008 (the "Assignment Date"), by and between CHIPS N
SALSA, INC, a California corporation ("Assignor") and SAFFRON RESTAURANT GROUP,
LLC, a California limited liability company ("Assignee").
For good and valuable consideration, receipt of which is hereby acknowledged, Assignor
hereby assigns to Assignee all of its right, title and interest as the tenant in and under that certain
Single Tenant Lease for reference purposes only dated May 6, 2003, by and between the City of
Gilroy and Assignor's predecessor in interest, Old City Hall, LLC, a California limited liability
company, as amended by First Amendment to Lease dated September 30, 2008 by and between
the City of Gilroy and Assignor (collectively, "Lease") for certain property located at 7400
Monterey Street, in the City of Gilroy, Santa Clara County, (Assessor's Parcel Numbers 841-06-
061 and 841-08-044), and more particularly described in the Lease, a copy of which is attached
hereto as Exhibit "A" and incorporated herein by this reference.
Assignee hereby accepts the foregoing assignment and assumes and agrees to perform all
of the obligations of Assignor arising under the Lease on or after the Assignment Date in
accordance with all ofthe terms, covenants and conditions of the Lease on the part of Tenant..
IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment and
Assumption of Lease as of , 2008.
ASSIGNOR:
CHIPS N SALSA, INC., a California
Corporation,
Dated:
By:
Its:
ASSIGNEE:
SAFFRON RESTAURANT GROUP, LLC,
a California limited liability company
Dated:
By:
Gary Walton
Its: Managing Member
\5C\770185.1
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EXHIBIT B
CONSENT TO ASSIGNMENT AND ASSUMPTION OF LEASE
THIS CONSENT TO ASSIGNMENT AND ASSUMPTION OF LEASE ("Consent") is
made as of this first (1 st) day of October, 2008 by and among THE CITY OF GILROY, a
California municipal corporation ("Landlord"), CHIPS N SALSA, INC., a California corporation
("Assignor"), and SAFFRON RESTAURANT GROUP, LLC, a California limited liability
company ("Assignee").
RECITALS
A. Pursuant to that certain Single Tenant Lease, dated for reference purposes only
May 6, 2003, between Landlord, as landlord, and Assignor's predecessor in interest, Old City
Hall, LLC, a California limited liability company, as tenant, as amended by First Amendment to
Lease dated as of September 30,2008 between Landlord and Tenant (collectively, the "Lease"),
Landlord currently leases to Assignor, and Assignor leases from Landlord, certain premises
("Premises") commonly known as Old City Hall located at 7400 Monterey Street, Gilroy,
California (Assessor's Parcel No. 841-06-061 and 841-08-044) and more particularly described
in Exhibit "A" to the Lease.
B. Assignor has assigned all of its right, title and interest under the Lease to
Assignee, and Assignee has assumed all of the obligations of Assignor under the Lease, pursuant
to that certain Assignment and Assumption of Lease, dated as of September 30, 2008 (the
"Assignment Date"), a copy of which is attached hereto as Exhibit "A" (" Assignment").
C. Pursuant to Section 9 of the Lease, Assignor and Assignee have requested
Landlord's consent to the assignment of the Lease to Assignee.
Landlord hereby consents to the Assignment, subject to and upon the following terms and
conditions, to each of which Assignor and Assignee expressly agree:
1. Neither the Assignment nor this Consent shall release or discharge Assignor from
any liability under the Lease and Assignor shall remain fully liable and responsible for the full
performance and observance of all of the provisions, covenants and conditions set forth in the
Lease on the part of the tenant to be performed and observed under the Lease.
2. Assignee hereby expressly assumes and agrees for the benefit of Landlord to
perform and comply with each and every obligation of Assignor arising under the Lease on or
after the Assignment Date. In the event of any default by Assignee under the Lease, Landlord
may proceed directly against Assignee, or anyone else liable under the Lease without first
exhausting Landlord's remedies against any other entity liable under the Lease.
3. Except as expressly set forth in this Consent, nothing contained in this Consent
shall either (a) modify, waive or affect any of the provisions, covenants or conditions in the
Lease, any obligations of the tenant under the Lease, or any rights or remedies of Landlord under
the Lease, or otherwise, or enlarge or increase Landlord's obligations or the tenant's rights under
the Lease or (b) waive any present or future breach or default on the part of tenant under the
Lease.
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4. In connection with the foregoing, Landlord represents for the benefit of Assi
that Landlord is not aware of any existing event of default under the Lease or any condition thd,
with notice and the passage of time or otherwise might ripen into an event of default under the
Lease. Landlord acknowledges that Assignee is relying upon the representations set forth in this
paragraph in executing the Assignment.
5. Concurrently with the execution of this Consent, Assignee shall furnish to
Landlord the certificates of insurance required pursuant to Section 7 of the Lease.
6. This Consent shall not be construed as a consent to any further assignment of the
Lease or subletting of the Premises and does not relieve Assignee or any person claiming under
or through Assignee of the obligation to obtain the consent of Landlord pursuant to Section 9 of
the Lease.
7. Assignee hereby waives any and all claims Assignee may have against Landlord
arising out of the assignment of the Lease by Assignor to Assignee or the negotiations preceding
the assignment of the Lease.
8. Each individual executing this Consent on behalf of Assignor or Assignee
represents and warrants that he/she is duly authorized to execute and deliver this Consent on
behalf of such party, and that this Consent is binding upon such party, Concurrently with the
execution and delivery of this Consent, each of Assignor and Assignee shall provide Landlord
with a certificate of incumbency or other evidence satisfactory to Landlord that the individual
executing this Consent on behalf of such party is authorized to execute this Consent and bind
such party.
9, This Consent contains the entire agreement of the parties with respect to the
subject matter hereof and may not be changed or terminated orally or by course of conduct. This
Consent shall be governed by the laws of the State of California, and venue in the event of any
action in any court of law shall proper only in Santa Clara County.
10. This Consent may be executed in counterparts, each of which shall be deemed an
original and all of which together shall be deemed one and the same instrument.
[signatures appear on next page]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Consent as of the
day and year first above written.
LANDLORD:
THE CITY OF GILROY,
a California municipal
corporation
Dated:
By:
Thomas J. Haglund,
City Administrator
ATTEST:
Dated:
Shawna Freels, City Clerk
APPROVED AS TO FORM:
Dated:
Linda A. Callon, City Attorney
ASSIGNOR:
CHIPS N SALSA, INC., a California
Corporation
Dated:
By:
Jim Angelopoulos
Dated:
ASSIGNEE:
SAFFRON RESTAURANT GROUP, LLC,
a California limited liability company
Dated:
By:
Gary Walton,
Managing Member
\SC\7701851
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EXHIBIT A TO EXHIBIT B
LEASE
[to be attached]
18C\7701851
082108-04706132
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EXHIBIT C
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
City of Gilroy
7351 Rosanna Street
Gilroy, California 95020
Attn: City Clerk
RECORDING REQUESTED PURSUANT TO
GOVERNMENT CODE SECTIONS 6103 AND
27383.
SPACE ABOVE THIS UNE FOR RECORDER'S USE
MEMORANDUM OF ASSIGNMENT OF LEASE
THIS MEMORANDUM OF ASSIGNMENT OF LEASE is entered into as of October 1, 2008,
by and between the CITY OF GILROY, a municipal corporation ("Landlord"), CHIPS N SALSA, INC.,
a California corporation ("Assignor") and SAFFRON RESTAURANT GROUP, LLC, a California
limited liability company ("Assignee"), with respect to that certain Single Tenant Lease ("Original
Lease") dated for reference purposes only May 6, 2003, as amended by First Amendment to Lease dated
September 30, 2008 ("First Amendment") (the Original Lease and the First Amendment are hereafter
referred to collectively as the "Lease"), A Memorandum of Lease dated May 19, 2003 referencing the
Original Lease was recorded in the Official Records of Santa Clara County, California on June 30, 2003
as Document No. 17147093. The Memorandum was amended by that certain Memorandum of
Assignment of Lease dated April 28, 2005 to reflect the assignment of the tenant's interest under the
Original Lease to Assignor. The Lease and this Memorandum of Assignment of Lease regard the rights
and responsibilities of Landlord, Assignor and Assignee with regard to that certain real property
commonly known as Old City Hall located at 7400 Monterey Street, Gilroy, California in the County of
Santa Clara (Assessor's Parcel Numbers 841-06-061 and 841-08-044).
For good and valuable consideration, by that certain Assignment and Assumption of Lease dated
October 1,2008, by and between Assignor and Assignee, Assignor assigned to Assignee all of its rights as
the tenant under the Lease. By that certain Consent to Assignment and Assumption of Lease dated
October I, 2008 by and among Landlord, Assignor and Assignee, Landlord consented to said assignment
and assumption of the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this Memorandum of
Assignment of Lease.
,2008
CITY OF GILROY, a municipal corporation
Dated:
By-
Thomas 1. Haglund, City Administrator
Attest:
Approved as to Form:
By:
By:
Shawna Freels, City Clerk
Linda A. Callon, City Attorney
ISCI7701851
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