Complaint,Petition: Overlook Watsonville Associates, LLC, a California limited liability company, et al vs Yesenia Solano, et al

On March 14, 2024 a Complaint,Petition was filed involving a dispute between Kudrna 1986 Trust Under Agreement Dated December 23, 1986, As Amended, Overlook Watsonville Associates, Llc, A California Limited Liability Company, and Solano, Jose L., Solano, Yesenia, for (06) Unlimited Breach of Contract / Warranty in the District Court of Santa Cruz County.

Preview
RACHEL THOMAS (SBN 244527)
SHAELA PRINCE (SBN 354154)
GREENFIELD LLP
55 S. Market Street, Suite 1500
San Jose, California 95113
Telephone: (408) 995-5600
Email: rthomas@greenfieldlaw.com
sprince@greenfieldlaw.com

Attorneys for Plaintiffs OVERLOOK WATSONVILLE
ASSOCIATES, LLC, a California limited liability company;
and KUDRNA 1986 TRUST UNDER AGREEMENT
DATED DECEMBER 23, 1986, AS AMENDED

SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SANTA CRUZ
11

12 OVERLOOK WATSONVILLE ASSOCIATES, | Case No.:
LLC, a California limited liability company;
13 and KUDRNA 1986 TRUST UNDER COMPLAINT FOR DAMAGES FOR
AGREEMENT DATED DECEMBER 23, BREACH OF LEASE
14 1986, AS AMENDED,
[Unlimited Jurisdiction]
15 Plaintiffs,

16 vs.

17 YESENIA SOLANO, an individual; JOSE L.
SOLANO, an individual; and DOES 1 through
18 10, inclusive,

19 Defendants.

21 Plaintiffs OVERLOOK WATSONVILLE ASSOCIATES, LLC, a California limited

22 liability company; and KUDRNA 1986 TRUST UNDER AGREEMENT DATED

23 DECEMBER 23, 1986, AS AMENDED (together, “Plaintiffs”), allege as follows:
1
24 Plaintiffs are, and all times relevant in this Complaint were, the owners of the

25 commercial property commonly known as 1493 Main Street, Watsonville, California 95076

26 (the “Property”.

27 2 Plaintiffs are informed and believe and thereon allege that Defendant

28 YESENIA SOLANO (“Mrs. Solano”) is an individual who is, and all relevant times hereto

COMPLAINT FOR DAMAGES FOR BREACH OF LEASE
has been, doing business in the State of California, County of Santa Cruz.

3 Plaintiffs are informed and believe and thereon allege that Defendant JOSE

L. SOLANO (“Mr. Solano” and together with Ms. Solano, “Defendants”) is an individual

who is, and all relevant times hereto has been, doing business in the State of California,

County of Santa Cruz.

4 The true names and capacities, whether individual, corporate, associate, or

otherwise, of Defendants DOES 1 through 10, inclusive, are unknown to Plaintiffs who

therefore sue such Defendants by such fictitious names. Plaintiffs are informed and

believe, and thereon allege, that each of the Defendants sued herein as DOES 1 through

10 10, inclusive, are responsible in some manner for the obligations sued upon herein and

11 that the damages sustained by Plaintiffs, as herein alleged, were proximately caused by

12 such Defendants. Plaintiffs will seek permission of the Court to amend the Complaint to

13 state the true names and capacities of DOES 1 through 10, inclusive, when ascertained.

14 5 Plaintiffs are informed and believe and thereon allege that at all times

15 relevant herein, Defendants, and each of them, were the agents, servants, and

16 employees of the remaining Defendants, and in doing the things hereafter alleged, were

17 acting within the course and scope of said agency, service, and employment.

18 6 Venue is proper because the subject lease transactions were completed and

19 finalized in the County of Santa Cruz,

20 7 The premises is located in the County of Santa Cruz, and Defendants’

21 obligations under the lease agreement were to be performed in the County of Santa Cruz.

22 8 On or about September 22, 2021, Defendants, and each of them, entered

23 into a written lease agreement with Plaintiffs commencing November 1, 2021, and

24 expiring on December 31, 2026 (the “Lease”), for the approximately 1,432 square feet of

25 floor area at the Property (“Premises”). A true and correct copy of the Lease is attached

26 hereto as Exhibit A and incorporated herein by reference.

27 9 Plaintiffs are informed and believe that Defendants took possession of the

28 Premises and commenced operation of the business known as Zolano’s Insurance on or
2
COMPLAINT FOR DAMAGES FOR BREACH OF LEASE
about November 1, 2021.

10. Pursuant to the terms of the Lease, Defendants are obligated to pay

Plaintiffs monthly Base Rent as specified in Sections 1.8, 1.9, and 4.1 of the Lease.

Defendants are further obligated to pay additional amounts for: (i) annual Base Rent

Adjustments beginning on January 1, 2023, as specified in Sections 1.10, 1.11, and 4.2 of

the Lease; and (ii) Additional Rent as specified in Sections 1.12, 4.4, 4.5, 6.1, 6.2(b), 8,

9.3, 9.4, 10.1, 15.2, and 15.3 of the Lease (collectively referred as “Rent”).

11. Pursuant to the terms of Section 20.1(a) of the Lease, Defendants agreed

that a default in payment when due of any installation of Rent or other payment required

10 to be made, if not cured within three (3) days after such payment becomes due,

11 constitutes a breach of the Lease.

12 12. In accordance with the terms of Section 20.3 of the Lease, Defendants

13 agreed that if any installment of Base Rent or any other sum due by Defendants is not

14 received by Plaintiffs within ten (10) days after such amount is due, Defendants shall pay

15 to Plaintiffs a late charge of $300.00 for each late installment or other sum due.

16 13. In accordance with the terms of Section 26.7 of the Lease, interest shall

17 accrue on any Base Rent, Additional Rent, or other sum due from Defendants after the

18 date the same is due, at an annual rate equal to the greater of: (i) ten percent (10%), or

19 (ii) five percent (5%) plus the rate established by the Federal Reserve Bank of San

20 Francisco, as of the twenty-fifth (25"") day of the month immediately preceding the due

21 date.

22 14. Since on or about April 1, 2023, and each month thereafter, Defendants,

23 and each of them, have breached the Lease by failing and refusing, and continuing to fail

24 and refuse, to pay the Rent due under the Lease.

25 15. In or about June or July 2023, Defendants voluntarily vacated the Premises

26 and returned possession of the Premises to Plaintiffs. The Premises were re-leased to a

27 replacement tenant who will begin making rental payments on or about April 1, 2024.

28 Defendants, and each of them, remain liable to perform all obligations under the Lease up
3
COMPLAINT FOR DAMAGES FOR BREACH OF LEASE
to and including March 31, 2024.

16. From and after April 1, 2023, Defendants, and each of them, have breached

the Lease by failing and refusing, and continuing to fail and refuse, to pay the Rent due

under the Lease.

17. From and after April 1, 2023, Defendants, and each of them, have breached

the Lease by failing and refusing, and continuing to fail and refuse, to pay the Late

Charges due under the Lease.

18. As of March 1, 2024, the total amount due and owing by Defendants, net of

Defendants’ security deposit, is $46,848.77.

10 19. By virtue of Defendants’ breaches of the Lease, Plaintiffs have incurred

11 unpaid rental damages, net of Defendants’ security deposit, in the amount of $46,848.77.

12 Accordingly, Plaintiffs seek the amount of at least $46,848.77 in connection with

13 Defendants’ breaches of the Lease from April 1, 2023 through and including March 31,

14 2024.

15 20. Pursuant to the terms in Section 21 of the Lease, if either party brings any

16 action or legal proceeding for damages for any alleged breach of any provision of the

17 Lease, the prevailing party shall be entitled to recover reasonable attorneys’ fees and

18 costs.

19 21. Plaintiffs have been forced to retain attorneys to prosecute this action and to

20 recover the sums due under the Lease, and are therefore entitled to an award of

21 reasonable attorneys’ fees and costs of suit incurred herein.

22 FIRST CAUSE OF ACTION
[Breach of Lease]
23 Against All Defendants
24 22. Plaintiffs incorporate herein by reference the allegations contained in

25 Paragraphs 1 through 21 above, as though fully set forth herein.

26 23. Defendants, and each of them, entered into the Lease with Plaintiffs

27 commencing November 1, 2021, and expiring on December 31, 2026.

28 24. The Premises were re-leased to a replacement tenant who will begin making
4
COMPLAINT FOR DAMAGES FOR BREACH OF LEASE
rental payments on or about April 1, 2024.

25. Defendants remain liable to perform all obligations under the Lease accruing

before April 1, 2024.

26. Plaintiffs have performed all the obligations, covenants, and conditions

precedent required under the Lease, except those that have been waived or excused by

Defendants’ breaches or otherwise.

27. Defendants’ failure to pay Rent and Late Charges in full as they became due

constitutes a material breach of the Lease. Defendants’ breach of the Lease has caused

damage to Plaintiffs in at least the amount of $46,848.77 plus reasonable attorneys’ fees,

10 costs, and interest according to proof at trial.

11 WHEREFORE, Plaintiffs pray for judgment against Defendants, and each of them,

12 as follows:
1
13 For damages in excess of $46,848.77 pursuant to Civil Code section

14 1951.2, according to proof at time of trial;

15 2 For late charges on all sums due and owing under the Lease in an amount

16 according to proof at trial;

17 3 For interest at the maximum legal rate pursuant to the terms of the Lease

18 and/or statute, and according to proof at trial;

19 4 For reasonable attorneys’ fees according to contract and proof thereon;

20 5 For costs of suit incurred herein; and

21 6 For such other and further relief as the Court may deem just and proper.

22 GREENFIELD LLP
23

24 Dated: March 14, 2024
RACHEL THOMAS
25 SHAELA PRINCE
Attorneys for Plaintiffs
26 OVERLOOK WATSONVILLE
ASSOCIATES, LLC, a California limited
27 liability company; and KUDRNA 1986
TRUST UNDER AGREEMENT DATED
28 DECEMBER 23, 1986, AS AMENDED

COMPLAINT FOR DAMAGES FOR BREACH OF LEASE
EXHIBIT A
LEASE AGREEMENT

by and between

Overlook Watsonville Associates, LLC,
a California limited liability company,
and
Kudrna 1986 Trust Under Agreement
dated December 23, 1986, as amended,

as LANDLORD

and

Mayra L. Perez, an individual,
Yesenia Solano, an in: ual,
and
Jose L. Solano, an individual,

as TENANT

for Premises located at

1493 Main Street
Watsonville, CA 95076

ZShared\DOCS\WP\FORMS\LEASES\Toro Taxes & Zolano's Insurance-Overlook II Redline Lease 9-20-21 docx
Table of Contents

1 BASIC LEASE PROVISIONS...
Ll TENANT'S TRADE NAME,
12 DESCRIPTION OF PREMIS.
13 APPROXIMATE FLOOR AREA OF PREMISE!
14 LOCATION OF BUILDING IN WHICH PREMISES ARE LOCATED.
15 LEASE TERM.
16 COMMENCEMENT DATE,
17 EXPIRATION DATE,
18 BASE RENT,
19 BASE RENT COMMENCEMENTDA’
1.10 DATE OF FIRST BASE RENT ADJUSTMENT,
111 BASE RENT ADJUSTMENT DATE(S)...
1.12 ADDITIONAL RENT COMMENCEMENT Da‘
1.13 Gross SALES REPORT!
1.14 PREPAIDRENT. .
1.15 SECURITY DEPOSI
1.16 TENANT'S SHARE OF AL PROPERTY TAXES,
1.17 USE.
1.18 INITIAL GROSS MONTHLY OCCUPANCY CosTS,
1.19 ADDRESSES FOR NOTICES,
1.20 Foon Us!
1.21 EXHIBITS,

PREMISKS.....
21 DESCRIPTIO}
2.2 RELOCATIO!

TERM.’.....
3.1 TERM; COMMENCEMENT DATE,
3.2 DELAY IN COMMENCEMENT,
3.3 EARLY ENTRY
34 ACKNOWLEDGMENT OF COMMENCEMENT DATE

RENT...
41 BASE RENT,
4.2 BASE RENT ADJUSTMEN
43 GROSS SALES REPORT!
44 ADDITIONAL REN
45 PREPAID RENT.
4.6 PLACE OF PAYMEN'
47 FORM OF PAYMEN
«
SECURITY DEPOSIT...
TAXES...
6.1 PERSONAL PROPERTY AND OTHER TAXES,
6.2 REAL PROPERTY TAXES.......

7. USE OF PREMISES. .
TA Use.
72 SUITABILITY
73 PROHIBITED USES: COMPLIANCE WITH LAWS,

UTILITIES.
COMMON AREA OPERATING EXPENS
91 COMMON AREA DEFINITION AND USE. ..
9.2 MAINTENANCE AND MANAGEMENT. ....
93 DEFINITION OF COMMON AREA OPERATING EXPENSES.
94 PAYMENT OF COMMON AREA OPERATING EXPENSE! 10
9.5 RULES ANDREGULATIONS..... 10
10, MAINTENANCE AND REPAIRS. .... 11
10.1 LANDLORD'S OBLIGATIONS, 1
10.2 TENANT'S OBLIGATIONS. i
11. ALTERATION: 12
11 ALTERATIONS BY TENAN. 12
112 ALTERATIONS BY LANDLORD, 12
113 TENANT'S PERSONAL PROPERTY, 12
12. LANDLORD'S ENTRY.)..... 13
13, LIENS. 13
14, INDEMNITY, 13
14.1 INDEMNITY, 13
14.2 EXEMPTION OF LANDLORD FROM sILITY 13
143 SURVIVAL... 4
15, INSURANCE... 4
15.1 LIABILITY INSURANCE - TENANT, 4
15.2 LIABILITY INSURANCE NDLOR] 4
15.3 PROPERTY INSURANCE, 4
15.4 FORM OF THE POLICIES, 4
15.5 WAIVER SUBROGATIO!
15.6 TENANT'S INSURANCE; PLATE GLASS INSURANCI

16. DAMAGE TO PREMISES... 15
16.1 PARTIAL DESTRUCTION -- INSURANCE AVAILABLE...
16.2 PARTIAL DESTRUCTION -- INSURANCE NOT AVAILABLE,
16.3 TOTAL DESTRUCTION. ..... 16
16.4 DAMAGE TO BUILDING OR SHOPPING CENTER OR DAMAGE DURING LAST SIX MONTHS OF TERM, 16
16.5 RESTORATION: ABATEMENT OF RENT. ..... 16
17. CONDEMNATION... 16
Wl DEFINITION OF TERM 16
17.2 RIGHT: 16
173 TOTAL TAKIN 16
74 PARTIAL TA! 16
18, ASSIGNMENT AND SUBLETTING,, 17
18.1 LANDLORD'S CONSENT REQUIRE! 17
18.2 PROPOSED TRANSFERE! 17
18.3 RIGHT TO RECAPTU! 7
18.4 INTENT OF PARTIES 7
18.5 REASONABLE CONSENT, 7
18.6 SECURITY INTERE! 18
18.7 DEEMED TRANSFERS, 18
19, SUBORDINATION... 18
19.1 PRIORITY, 18
19.2 SUBSEQUENT SECURITY INSTRUMENTS. 19
19.3 DOCUMENTS, 19
19.4 TENANT'S ATTORNME! 19
19.5 LENDER, 19
20. DEFAULT, REMEDIES. 19
20.1 EVENTS OF D! JLT, 19
20.2 REMEDIES. 20
20.3 LATE CHARGES, 21
20.4 DEFAULT BY LANDLORD. ... 21
21 ATTORNEY’S FEES; COST OF SUIT. 21
22. SURRENDER OF PREMISES: NO MERGER. 21
23. HOLDING OVER. 21
24. SIGNS; USE OF BUILDING NAM. 22
24.1 EXTERIOR SIGNS. ,. 22
24.2 REMOVAL OF SIGNS, 22
24.3 BUILDING NAME... 22
25. RIGHTS RESERVED BY LANDLORD... 22
26. GENERAL PROVISIONS. 22
26.1 CAPTIONS; EXHIBITS; DEFINED TERMS.. 22
26.2 ENTIRE AGREEMENT. 23
26.3 SEVERABILITY 23
26.4 TIME; JOINT AND SEVERAL LIABILITY 23
26.5 BINDING EFFECT; CHOICE OF LAW. 23
26.6 WAIVER... 23
26.7 INTEREST ON PAST DUE OBLIGATIONS, 23
26.8 NOTICES, .. 23
26.9 CORPORATE AUTHORITY, 23
26.10 CC&Rs 24
26.11 BROKERS 24
26.12 LIMITATION ON LANDLORD'S LIABILITY 24
26.13 WAIVER OF JURY TRIAL, 25
26.14 ESTOPPEL CERTIFICATES, 25

i
26.15 QUIET ENJOYMENT. , 25
26.16 DEFINITION OF LANDLORI 25
26.17 APPROVAL BY LENDERS, 26
26.18 COUNTERPARTS/ELECTRONIC SIGNATURE, 26
27, HAZARDOUS MATERIAL 26
27.1 DEFINITION! 26
27.2 USE RESTRICTION, 26
27.3 COMPLIANCI 27
274 ASSIGNMENT. ID SUBLETTING 27
27,5 SURRENDE] 27
27.6 RIGHT TO APPOINT CONSULTANT, 27
27.7 HOLDING OVER. 27
278 MATERIALS, . 28
27.9 PROVISIONS SURVIVE TERMINATION. 28
27.10 CONTROLLING PROVISIONS. .. 28

lit
LEASE

This Lease is made and entered into as of the 22nd day of September, 2021 by and between Overlook
Watsonville Associates, LLC, a California limited liability company, and Kudma 1986 Trust Under Agreement dated
December 23, 1986, as amended, ("Landlord") and Mayra L. Perez, an individual, Yesenia Solano, an individual, and
Jose L. Solano, an individual ("Tenant"). For and in consideration of the rental and of the covenants and agreements
hereinafter set forth to be kept and performed by Tenant, Landlord hereby leases to Tenant and Tenant hereby leases
from Landlord the Premises herein described for the term, at the rental and subject to and upon all of the terms, covenants
and agreements hereinafter set forth

1 Basic Lease Provisions,

The basic provisions of this Lease, and the Sections in which they are contained in this Lease, are as set
forth below. The descriptions of the following basic provisions are for summary purposes only and are to be construed
in accordance with all of the applicable terms and conditions of this Lease

SECTIONS

1d Tenant's Trade Name.

Toro Taxes & Zolano’s Insurance 171
12 Description of Premise:

1493 Main Street, Watsonville, CA 95076
("Premises") as shown cross-hatched on Exhibit "A-1"

13 Approximate Floor Area of Premises

+ 1,432 square feet

14 Location of Building in Which Premises are Located.

SEC State Highway 152 a/k/a Main Street
at Ohlone Parkway, Watsonville, CA

15 Lease Term,

Five (5) years and two (2) months ("Lease Term"). 3.1

16 Commencement Date.

November 1, 2021 ("Commencement Date"). 3.1

17 Expiration Date.

December 31, 2026 3.1

18 Base Rent.

$1,801.00 per month ("Base Rent") 41

19 Base Rent Commencement Date.

January 1, 2022 ("Base Rent Commencement Date") 4.1

1.10 Date of First Base Rent Adjustment

January 1, 2023 42

111 Base Rent Adjustment Date(s’

January 1, 2023 and on the first (1*) day of every January thereafter
throughout the duration of the Lease Term ("Base Rent Adjustment
Date(s)") 42
1.12 Additional Rent Commencement Date.

4.4,6.2(b),
January 1, 2022 ("Additional Rent Commencement Date"). 9.4,15.2,15.3

1.13 Gross Sales Reports

Tenant shall report quarterly gross sales for informational purposes only 43

1.14 Prepaid Rent.

$2,973.00 ("Prepaid Rent"). 45

1.15 Security Deposit

$6,000.00 ("Security Deposit")

1.16 Tenant's Share of Real Property Taxes.
Common Area Operating Expenses. Insurance
and Other Costs, as Additional Rent.

4.4,6.2(b).8,9.3.
Thirteen and 325/1,000ths---percent (13.325%) 9.4,10.1,15.2.15.3
1.17 Use.

A tax and insurance office and administrative office uses related thereto. 71

1.18 Initial Gross Monthly Occupancy Costs.

The following costs are Tenant's initial Gross Monthly Occupancy Costs.
These costs are subject to adjustment as described in this Lease, and
do not include the Security Deposit or Prepaid Rent.

Explanatio1 Amount Section

Base Rent $1,801.00
Common Area Operating
Expense Contribution 587.00
Real Property Tax Contribution 501.00 6.2
HVAC Preventive Maintenance 27.00 10.1
Insurance Contribution 57.00 15.2,153
TOTAL $2,973.00
1.19 Addresses for Notices.
26.8
Landlord: c/o Biagini Properties, Inc
333 W. El Camino Real, Suite 240
Sunnyvale, CA 94087-1969

Tenant: Mayra L. Perez Yesenia Solano
644 Kirk Glen Drive Jose L. Solano
San Jose, CA 95133 1180 Sunnyslope Road
Hollister, CA 95023

1.20 Food Use,

INTENTIONALLY DELETED.

121 Exhibits,

The following Exhibits attached to this Lease are incorporated herein by this reference and made a part
of this Lease as though set forth in full:

(a) Exhibits *A-1” and “A-2”. A site plan with the Premises marked by cross-hatching.
Tenant acknowledges that Landlord may, in its sole and absolute discretion, change the shape, size, location, number,
type and extent of the improvements shown on any site plan of the Real Property, Shopping Center, Building and/or the

2
Premises which may have been displayed or furnished to Tenant or which may be a part of Exhibits “A-1” and “A-2”
Tenant does not rely on, nor does Landlord make any representation or warranties with respect to, the continued existence
of any feature, facility, improvement or service presently in place, or the installation of any such item not presently in
place with respect to the matters shown on Exhibits “A-1” and “A-2”. Any improvements appearing on Exhibits “A-1”
and “A-2” are for the purposes of illustration only.
"
(b) Exhibit Description of construction work to be performed by
Landlord
("Landlord's Work"), if any, and/or construction work to be performed by Tenant ("Tenant's Work"), if any Any
improvements to the Premises to be made by Landlord and/or Tenant shall be constructed and installed in accordance
with the provisions of Exhibit "B" attached hereto

(d) Exhibit "D". INTENTIONALLY OMITTED.

(f) Exhibit "F". Rules and Regulations.

Premises.

21 Descriptior

Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, upon the terms and conditions herein
set forth, the Premises described in Section 1.2 and shown cross-hatched on the site plan attached hereto as Exhibit "A-
1", together with the existing improvements thereon and, if applicable, any improvements to be constructed thereon by
Landlord as set forth in Exhibit "B" attached hereto, if any (hereinafter collectively referred to as the "Premises")
Landlord and Tenant hereby agree and acknowledge that the Premises (a) consist of the approximate number of square
feet listed in Section 1.3 (which approximate square footage shall be conclusive and binding on Landlord and Tenant it
being the intent of the parties that, notwithstanding a determination that the square footage of the Premises is more or
Jess than the square footage set forth in Section 1.3, the Base Rent, the Tenant’s Share and all other calculations based
on the square footage of the Premises shall not be adjusted unless the gross leasable area of the Real Property or Shopping
Center is determined by Landlord during the Lease Term to be more or less than as of the Commencement Date hereof)
and (b) comprise a portion of a building (the "Building") constructed on that certain parcel of real property (the "Real
Property") situated at the location described in Section 1.4 and more particularly described on Exhibit "C" attached
hereto. The Building is a portion of a shopping center located on the Real Property and illustrated on the site plan. As
used in this Lease, the term "Shopping Center" shall mean the Real Property and all buildings and improvements from
time to time located thereon, together with all common areas, parking areas, driveways and landscaped areas from time
to time located on the Real Property.

Except for Landlord Work to be performed by Landlord pursuant to Exhibit “B” attached to this Lease, if any,
Tenant hereby agrees and acknowledges that the Premises shall be accepted by Tenant in an “as is” present condition
including all faults without any representation or warranty by Landlord. Tenant hereby acknowledges that it has been
afforded an opportunity by Landlord prior to the execution of this Lease to enter the Premises for the purpose of
inspection of the condition of the Premises and determination of the suitability of the Premises for Tenant’s permitted
use and the compliance (or non-compliance) of the Premises with applicable laws, including without limitation the
Americans With Disabilities Act “(ADA”). Landlord hereby discloses to Tenant that neither the Premises, Common
Area, Shopping Center or Real Property has been inspected and certified by a Certified Access Specialist (“CASp”) to
be in compliance with the ADA. Tenant does hereby waive and disclaim any objection to, cause of action based upon
or claim that its obligations hereunder should be reduced or limited because of the condition of the Premises, Building
and/or Shopping Center or the suitability of same for Tenant’s permitted use. Landlord makes no representation as to
the Premises compliance with existing laws or with regard to the Premises suitability for Tenant’s use. Tenant has
investigated the Premises and applicable governmental requirements related to the Premises and Tenant’s proposed use
and has determined that the governmental requirements and restrictions on the Premises” use are acceptable to Tenant.

Notwithstanding this Section 2.1 and 9.3 to the contrary, any Americans With Disabilities Act (ADA)
compliance alterations, upgrades or improvements necessary inside or outside the Premises whether or not arising out
of any construction work by Tenant pursuant to Exhibit B attached to this Lease or to Section 11.1 of this Lease shall be
performed and paid for solely by the Tenant.

22 Relocation.

Notwithstanding Section 1.2 of the Basic Lease provisions or any other provision of this Lease, Landlord
shall have the right, at any time prior to or during the Lease Term, to relocate the Premises to another location in the
Shopping Center of approximately the same size as the original Premises described herein, upon not less than thirty (30)
days written notice to Tenant, provided that the cost of relocating Tenant's fixtures and equipment and the cost to improve
the Premises to which Tenant is relocated to a condition that is substantially equivalent to the then condition of the prior
Premises shall be borne solely by Landlord. All other costs of relocation, if any, shall be bore by Tenant.
Term,

3.1 Term: Commencement Date
The term of this Lease shall be for the period specified in Section 1.5, commencing on the date specified
in Section 1.6, and expiring on the date specified in Section 1.7. As used in this Lease, the term "Lease Term" shall
mean the term of this Lease as specified in this Section and any extensions of such term pursuant to this Lease.
32 Delay in Commencement

Tenant agrees that in the event Landlord is unable for any reason to deliver possession of the Premises
to Tenant on the Commencement Date set forth in Section 1.6 (if any), Landlord shall not be liable for any damage
caused thereby nor shall such inability affect the validity of this Lease or the obligations of Tenant hereunder. In such
case Tenant shall not be obligated to pay Rent or other monetary sums due under this Lease until possession of the
Premises is tendered to Tenant.

33 Early Entry.

If Landlord is required to construct improvements to the Premises, Tenant may enter the Premises prior
to the Commencement Date to install fixtures and equipment therein only if Tenant first obtains the prior written approval
of Landlord for such entry and provides Landlord with an insurance certificate evidencing commercial general liability,
property damage and other coverages to be in force pursuant to Section 15 of this Lease. Landlord may withhold such
approval if Landlord determines in its sole and absolute discretion that such entry will delay completion of construction
of the improvements which Landlord is required to construct pursuant to Exhibit "B". If Landlord permits Tenant to so
enter upon the Premises, such entry shall be subject to all of the terms and conditions of this Lease, excepting only the
obligation to pay Rent. Tenant shall coordinate its entry onto the Premises with Landlord and the contractors and other
personnel employed by Landlord. Tenant shall at all times while exercising its right of entry, refrain from interfering
with the construction activities of Landlord's personnel. In any case, Tenant shall repair any damage to the improvements
constructed by Landlord pursuant to Exhibit "B" resulting from the entry upon the Premises by Tenant or Tenant's
contractors, agents or employees prior to the Commencement Date or caused by the installation of fixtures and equipment
by Tenant or Tenant's employees or contractors. If the entry by Tenant or its employees or contractors prior to the
Commencement Date causes a delay in completing the construction of Landlord's Work, then the Commencement Date
of this Lease shall occur on the date the Commencement Date would have occurred had there been no delay in completing
the construction of Landlord's Work caused by Tenant or its employees or contractors. In the event Tenant does not
immediately comply with notice from Landlord requesting that Tenant cease any interference with Landlord's
construction activities, Tenant shall be required to vacate the Premises, to remove from the Premises any equipment or
other personal property belonging to Tenant or Tenant’s contractors or agents and shall have no further right to enter the
Premises until the Commencement Date.

34 Acknowledgment of Commencement Date
In the event the Commencement Date is not specified as a firm date in Section 1.6, then Landlord and
Tenant shall execute a written acknowledgment of the Commencement Date and shall attach it to this Lease as Exhibit
"D",

4 Rent.

41 Base Rent,
Commencing on the date specified in Section 1.9, Tenant shall pay to Landlord as the Base Rent for the
Premises the sum specified in Section 1.8 (subject to adjustment as set forth in Section 4.2 below), in advance on the
first day of each calendar month of the Lease Term, without deduction, offset, prior notice or demand, in lawful money
of the United States. The Base Rent and all other rent and sums due under this Lease shall be payable to Landlord or to
such person or entity as Landlord may designate in writing, at Landlord's address or at such other place as Landlord may
designate in writing from time to time. Base Rent shall be prorated for any fraction of a month at the commencement or
termination of the term of this Lease.

42 Base Rent Adjustment.

Beginning on the date specified in Section 1.10 and on each subsequent Base Rent Adjustment Date
specified in Section 1.11, the monthly Base Rent shall be increased to the amounts set forth below:

(i) One thousand nine hundred thirty five and 00/100---Dollars ($1,935.00) per month
during the period January 1, 2023 through December 31, 2023; and then

(ii) Two thousand seventy five and 00/100---Dollars ($2,075.00) per month during the
period January 1, 2024 through December 31, 2024; and then

(iii) Two thousand two hundred twenty and 00/100---Dollars ($2,220.00) per month during
the period January 1, 2025 through December 31, 2025; and then

(iv) Two thousand three hundred sixty five and 00/100---Dollars ($2,365.00) per month
during the period January 1, 2026 through December 31, 2026.
43 Gross Sales Reports

(a) Statement. Within thirty (30) days after the end of each calendar quarter of the Lease
Term, Tenant shall furnish to Landlord for information purposes only a statement in writing, certified by Tenant to be
correct and prepared in accordance with generally accepted accounting principles, consistently applied, showing the total
gross sales derived from all businesses conducted at, upon or from the Premises during the preceding quarter (or portion
thereof).

(b) Reporting and Records. Tenant shall keep full, complete and proper books, records and
accounts of its daily gross sales, both for cash or credit, of each department and concessionaire at any time operated in
the Premises and retain such records, books and accounts for at least one (1) year after the end of the calendar year to
which such records, books and accounts pertain. Such books, records and accounts shall include serially numbered sales
slips, daily dated cash register tape readings, sales books, bank books or duplicate deposit slips, sales tax reports, all
income, sales and occupation tax retums and such other records as would normally be examined by an independent
accountant in accordance with generally accepted auditing standards in performing an audit of Tenant’s gross sales.
Landlord and its agents and employees shall have the right at any and all times, during regular business hours, to examine
and inspect all the books and records of Tenant, including any sales tax reports pertaining to the business of the Tenant
conducted in, upon or from the Premises, for the purpose of investigating and verifying the accuracy of any statement of
gross sales.

(c) In no event shall Tenant be liable to Landlord for the payment of any Percentage Rent
nor shall Landlord divulge the content of Tenant’s Gross Sales Reports to any party other than to a bona-fide purchaser,
lender or appraiser of the Building, Shopping Center or Real Property

44 Additional Rent,

All taxes, Common Area Operating Expenses, HVAC preventive maintenance, insurance premiums,
late charges, costs and expenses which Tenant is required to pay under this Lease, together with all interest that may
accrue thereon in the event of Tenant's failure to pay such amounts, and all damages, costs and expenses which Landlord
may incur by reason of any default by Tenant, shall be deemed additional rent ("Additional Rent") and shall be paid
commencing on the date specified in Section 1.12 in addition to the Base Rent, and, in the event of nonpayment by
Tenant, Landlord shall have all rights and remedies with respect thereto as Landlord has for the nonpayment of Base
Rent. The Base Rent and the Additional Rent are collectively referred to herein as the "Gross Monthly Occupancy
Costs" or “Rent”.

45 Prepaid Rent.

Concurrently with Tenant's execution of this Lease, Tenant shall deposit with Landlord Prepaid Rent in
the amount specified in Section 1.14. Said sum shall be applied to the Gross Monthly Occupancy Costs first accruing
under this Lease.

46 Place of Payment.

Tenant shall pay the Rent to Landlord at the address of Landlord set forth in Paragraph 1.19 or to such
other person(s) or at such other place(s) as Landlord may designate in writing.

47 Form of Payment.

In the event any of Tenant’s Rent payments made by personal or company check shall be dishonored by
the drawee financial institution, then Landlord shall have the right to refuse any future Rent payments not made by
cashier's check drawn on a banking institution located in the United States of America. If any check is dishonored by
the drawee financial institution, Tenant shall pay to Landlord as Additional Rent, all fees and costs incurred by Landlord
by reason of such dishonored check. Landlord shall not be required to accept any post dated check.

5 Security Deposit.

Concurrently with Tenant's execution of this Lease, Tenant shall deposit with Landlord a Security Deposit in
the sum specified in Section 1.15. Said sum shall be held by Landlord as a security deposit for the faithful performance
by Tenant of all of the terms, covenants and conditions of this Lease. If Tenant defaults with respect to any provision of
this Lease, including but not limited to the provisions relating to the payment of Rent, Landlord may (but shall not be
required to) use, apply or retain all or any part of the Security Deposit (i) for the payment of any amount due and payable
under this Lease, (ii) to repair damage to the Premises caused by Tenant, (iii) to clean the Premises, (iv) to remedy any
default by Tenant under this Lease, (v) to reimburse Landlord for any out-of-pocket payment which Landlord may spend
or be required to spend by reason of Tenant’s default or (vi) for the payment of any other amount which Landlord may
spend by reason of Tenant's default or to compensate Landlord for any other loss or damage which Landlord may suffer
by reason of Tenant's default. If any portion of the Security Deposit is so used or applied, Tenant shall, within ten (10)
days after written demand therefor, deposit cash with Landlord in an amount sufficient to restore the Security Deposit to
its original amount, and Tenant's failure to restore the Security Deposit shall be a material breach of this Lease. Landlord
shall not be required to keep the Security Deposit separate from its general funds, and Tenant shall not be entitled to
<
3
interest on such deposit. If Tenant is not in default under this Lease, then within thirty (30) days after the termination or
expiration of the Lease Term and after Tenant has vacated and surrendered possession of the Premises pursuant to Section
22 of this Lease, Landlord shall return the Security Deposit, less any sums Landlord is entitled to keep, to Tenant (or at
Landlord's option, to the last assignee of Tenant's interest hereunder). In the event of termination of Landlord's interest
in this Lease, Landlord shall transfer said deposit to Landlord's successor in interest, and upon such transfer, Landlord
shall be released from liability for the return of such deposit or the accounting therefor. Tenant waives the provisions of
California Civil Code Section 1950.7, and all other provisions of law now in force or that become in force after the
Effective Date, that limit the amounts that Landlord may claim from a security deposit only to those sums reasonably
necessary to remedy defaults in the payment of Rent, to repair damage caused by Tenant or to clean the Premises.
Without limiting the foregoing, Landlord may apply the Security Deposit to any sums due it under Civil Code Section
1951.2 on account of Tenant’s default hereunder and Tenant does hereby expressly waive the provisions of Section
1950.7 of the California Civil Code pertaining to the application of commercial security deposits.

6 Taxes,

61 Personal Property and Other Taxes.

Tenant shall pay, prior to delinquency, any and all taxes and assessments, license fees and public charges
levied, assessed or imposed upon or against Tenant’s fixtures, equipment, furnishings, furniture, appliances, inventory
and other personal property installed or located on or within the Premises. Tenant shall cause said fixtures, equipment,
fumishings, furniture, appliances, inventory and other personal property to be assessed and billed separately from the
real property of Landlord. On demand, Tenant shall furnish Landlord with satisfactory evidence of these payments. In
the event any or all of Tenant's fixtures, furnishings, equipment and other personal property are assessed and taxed with
Landlord's real property, then Tenant shall pay to Landlord as Additional Rent, the taxes attributable to said personal
property within ten (10) days after receipt of billing from Landlord, as Additional Rent. Landlord shall hav

Case Info

Judge

Volkmann, Timothy Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

March 14, 2024

Case Filing Date

March 14, 2024

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.

Complaint,Petition: Overlook Watsonville Associates, LLC, a California limited liability company, et al vs Yesenia Solano, et al

Preview

Related Topics

Case Info

Parties