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1 CATHERINE J. WEINBERG, ESQ. [SBN 222066)
BUCKNER, ROBINSON & MIRKOVICH
2 3146 Redhill Avenue, Suite 200
Costa Mesa, California 92626
3 Telephone: (714) 432-0990
Fax: (714) 432-0352
4
Attorneys for Plaintiff,
5 CASTLE & COOKE RIVERWALK, LLC.
6
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 FOR THE COUNTY OF KERN
9 BAKERSFIELD COURTHOUSE
10
11 CASTLE & COOKE RIVERWALK, LLC, a CASE NO: BCV-23-104296
Delaware limited liability company
12 FIRST AMENDED
COMPLAINT FOR
13 Plaintiff, BREACH OF WRITTEN CONTRACT
V.
14
MIRAMAR INTERNATIONAL, INC., a
15 California corporation; and DOES 1 through
30, inclusive AMOUNT IN DISPUTE
16 EXCEEDS $25,000.00
Defendants.
17
18
19 Plaintiff complains and alleges as follows:
20 FIRST CAUSE OF ACTION
21 (AGAINST ALL DEFENDANTS FOR BREACH OF WRITTEN CONTRACT)
22 1. Plaintiff CASTLE & COOKE RIVERWALK, LLC (hereinafter ''RIVERWALK"
23 or "PLAINTIFF") is, and at all times mentioned herein was, a limited liability company,
24 organized and existing under the laws of the State of Delaware, with its principal place of
25 business in the City of Bakersfield, County of Kern, State of California.
26 2. PLAINTIFF is informed and believes and thereon alleges that at all times
27 mentioned herein, defendant MIRAMAR INTERNATIONAL, INC. (hereinafter sometimes
28 collectively referred to as "MIRAMAR") is, and at all times mentioned herein was, a
I
Complaint for Breach of Written Contract
1 corporation, organized and existing under the laws of the State of California, with its principal
2 place of business in the City of Bakersfield, County of Kern, State of California.
3 3. The true names and capacities of the Defendants sued herein as DOES 1 through
4 30, inclusive, are unknown to PLAINTIFF at this time. Each of the defendants named herein as
5 DOE is responsible in some manner for the events sued upon. PLAINTIFF will seek leave of
6 court to amend this Complaint to allege such fictitiously-named defendants' true names and
7 capacities when such information is ascertained.
8 4. PLAINTIFF is informed and believes and thereon alleges that, at all times
9 mentioned herein, each of the defendants was the agent and/or employee of each of the
10 remaining defendants, and, in the matters hereinafter alleged, was acting within the course and
11 scope of said agency and/or employment.
12 5. All above-referenced defendants are hereinafter sometimes collectively referred t
13 as the "DEFENDANTS."
14 6. The obligations sued upon herein are not a contract of installment sale for goods
15 or services subject to Civil Code Section 1801, etc. (Unruh Act); are not on a conditional sales
16 contract subject to Civil Code Section 2981, etc. (Rees-Levering Motor Vehicle Sales and
17 Finance Act); and are not on an obligation for goods, services, loans, or extensions of credit
18 subject to Code of Civil Procedure Section 395(b); and no defendant named herein is in the
19 military service so as to be entitled to the benefits of the Servicemembers Relief Act (50 U .S .C.
20 Section 501 et seq.).
21 7. At all times mentioned herein, PLAINTIFF was the owner of certain commercial
22 real property (hereinafter the "Premises"), consisting of office space located within that certain
23 integrated retail shopping center (the "Shopping Center"), in the City of Bakersfield, County of
24 Kern, State of California, said Premises having a street address of 10800 Stockdale Highway,
25 Suite 101, Bakersfield, California 93311.
26 8. On or about January 7, 2019, PLAINTIFF's predecessor in interest, Castle &
27 Cooke Commercial-CA, Inc., a California corporation ("Commercial") (as "Landlord") and
28 DEFENDANTS (as "Tenant") entered into a written Lease Agreement dated January 7, 2019
2
Complaint for Breach of Written Contract
1 (the "Lease") which provided for the lease of the Premises by DEFENDANTS from
2 Commerical. A true and correct copy of the Lease is attached hereto as Exhibit "A" and
3 incorporated by reference herein.
4 9. PLAINTIFF has succeeded to all of Commercial' s right, title and interest in and
5 to the Lease and the Premises.
6 10. The Lease together with all amendments, addendums, subleases, exhibits,
7 attachments and revisions, are sometimes hereinafter collectively referred to as the "Lease"
8 11. DEFENDANTS took possession of the Premises pursuant to the terms of the
9 Lease.
12. Pursuant to A1ticle 5 of the Lease, DEFENDANTS are liable to PLAINTIFF for
11 minimum monthly rent, in the following amounts: $21,857.38.
12 13. Pursuant to Article 11 of the Lease, DEFENDANTS are obligated to pay to
13 PLAINTIFF, as "Additional Rent", DEFENDANTS' estimated pro rata share of the Common
14 Area Maintenance charges (the "C.A.M." Charges) incurred in connection with the Shopping
15 Center, which totalled the following monthly amounts:
16 01/01/2023 - 12/31/2023: $2,260.58.
17 01/01/2024- 03/31/2024: $3,007.14
18 14. Pursuant to the terms of the Lease, the entire monthly rent due from
19 DEFENDANTS totalled the following monthly amounts:
20 04/01/2023 - 12/31/2023:
21 Minimum Monthly Rent: $21,857.38
22 Additional Rent: $ 2,260.58
23 Total $24,117.96
24 01/01/2024-03/31/2024:
25 Minimum Monthly Rent: $21,857.38
26 Additional Rent: $ 3,007.14
27 Total $24,864.52
28
3
Complaint for Breach of Written Contract
1 15. Pursuant to Article 5 .5 of the Lease, in the event that any payment of rent is not
2 received by PLAINTIFF within five (5) days of the date due, DEFENDANT shall be obligated t
3 pay to PLAINTIFF a late charge equal to five percent (5%) of the delinquent amount.
4 16. Pursuant to the Article 20.l0(k) of the Lease, any amount due from either party
5 to the other under the Lease which is not paid when due shall bear interest at the rate per annum
6 equal to the prime interest rate, plus 2%, not to exceed the maximum lawful rate, form the date
7 such amount was originally due to and including the date of payment.
8 17. Pursuant to the Article 20.l0(p) of the Lease, if either party institutes any action
9 or proceeding against the other under the Lease, the prevailing party shall be entitled to recover
10 all reasonable costs and expenses, including attorney's fees, incurred in such action or
11 proceeding.
12 18. PLAINTIFF has performed all the covenants and agreements required to be
13 pe1formed by it in accordance with the terms of the Lease.
14 19. DEFENDANTS breached the Lease by failing to pay amounts coming due under
15 the Lease, and as of November 29, 2023, there was due, owing and unpaid, the sum of
16 $205,876.72, comprised of the following:
17 RENT: December, 2022 (balance) $ 3,129.39
April, 2023 21,857.38
18 May, 2023 21,857.38
June,2023 21,857.38
19
July, 2023 21,857.38
20 August, 2023 21,857.38
September, 2023 21,857.38
21 October, 2023 21,857.38
November, 2023 21,857.38
22 CAM: April, 2023 2,260.58
23 May, 2023 2,260.58
June,2023 2,260.58
24 July, 2023 2,260.58
August, 2023 2,260.58
25 September, 2023 2,260.58
October, 2023 2,260.58
26 November, 2023 2,260.58
27 LATE CHARGE: April, 2023 1,205.90
May, 2023 1,205.90
28 June,2023 1,205.90
4
Complaint for Breach of Written Contract
1 July, 2023 1,205.90
August, 2023 1,205.90
2 September, 2023 1,205.90
October, 2023 1,205.90
3
November, 2023 1,205.90
4 TOTAL DUE: $205,876.72
5 20. On November 29, 2023, PLAINTIFF caused a "Five (5) Day Notice to Pay Rent
6 or Quit" (hereinafter the "Five (5) Day Notice") to be served upon DEFENDANTS by
7 subservice, posting and U.S. Mail. A true and correct copy of the "Five (5) Day Notice" and the
8 proof of service thereon is attached hereto as Exhibit "B" and incorporated by reference herein.
9 21. The Five (5) Day Notice set forth the amount due and payable as specified above,
10 and stated the following: "... YOU ARE HEREBY REQUIRED TO PAY RENT for the premises
11 described above in the amount stated below or to QUIT AND DELIVER UP POSSESSION of
12 the premises within five (5) days after service upon you of this Notice ... "
13 22. More than five (5) days have elapsed since the "Five (5) Day Notice" was served
14 on DEFENDANTS, who have failed to pay the rental demanded therein, and have refused to
15 surrender possession of the Premises.
16 23. On or about December 28, 2023, PLAINTIFF filed this action, originally styled
17 as a "Complaint for Unlawful Detainer" (the "UD Complaint") seeking unpaid rent and charges
18 due and restitution of the Premises from DEFENDANTS.
19 24. On or about January 23, 2024, PLAINTIFF caused to be served a "Notice of
20 Belief of Abandonment" (the "Abandonment Notice") on DEFENDANTS. DEFENDANTS
21 failed to respond to the Abandonment Notice, and the Premises was deemed abandoned pursuant
22 to Civil Code Section 1951.2 as of February 12, 2024. A true and correct copy of the
23 Abandonment Notice is attached hereto as Exhibit "C" and incorporated by reference herein.
24 25. DEFENDANTS are further liable to PLAINTIFF for the sum of $103,666.96 for
25 Minimum Monthly Rent and Additional Rent due under the Lease that were accrued and unpaid
26 prior to December, 2022.
27 26. DEFENDANTS are further liable to PLAINTIFF for the sum of $96,471.84 for
28
5
Complaint for Breach of Written Contract
1 Minimum Monthly Rent and Additional Rent due under the Lease after the expiration of the Five
2 (5) Day Notice through the end of the term of the Lease on March 31, 2024, plus late charges
3 and interest due pursuant to the terms of the Lease, calculated as follows:
4 (a) 12/01/2023 - 12/31/2023:
(at $24,117.96 per month
5 [$21,857.38 Minimum Monthly Rent
Plus $2,260.58 Additional Rent=
6
$24,117 .96]) $24,117.96
7
8 (b) 01/01/2024- 03/31/2024:
(at $24,864.52 per month
9 [$21,857.38 Minimum Monthly Rent
Plus $3,007.14 Additional Rent=
10
$24,864.14]) $74,593.56
11
TOTAL $98,711.52
12
13 27. The entire amount owed by DEFENDANTS to PLAINTIFF for "Minimum
14 Monthly Rent" and "Additional Rent" due under the Lease, including unpaid late charges and
15 interest due, totals the sum of $442,225.73, computed as follows:
16 (a) Five (5) Day Notice
Amount Due:
17 $205,876.72
18 (b) Minimum Monthly Rent and
Additional Rent due through the
19 remaining term of the
Lease: $ 98,711.52
20
(c) Amountd due prior to December, 2022 $100,381.10
21
22 (c) Late Charges:
December, 2023 - March, 2024 $ 4,935.59
23
(d) Interest on Unpaid amounts $ 32,320.81
24
TOTAL: $442,225.73
25
26 28. DEFENDANTS are further liable to PLAINTIFF for reasonable attorney's fees
27 incurred by PLAINTIFF in connection with DEFENDANTS' defaults under the Lease, in an
28 amount to be determined at trial. WHEREFORE, PLAINTIFF prays for judgment against
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Complaint for Breach of Written Contract
1 DEFENDANTS and each of them, as follows:
2 ON THE FIRST CAUSE OF ACTION
(AGAINST ALL DEFENDANTS)
3
1. For unpaid Minimum Monthly Rent and Additional Rent due and unpaid under
4
the terms of the Lease as of the date of the Five (5) Day Notice, in the amount of $205,876.72;
5
2. For unpaid Minimum Monthly Rent and Additional rent due and unpaid under the
6
terms of the Lease prior to December, 2022 in the sum of $100,381.10;
7
3. For the Minimum Monthly Rent and Additional Rent due through the end of the
8
term of the Lease on March 31, 2024, in the amount of $98,711.52;
9
4. For Late charges due and unpaid under the terms of the Lease in the sum of
10
$4,935.59;
11
5. For interest due on unpaid amounts as provided in the terms of the Lease in the
12
sum of $32,320.81;
13
6. For PLAINTIFF'S attorneys' fees incurred herein;
14
7. For PLAINTIFF'S costs of suit incurred herein.
15
8. For such other and further relief as the Court may deem just and proper.
16
Dated: March 21, 2024 BUCKNER, ROBINSON & MIRKOVICH
17
18
19 By:
CATHERINE r.)WEINBERG
20 Attorneys fo[Y4intiff
21
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7
Complaint for Breach of Written Contract
EXHIBIT "A"
i:
COI\1J\.1ERCIAL LEASE
between
CASTLE & COOKE CO:MT\1ERCIAL-CA, INC.,
a California corporation,
as Landlord
and
:MIRAMAR INTERNATIONAL, INC.,
a Califomia ·corporation,
as Tenant
The Shops at River Walk Shopping Center
NEC Stockdale Highway and Buena Vista Road
Bakersfield, California
APRJL 1, 2019
COlvllv1ERCIALLEASE
TABLE OF CONTENTS
£AQE
AR.TICLE 1- BASIC LEASE PROVISIONS .............................................................................................. 1
ARTICLE 2- PREMISES ............................................................................................................................ 3
AR.TICLE 3 - TERM .................................................................................................................................... 4
ARTICLE 4 - POSSESSION AND CONSTRUCTION .............................................................................. 4
AR.TICLE 5 - RENTAL ................................................................................................................................ 5
ARTICLE 6 - TENANT FJNANCIAL DATA ............................................................................................. 5
ARTICLE 7 -TAXES ....................................................................... :.......................................................... 6
ARTICLE 8 - UTILITIES ............................................................................................................................ 6
ARTICLE 9 - TENANT'S CONDUCT OF BUSINESS .............................................................................. 7
ARTICLE 10 - MAINTENANCE, REPAIRS AND ALTERATIONS ........................................................ 9
ARTICLE 11- COMMON AREA ............................................................................................................. 10
ARTICLE 12 - ASSIGN'MENT AND SUBLETTJNG .............................................................................. 14
AR.TICLE 13 - OMITTED ......................................................................................................................... 16
ARTICLE 14- INSURANCE ..................................................................................................................... 16
ARTICLE 15 - DAMAGE OR DESTRUCTION ...................................................................................... 18
AR.TICLE 16 - EMINENT DOMAJN ........................................................................................................ 20
ARTICLE 17 -DEFAULTS BYTEN".AN1' ............................................................................................... 20
ARTICLE 18- SUBORDJNATION,ATTORNMENT AND TENANT'S CERTIFICATE. .................... 25
ARTICLE 19-MATTERS OF RECORD ................................................................................................. 25
ARTICLE 20 - MISCELLANEOUS .......................................................................................................... 26
EXHIBIT A - GENERAL SITE PLAN OF PROJECT
EXHIBIT B - DEPICTION OF PREMISES
EXHIBIT C - FORM OF SNDA
EXHIBIT D - FORM OF ESTOPPEL CERTIFICATE
EXHIBIT B - PROJECT SIGN CRITERIA
COMMERCIAL LEASE
This Comm.erctal Leqse ("Lease;';) is entered into as of the date set forth in Section 1.1 by a:t1d
betweenLandlord and Tenant.
ARTICLE 1 -BASICLEASE PROVISIONS
1.1 Effective Date:
1,2 Landlord: CASTLE & COOKE COMMERCIAL-GA, INC., a Galifornia corporation.
1.3 Tenant .MIR.AMAR INTERNATIONAL, INC., a California corpora.ti.on.
1.4 Tenant's Trade Name: ·"Miramar International"
1.5 Project: "The Shops atRiverwalk'; located in the nnrthea:st comer of Stockdale Highway and
Buena Vista Road,, in the Cify of Bakersfield, Kem County, California. The. Pn;iject is depicted on Exhibit
A.
1.6 Premises: That certain :first floor space known as Suite 1.01 (the ''Premises") located in that
certain approximately 39,902 rentable square. foot2-story class ''A" commercial building located at.10800
Stockdale highway, Baketsfieid, Calif'otnia 93311, known as '134ilding J" (the "Building1')whicih is located
upon on Lancllord'~ Parcels (as de:fil}ed in Section 2.1.2 below) witlnn the Project (See also Article 2).
TheiPremises are depicted, on Exhibit B,
1.7 Floor Area ofJiremises: 9,71'0,square feet ofR:entable Floor Space measured per Section 2.'.3
below. (Article 2)
1.8 Initial Term: Five (5) years co-qiinencing.April 1, 2019 and expiri:n:g March 31, 2024.
(Article.3)
1.9 Option to Extend: One (l} option ('1Qption Term'1) of five (5) years, (Article 3)
1.10 Time to Complete.Tenant's Work: Not applicable.
l.U Base Rent: :(Article 5)
Period during Initial Term Base Rent (monthly) Base. Rent {annual)
April 1, :2019 -March 31, 2020 $l9;420J)0 $233,040,00
April 1, 20.20 - March 31, 2Ii21 $20,002.60 $240,031.iO
April i .. 2021 - M,arc.li. 3J,2Q:l2 ·$20,602.68 $247,2:32,16
April 1, 2022. - M,a,rch 31, 2023 $21,220.7'6 $254,649. 1'.4
April 1, 2023 - March 31, '2024 $21,857.38 $262,.288~56
With tespect to the Option Term, the Billie Rent during the first year of the Option Term shall
be .adJusted to the. the;m-cµrrertt fair market val11e for the rental offli.e Premises (based on comparable size,.
quality and locaticm), l:>uf in tl(j event less than the l:3ase Rt;itt for the last year oftbe Initial Tellll.. On
each anniversary of the commencement ofthe;Option Term therea:fteli throughout the Option Term, Base
Rent shall increase to One Hundred Three percent (103%) of the Base Rent for the immediately prior
year.
The fair market value for Base Rent for the first year of the Option Tenn shall be determined
as follows: The parties shall meet and confer at least six (6) month prior to the end of the Initial Term, to
determine if there is mutual assent on the Base Rent to be used for the first year of the Option Term. If
there is no such mutual assent, the parties shall on or before four (4) months prior to the end of the Initial
Term, either (a) mutually agree upon a neutral third-party appraiser (whose fees shall split equally by the
parties) to make a determination of the then-current fair market value for the rental of the Premises, or (b)
in the event parties are unable to mutually agree upon such appraiser, each party will provide the other
with a list of three (3) proposed neutral third-party appraisers from which the other party shall choose one
(I) to be hired (and fees paid) by the party that generated such list, and the Base Rent for the first year of
the Renewal Term shall be the average of the two (2) appraisals of fair market rent so generated.
1.12 Use of Premises: The Premises shall be used for real estate marketing office and/or general
administrative office purposes in a manner consistent with the character of a first class commercial center
and in compliance with the OBA (as hereinafter defined) and all applicable laws (the "Permitted Use"), and
for no other purpose whatsoever.
Subject to temporary disruptions that may occur due to maintenance or repairs, Tenant shall have
unlimited access to the Premises and the Common Areas of the Project twenty-four (24) hours a day, seven
(7) days per week, and three hundred sixty-five (365) days per year throughout the Term. (Article 9)
Provided that Tenant has performed all of its obligations under this Lease, Landlord covenants that
Tenant shall have and enjoy quiet and peaceable possession of the Premises for operation as the Permitted
Use during the Term free ofhindrance or molestation by Landlord, anyone claiming by, through, or under
Landlord, subject to the provisions of this Lease, and of all mortgages, ground leases, encumbrances and
other matters of record affecting title to the Shopping Center.
1.13 Security Deposit: $19,420.00
1.14 Base Year: 2019* (Section 7.1, Article 8, Sections 11.5, 14.4)
* For purposes of determining Base Year Operating Expenses, the expenses shall
include expenses incurred during that portion of2019 preceding the Term of this Lease
1.15 Notices: (Article 20)
To Landlord: Castle & Cooke Commercial-CA, Inc.
Attn: Vice President - Commercial Development
10000 Stockdale Highway, Suite 300
Bakersfield, California 93311
With a copy to: Jones & Beardsley, P.C.
Attn: Mark A. Jones, Esq.
10000 Stockdale Highway, Suite 395
Bakersfield, California 93311
To Tenant: Miramar International, Inc.
Attn: Dan Shanyfelt
10800 Stockdale Hwy, #101
Bakersfield, California 93311
2
1.16 Broker(s): (Article 20)
Tenant's Broker: Miramar International, Inc.
Attn: Dan Shanyfelt
10800 Stockdale Hwy, #101
Bakersfield, California 93311
Landlord's Broker: Colliers International
Attn: David Williams
10000 Stockdale Highway, Suite 102
Bakersfield, California, 93311
1.17 Tenant Improvement
Contribution: Seven Dollars and Zero Cents ($7.00) per square foot of the 8,139
square feet of usable floor area in the Premises (Fifty-Six
Thousand Nine Hundred Seventy-Three Dollars [$56,973.00])
(Article 20)
1.18 OEA: "OEA" means that certain Operation and Easement Agreement, between Landlord
and Target Corporation ("Target"), recorded on December 30, 2008, as Document
No. 0208199616 in the Kern County Official Records, as modified by that certain
First Amendment to Operation and Easement Agreement between Landlord and
Target, recorded on September 2, 2010, as Document No. 000210120772 in the Kem
County Official Records, and that certain Second Amendment to Operation and
Easement Agreement between Landlord and Target, dated January 21, 2014, and
recorded on January 24, 2014, as Document No. 000214008462 in the Kem County
Official Records. The Project, including Landlord's Parcels (defined in Section 2.1.2)
and the Premises, are subject to the OEA and Tenant agrees to be bound by the OEA.
ARTICLE 2 - PREMISES
2.1 Premises.
2.1.1 Landlord leases to Tenant and Tenant leases from Landlord, for the "Term" (as defined in
Article 3) and upon the covenants and conditions set forth in this Lease, the premises described in Section
.L§_ ("Premises"). The Premises shall specifically include the roof, floor slab and foundations, and structural
and exterior walls which are a part of or immediately adjacent to the Premises.
2.1.2 The Premises are situated in, and constitute a part of, the Building. The Building is located
on the Landlord's Parcels portion of the Project. Tenant acknowledges that "Landlord's Parcels11 means the
land within the Project owned from time to time by Landlord. Tenant further acknowledges that Landlord
does not own the entire Project, and that as of the Effective Date, a portion of the Project is owned by Target
Corporation. The Project, commonly known as the "Shops at River Walk Shopping Center," including,
among other things, Landlord's Parcels, is shown on the site plan attached hereto as Exhibit A ("Site Plan")
and incorporated herein. The Project, the Landlord's Parcels, and the Premises are all encumbered by and
subject to the OEA, among other recorded documents. Accordingly, the Premises are subject to, among
other applicable provisions of the OEA, the easements set forth in the OEA, and Tenant agrees to be bound
by theOEA.
2.1.3 Tenant acknowledges that the Project is currently intended to constitute a mixed use
commercial development that may include entertainment uses, and office buildings for general office use
(as well as retail office use). Additionally, nothing contained in this Lease shall require Landlord to
3
construct any of the improvements in any part of the Project or Landlord's Parcels other than those portions
reasonably necessary to allow Tenant to open and operate for business from the Premises.
2.2 Reservation. Landlord reserves the right to use the exterior walls, floor, roof and plenum in,
above and below the Premises for the repair, maintenance, use and replacement of pipes, ducts, utility lines
and systems, structural elements serving the Project and for such other purposes as Landlord deems
necessary. In exercising its rights reserved herein, Landlord shall not unreasonably interfere with the
operation of Tenant's business on the Premises.
2.3 Floor Area. Unless expressly specified otherwise, the term "Floor Area", as used in this Lease,
shall mean the rentable square footage of the leased Premises, as determined by Landlord and verified by
Tenant prior to the Commencement Date, in accordance with the Building Owners and Managers
Association (BOMA) 265.1-1996 Standards for Measuring Floor Space in Office Buildings or its successor
in effect on the date hereof. The Building load factor is approximately 1.193%.
ARTICLE 3 - TERM
3.1 Term. The term of this Lease ("Term") is deemed, on a retroactive basis, to have commenced
on April 1, 2019 (the "Commencement Date"). Subject to Section 3.2, the Term shall continue, unless
sooner terminated in accordance with the provisions of this Lease, until March 31, 2024.
3.2 Extension Options. Provided that Tenant is not in default of any monetary or material non-
monetary provision of this Lease at the time of exercise of an option to extend provided herein or at any
time thereafter prior to the commencement of the "Option Term" (as hereinafter defined), Tenant shall have
the option to extend the Term for one (1) additional five (5) year period from April 1, 2024, through
March 31, 2029, as set forth in Section 1.9 of this Lease (such period being referred to herein as the "Option
Term") only by giving Landlord written notice on or before October 1, 2023. All of the terms, covenants,
conditions, provisions and agreements applicable to the initial Term shall be applicable to the Option Term,
except that the Base Rent payable during the Option Term shall be as set forth in Section 1.11 above. The
option to extend the Term pursuant hereto by the Option Terms shall be personal to the original Tenant
signatory to this Lease and shall not be exercisable by or for the benefit of any Transferee of Tenant. Time
is of the essence with respect to Tenant's exercise of the option to extend the Initial Tenn of this Lease
provided herein. Tenant's failure to exactly comply with the time requirements set forth herein shall cause
the option provided herein to automatically cease and terminate and, in such event, this Lease shall
terminate upon the expiration of the Initial Tenn. All references in this Lease to the "Term" shall be deemed
to mean the initial Term as extended by the Option Terms, as applicable.
ARTICLE 4 - POSSESSION AND CONSTRUCTION
4.1 Delivery of Possession of the Premises. Tenant acknowledges that as of the Effective Date of
this Lease, Tenant has already accepted possession of the Premises from Landlord in their currently existing
"as is" condition and agrees Landlord has no further obligations related to preparation of the Premises.
4.1.1 Landlord represents and warrants to Tenant that, to the best of Landlord's actual knowledge,
without investigation, all previous construction completed prior to the date of this Lease to the Common
Area on Landlord's Parcels and the interior and exterior of the Premises, if any, has been completed with
the appropriate pennits and in compliance with the Americans With Disabilities Act (''ADA'') and the
requirements of all federal, state and local governmental entities having jurisdiction over such construction.
In the event the Common Area on Landlord's Parcels, the Premises, or any portion thereof, do not meet
minimum AD A specifications, Tenant shall provide Landlord with written notice detailing the items, if any,
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which do not meet ADA compliance at the Premises. Within thirty (30) days of its receipt thereof, or such
other amount of time as may be reasonably required, Landlord shall, at its sole cost and expense, cause the
non-conforming items to meet such minimum ADA compliance specifications.
4.2 Tenant's Construction. Any modifications to the Premises by Tenant shall be done in
accordance with Section 10.4.
ARTICLE 5 - RENTAL
5.1 Base Rent Tenant shall pay to Landlord the sum specified in Section 1.11 ("Base Rent") in
the monthly installments specified, in advance, on or before the first (1st) day of each month, without prior
demand and without abatement, offset or deduction (except as expressly and specifically provided in this
Lease), commencing on the Commencement Date. Should the Commencement Date be a day other than
the first (1st) day of a calendar month, then the monthly installment of Base Rent for the first partial month
shall be equal to one-thirtieth (I/30th) of the monthly installment of Base Rent for each day from the
Commencement Date to the end of the partial month. To the extent the Base Rent for April 2019 and/or
May 2019 has not been paid prior to the Effective Date, such amounts shall be due and payable as of
the Effective Date of this Lease.
5.2 Adjustment to Base Rent. The Base Rent payable under Section 1.11 and this Article 5 shall
be adjusted on each of the dates and to the amounts specified in Section 1.11 .
5.3 Additional Rent. Tenant shall pay, as "Additional Rent", without abatement, offset, or
deduction, all sums required to be paid by Tenant to Landlord pursuant to this Lease in addition to Base
Rent. Landlord shall have the same rights and remedies for the nonpayment of Additional Rent as it has
with respect to the nonpayment of Base Rent.
5.4 Place of Payment. Tenant shall pay Base Rent and Additional Rent to Landlord at the address
specified in Section 1.15, or to such other address and/or person as Landlord may from time to time
designate in writing to Tenant.
5.5 Late Payments. If Tenant fails to pay when the same is due any Base Rent or Additional Rent,
the unpaid amounts shall bear interest at the Interest Rate, as defined in Section 20 .1 O(k), from the date the
unpaid amount was initially due, to and including the date of payment. Jn addition, if any installment of
Base Rent or Additional Rent is not received by Landlord from Tenant within five (5) days after the date
when due, Tenant shall immediately pay to Landlord a late charge equal to five percent (5%) of the
delinquent amount. Landlord and Tenant agree that this late charge represents a reasonable estimate of the
costs and expenses Landlord will incur together with the interest provided for herein, and is fair
compensation to Landlord for its loss suffered by reason oflate payment by Tenant.
ARTICLE 6 - TEN.ANT FINANCIAL DATA
Within fifteen (15) days after Landlord's written request, which may be made from time to
time, Tenant shall furnish Landlord with :financial statements or other reasonable financial information ;
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reflecting Tenant's current financial condition, certified by Tenant or its financial officer. If Tenant or its I
parent company (provided such parent company wholly owns Tenant) is a publicly-traded corporation, :·
delivery of Tenant's or its parent company's last published financial information shall be satisfactory for
purposes of this Article 6.
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ARTICLE 7 -TAXES
7.1 Real Property Taxes.
(a) As used in this Lease and except as qualified below, the tenn "Real Property Taxes"
shall include any form of tax or assessment, license fee, license tax, possessory interest tax, tax or excise
on rental, or any other levy, charge, expense or imposition imposed by any Federal, state, county or city
authority having jurisdiction, or any political subdivision thereof, or any school, agricultural, lighting,
drainage or other improvement or special assessment district on any interest of Landlord or Tenant in the
Project, including, but not limited to, any landscape maintenance and/or lighting assessments, assessments
associated with community facilities districts and Mello-Roos assess"IIlents. Real Property Taxes shall not
include Landlord's general income taxes, inheritance, estate or gift taxes.
(b) Tenant's pro-rata share of the Real Property Taxes assessed on Tenant's Parcel shall
be a fraction, the numerator of which is the Floor Area of the Premises and the denominator of which shall
be the total Floor Area within the building(s) located on Tenant's Parcel as of the commencement of the
applicable calendar or fiscal year (as the case may be), Subject to and without waiving Tenant's
obligation to reimburse Landlord for Tenant's pro-rata share of increases to Operating Expenses
over the Base Year amounts as set forth at Section 11.5, Tenant's pro-rata share of Real Property
Taxes is included within Operating Expenses and within the Base Rent amount.
7.2 Personal Property and Other Taxes. Tenant shall pay, prior to delinquency, all taxes,
assessments, license fees and public charges levied, assessed or imposed upon its business operation, trade
fixtures, merchandise and other personal property in, on or upon the Premises. If any such items of property
are assessed with property of Landlord, then the assessment shall be equitably divided between Landlord
and Tenant. Tenant shall pay Landlord the taxes attributable to Tenant's property within 30 days after
receipt of a written statement setting forth the taxes applicable to Tenant's property.
7.3 Contesting Taxes. If Landlord contests any Taxes levied or assessed during the Term, Tenant shall
not be required to pay any portion of the costs or expenses incurred by Landlord in connection with such
contest; however, if Landlord is successful in such contest, Landlord may deduct from the portion of any
refund received which is payable to Tenant, Tenant's pro-rata share of all such costs and expenses
detennined pursuant to the formula set forth in Section 7. l(b) for the allocation of Real Property Taxes.
Landlord shall pay to Tenant that portion of the total refund remaining, if any, which is attributable to
Tenant's pro-rata share of Real Property Taxes prorated in the same manner as set forth in Section 7.l(b),
provided that notwithstanding anything in this Section 7.3 which may be construed to the contrary, in no
event shall Tenant be entitled to any refund or abatement due Landlord pursuant to the tenns of any tax
increment financing or similar agreement between Landlord and governing agencies to which Landlord is
a party.
ARTICLE 8- UTILillES
Except as otherwise stated herein, Tenant agrees to pay directly to the appropriate utility company
all charges for utility services supplied to Tenant for which there is a separate meter and/or submeter to the
Premises, as well as any communication services (telephone, internet, cable, etc.) desired by Tenant.
To the extent any applicable utilities to be paid by Tenant are not separately metered, which
includes electricity, water, and natural gas for normal office usage, Tenant agrees to pay to Landlord, as
Additional Rent pursuant to Section 5.3 above, its share of all charges for such utility services supplied to
the Premises upon billing by Landlord of Tenant's share, as reasonably determined by Landlord based upon
estimated actual usage in relative proportion to the Building-wide usage. Tenant acknowledges that with
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respect to electricity. University of LaVerne in the Building has its own submeter and will be excluded
from calculation of Tenant's pro-rata share of electricity use in the Building.
Snbject to and without waiving Tenant's obligation to reimburse Landlord for Tenant's pro-
rata share of increases to Operating Expenses over the Base Year amounts as set forth at Section
11.5, Landlord, as part of Operating Expenses, shall furnish heating, ventilating and air-conditioning
(HVAC) to the Premises for normal office usage during the Building Hours defined below. In
addition, upon Tenant's request, Landlord shall provide after-hours heating, ventilating and air-conditioning
on an hourly, full-floor basis based on Landlord's actual cost of providing such services, which current
charge is approximately $50.00 per hour as of the Effective Date. The actual charge will be based on
Tenant's share as a proportion of all tenant's actually utilizing after hours HVAC at the time.
For purposes of this Lease, the normal ''Building Hours" are be defined to be non-Federal Holiday
weekday business hours of 7 a.m. to 6 p.m. and 9 a.m. to 1 p.m. on Saturdays.
Tenant shall not, without the written consent of Landlord, use any equipment, apparatus or device
in the Premises, including without limitation, computer mainframes, electronic data processing machines,
punch card machines or other equipment, machines, apparatus or devices using in excess of 120 volts, or
which consume more electricity than is usually furnished or supplied for the use of premises as general
office space, as determined by Landlord. Tenant shall not connect any apparatus with electric current except
through existing electrical outlets in the Premises. To the extent, Tenant consumes water, gas or electric
current in excess of that usually furnished or supplied for the use of premises as general office space (as
determined by Landlord), Tenant shall be wholly responsible for any and all costs for such consumption,
which shall include but not be limited to the direct over-standard utility costs and the installation of sub-
meters, if necessary.
Regardless of the entity which supplies any of the utility services, Landlord shall not be liable in
damages for any failure or interruption beyond Landlord's reasonable control of any utility or service. No
failure or interruption of any utility or service shall entitle Tenant to terminate this Lease, however Tenant's
Base Rent and Additional Rent obligations under this Lease shall abate if (1) such interruption renders the
Premises uninhabitable, interferes with Tenant's quiet possession and enjoyment of the Premises, or
otherwise materially disrupts Tenant's Permitted Use for a period of at least forty-eight hours, and (2) such
interruption is due to Landlord's negligent or intentional actions and/or failure to act. Notwithstanding
anything contained in this Article 8 to the contrary, Tenant acknowledges that Landlord shall have no
liability for any failure or interruption of any utility or service resulting from government imposed
restrictions, or utility "blackouts" resulting from a usage overload on the state, county or city electrical grid
(each, a "Government Imposed Restriction"), and Tenant shall have no right to a reduction or abatement of
Base Rent or Additional Rent in connection with an interruption of any utility or service resulting from a
Government Imposed Restriction.
ARTICLE 9 - TENANT'S CONDUCT OF BUSINESS
9.1 Permitted Trade Name and Use. The Premises shall be used under this Lease solely under
the trade name specified in Section 1.4, or such other name that has received Landlord's prior written
consent, which shall only be withheld if a new trade name proposed by Tenant would be reasonably likely
to be considered offensive, inflammatory, insulting or obscene by the public. The Premises shall be used
under this Lease for the use specified in Section 1.12, and for no other use or purpose whatsoever. Landlord
shall not be obligated to change either the zoning or the OBA to accommodate any change in use proposed
by Tenant. If Tenant desires to change the use of the Premises from that specified in Section 1.12, then
Tenant shall deliver prior written notice of its desire to Landlord, and Landlord shall have the right to:
(a) consent to the proposed change in use;
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(b) refuse to consent to the proposed change in use; or
(c) tenninate this Lease, such termination to be effective thirty (30) days after
Landlord's delivery to Tenant of such termination notice. Notwithstanding anything contained in this
Section 9. l(c), Tenant may retract its request for change of use within such thirty (30) day period herein
and Landlord's termination shall be null and void only as to that particular request.
9.2 Parking. Tenant expressly aclrnowledges that the parking associated with Tenant's employees,
staff and students shall not be allowed to exceed the parking allocation of 4 spaces per 1,000 square feet of
Floor Area within the Premises. Notwithstanding the foregoing, Tenant's employees and clients shall, on
a non-exclusive basis, be allowed free use of all unreserved parking areas available at the Project in common
with the other occupants of the Project.
9.3 Deliveries. Tenant shall use its reasonable efforts to require all deliveries, (exclusive of United
Parcel Service (and similar nationally recognized overnight courier services) and the U.S. Postal Service),
loading, unloading and services to the Premises to be accomplished within the service areas of the Project
( or within such other locations as Landlord shall reasonably designate), if any.
9.4 Tenant's Signs. Tenant may use interior window or door signage, approved in advance by
Landlord, which is visible only from the Building Common Areas. Tenant shall not be permitted to use
interior window signage visible from the Project Common Areas.
Tenant shall not affix upon the exterior of the Building any sign, advertising placard, name,
insignia, trademark, descriptive material or other like item (collectively, the "Exterior Signs"), unless such
Exterior Signs (i) comply with all governmental requirements, (ii) comply with the Sign Criteria for the
Project attached hereto as Exhibit E, and (iii) are approved in writing by Landlord, which approval shall
not be unreasonably withheld, conditioned or delayed. Tenant agrees that it shall be reasonable for Landlord
to disapprove any proposed Exterior Signs not in conformity with any uniformly applied, project-wide sign
criteria adopted for the Project. Notwithstanding the foregoing, Tenant shall be permitted to maintain
its existing exterior Building signage as of the Effective Date and Tenant shall be permitted to
backlight such building signage similar to the lighting of the University of LaVerne's signage. All of ,.
the Exterior Signs shall be erected by Tenant at its sole cost and expense, and Tenant shall maintain all of 1:.
its Exterior Signs in good condition and repair during the Term.
Additionally Landlord shall allow Tenant, at Tenant's sole cost and expense with respect to
creation, instal
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1 CATHERINE J. WEINBERG, ESQ. [SBN 222066) BUCKNER, ROBINSON & MIRKOVICH 2 3146 Redhill Avenue, Suite 200 Costa Mesa, California 92626 3 Telephone: (714) 432-0990 Fax: (714) 432-0352 4 Attorneys for Plaintiff, 5 CASTLE & COOKE RIVERWALK, LLC. 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF KERN 9 BAKERSFIELD COURTHOUSE 10 11 CASTLE & COOKE RIVERWALK, LLC, a CASE NO: BCV-23-104296 Delaware limited liability company 12 FIRST AMENDED COMPLAINT FOR 13 Plaintiff, BREACH OF WRITTEN CONTRACT V. 14 MIRAMAR INTERNATIONAL, INC., a 15 California corporation; and DOES 1 through 30, inclusive AMOUNT IN DISPUTE 16 EXCEEDS $25,000.00 Defendants. 17 18 19 Plaintiff complains and alleges as follows: 20 FIRST CAUSE OF ACTION 21 (AGAINST ALL DEFENDANTS FOR BREACH OF WRITTEN CONTRACT) 22 1. Plaintiff CASTLE & COOKE RIVERWALK, LLC (hereinafter ''RIVERWALK" 23 or "PLAINTIFF") is, and at all times mentioned herein was, a limited liability company, 24 organized and existing under the laws of the State of Delaware, with its principal place of 25 business in the City of Bakersfield, County of Kern, State of California. 26 2. PLAINTIFF is informed and believes and thereon alleges that at all times 27 mentioned herein, defendant MIRAMAR INTERNATIONAL, INC. (hereinafter sometimes 28 collectively referred to as "MIRAMAR") is, and at all times mentioned herein was, a I Complaint for Breach of Written Contract 1 corporation, organized and existing under the laws of the State of California, with its principal 2 place of business in the City of Bakersfield, County of Kern, State of California. 3 3. The true names and capacities of the Defendants sued herein as DOES 1 through 4 30, inclusive, are unknown to PLAINTIFF at this time. Each of the defendants named herein as 5 DOE is responsible in some manner for the events sued upon. PLAINTIFF will seek leave of 6 court to amend this Complaint to allege such fictitiously-named defendants' true names and 7 capacities when such information is ascertained. 8 4. PLAINTIFF is informed and believes and thereon alleges that, at all times 9 mentioned herein, each of the defendants was the agent and/or employee of each of the 10 remaining defendants, and, in the matters hereinafter alleged, was acting within the course and 11 scope of said agency and/or employment. 12 5. All above-referenced defendants are hereinafter sometimes collectively referred t 13 as the "DEFENDANTS." 14 6. The obligations sued upon herein are not a contract of installment sale for goods 15 or services subject to Civil Code Section 1801, etc. (Unruh Act); are not on a conditional sales 16 contract subject to Civil Code Section 2981, etc. (Rees-Levering Motor Vehicle Sales and 17 Finance Act); and are not on an obligation for goods, services, loans, or extensions of credit 18 subject to Code of Civil Procedure Section 395(b); and no defendant named herein is in the 19 military service so as to be entitled to the benefits of the Servicemembers Relief Act (50 U .S .C. 20 Section 501 et seq.). 21 7. At all times mentioned herein, PLAINTIFF was the owner of certain commercial 22 real property (hereinafter the "Premises"), consisting of office space located within that certain 23 integrated retail shopping center (the "Shopping Center"), in the City of Bakersfield, County of 24 Kern, State of California, said Premises having a street address of 10800 Stockdale Highway, 25 Suite 101, Bakersfield, California 93311. 26 8. On or about January 7, 2019, PLAINTIFF's predecessor in interest, Castle & 27 Cooke Commercial-CA, Inc., a California corporation ("Commercial") (as "Landlord") and 28 DEFENDANTS (as "Tenant") entered into a written Lease Agreement dated January 7, 2019 2 Complaint for Breach of Written Contract 1 (the "Lease") which provided for the lease of the Premises by DEFENDANTS from 2 Commerical. A true and correct copy of the Lease is attached hereto as Exhibit "A" and 3 incorporated by reference herein. 4 9. PLAINTIFF has succeeded to all of Commercial' s right, title and interest in and 5 to the Lease and the Premises. 6 10. The Lease together with all amendments, addendums, subleases, exhibits, 7 attachments and revisions, are sometimes hereinafter collectively referred to as the "Lease" 8 11. DEFENDANTS took possession of the Premises pursuant to the terms of the 9 Lease. 12. Pursuant to A1ticle 5 of the Lease, DEFENDANTS are liable to PLAINTIFF for 11 minimum monthly rent, in the following amounts: $21,857.38. 12 13. Pursuant to Article 11 of the Lease, DEFENDANTS are obligated to pay to 13 PLAINTIFF, as "Additional Rent", DEFENDANTS' estimated pro rata share of the Common 14 Area Maintenance charges (the "C.A.M." Charges) incurred in connection with the Shopping 15 Center, which totalled the following monthly amounts: 16 01/01/2023 - 12/31/2023: $2,260.58. 17 01/01/2024- 03/31/2024: $3,007.14 18 14. Pursuant to the terms of the Lease, the entire monthly rent due from 19 DEFENDANTS totalled the following monthly amounts: 20 04/01/2023 - 12/31/2023: 21 Minimum Monthly Rent: $21,857.38 22 Additional Rent: $ 2,260.58 23 Total $24,117.96 24 01/01/2024-03/31/2024: 25 Minimum Monthly Rent: $21,857.38 26 Additional Rent: $ 3,007.14 27 Total $24,864.52 28 3 Complaint for Breach of Written Contract 1 15. Pursuant to Article 5 .5 of the Lease, in the event that any payment of rent is not 2 received by PLAINTIFF within five (5) days of the date due, DEFENDANT shall be obligated t 3 pay to PLAINTIFF a late charge equal to five percent (5%) of the delinquent amount. 4 16. Pursuant to the Article 20.l0(k) of the Lease, any amount due from either party 5 to the other under the Lease which is not paid when due shall bear interest at the rate per annum 6 equal to the prime interest rate, plus 2%, not to exceed the maximum lawful rate, form the date 7 such amount was originally due to and including the date of payment. 8 17. Pursuant to the Article 20.l0(p) of the Lease, if either party institutes any action 9 or proceeding against the other under the Lease, the prevailing party shall be entitled to recover 10 all reasonable costs and expenses, including attorney's fees, incurred in such action or 11 proceeding. 12 18. PLAINTIFF has performed all the covenants and agreements required to be 13 pe1formed by it in accordance with the terms of the Lease. 14 19. DEFENDANTS breached the Lease by failing to pay amounts coming due under 15 the Lease, and as of November 29, 2023, there was due, owing and unpaid, the sum of 16 $205,876.72, comprised of the following: 17 RENT: December, 2022 (balance) $ 3,129.39 April, 2023 21,857.38 18 May, 2023 21,857.38 June,2023 21,857.38 19 July, 2023 21,857.38 20 August, 2023 21,857.38 September, 2023 21,857.38 21 October, 2023 21,857.38 November, 2023 21,857.38 22 CAM: April, 2023 2,260.58 23 May, 2023 2,260.58 June,2023 2,260.58 24 July, 2023 2,260.58 August, 2023 2,260.58 25 September, 2023 2,260.58 October, 2023 2,260.58 26 November, 2023 2,260.58 27 LATE CHARGE: April, 2023 1,205.90 May, 2023 1,205.90 28 June,2023 1,205.90 4 Complaint for Breach of Written Contract 1 July, 2023 1,205.90 August, 2023 1,205.90 2 September, 2023 1,205.90 October, 2023 1,205.90 3 November, 2023 1,205.90 4 TOTAL DUE: $205,876.72 5 20. On November 29, 2023, PLAINTIFF caused a "Five (5) Day Notice to Pay Rent 6 or Quit" (hereinafter the "Five (5) Day Notice") to be served upon DEFENDANTS by 7 subservice, posting and U.S. Mail. A true and correct copy of the "Five (5) Day Notice" and the 8 proof of service thereon is attached hereto as Exhibit "B" and incorporated by reference herein. 9 21. The Five (5) Day Notice set forth the amount due and payable as specified above, 10 and stated the following: "... YOU ARE HEREBY REQUIRED TO PAY RENT for the premises 11 described above in the amount stated below or to QUIT AND DELIVER UP POSSESSION of 12 the premises within five (5) days after service upon you of this Notice ... " 13 22. More than five (5) days have elapsed since the "Five (5) Day Notice" was served 14 on DEFENDANTS, who have failed to pay the rental demanded therein, and have refused to 15 surrender possession of the Premises. 16 23. On or about December 28, 2023, PLAINTIFF filed this action, originally styled 17 as a "Complaint for Unlawful Detainer" (the "UD Complaint") seeking unpaid rent and charges 18 due and restitution of the Premises from DEFENDANTS. 19 24. On or about January 23, 2024, PLAINTIFF caused to be served a "Notice of 20 Belief of Abandonment" (the "Abandonment Notice") on DEFENDANTS. DEFENDANTS 21 failed to respond to the Abandonment Notice, and the Premises was deemed abandoned pursuant 22 to Civil Code Section 1951.2 as of February 12, 2024. A true and correct copy of the 23 Abandonment Notice is attached hereto as Exhibit "C" and incorporated by reference herein. 24 25. DEFENDANTS are further liable to PLAINTIFF for the sum of $103,666.96 for 25 Minimum Monthly Rent and Additional Rent due under the Lease that were accrued and unpaid 26 prior to December, 2022. 27 26. DEFENDANTS are further liable to PLAINTIFF for the sum of $96,471.84 for 28 5 Complaint for Breach of Written Contract 1 Minimum Monthly Rent and Additional Rent due under the Lease after the expiration of the Five 2 (5) Day Notice through the end of the term of the Lease on March 31, 2024, plus late charges 3 and interest due pursuant to the terms of the Lease, calculated as follows: 4 (a) 12/01/2023 - 12/31/2023: (at $24,117.96 per month 5 [$21,857.38 Minimum Monthly Rent Plus $2,260.58 Additional Rent= 6 $24,117 .96]) $24,117.96 7 8 (b) 01/01/2024- 03/31/2024: (at $24,864.52 per month 9 [$21,857.38 Minimum Monthly Rent Plus $3,007.14 Additional Rent= 10 $24,864.14]) $74,593.56 11 TOTAL $98,711.52 12 13 27. The entire amount owed by DEFENDANTS to PLAINTIFF for "Minimum 14 Monthly Rent" and "Additional Rent" due under the Lease, including unpaid late charges and 15 interest due, totals the sum of $442,225.73, computed as follows: 16 (a) Five (5) Day Notice Amount Due: 17 $205,876.72 18 (b) Minimum Monthly Rent and Additional Rent due through the 19 remaining term of the Lease: $ 98,711.52 20 (c) Amountd due prior to December, 2022 $100,381.10 21 22 (c) Late Charges: December, 2023 - March, 2024 $ 4,935.59 23 (d) Interest on Unpaid amounts $ 32,320.81 24 TOTAL: $442,225.73 25 26 28. DEFENDANTS are further liable to PLAINTIFF for reasonable attorney's fees 27 incurred by PLAINTIFF in connection with DEFENDANTS' defaults under the Lease, in an 28 amount to be determined at trial. WHEREFORE, PLAINTIFF prays for judgment against 6 Complaint for Breach of Written Contract 1 DEFENDANTS and each of them, as follows: 2 ON THE FIRST CAUSE OF ACTION (AGAINST ALL DEFENDANTS) 3 1. For unpaid Minimum Monthly Rent and Additional Rent due and unpaid under 4 the terms of the Lease as of the date of the Five (5) Day Notice, in the amount of $205,876.72; 5 2. For unpaid Minimum Monthly Rent and Additional rent due and unpaid under the 6 terms of the Lease prior to December, 2022 in the sum of $100,381.10; 7 3. For the Minimum Monthly Rent and Additional Rent due through the end of the 8 term of the Lease on March 31, 2024, in the amount of $98,711.52; 9 4. For Late charges due and unpaid under the terms of the Lease in the sum of 10 $4,935.59; 11 5. For interest due on unpaid amounts as provided in the terms of the Lease in the 12 sum of $32,320.81; 13 6. For PLAINTIFF'S attorneys' fees incurred herein; 14 7. For PLAINTIFF'S costs of suit incurred herein. 15 8. For such other and further relief as the Court may deem just and proper. 16 Dated: March 21, 2024 BUCKNER, ROBINSON & MIRKOVICH 17 18 19 By: CATHERINE r.)WEINBERG 20 Attorneys fo[Y4intiff 21 22 23 24 25 26 27 28 7 Complaint for Breach of Written Contract EXHIBIT "A" i: COI\1J\.1ERCIAL LEASE between CASTLE & COOKE CO:MT\1ERCIAL-CA, INC., a California corporation, as Landlord and :MIRAMAR INTERNATIONAL, INC., a Califomia ·corporation, as Tenant The Shops at River Walk Shopping Center NEC Stockdale Highway and Buena Vista Road Bakersfield, California APRJL 1, 2019 COlvllv1ERCIALLEASE TABLE OF CONTENTS £AQE AR.TICLE 1- BASIC LEASE PROVISIONS .............................................................................................. 1 ARTICLE 2- PREMISES ............................................................................................................................ 3 AR.TICLE 3 - TERM .................................................................................................................................... 4 ARTICLE 4 - POSSESSION AND CONSTRUCTION .............................................................................. 4 AR.TICLE 5 - RENTAL ................................................................................................................................ 5 ARTICLE 6 - TENANT FJNANCIAL DATA ............................................................................................. 5 ARTICLE 7 -TAXES ....................................................................... :.......................................................... 6 ARTICLE 8 - UTILITIES ............................................................................................................................ 6 ARTICLE 9 - TENANT'S CONDUCT OF BUSINESS .............................................................................. 7 ARTICLE 10 - MAINTENANCE, REPAIRS AND ALTERATIONS ........................................................ 9 ARTICLE 11- COMMON AREA ............................................................................................................. 10 ARTICLE 12 - ASSIGN'MENT AND SUBLETTJNG .............................................................................. 14 AR.TICLE 13 - OMITTED ......................................................................................................................... 16 ARTICLE 14- INSURANCE ..................................................................................................................... 16 ARTICLE 15 - DAMAGE OR DESTRUCTION ...................................................................................... 18 AR.TICLE 16 - EMINENT DOMAJN ........................................................................................................ 20 ARTICLE 17 -DEFAULTS BYTEN".AN1' ............................................................................................... 20 ARTICLE 18- SUBORDJNATION,ATTORNMENT AND TENANT'S CERTIFICATE. .................... 25 ARTICLE 19-MATTERS OF RECORD ................................................................................................. 25 ARTICLE 20 - MISCELLANEOUS .......................................................................................................... 26 EXHIBIT A - GENERAL SITE PLAN OF PROJECT EXHIBIT B - DEPICTION OF PREMISES EXHIBIT C - FORM OF SNDA EXHIBIT D - FORM OF ESTOPPEL CERTIFICATE EXHIBIT B - PROJECT SIGN CRITERIA COMMERCIAL LEASE This Comm.erctal Leqse ("Lease;';) is entered into as of the date set forth in Section 1.1 by a:t1d betweenLandlord and Tenant. ARTICLE 1 -BASICLEASE PROVISIONS 1.1 Effective Date: 1,2 Landlord: CASTLE & COOKE COMMERCIAL-GA, INC., a Galifornia corporation. 1.3 Tenant .MIR.AMAR INTERNATIONAL, INC., a California corpora.ti.on. 1.4 Tenant's Trade Name: ·"Miramar International" 1.5 Project: "The Shops atRiverwalk'; located in the nnrthea:st comer of Stockdale Highway and Buena Vista Road,, in the Cify of Bakersfield, Kem County, California. The. Pn;iject is depicted on Exhibit A. 1.6 Premises: That certain :first floor space known as Suite 1.01 (the ''Premises") located in that certain approximately 39,902 rentable square. foot2-story class ''A" commercial building located at.10800 Stockdale highway, Baketsfieid, Calif'otnia 93311, known as '134ilding J" (the "Building1')whicih is located upon on Lancllord'~ Parcels (as de:fil}ed in Section 2.1.2 below) witlnn the Project (See also Article 2). TheiPremises are depicted, on Exhibit B, 1.7 Floor Area ofJiremises: 9,71'0,square feet ofR:entable Floor Space measured per Section 2.'.3 below. (Article 2) 1.8 Initial Term: Five (5) years co-qiinencing.April 1, 2019 and expiri:n:g March 31, 2024. (Article.3) 1.9 Option to Extend: One (l} option ('1Qption Term'1) of five (5) years, (Article 3) 1.10 Time to Complete.Tenant's Work: Not applicable. l.U Base Rent: :(Article 5) Period during Initial Term Base Rent (monthly) Base. Rent {annual) April 1, :2019 -March 31, 2020 $l9;420J)0 $233,040,00 April 1, 20.20 - March 31, 2Ii21 $20,002.60 $240,031.iO April i .. 2021 - M,arc.li. 3J,2Q:l2 ·$20,602.68 $247,2:32,16 April 1, 2022. - M,a,rch 31, 2023 $21,220.7'6 $254,649. 1'.4 April 1, 2023 - March 31, '2024 $21,857.38 $262,.288~56 With tespect to the Option Term, the Billie Rent during the first year of the Option Term shall be .adJusted to the. the;m-cµrrertt fair market val11e for the rental offli.e Premises (based on comparable size,. quality and locaticm), l:>uf in tl(j event less than the l:3ase Rt;itt for the last year oftbe Initial Tellll.. On each anniversary of the commencement ofthe;Option Term therea:fteli throughout the Option Term, Base Rent shall increase to One Hundred Three percent (103%) of the Base Rent for the immediately prior year. The fair market value for Base Rent for the first year of the Option Tenn shall be determined as follows: The parties shall meet and confer at least six (6) month prior to the end of the Initial Term, to determine if there is mutual assent on the Base Rent to be used for the first year of the Option Term. If there is no such mutual assent, the parties shall on or before four (4) months prior to the end of the Initial Term, either (a) mutually agree upon a neutral third-party appraiser (whose fees shall split equally by the parties) to make a determination of the then-current fair market value for the rental of the Premises, or (b) in the event parties are unable to mutually agree upon such appraiser, each party will provide the other with a list of three (3) proposed neutral third-party appraisers from which the other party shall choose one (I) to be hired (and fees paid) by the party that generated such list, and the Base Rent for the first year of the Renewal Term shall be the average of the two (2) appraisals of fair market rent so generated. 1.12 Use of Premises: The Premises shall be used for real estate marketing office and/or general administrative office purposes in a manner consistent with the character of a first class commercial center and in compliance with the OBA (as hereinafter defined) and all applicable laws (the "Permitted Use"), and for no other purpose whatsoever. Subject to temporary disruptions that may occur due to maintenance or repairs, Tenant shall have unlimited access to the Premises and the Common Areas of the Project twenty-four (24) hours a day, seven (7) days per week, and three hundred sixty-five (365) days per year throughout the Term. (Article 9) Provided that Tenant has performed all of its obligations under this Lease, Landlord covenants that Tenant shall have and enjoy quiet and peaceable possession of the Premises for operation as the Permitted Use during the Term free ofhindrance or molestation by Landlord, anyone claiming by, through, or under Landlord, subject to the provisions of this Lease, and of all mortgages, ground leases, encumbrances and other matters of record affecting title to the Shopping Center. 1.13 Security Deposit: $19,420.00 1.14 Base Year: 2019* (Section 7.1, Article 8, Sections 11.5, 14.4) * For purposes of determining Base Year Operating Expenses, the expenses shall include expenses incurred during that portion of2019 preceding the Term of this Lease 1.15 Notices: (Article 20) To Landlord: Castle & Cooke Commercial-CA, Inc. Attn: Vice President - Commercial Development 10000 Stockdale Highway, Suite 300 Bakersfield, California 93311 With a copy to: Jones & Beardsley, P.C. Attn: Mark A. Jones, Esq. 10000 Stockdale Highway, Suite 395 Bakersfield, California 93311 To Tenant: Miramar International, Inc. Attn: Dan Shanyfelt 10800 Stockdale Hwy, #101 Bakersfield, California 93311 2 1.16 Broker(s): (Article 20) Tenant's Broker: Miramar International, Inc. Attn: Dan Shanyfelt 10800 Stockdale Hwy, #101 Bakersfield, California 93311 Landlord's Broker: Colliers International Attn: David Williams 10000 Stockdale Highway, Suite 102 Bakersfield, California, 93311 1.17 Tenant Improvement Contribution: Seven Dollars and Zero Cents ($7.00) per square foot of the 8,139 square feet of usable floor area in the Premises (Fifty-Six Thousand Nine Hundred Seventy-Three Dollars [$56,973.00]) (Article 20) 1.18 OEA: "OEA" means that certain Operation and Easement Agreement, between Landlord and Target Corporation ("Target"), recorded on December 30, 2008, as Document No. 0208199616 in the Kern County Official Records, as modified by that certain First Amendment to Operation and Easement Agreement between Landlord and Target, recorded on September 2, 2010, as Document No. 000210120772 in the Kem County Official Records, and that certain Second Amendment to Operation and Easement Agreement between Landlord and Target, dated January 21, 2014, and recorded on January 24, 2014, as Document No. 000214008462 in the Kem County Official Records. The Project, including Landlord's Parcels (defined in Section 2.1.2) and the Premises, are subject to the OEA and Tenant agrees to be bound by the OEA. ARTICLE 2 - PREMISES 2.1 Premises. 2.1.1 Landlord leases to Tenant and Tenant leases from Landlord, for the "Term" (as defined in Article 3) and upon the covenants and conditions set forth in this Lease, the premises described in Section .L§_ ("Premises"). The Premises shall specifically include the roof, floor slab and foundations, and structural and exterior walls which are a part of or immediately adjacent to the Premises. 2.1.2 The Premises are situated in, and constitute a part of, the Building. The Building is located on the Landlord's Parcels portion of the Project. Tenant acknowledges that "Landlord's Parcels11 means the land within the Project owned from time to time by Landlord. Tenant further acknowledges that Landlord does not own the entire Project, and that as of the Effective Date, a portion of the Project is owned by Target Corporation. The Project, commonly known as the "Shops at River Walk Shopping Center," including, among other things, Landlord's Parcels, is shown on the site plan attached hereto as Exhibit A ("Site Plan") and incorporated herein. The Project, the Landlord's Parcels, and the Premises are all encumbered by and subject to the OEA, among other recorded documents. Accordingly, the Premises are subject to, among other applicable provisions of the OEA, the easements set forth in the OEA, and Tenant agrees to be bound by theOEA. 2.1.3 Tenant acknowledges that the Project is currently intended to constitute a mixed use commercial development that may include entertainment uses, and office buildings for general office use (as well as retail office use). Additionally, nothing contained in this Lease shall require Landlord to 3 construct any of the improvements in any part of the Project or Landlord's Parcels other than those portions reasonably necessary to allow Tenant to open and operate for business from the Premises. 2.2 Reservation. Landlord reserves the right to use the exterior walls, floor, roof and plenum in, above and below the Premises for the repair, maintenance, use and replacement of pipes, ducts, utility lines and systems, structural elements serving the Project and for such other purposes as Landlord deems necessary. In exercising its rights reserved herein, Landlord shall not unreasonably interfere with the operation of Tenant's business on the Premises. 2.3 Floor Area. Unless expressly specified otherwise, the term "Floor Area", as used in this Lease, shall mean the rentable square footage of the leased Premises, as determined by Landlord and verified by Tenant prior to the Commencement Date, in accordance with the Building Owners and Managers Association (BOMA) 265.1-1996 Standards for Measuring Floor Space in Office Buildings or its successor in effect on the date hereof. The Building load factor is approximately 1.193%. ARTICLE 3 - TERM 3.1 Term. The term of this Lease ("Term") is deemed, on a retroactive basis, to have commenced on April 1, 2019 (the "Commencement Date"). Subject to Section 3.2, the Term shall continue, unless sooner terminated in accordance with the provisions of this Lease, until March 31, 2024. 3.2 Extension Options. Provided that Tenant is not in default of any monetary or material non- monetary provision of this Lease at the time of exercise of an option to extend provided herein or at any time thereafter prior to the commencement of the "Option Term" (as hereinafter defined), Tenant shall have the option to extend the Term for one (1) additional five (5) year period from April 1, 2024, through March 31, 2029, as set forth in Section 1.9 of this Lease (such period being referred to herein as the "Option Term") only by giving Landlord written notice on or before October 1, 2023. All of the terms, covenants, conditions, provisions and agreements applicable to the initial Term shall be applicable to the Option Term, except that the Base Rent payable during the Option Term shall be as set forth in Section 1.11 above. The option to extend the Term pursuant hereto by the Option Terms shall be personal to the original Tenant signatory to this Lease and shall not be exercisable by or for the benefit of any Transferee of Tenant. Time is of the essence with respect to Tenant's exercise of the option to extend the Initial Tenn of this Lease provided herein. Tenant's failure to exactly comply with the time requirements set forth herein shall cause the option provided herein to automatically cease and terminate and, in such event, this Lease shall terminate upon the expiration of the Initial Tenn. All references in this Lease to the "Term" shall be deemed to mean the initial Term as extended by the Option Terms, as applicable. ARTICLE 4 - POSSESSION AND CONSTRUCTION 4.1 Delivery of Possession of the Premises. Tenant acknowledges that as of the Effective Date of this Lease, Tenant has already accepted possession of the Premises from Landlord in their currently existing "as is" condition and agrees Landlord has no further obligations related to preparation of the Premises. 4.1.1 Landlord represents and warrants to Tenant that, to the best of Landlord's actual knowledge, without investigation, all previous construction completed prior to the date of this Lease to the Common Area on Landlord's Parcels and the interior and exterior of the Premises, if any, has been completed with the appropriate pennits and in compliance with the Americans With Disabilities Act (''ADA'') and the requirements of all federal, state and local governmental entities having jurisdiction over such construction. In the event the Common Area on Landlord's Parcels, the Premises, or any portion thereof, do not meet minimum AD A specifications, Tenant shall provide Landlord with written notice detailing the items, if any, 4 which do not meet ADA compliance at the Premises. Within thirty (30) days of its receipt thereof, or such other amount of time as may be reasonably required, Landlord shall, at its sole cost and expense, cause the non-conforming items to meet such minimum ADA compliance specifications. 4.2 Tenant's Construction. Any modifications to the Premises by Tenant shall be done in accordance with Section 10.4. ARTICLE 5 - RENTAL 5.1 Base Rent Tenant shall pay to Landlord the sum specified in Section 1.11 ("Base Rent") in the monthly installments specified, in advance, on or before the first (1st) day of each month, without prior demand and without abatement, offset or deduction (except as expressly and specifically provided in this Lease), commencing on the Commencement Date. Should the Commencement Date be a day other than the first (1st) day of a calendar month, then the monthly installment of Base Rent for the first partial month shall be equal to one-thirtieth (I/30th) of the monthly installment of Base Rent for each day from the Commencement Date to the end of the partial month. To the extent the Base Rent for April 2019 and/or May 2019 has not been paid prior to the Effective Date, such amounts shall be due and payable as of the Effective Date of this Lease. 5.2 Adjustment to Base Rent. The Base Rent payable under Section 1.11 and this Article 5 shall be adjusted on each of the dates and to the amounts specified in Section 1.11 . 5.3 Additional Rent. Tenant shall pay, as "Additional Rent", without abatement, offset, or deduction, all sums required to be paid by Tenant to Landlord pursuant to this Lease in addition to Base Rent. Landlord shall have the same rights and remedies for the nonpayment of Additional Rent as it has with respect to the nonpayment of Base Rent. 5.4 Place of Payment. Tenant shall pay Base Rent and Additional Rent to Landlord at the address specified in Section 1.15, or to such other address and/or person as Landlord may from time to time designate in writing to Tenant. 5.5 Late Payments. If Tenant fails to pay when the same is due any Base Rent or Additional Rent, the unpaid amounts shall bear interest at the Interest Rate, as defined in Section 20 .1 O(k), from the date the unpaid amount was initially due, to and including the date of payment. Jn addition, if any installment of Base Rent or Additional Rent is not received by Landlord from Tenant within five (5) days after the date when due, Tenant shall immediately pay to Landlord a late charge equal to five percent (5%) of the delinquent amount. Landlord and Tenant agree that this late charge represents a reasonable estimate of the costs and expenses Landlord will incur together with the interest provided for herein, and is fair compensation to Landlord for its loss suffered by reason oflate payment by Tenant. ARTICLE 6 - TEN.ANT FINANCIAL DATA Within fifteen (15) days after Landlord's written request, which may be made from time to time, Tenant shall furnish Landlord with :financial statements or other reasonable financial information ; ·r reflecting Tenant's current financial condition, certified by Tenant or its financial officer. If Tenant or its I parent company (provided such parent company wholly owns Tenant) is a publicly-traded corporation, :· delivery of Tenant's or its parent company's last published financial information shall be satisfactory for purposes of this Article 6. 5 ARTICLE 7 -TAXES 7.1 Real Property Taxes. (a) As used in this Lease and except as qualified below, the tenn "Real Property Taxes" shall include any form of tax or assessment, license fee, license tax, possessory interest tax, tax or excise on rental, or any other levy, charge, expense or imposition imposed by any Federal, state, county or city authority having jurisdiction, or any political subdivision thereof, or any school, agricultural, lighting, drainage or other improvement or special assessment district on any interest of Landlord or Tenant in the Project, including, but not limited to, any landscape maintenance and/or lighting assessments, assessments associated with community facilities districts and Mello-Roos assess"IIlents. Real Property Taxes shall not include Landlord's general income taxes, inheritance, estate or gift taxes. (b) Tenant's pro-rata share of the Real Property Taxes assessed on Tenant's Parcel shall be a fraction, the numerator of which is the Floor Area of the Premises and the denominator of which shall be the total Floor Area within the building(s) located on Tenant's Parcel as of the commencement of the applicable calendar or fiscal year (as the case may be), Subject to and without waiving Tenant's obligation to reimburse Landlord for Tenant's pro-rata share of increases to Operating Expenses over the Base Year amounts as set forth at Section 11.5, Tenant's pro-rata share of Real Property Taxes is included within Operating Expenses and within the Base Rent amount. 7.2 Personal Property and Other Taxes. Tenant shall pay, prior to delinquency, all taxes, assessments, license fees and public charges levied, assessed or imposed upon its business operation, trade fixtures, merchandise and other personal property in, on or upon the Premises. If any such items of property are assessed with property of Landlord, then the assessment shall be equitably divided between Landlord and Tenant. Tenant shall pay Landlord the taxes attributable to Tenant's property within 30 days after receipt of a written statement setting forth the taxes applicable to Tenant's property. 7.3 Contesting Taxes. If Landlord contests any Taxes levied or assessed during the Term, Tenant shall not be required to pay any portion of the costs or expenses incurred by Landlord in connection with such contest; however, if Landlord is successful in such contest, Landlord may deduct from the portion of any refund received which is payable to Tenant, Tenant's pro-rata share of all such costs and expenses detennined pursuant to the formula set forth in Section 7. l(b) for the allocation of Real Property Taxes. Landlord shall pay to Tenant that portion of the total refund remaining, if any, which is attributable to Tenant's pro-rata share of Real Property Taxes prorated in the same manner as set forth in Section 7.l(b), provided that notwithstanding anything in this Section 7.3 which may be construed to the contrary, in no event shall Tenant be entitled to any refund or abatement due Landlord pursuant to the tenns of any tax increment financing or similar agreement between Landlord and governing agencies to which Landlord is a party. ARTICLE 8- UTILillES Except as otherwise stated herein, Tenant agrees to pay directly to the appropriate utility company all charges for utility services supplied to Tenant for which there is a separate meter and/or submeter to the Premises, as well as any communication services (telephone, internet, cable, etc.) desired by Tenant. To the extent any applicable utilities to be paid by Tenant are not separately metered, which includes electricity, water, and natural gas for normal office usage, Tenant agrees to pay to Landlord, as Additional Rent pursuant to Section 5.3 above, its share of all charges for such utility services supplied to the Premises upon billing by Landlord of Tenant's share, as reasonably determined by Landlord based upon estimated actual usage in relative proportion to the Building-wide usage. Tenant acknowledges that with 6 respect to electricity. University of LaVerne in the Building has its own submeter and will be excluded from calculation of Tenant's pro-rata share of electricity use in the Building. Snbject to and without waiving Tenant's obligation to reimburse Landlord for Tenant's pro- rata share of increases to Operating Expenses over the Base Year amounts as set forth at Section 11.5, Landlord, as part of Operating Expenses, shall furnish heating, ventilating and air-conditioning (HVAC) to the Premises for normal office usage during the Building Hours defined below. In addition, upon Tenant's request, Landlord shall provide after-hours heating, ventilating and air-conditioning on an hourly, full-floor basis based on Landlord's actual cost of providing such services, which current charge is approximately $50.00 per hour as of the Effective Date. The actual charge will be based on Tenant's share as a proportion of all tenant's actually utilizing after hours HVAC at the time. For purposes of this Lease, the normal ''Building Hours" are be defined to be non-Federal Holiday weekday business hours of 7 a.m. to 6 p.m. and 9 a.m. to 1 p.m. on Saturdays. Tenant shall not, without the written consent of Landlord, use any equipment, apparatus or device in the Premises, including without limitation, computer mainframes, electronic data processing machines, punch card machines or other equipment, machines, apparatus or devices using in excess of 120 volts, or which consume more electricity than is usually furnished or supplied for the use of premises as general office space, as determined by Landlord. Tenant shall not connect any apparatus with electric current except through existing electrical outlets in the Premises. To the extent, Tenant consumes water, gas or electric current in excess of that usually furnished or supplied for the use of premises as general office space (as determined by Landlord), Tenant shall be wholly responsible for any and all costs for such consumption, which shall include but not be limited to the direct over-standard utility costs and the installation of sub- meters, if necessary. Regardless of the entity which supplies any of the utility services, Landlord shall not be liable in damages for any failure or interruption beyond Landlord's reasonable control of any utility or service. No failure or interruption of any utility or service shall entitle Tenant to terminate this Lease, however Tenant's Base Rent and Additional Rent obligations under this Lease shall abate if (1) such interruption renders the Premises uninhabitable, interferes with Tenant's quiet possession and enjoyment of the Premises, or otherwise materially disrupts Tenant's Permitted Use for a period of at least forty-eight hours, and (2) such interruption is due to Landlord's negligent or intentional actions and/or failure to act. Notwithstanding anything contained in this Article 8 to the contrary, Tenant acknowledges that Landlord shall have no liability for any failure or interruption of any utility or service resulting from government imposed restrictions, or utility "blackouts" resulting from a usage overload on the state, county or city electrical grid (each, a "Government Imposed Restriction"), and Tenant shall have no right to a reduction or abatement of Base Rent or Additional Rent in connection with an interruption of any utility or service resulting from a Government Imposed Restriction. ARTICLE 9 - TENANT'S CONDUCT OF BUSINESS 9.1 Permitted Trade Name and Use. The Premises shall be used under this Lease solely under the trade name specified in Section 1.4, or such other name that has received Landlord's prior written consent, which shall only be withheld if a new trade name proposed by Tenant would be reasonably likely to be considered offensive, inflammatory, insulting or obscene by the public. The Premises shall be used under this Lease for the use specified in Section 1.12, and for no other use or purpose whatsoever. Landlord shall not be obligated to change either the zoning or the OBA to accommodate any change in use proposed by Tenant. If Tenant desires to change the use of the Premises from that specified in Section 1.12, then Tenant shall deliver prior written notice of its desire to Landlord, and Landlord shall have the right to: (a) consent to the proposed change in use; 7 (b) refuse to consent to the proposed change in use; or (c) tenninate this Lease, such termination to be effective thirty (30) days after Landlord's delivery to Tenant of such termination notice. Notwithstanding anything contained in this Section 9. l(c), Tenant may retract its request for change of use within such thirty (30) day period herein and Landlord's termination shall be null and void only as to that particular request. 9.2 Parking. Tenant expressly aclrnowledges that the parking associated with Tenant's employees, staff and students shall not be allowed to exceed the parking allocation of 4 spaces per 1,000 square feet of Floor Area within the Premises. Notwithstanding the foregoing, Tenant's employees and clients shall, on a non-exclusive basis, be allowed free use of all unreserved parking areas available at the Project in common with the other occupants of the Project. 9.3 Deliveries. Tenant shall use its reasonable efforts to require all deliveries, (exclusive of United Parcel Service (and similar nationally recognized overnight courier services) and the U.S. Postal Service), loading, unloading and services to the Premises to be accomplished within the service areas of the Project ( or within such other locations as Landlord shall reasonably designate), if any. 9.4 Tenant's Signs. Tenant may use interior window or door signage, approved in advance by Landlord, which is visible only from the Building Common Areas. Tenant shall not be permitted to use interior window signage visible from the Project Common Areas. Tenant shall not affix upon the exterior of the Building any sign, advertising placard, name, insignia, trademark, descriptive material or other like item (collectively, the "Exterior Signs"), unless such Exterior Signs (i) comply with all governmental requirements, (ii) comply with the Sign Criteria for the Project attached hereto as Exhibit E, and (iii) are approved in writing by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed. Tenant agrees that it shall be reasonable for Landlord to disapprove any proposed Exterior Signs not in conformity with any uniformly applied, project-wide sign criteria adopted for the Project. Notwithstanding the foregoing, Tenant shall be permitted to maintain its existing exterior Building signage as of the Effective Date and Tenant shall be permitted to backlight such building signage similar to the lighting of the University of LaVerne's signage. All of ,. the Exterior Signs shall be erected by Tenant at its sole cost and expense, and Tenant shall maintain all of 1:. its Exterior Signs in good condition and repair during the Term. Additionally Landlord shall allow Tenant, at Tenant's sole cost and expense with respect to creation, instal