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TODD ROTHBARD #67351
STEVE NAUMCHIK #208985
RYAN MAYBERRY #232622
BRIAN SKARBEK #266948
CHRISTINA DABIS #230784
CHRISTOPHER COOPER #374172
LAW OFFICES OF TODD ROTHBARD
100 Saratoga Avenue, Suite 200
Santa Clara, California 95051
Tel: (408) 244-4200
Fax: (408) 244-4267
Attorneys for Plaintiff
SUPERIOR COURT — SANTA CLARA JUDICIAL DISTRICT
COUNTY OF SANTA CLARA, STATE OF CALIFORNIA
10 MAIN STREET SHOPPING CENTER, LLC,
NO.
1 Plaintiff,
vs.
COMPLAINT FOR
12
UNA MAS RESTAURANTS, INC., DOES | through UNLAWFUL DETAINER
13 V, inclusive
*Total damages sought
14 Defendant are OVER $35,000.00
15 Plaintiff alleges:
16 |
17 At all times herein mentioned, plaintiff was, and now is a limited liability
18 company licensed to do business in the State of California and doing business in the
19 above-entitled County and Judicial District.
20 ll
21 The commercial real property owned by plaintiff, possession of which is sought
22 in this action, is situated at 856 Blossom Hill Road, San Jose, Santa Clara County,
23 California 95123 in the above-named County and Judicial District.
24 Hl
25 The true names of defendants named herein as DOES | through V, inclusive,
26 are unknown to plaintiffs who therefore sue said defendants by said fictitious names
27 and prays leave to amend this complaint to show the true names as they become
28 known.
COMPLAINT FOR UNLAWFUL DETAINER
-1
IV
On September 21, 2015, plaintiff leased the above-described premises to
defendant pursuant to a written lease agreement. On March 9, 2021, plaintiff and
defendant entered into a First Amendment to Lease. On February 9, 2022, plaintiff
and defendant entered into a Second Amendment to Lease. A copy of said lease
agreement and amendments have been attached hereto, marked collectively
“EXHIBIT A’, incorporated by reference herein, and made a part hereof.
Vv
By terms of said agreement and amendments, said defendant was required to
10 pay minimum monthly rent to plaintiff in the current sum of $15,940.22 (inclusive of
11 monthly common area maintenance (CAM) charges and monument sign income); said
12 sum is due and payable each month in full, in advance on or before the first day of
13, each month, and is subject to a late charge if not timely paid.
14 vi
15 Defendant fell behind in payment in the reasonably estimated sum of
16 $23,429.35 being the reasonably estimated sum due and unpaid through and
17 including April 30, 2024.
18 Vil
19 On April 11, 2024, plaintiff caused to be served on defendant a written notice
20 requiring defendant to pay the rent then due within three days or, in the alternative, to
21 quit and deliver up possession of said premises. A copy of said notice and declaration
22 of service are attached hereto, marked collectively as “EXHIBIT B”, incorporated by
23 reference herein and made a part hereof.
24 Vill
25 More than three days have elapsed since the date of service of said notice, but
26 the total rent demanded in the notice remains unpaid. Defendant remains in
27 possession of said premises without plaintiffs consent and has failed and refused to
28 vacate said premises. By virtue of the provisions of California Code of Civil Procedure
COMPLAINT FOR UNLAWFUL DETAINER
-2
Section 1161(2), there is an unlawful detainer of said premises and plaintiff is entitled
to possession of said premises. While this case does not currently demand more than
$35,000.00 at the time of filing, plaintiff is nonetheless filing this action in unlimited
jurisdiction since there is a high likelihood that the amount in controversy will exceed
$35,000.00 when this case goes to either default or trial.
IX
The reasonable rental value of said premises is the sum of $531.34 per day,
and damages for the unlawful detainer of said premises will accrue at said rate from
May 1, 2024 and will continue to accrue at said rate until such time as defendant
10 vacates said premises.
11 Xx
12 Section 29 of the lease agreement between the parties provides that the
13, prevailing party in any litigation thereto shall be entitled to recover its attorney's fees
14 and costs incurred in connection with such litigation. Plaintiffs have been compelled to
15 commence litigation to regain possession of the premises and has incurred attorney's
16 fees in the minimum sum of $5,200.00 if this matter proceeds by default, or such
17 larger sum as may prove necessary to prosecute it in even it is opposed or contested
18 by defendant.
19 WHEREFORE: plaintiff prays judgment as follows:
20 1 For restitution of possession of said premises and forfeiture of the lease.
21 2 For unpaid rent in the total sum of $23,428.35.
22 3 For damages at the rate of $531.34 per day from May 1, 2024, through the
23 date of restitution of possession or the date of judgment herein, whichever
24 comes first.
25 For attorney's fees of at least $5,200.00.
26 For costs herein, and for such other and further relief as to the Court may
27 seem just and proper.
28 DATED April 17, 2024
LAW OFFICES OF TODD ROTHBARD
COMPLAINT FOF Attorney for Plaintiff
-3
VERIFICATION
|, MARY ANN WEBB, hereby declare:
| am the agent for the plaintiff in the above-entitled action, and as such make
this VERIFICATION for and on behalf of said plaintiff.
| have read the foregoing COMPLAINT FOR UNLAWFUL DETAINER and
know the contents thereof, and, based on information and belief, | believe said
contents to be true and correct.
| declare, under penalty of perjury, April 17, 2024 at Palo Alto, Santa Clara
County, California.
10
41
12 }
JIC Ce {voy ‘tw5bl
13 /
MARY ANN WEBB
14 Agent for Plaintiff
15
16
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COMPLAINT FOR UNLAWFUL DETAINER
4
EXHIBITA
LEASE AGREEMENT
BETWEEN
MAIN STREET SHOPPING CENTER
, LLC
(“LANDLORD”)
AND
UNA MAS RESTAURANTS, INC.
(“TENANT”)
TABLE OF CONTENTS
a AMENTAL LEASE PROVISIONS
Tenant.......
Trade Name ant
Notice/Correspondence Addres
s.
Guarantor(s) of Tenant
Premises Address/Space Numbe
Tenant's Pro Rata Share
Management Fee.
Term ofLease...
Anticipated Commencement Date
Monthly Base Rent.......
Base Rent Commencement Dat
Security Deposit,
Radius.
Tenant
Tenant's Broke!
Landlord's Broker
Options to Renew Leas
TERM
POSSES:
3. RENT.
(A) Base Rent.
(B: Rental Adjustments,
() Additional Rent
@ Taxes
il) Property Insurance-,
(ili) Expenses of Operation, Man: age
ment and Maintenar @
Center in which the P; remises are Common Areas of the Shopping
Located.
(iv) Utilities of the Shi lopping Center
{v) Paymeri....
(D) Partial Month.
(E) Late Charge...
(F) Initial Payment of a Month’ 's Rent.
{G) Payment of Rents
(Hy Security Deposit
() Hours of Operation
W) Sales Reporting
us
RAD!
NOTICES.
BROKERS.
HOLDING OVER,
CONDITION OF PREMI
10. ALTERATIONS.......
MAINTENANCE BY TENANT. 10
12, MAINTENANCE BY LANDLORD
13. ENTRY BY LANDLORD
14, COMMON AREA‘
15. INDEMNIFICATIO! 1
16, DAMAGE TO TENANT'S PROPERTY. 12
17, INSURANCE SUBROGATION. 12
18, TENANT INSURANCE 12
@) Liability.
72
13
13
(B) Landlord's Insurance
13
(C) Tenant's Personal Propel
Insurance with Bu isiness Interruption Coverage, Worker'sCompensation
Insurance and Automobile Insurance...
{D) Tenant's Plate or Tempered Glass Insurance.. 13
19. DAMAGE OR DESTRUCTION 13
20. EMINENT DOMAIN... 13
21. DEFAULTS AND REME! 15
22, ASSIGNMENT AND SUBLETTING 15
(A) Consent by Landlord 7
(8) Assignment or Subletting Consideration 17
(C) No Release... 18
(D) Reorganization of Tenant 18
{E) Permitted Transfers 18
(F) Effect of Default. 18
(a) Conveyance by Landlor 19
(H) Successors and Assign: 19
23, PEACEFUL USE 19
24, SUBORDINATION 19
25. ESTOPPEL CERT!
26. CHOICE OF LAW AND VENUI 20
27. SUCCESSORS AND ASSIGNS
28. SURRENDER OF LEASE
29. ATTORNEYS’ FEES..
30. PERFORMANCE BY TE
31 DEFINITION OF LANDLORD. 21
32. WAIVER... 24
33, TERMS AND HEADING: 21
34. EXAMINATION OF LEASE/NO PRESUMPTIONS AGAINST DRAFTI 2
35. TIME ...... 21
36. ENTIRE AGREEMENT. 21
37, SEVERABILITY 22
38. RECORDING 22
39, EXHIBITS . 22
40. FORCE MAJEUR 22
41 SIGNS... 22
42. AUTHORITY. 22
43. HAZARDOUS 22
(A) Tenant's Responsibility 22
(B) Tenant's Indemnity Regarding Hazardous Materials. 22
(Cc) Actual Release by Tenant 23
(D) Environmental Monitorin: 23
44, OFAC CERTIFICATION . 24
45. WAIVER OF RIGHT TO T! 24
IRYAJUDICIAL REFERENCE .
INTEREST... 24
47. MODIFICATIONS REQUIRED BY LENDER 24
48. OPTION TO EXTEND THE LEASE TERM. 25
25
EXHIBIT A - THE PREMISES.
EXHIBIT B -RULES AND REG
EXHIBIT C - TENANT SIGN CRITERIA.
EXHIBIT D - LANDLORD’S WORK.
EXHIBIT E - TENANT'S WORK...
This Lease is made as of this 2.) day of
be
ist, 2015, (the "Effective Date of Lease ")
STREET SHOPPING CEI NTER, LLC (here by and between MAIN
inaft r called "Landlord", and the individuals
specifically in Subparagr: ‘aph A of the Fund and/or entities as set forth
amen tal Lease Provisions below, (here
Guarantors identified in Sub paragraph inafter called "Tenant"), and the
E of the Fundamental Lease Provisions and
conditions set farth below: is subject fo the terms and
FUNDAMENTAL LEASE PROVISIONS
Tenant: Una Mas Restaurants, Inc., a Delaware
corporation
Trade Name of Tenant: Una Mas
Notice/Correspondence Address: 856 Blossom Hill Road, Space C-2, San Jose,
California
Guarantor(s) of Tenant: None,
Premises Address/Space Number:
856 Blossom Hill Road, Space C-2
Rentable square footage deemed to be: 2,504
sq. ft.
Tenant's Pro Rata Share: Shops: 2.84%
Center: 1.81%
Management Fee: Fifteen Percent (15%) of Additional Rent
Term of Lease: Five (8) Years
Anticipated Commencement Date: June 1,
2016
Monthly Base Rent: $9,390.00 per
month
Base Rent Commencement Date: June
1, 2016
Base Rent Adjustment Dates: June 1, 2017,
and each June 1 thereafter
Security Deposit: $12,520
Radius: Three (3) Miles
Tenant Use: A restaurant servi ‘ing Mexican
food for on-premises consumption and
related beverages, including wiine ai ind beer, and for take-out with
desserts (desserts not to exceed five perce
gross sales. nt (5%) of
oO Tenant's Broker: None.
Landlord's Broker: None.
P. Options to Renew Lease: None.
id hereby leases to Tenant and Ti ‘enant hereby lease
designated na bparagraph E of the Fundameni s from L: andiord that certain store iocat
tal Lease Provisions above at the Main Stree ion
and located at Blossom Hill a ind Santa Teresa Avenu t Shopping Center
e, Saiin J lose, California, as outline id on
hereto and made a part here ‘of (hereinafter
referred to as the "Premises' '), and said Premi Exhibit A attached
the purposes of this Lease, t lo have a gross rentab ses being agreed, for
le square f lootage (hereinafter "Rentable
set forth in Subpara graph E of the Fundamen Square Footage’ ") as
tal Lease Provi isions in that certain Shop
“Shopping Center” or “Center”) complex containing a ping Center (hereinat fter
total of One Hundred Thirty-Eight Thousand Four Hur
ndred
Ninety-Four (138,494 square feet) with an ay proxi
mate gross rentable retail ‘square fos otage of retail store
of Eighty-Eight Thousai ind Three Hundred Nine space
S quare Feet (88,309 square feet) (“Sh ops”). The
Square Footage of the Premises shall Include Rentable
th 2 square foota ge of the store space listed above and
proportionate share of an’ y and all maintenanc a
e room(s), electric and telephone rooms, manageme
community room, if any, allocated over the nt office and
shops. Renta ible Square Footage shall also include the square
footage measured from tf he middle of common
demising walls and the exterior of outside walls as
the exterior Building fron It, rear and side facades or measured from
Build ing soffit line where applicable.
‘The parties hereto agree that said lettin: 9 is upon and sub; .
herein set forth and Tenant cove! nants as a materia i ject to the terms, covenants and canditions
l part of the cor nsideratior n for this Lease to keep
each and all of sald terms, coven fants and conditi and perform
ons by it to be kept and pel formed and that this Lease
upon the condition of such perfort mance. is made
LANDLORD:
TENANT:
i
MAIN STREET SHOPPING CENTER, LLC
UNA MAS RESTAYRAN
corpors ny Hi
_Lhivkl) Keon
Charles J. Kean Ili, Manager
Name: (CTO
lis: Ce
1 TERM. The term of this Le ase shall be for
the Fundamental Lease Pro’ visions above that consecutive year period Ident ified in Subpa
commenci ing on the date Landlord delivers ragraph H of
confirmed in writing as a "Lease Commence possession, which shall be
ment Letter" fro m Landlord to Tenant , of
provided in Paragraph 2 (herein: after refer the Premises to Tenant as
red to as the "Commencement Date") and
calendar month in which the las ft term anniv nding on the last day of the
ersary of th 16 Commencement Date occu
Premises hereby demised shail be sooner irs, unless the term of the
terminated as hereinafter provided or whi
delivers possession of the Premi ises to ichever actual date Landlord
Tenant. Landi lord and Tenant anticipate that
occur approximately on that date set forth the commencement date will
in Subparagraph |of the Fundamental Le:
“Anticipated Commencement Dat fe"), ase Provisions above (the
2. POSSESSION.
(A) Tenant a grees and acknowledges that
it is current! ly in possession of the Premises,
Date shall theref fore be the delivery date and the The Commencement
Rent Co mmencement Date for all purposes.
(B) Inasmuch as Tenant is alre: ady in posse
ssion of the Premises, and Is taking the Premi
condit ition, Tenant agrees that for p urposes ses in their "as is"
of determinin: ig the appropriate surrender condi
the end of this Lease, the Condition as of the tion for the Premises at
origin
Tenant was the assignee of its franchisee, shall al Co! mmencement D: ate under the previous lease, whereby
be used as the conditio! n of the Premises
Commencement Date. as of the
(C) Landlord shall contribute an amoun
t equal to Twelve Thousand Five Hundred
($1 2,520.00) as a Tenant Improve
fement Allowance {Ten
Twenty and 00/100 Dollars
ant Improvement Allowance”). Such Tenan
Allowance shall be utilized by y Tenant for impr t improvement
ovements to the Premises only and for no
whatsoever, (the ‘Tenant Improvements”
”). Landlord shalt pay the Tenant Improvemen
other purpo se
within thirty (30) days after receipt of t Allowance to Tenant
(a) copies of paid invoices, , (b) copy of
such work, (c) copies of lien rel leases for a recorded notice of completion for
all contractors, subcontractors, materials, suppl
claim liens, (d) marked reprodut cible copie ies and others entitled to
s of the origing ally approved Plans showi
in constructin ig the Tenant improvements during ing all substantial changes made
such pe eriod from the Plans as ori iginall
other docu entation as Landlo. rd may reasonably y approved and (6) such
requi re under the circumstance: 8. Tenan
reproducible as-built Plans to L: andiord
at the conclusio: n of the Tenant Improvements t shall deliver
Improvement Allowance which has not . Any portion of the Tenant
been requested by Tenant on or prior to
Commencement Date sh: all be forfeited and Landl twelve (12) months atter the
Improvement Allowance.
ord hall retain any such unused Portion of the Tenant
3. RENT.
(A) Base Rent. Tenant shall Il pay to Landl
ord as monthi ly Base Rent for the Prem
to adjustments as provided here! in, the ises, , in advance and subject
sum set forth in Subj paragraph J of the Fund
above on or before the first day f each and every amental Lease Provisions
successi ive calendar month thereafter
Subparagraph K of the Fundamental Lee
ase Provisions above (the “Rental Adju until that date set forth in
stment Date").
(B) Rental Adjustments. The month
ly Base Rent Provided for in Paragraph
‘subject to annual adjustment on the Renta 3(A) of this Lease shall be
l Adjustment Date (the Adjustment Date’
additional three percent (8%) over the previ ") by an increase of an
ous year's monthly Base Rent.
(C} Additional Rent. For Purposes of this Section, Tenan
generally be defined as equal to the rentable t 's proportionate share of Additional Rent
square footage con tained in the Premises, shall
in Subparagraph F of the Fun damental Lease which has been set forth
Provisions, + divide: d by the total rentable squar
e foota
Shops or the Center, as applicable. Landlord reser
ves the right to change and re. determine Tenan ge of the
proportionate share ot it any or all Additional
Rent charges on any reasonabie and equit t's
Beginning with the Co mmencement Date of able basis for each charge.
the term of this Lease, Tenant shall Pay to
Base Rent and as Ad. iditiona! Rent in accordan Landlord in addition to the
ce with Paragraph 3(D) of this Lease, the
following:
(i) Taxes. Ten lant shall pay to Landlord
all Real Propert ly Taxes, allocated to the
calculated by Landlord a: is Tenant’s Premises as
proportionate share. The term “Real
shall mean (a) all taxes, asse Property Taxes", as used herein,
ssments, levies and other charges of ai
and special, foreseen an id unforese iny kind or nature whatsoever, general
en {including all instaliments ofpI rinci
general or special asses: sMents for pal and interest required to pay
public improvements and any in creases any
caused by any change i in ownershi ip resulting from reassessments
of the Shopping Center) now o r herea
or quasi-governmental authority or fter imposed by any governmental
special district having the direct or indir
assessmenis, which are levied o1 r assessed ect power to
any portion of the Shopping Cent iter (as against, cr with respect to the value, occu tax or levy
pancy or use of, all or
now constructed or as may y at any
altered, or otherwise c} hanged) or Landl time hereafter be constructed
ord’ Ss interest therein, or L andlora’
Shopping Center; any improvements 's business of owning and leasing the
located within the Sho pping Center.
Property of Landio rd, real or personal, the fixtures, equipment and other
that ar: @ an integral part of and located
utilities, or energy within the Shopping in the Sho pping Center; public
Cente: r; (b) all charges, le vies or fees
environmental regula! tion or other gove imposed by y reason of
(including attorneys fees) incurred rnmenta | contro! of the Si hopping Center;
by Landlord incontest ing an ly Real
and (c) all costs and fees
public authorities as to any Real Prop Property Taxes and in ne. gotiating
erty Taxes. If at an y time during the with
assessment of the SI hopping Center term of this Lease th © taxation or
prevailing as of the comm: encement
that in lieu of or in a dition to any Real date of this Lease shall be altered so
Property taxes describ ed above there
Imposed (whether b' y Feason of a
change in the method of tax ‘ation or
shall be levied, assessed or
charge, or any y other c: ‘ause) an alternate assessment I, Creation of a new tax or
Shopping Center or Landlord’ 's inter or additional tax or cl harge (1) on the val
jue, use OF occupancy of the
est therein or (2) on or m jeasured by
from the Shopping Center, o n Landlord the gross rev ceipts, income or renta
ls
's business of leasing the Shopping
manner with respect to the o peration Center, o: yr computed in any
of the Shopping Center, then any such
designated, sh: all be included within the tax or c! harge, however
Le ease. If any Real Proper rty Tax is base meaning of the term "Real Property Taxes" for purposes of this
d In part upon proper rty or rents unre
then only th jat part of such Real Pro p erty Tax lated to the Shopping Center
that is fairly allo cable to the Premise:
the meaning cf the term "Real Property
Taxes." Notwithstanding the foregoin s shall be included within
Taxes" shall not include estate, g, the term "Real Property
inheritance, gift or franchi ise taxes of Landlord
income tax imposed on Landlo: d's Income or the fed eral or state net
from all saurc: as.
Tenant shall be liable for and shall pay ten
Personal property or trade fixt lures (10) days before delinquency, taxe
placed by Tenan 1 in or about the Prem s levied against any
personal property or trade fixt lures are ises. if any such taxes on Tenant's
levied against Landlord or L:
of the Shopping Center is inc! rease andlord's prop erty or if the assessed valu
d by the inclusion therein of a value placed u pon such personal e
trade fixtures of Tenant and | if Landiord, property or
after written n otice to Tenant, pays the
increased assessment, whi ich Landlord taxes based on such
shal! have the tight to do regardle of t he validity thereof,
under proper protest ifreq
juested by Tenan i, Tenant shall y pon demand, ss
against Landlord, or the pi roportion of
but only
repay to Landlord the taxes so levie
such taxes resulting from such d
that in any such event Ter nant shall inci Tease i in the assessment; provided
have the right, in the name of Landi
cooperation, to bring suit in any court lord an id with Landlord's fuil
of competent Jurisdiction to recov:
Paid under protest, and a ny amount so er the amount of any such taxes so
recovered shall belong to Tenant,
(ii) Property Insurance. Landl lord shall
purchase and ke: ep in force, a polic
and property damage insurance inclu
ding provision for the paym ent of deductib y or policies of liability, fire
coverage, up to one year, covering les and pre-payment for
loss or damage to the com mon area
Shops, but excluding tena int personal s of the Shopping Center and the
property and tenant bui iit impr ovements within the demised premises
the amount of the full repl. lacement value , in
thereof, insurin: 19 direct physical loss
"special form" Classificatior n Of coverage. Landl or damage included within the
ord may, at Landlord’s soie option,
earthquake insurance, plus a policy of renta also Carty flood and/or
l income inst urance in the amount of o
of up to eighteen (18) months of
Base Rent and Additio nal Rent. Tenant ne hundred percent (100% )
Proportionate share of the cost of such shail pa y to Landlord Tenant’:
a policy orpoiici ies of insurance. If
due to Tenant 'S use of the Premises, Tenant such i insurance cost is increased
agrees to pay to Landlord the full Cost
shail have no interest in, nor any right
to, the proceeds of any insurance of such increase, Tenant
Premises. procur ed by Landlord for the
a
(iit) Expens
es of Operation, Management and Maintenance:
@ of the Ci ‘ommon Areas of the Shopping
Center in whi ich the Premises are Located. As Additional Rent,
share of all expenses of operating, , Managing, maint Tenan t shail Pay to Landlord its proportionate
aining and repalrin 9 the common areas of the Shopp
Center and Shops including, but not limited to, license, i
permit, and ins) pection fees; security; utility charges
including water, exterior lighting, sewer charge: 's and
penalties assessed by any reguiatory ai uthorities; all
charges incurred in the maintenance of Parkin ig lots,
sidewalks, driveways; maintenance, repair and
teplacemenof t all fixtures and electrical, mec! hanical, and plum
exterior surfaces of the buildings > salaries an id employee bing system: 8; oof, plate glass, glazing and
benefits of on-site manager and janitoria!
and payroll taxes directly applicable thereto; supplies, materials, personnel
expenditures required to comply with laws or equipment and tools; the cost of capital
future laws of genet ral applicability and capital expenditures
which have the effect of reducing operating e: xpenses,
provided, however, that in the event Landiord makes
such capital improvements, Landlord may amorti
ze its investment in saidi improvements (together with
at the rate of fifteen percent (15%) per annum on the interest
unamortized balan: ce) as an operating expense in
accordance with standard accounting practices, provid
ed, that such am ortization of capital expenditur
reduce operating expenses is not at a rate great ler es to
than the anticipated savings in the operating expen
Additional Rent shall include a manat gement fee in the ses.
amoun
Lease Provisions, of Tenant 8 proportionate share of all itemst stipulat led in Paragraph G of the Fundamental
includes d in the definition of Additional Rent per
Paragraph 3 of this Lease.
“Additional Rent" as used herein shall not include Landlor
Property indebtedness; expenses directly or indirectly d’ 's debt repayments; interest on real
incurred by L: andlord for the benefit of any other tenan
Cost for the installation of partitioning or any other tenant t;
improvem: ents; cost of attracting tenants;
depreciation; interest, or executive salaries or expens
es thereon,
(iv) Utilities of
the Shopping Center, As Additional Rent, Te ‘enant shail
pay its proportionate share of
the cost of ail utility charges such as water, gas, electric
ity, telephone, and other electronic communicat
service, sewer service, waste pick-up and any other ions
uti ilities, materiats or services furnished directly
Shopping Center, Including, without limitation, any to the
temporary or permanent utility surcharge (including
use penaities imposed by any regulatory auth jority). or water
other exactians whether or not hereinafter imposed.
Landlord
shall not be liable for and Tenant shall not be entitled
by reason of any interruption or failure of utility service to any abatement or reduction of rent
s to the Premise: 8 when such interruption or
caused by accident, breaka ge, repair, strikes, lockouts, or other tabor disturbanc failure is
nature, or by any other cause, similar or dissimilar, beyond es or labor disputes of any
the reasot nable control of Landlord. Tenant shall
be solely responsible for the payment of all electricity, teleph
one, telex, water, gas or other utility service used
within the Premises and separately metered to Pre mises.
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TODD ROTHBARD #67351 STEVE NAUMCHIK #208985 RYAN MAYBERRY #232622 BRIAN SKARBEK #266948 CHRISTINA DABIS #230784 CHRISTOPHER COOPER #374172 LAW OFFICES OF TODD ROTHBARD 100 Saratoga Avenue, Suite 200 Santa Clara, California 95051 Tel: (408) 244-4200 Fax: (408) 244-4267 Attorneys for Plaintiff SUPERIOR COURT — SANTA CLARA JUDICIAL DISTRICT COUNTY OF SANTA CLARA, STATE OF CALIFORNIA 10 MAIN STREET SHOPPING CENTER, LLC, NO. 1 Plaintiff, vs. COMPLAINT FOR 12 UNA MAS RESTAURANTS, INC., DOES | through UNLAWFUL DETAINER 13 V, inclusive *Total damages sought 14 Defendant are OVER $35,000.00 15 Plaintiff alleges: 16 | 17 At all times herein mentioned, plaintiff was, and now is a limited liability 18 company licensed to do business in the State of California and doing business in the 19 above-entitled County and Judicial District. 20 ll 21 The commercial real property owned by plaintiff, possession of which is sought 22 in this action, is situated at 856 Blossom Hill Road, San Jose, Santa Clara County, 23 California 95123 in the above-named County and Judicial District. 24 Hl 25 The true names of defendants named herein as DOES | through V, inclusive, 26 are unknown to plaintiffs who therefore sue said defendants by said fictitious names 27 and prays leave to amend this complaint to show the true names as they become 28 known. COMPLAINT FOR UNLAWFUL DETAINER -1 IV On September 21, 2015, plaintiff leased the above-described premises to defendant pursuant to a written lease agreement. On March 9, 2021, plaintiff and defendant entered into a First Amendment to Lease. On February 9, 2022, plaintiff and defendant entered into a Second Amendment to Lease. A copy of said lease agreement and amendments have been attached hereto, marked collectively “EXHIBIT A’, incorporated by reference herein, and made a part hereof. Vv By terms of said agreement and amendments, said defendant was required to 10 pay minimum monthly rent to plaintiff in the current sum of $15,940.22 (inclusive of 11 monthly common area maintenance (CAM) charges and monument sign income); said 12 sum is due and payable each month in full, in advance on or before the first day of 13, each month, and is subject to a late charge if not timely paid. 14 vi 15 Defendant fell behind in payment in the reasonably estimated sum of 16 $23,429.35 being the reasonably estimated sum due and unpaid through and 17 including April 30, 2024. 18 Vil 19 On April 11, 2024, plaintiff caused to be served on defendant a written notice 20 requiring defendant to pay the rent then due within three days or, in the alternative, to 21 quit and deliver up possession of said premises. A copy of said notice and declaration 22 of service are attached hereto, marked collectively as “EXHIBIT B”, incorporated by 23 reference herein and made a part hereof. 24 Vill 25 More than three days have elapsed since the date of service of said notice, but 26 the total rent demanded in the notice remains unpaid. Defendant remains in 27 possession of said premises without plaintiffs consent and has failed and refused to 28 vacate said premises. By virtue of the provisions of California Code of Civil Procedure COMPLAINT FOR UNLAWFUL DETAINER -2 Section 1161(2), there is an unlawful detainer of said premises and plaintiff is entitled to possession of said premises. While this case does not currently demand more than $35,000.00 at the time of filing, plaintiff is nonetheless filing this action in unlimited jurisdiction since there is a high likelihood that the amount in controversy will exceed $35,000.00 when this case goes to either default or trial. IX The reasonable rental value of said premises is the sum of $531.34 per day, and damages for the unlawful detainer of said premises will accrue at said rate from May 1, 2024 and will continue to accrue at said rate until such time as defendant 10 vacates said premises. 11 Xx 12 Section 29 of the lease agreement between the parties provides that the 13, prevailing party in any litigation thereto shall be entitled to recover its attorney's fees 14 and costs incurred in connection with such litigation. Plaintiffs have been compelled to 15 commence litigation to regain possession of the premises and has incurred attorney's 16 fees in the minimum sum of $5,200.00 if this matter proceeds by default, or such 17 larger sum as may prove necessary to prosecute it in even it is opposed or contested 18 by defendant. 19 WHEREFORE: plaintiff prays judgment as follows: 20 1 For restitution of possession of said premises and forfeiture of the lease. 21 2 For unpaid rent in the total sum of $23,428.35. 22 3 For damages at the rate of $531.34 per day from May 1, 2024, through the 23 date of restitution of possession or the date of judgment herein, whichever 24 comes first. 25 For attorney's fees of at least $5,200.00. 26 For costs herein, and for such other and further relief as to the Court may 27 seem just and proper. 28 DATED April 17, 2024 LAW OFFICES OF TODD ROTHBARD COMPLAINT FOF Attorney for Plaintiff -3 VERIFICATION |, MARY ANN WEBB, hereby declare: | am the agent for the plaintiff in the above-entitled action, and as such make this VERIFICATION for and on behalf of said plaintiff. | have read the foregoing COMPLAINT FOR UNLAWFUL DETAINER and know the contents thereof, and, based on information and belief, | believe said contents to be true and correct. | declare, under penalty of perjury, April 17, 2024 at Palo Alto, Santa Clara County, California. 10 41 12 } JIC Ce {voy ‘tw5bl 13 / MARY ANN WEBB 14 Agent for Plaintiff 15 16 17 18 19 20 21 22 23 24 25 26 27 28 COMPLAINT FOR UNLAWFUL DETAINER 4 EXHIBITA LEASE AGREEMENT BETWEEN MAIN STREET SHOPPING CENTER , LLC (“LANDLORD”) AND UNA MAS RESTAURANTS, INC. (“TENANT”) TABLE OF CONTENTS a AMENTAL LEASE PROVISIONS Tenant....... Trade Name ant Notice/Correspondence Addres s. Guarantor(s) of Tenant Premises Address/Space Numbe Tenant's Pro Rata Share Management Fee. Term ofLease... Anticipated Commencement Date Monthly Base Rent....... Base Rent Commencement Dat Security Deposit, Radius. Tenant Tenant's Broke! Landlord's Broker Options to Renew Leas TERM POSSES: 3. RENT. (A) Base Rent. (B: Rental Adjustments, () Additional Rent @ Taxes il) Property Insurance-, (ili) Expenses of Operation, Man: age ment and Maintenar @ Center in which the P; remises are Common Areas of the Shopping Located. (iv) Utilities of the Shi lopping Center {v) Paymeri.... (D) Partial Month. (E) Late Charge... (F) Initial Payment of a Month’ 's Rent. {G) Payment of Rents (Hy Security Deposit () Hours of Operation W) Sales Reporting us RAD! NOTICES. BROKERS. HOLDING OVER, CONDITION OF PREMI 10. ALTERATIONS....... MAINTENANCE BY TENANT. 10 12, MAINTENANCE BY LANDLORD 13. ENTRY BY LANDLORD 14, COMMON AREA‘ 15. INDEMNIFICATIO! 1 16, DAMAGE TO TENANT'S PROPERTY. 12 17, INSURANCE SUBROGATION. 12 18, TENANT INSURANCE 12 @) Liability. 72 13 13 (B) Landlord's Insurance 13 (C) Tenant's Personal Propel Insurance with Bu isiness Interruption Coverage, Worker'sCompensation Insurance and Automobile Insurance... {D) Tenant's Plate or Tempered Glass Insurance.. 13 19. DAMAGE OR DESTRUCTION 13 20. EMINENT DOMAIN... 13 21. DEFAULTS AND REME! 15 22, ASSIGNMENT AND SUBLETTING 15 (A) Consent by Landlord 7 (8) Assignment or Subletting Consideration 17 (C) No Release... 18 (D) Reorganization of Tenant 18 {E) Permitted Transfers 18 (F) Effect of Default. 18 (a) Conveyance by Landlor 19 (H) Successors and Assign: 19 23, PEACEFUL USE 19 24, SUBORDINATION 19 25. ESTOPPEL CERT! 26. CHOICE OF LAW AND VENUI 20 27. SUCCESSORS AND ASSIGNS 28. SURRENDER OF LEASE 29. ATTORNEYS’ FEES.. 30. PERFORMANCE BY TE 31 DEFINITION OF LANDLORD. 21 32. WAIVER... 24 33, TERMS AND HEADING: 21 34. EXAMINATION OF LEASE/NO PRESUMPTIONS AGAINST DRAFTI 2 35. TIME ...... 21 36. ENTIRE AGREEMENT. 21 37, SEVERABILITY 22 38. RECORDING 22 39, EXHIBITS . 22 40. FORCE MAJEUR 22 41 SIGNS... 22 42. AUTHORITY. 22 43. HAZARDOUS 22 (A) Tenant's Responsibility 22 (B) Tenant's Indemnity Regarding Hazardous Materials. 22 (Cc) Actual Release by Tenant 23 (D) Environmental Monitorin: 23 44, OFAC CERTIFICATION . 24 45. WAIVER OF RIGHT TO T! 24 IRYAJUDICIAL REFERENCE . INTEREST... 24 47. MODIFICATIONS REQUIRED BY LENDER 24 48. OPTION TO EXTEND THE LEASE TERM. 25 25 EXHIBIT A - THE PREMISES. EXHIBIT B -RULES AND REG EXHIBIT C - TENANT SIGN CRITERIA. EXHIBIT D - LANDLORD’S WORK. EXHIBIT E - TENANT'S WORK... This Lease is made as of this 2.) day of be ist, 2015, (the "Effective Date of Lease ") STREET SHOPPING CEI NTER, LLC (here by and between MAIN inaft r called "Landlord", and the individuals specifically in Subparagr: ‘aph A of the Fund and/or entities as set forth amen tal Lease Provisions below, (here Guarantors identified in Sub paragraph inafter called "Tenant"), and the E of the Fundamental Lease Provisions and conditions set farth below: is subject fo the terms and FUNDAMENTAL LEASE PROVISIONS Tenant: Una Mas Restaurants, Inc., a Delaware corporation Trade Name of Tenant: Una Mas Notice/Correspondence Address: 856 Blossom Hill Road, Space C-2, San Jose, California Guarantor(s) of Tenant: None, Premises Address/Space Number: 856 Blossom Hill Road, Space C-2 Rentable square footage deemed to be: 2,504 sq. ft. Tenant's Pro Rata Share: Shops: 2.84% Center: 1.81% Management Fee: Fifteen Percent (15%) of Additional Rent Term of Lease: Five (8) Years Anticipated Commencement Date: June 1, 2016 Monthly Base Rent: $9,390.00 per month Base Rent Commencement Date: June 1, 2016 Base Rent Adjustment Dates: June 1, 2017, and each June 1 thereafter Security Deposit: $12,520 Radius: Three (3) Miles Tenant Use: A restaurant servi ‘ing Mexican food for on-premises consumption and related beverages, including wiine ai ind beer, and for take-out with desserts (desserts not to exceed five perce gross sales. nt (5%) of oO Tenant's Broker: None. Landlord's Broker: None. P. Options to Renew Lease: None. id hereby leases to Tenant and Ti ‘enant hereby lease designated na bparagraph E of the Fundameni s from L: andiord that certain store iocat tal Lease Provisions above at the Main Stree ion and located at Blossom Hill a ind Santa Teresa Avenu t Shopping Center e, Saiin J lose, California, as outline id on hereto and made a part here ‘of (hereinafter referred to as the "Premises' '), and said Premi Exhibit A attached the purposes of this Lease, t lo have a gross rentab ses being agreed, for le square f lootage (hereinafter "Rentable set forth in Subpara graph E of the Fundamen Square Footage’ ") as tal Lease Provi isions in that certain Shop “Shopping Center” or “Center”) complex containing a ping Center (hereinat fter total of One Hundred Thirty-Eight Thousand Four Hur ndred Ninety-Four (138,494 square feet) with an ay proxi mate gross rentable retail ‘square fos otage of retail store of Eighty-Eight Thousai ind Three Hundred Nine space S quare Feet (88,309 square feet) (“Sh ops”). The Square Footage of the Premises shall Include Rentable th 2 square foota ge of the store space listed above and proportionate share of an’ y and all maintenanc a e room(s), electric and telephone rooms, manageme community room, if any, allocated over the nt office and shops. Renta ible Square Footage shall also include the square footage measured from tf he middle of common demising walls and the exterior of outside walls as the exterior Building fron It, rear and side facades or measured from Build ing soffit line where applicable. ‘The parties hereto agree that said lettin: 9 is upon and sub; . herein set forth and Tenant cove! nants as a materia i ject to the terms, covenants and canditions l part of the cor nsideratior n for this Lease to keep each and all of sald terms, coven fants and conditi and perform ons by it to be kept and pel formed and that this Lease upon the condition of such perfort mance. is made LANDLORD: TENANT: i MAIN STREET SHOPPING CENTER, LLC UNA MAS RESTAYRAN corpors ny Hi _Lhivkl) Keon Charles J. Kean Ili, Manager Name: (CTO lis: Ce 1 TERM. The term of this Le ase shall be for the Fundamental Lease Pro’ visions above that consecutive year period Ident ified in Subpa commenci ing on the date Landlord delivers ragraph H of confirmed in writing as a "Lease Commence possession, which shall be ment Letter" fro m Landlord to Tenant , of provided in Paragraph 2 (herein: after refer the Premises to Tenant as red to as the "Commencement Date") and calendar month in which the las ft term anniv nding on the last day of the ersary of th 16 Commencement Date occu Premises hereby demised shail be sooner irs, unless the term of the terminated as hereinafter provided or whi delivers possession of the Premi ises to ichever actual date Landlord Tenant. Landi lord and Tenant anticipate that occur approximately on that date set forth the commencement date will in Subparagraph |of the Fundamental Le: “Anticipated Commencement Dat fe"), ase Provisions above (the 2. POSSESSION. (A) Tenant a grees and acknowledges that it is current! ly in possession of the Premises, Date shall theref fore be the delivery date and the The Commencement Rent Co mmencement Date for all purposes. (B) Inasmuch as Tenant is alre: ady in posse ssion of the Premises, and Is taking the Premi condit ition, Tenant agrees that for p urposes ses in their "as is" of determinin: ig the appropriate surrender condi the end of this Lease, the Condition as of the tion for the Premises at origin Tenant was the assignee of its franchisee, shall al Co! mmencement D: ate under the previous lease, whereby be used as the conditio! n of the Premises Commencement Date. as of the (C) Landlord shall contribute an amoun t equal to Twelve Thousand Five Hundred ($1 2,520.00) as a Tenant Improve fement Allowance {Ten Twenty and 00/100 Dollars ant Improvement Allowance”). Such Tenan Allowance shall be utilized by y Tenant for impr t improvement ovements to the Premises only and for no whatsoever, (the ‘Tenant Improvements” ”). Landlord shalt pay the Tenant Improvemen other purpo se within thirty (30) days after receipt of t Allowance to Tenant (a) copies of paid invoices, , (b) copy of such work, (c) copies of lien rel leases for a recorded notice of completion for all contractors, subcontractors, materials, suppl claim liens, (d) marked reprodut cible copie ies and others entitled to s of the origing ally approved Plans showi in constructin ig the Tenant improvements during ing all substantial changes made such pe eriod from the Plans as ori iginall other docu entation as Landlo. rd may reasonably y approved and (6) such requi re under the circumstance: 8. Tenan reproducible as-built Plans to L: andiord at the conclusio: n of the Tenant Improvements t shall deliver Improvement Allowance which has not . Any portion of the Tenant been requested by Tenant on or prior to Commencement Date sh: all be forfeited and Landl twelve (12) months atter the Improvement Allowance. ord hall retain any such unused Portion of the Tenant 3. RENT. (A) Base Rent. Tenant shall Il pay to Landl ord as monthi ly Base Rent for the Prem to adjustments as provided here! in, the ises, , in advance and subject sum set forth in Subj paragraph J of the Fund above on or before the first day f each and every amental Lease Provisions successi ive calendar month thereafter Subparagraph K of the Fundamental Lee ase Provisions above (the “Rental Adju until that date set forth in stment Date"). (B) Rental Adjustments. The month ly Base Rent Provided for in Paragraph ‘subject to annual adjustment on the Renta 3(A) of this Lease shall be l Adjustment Date (the Adjustment Date’ additional three percent (8%) over the previ ") by an increase of an ous year's monthly Base Rent. (C} Additional Rent. For Purposes of this Section, Tenan generally be defined as equal to the rentable t 's proportionate share of Additional Rent square footage con tained in the Premises, shall in Subparagraph F of the Fun damental Lease which has been set forth Provisions, + divide: d by the total rentable squar e foota Shops or the Center, as applicable. Landlord reser ves the right to change and re. determine Tenan ge of the proportionate share ot it any or all Additional Rent charges on any reasonabie and equit t's Beginning with the Co mmencement Date of able basis for each charge. the term of this Lease, Tenant shall Pay to Base Rent and as Ad. iditiona! Rent in accordan Landlord in addition to the ce with Paragraph 3(D) of this Lease, the following: (i) Taxes. Ten lant shall pay to Landlord all Real Propert ly Taxes, allocated to the calculated by Landlord a: is Tenant’s Premises as proportionate share. The term “Real shall mean (a) all taxes, asse Property Taxes", as used herein, ssments, levies and other charges of ai and special, foreseen an id unforese iny kind or nature whatsoever, general en {including all instaliments ofpI rinci general or special asses: sMents for pal and interest required to pay public improvements and any in creases any caused by any change i in ownershi ip resulting from reassessments of the Shopping Center) now o r herea or quasi-governmental authority or fter imposed by any governmental special district having the direct or indir assessmenis, which are levied o1 r assessed ect power to any portion of the Shopping Cent iter (as against, cr with respect to the value, occu tax or levy pancy or use of, all or now constructed or as may y at any altered, or otherwise c} hanged) or Landl time hereafter be constructed ord’ Ss interest therein, or L andlora’ Shopping Center; any improvements 's business of owning and leasing the located within the Sho pping Center. Property of Landio rd, real or personal, the fixtures, equipment and other that ar: @ an integral part of and located utilities, or energy within the Shopping in the Sho pping Center; public Cente: r; (b) all charges, le vies or fees environmental regula! tion or other gove imposed by y reason of (including attorneys fees) incurred rnmenta | contro! of the Si hopping Center; by Landlord incontest ing an ly Real and (c) all costs and fees public authorities as to any Real Prop Property Taxes and in ne. gotiating erty Taxes. If at an y time during the with assessment of the SI hopping Center term of this Lease th © taxation or prevailing as of the comm: encement that in lieu of or in a dition to any Real date of this Lease shall be altered so Property taxes describ ed above there Imposed (whether b' y Feason of a change in the method of tax ‘ation or shall be levied, assessed or charge, or any y other c: ‘ause) an alternate assessment I, Creation of a new tax or Shopping Center or Landlord’ 's inter or additional tax or cl harge (1) on the val jue, use OF occupancy of the est therein or (2) on or m jeasured by from the Shopping Center, o n Landlord the gross rev ceipts, income or renta ls 's business of leasing the Shopping manner with respect to the o peration Center, o: yr computed in any of the Shopping Center, then any such designated, sh: all be included within the tax or c! harge, however Le ease. If any Real Proper rty Tax is base meaning of the term "Real Property Taxes" for purposes of this d In part upon proper rty or rents unre then only th jat part of such Real Pro p erty Tax lated to the Shopping Center that is fairly allo cable to the Premise: the meaning cf the term "Real Property Taxes." Notwithstanding the foregoin s shall be included within Taxes" shall not include estate, g, the term "Real Property inheritance, gift or franchi ise taxes of Landlord income tax imposed on Landlo: d's Income or the fed eral or state net from all saurc: as. Tenant shall be liable for and shall pay ten Personal property or trade fixt lures (10) days before delinquency, taxe placed by Tenan 1 in or about the Prem s levied against any personal property or trade fixt lures are ises. if any such taxes on Tenant's levied against Landlord or L: of the Shopping Center is inc! rease andlord's prop erty or if the assessed valu d by the inclusion therein of a value placed u pon such personal e trade fixtures of Tenant and | if Landiord, property or after written n otice to Tenant, pays the increased assessment, whi ich Landlord taxes based on such shal! have the tight to do regardle of t he validity thereof, under proper protest ifreq juested by Tenan i, Tenant shall y pon demand, ss against Landlord, or the pi roportion of but only repay to Landlord the taxes so levie such taxes resulting from such d that in any such event Ter nant shall inci Tease i in the assessment; provided have the right, in the name of Landi cooperation, to bring suit in any court lord an id with Landlord's fuil of competent Jurisdiction to recov: Paid under protest, and a ny amount so er the amount of any such taxes so recovered shall belong to Tenant, (ii) Property Insurance. Landl lord shall purchase and ke: ep in force, a polic and property damage insurance inclu ding provision for the paym ent of deductib y or policies of liability, fire coverage, up to one year, covering les and pre-payment for loss or damage to the com mon area Shops, but excluding tena int personal s of the Shopping Center and the property and tenant bui iit impr ovements within the demised premises the amount of the full repl. lacement value , in thereof, insurin: 19 direct physical loss "special form" Classificatior n Of coverage. Landl or damage included within the ord may, at Landlord’s soie option, earthquake insurance, plus a policy of renta also Carty flood and/or l income inst urance in the amount of o of up to eighteen (18) months of Base Rent and Additio nal Rent. Tenant ne hundred percent (100% ) Proportionate share of the cost of such shail pa y to Landlord Tenant’: a policy orpoiici ies of insurance. If due to Tenant 'S use of the Premises, Tenant such i insurance cost is increased agrees to pay to Landlord the full Cost shail have no interest in, nor any right to, the proceeds of any insurance of such increase, Tenant Premises. procur ed by Landlord for the a (iit) Expens es of Operation, Management and Maintenance: @ of the Ci ‘ommon Areas of the Shopping Center in whi ich the Premises are Located. As Additional Rent, share of all expenses of operating, , Managing, maint Tenan t shail Pay to Landlord its proportionate aining and repalrin 9 the common areas of the Shopp Center and Shops including, but not limited to, license, i permit, and ins) pection fees; security; utility charges including water, exterior lighting, sewer charge: 's and penalties assessed by any reguiatory ai uthorities; all charges incurred in the maintenance of Parkin ig lots, sidewalks, driveways; maintenance, repair and teplacemenof t all fixtures and electrical, mec! hanical, and plum exterior surfaces of the buildings > salaries an id employee bing system: 8; oof, plate glass, glazing and benefits of on-site manager and janitoria! and payroll taxes directly applicable thereto; supplies, materials, personnel expenditures required to comply with laws or equipment and tools; the cost of capital future laws of genet ral applicability and capital expenditures which have the effect of reducing operating e: xpenses, provided, however, that in the event Landiord makes such capital improvements, Landlord may amorti ze its investment in saidi improvements (together with at the rate of fifteen percent (15%) per annum on the interest unamortized balan: ce) as an operating expense in accordance with standard accounting practices, provid ed, that such am ortization of capital expenditur reduce operating expenses is not at a rate great ler es to than the anticipated savings in the operating expen Additional Rent shall include a manat gement fee in the ses. amoun Lease Provisions, of Tenant 8 proportionate share of all itemst stipulat led in Paragraph G of the Fundamental includes d in the definition of Additional Rent per Paragraph 3 of this Lease. “Additional Rent" as used herein shall not include Landlor Property indebtedness; expenses directly or indirectly d’ 's debt repayments; interest on real incurred by L: andlord for the benefit of any other tenan Cost for the installation of partitioning or any other tenant t; improvem: ents; cost of attracting tenants; depreciation; interest, or executive salaries or expens es thereon, (iv) Utilities of the Shopping Center, As Additional Rent, Te ‘enant shail pay its proportionate share of the cost of ail utility charges such as water, gas, electric ity, telephone, and other electronic communicat service, sewer service, waste pick-up and any other ions uti ilities, materiats or services furnished directly Shopping Center, Including, without limitation, any to the temporary or permanent utility surcharge (including use penaities imposed by any regulatory auth jority). or water other exactians whether or not hereinafter imposed. Landlord shall not be liable for and Tenant shall not be entitled by reason of any interruption or failure of utility service to any abatement or reduction of rent s to the Premise: 8 when such interruption or caused by accident, breaka ge, repair, strikes, lockouts, or other tabor disturbanc failure is nature, or by any other cause, similar or dissimilar, beyond es or labor disputes of any the reasot nable control of Landlord. Tenant shall be solely responsible for the payment of all electricity, teleph one, telex, water, gas or other utility service used within the Premises and separately metered to Pre mises.