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HomeMy WebLinkAboutLENNAR HOMES, INC. 1 INSURANCE NUT ON fiLE WORK MAytiOI PROCEED CLERK OF COUNCIL DATE~ 8-4-05 A-2005-034 DO NOT RECORD D: Ct>A- (C.I1.JI~) LEASE AGREEMENT BETWEEN THE CITY OF SANTA ANA AND LENNAR HOMES, INC. THIS AGREEMENT ("Agreement") is made and entered into this ~ day of February, 2005, by and between the City of Santa Ana, a charter city and municipal corporation, duly organized and exiting under the constitution and laws of the State of California, herein referred to as "Landlord", and Lennar Homes of California, Inc, a California Corporation, herein referred to as "Tenant". The parties hereto agree as follows: ARTICLE 1 - TERM OF LEASE Section 1.01 Premises and Use (a) Landlord owns the real property described in Exhibit "A" attached hereto and made a part hereof (the "Property"), commonly know as The Depot at Santa Ana located at 1000 East Santa Ana Boulevard, Santa Ana, California. Landlord hereby rents to Tenant sole use of the area designated as the 5th Floor of The Depot (the "Premises") for Tenant's business purposes. Tenant shall have the right to alter the Premises to accommodate Tenant's intended use which includes, but is not limited to painting the interior and replacing carpeting per Tenant's management requirements, at Tenant's sole cost, subject to Landlord's prior approval, which shall not be unreasonably withheld. Tenant's modifications shall to comply with all local permit requirements. (b) Tenant's use of the Premises shall be comprised of office hours of 10:00 a.m. until 6 p.m., Monday through Sunday. For any use exceeding such hours shall be subject to 7 days prior notice to Landlord, with Tenant required to pay Landlord's costs for such extended usage. (c) Tenant hereby accepts the Premises in their condition existing as of the Commencement Date ofthis Agreement. (d) Any signage Tenant intends to place upon the Premises is subject to prior approval ofthe Landlord, and must be compliant with The Depot guidelines as well as City of Santa Ana local regulations. (e) Upon the expiration or termination of this Agreement, Tenant shall surrender the Premises to Landlord in good and clean condition, less ordinary wear and tear. DO NOT RECORD Section 1.02 Term (a) The term ofthe Agreement for renting the Premises ("Term") shall be an initial six (6) month period commencing on FeJOn.<bYLj :2.2. ,2005 ("Commencement Date"). After expiration of the initial six-month period, this Agreement shall continue on a month-to-month basis for a period of up to six months. (b) Notice of intent to vacate or termination ofthe landlord-tenant relationship is only valid with thirty (30) days prior written notice to the other party. Section 1.03 Rent/Security Deposit (a) Upon the Commencement Date, Tenant shall pay to Landlord monthly compensation in the amount of $21 00.00 per month for use ofthe Premises. Rent payments will be due upon execution of this Agreement and thereafter on or before the 5th of each month, payable to "The City of Santa Ana" and remitted to: The Depot at Santa Ana, 1000 East Santa Ana Blvd., Suite 108, Santa Ana, CA 92701. A late charge often percent (10%) shall be applied after any payment hereunder is due but unpaid. In addition, one and a half percent (1 Y2%) interest per month shall be added for each month that payment hereunder is due but unpaid. (b) Contemporaneously with the execution of this Agreement, Tenant shall deposit with Landlord the sum of $2100.00 as a security deposit. The deposit will be held without liability for interest as security for faithful performance by Tenant. (c) Rent for any period during the rental term which is less than one (1) month shall be a prorated portion ofthe monthly installment herein, based upon a thirty (30) day month. (d) Any holding over after the expiration ofthe Term, with the consent of Landlord, shall be construed to be an extension from month to month at two (2) times the compensation herein specified and shall otherwise be consistent with the conditions herein specified, so far as applicable. Section 1.04 Non-Recording Neither party shall record this Agreement. 2 DO NOT RECORD ARTICLE 2 - TAXES AND UTILITIES Section 2.01 Taxes Tenant shall pay before they become delinquent all taxes, assessments or other charges levied or imposed by any governmental entity on Tenant's Premises. If such taxes are not assessed separately to Tenant, Landlord shall provide Tenant with evidence, reasonably acceptable to Tenant, of such tax assessment and the amount due, which is attributable to Tenant. Section 2.02 Utilities (a) Landlord shall pay for all electricity, gas, water sewer and janitorial services furnished to the Premises for the use, operation and maintenance of Tenant's premises during the Term of this Agreement, or any extension thereof, and for the removal of trash from the Premises during the Term of this Agreement, or any extension thereof. (b) Tenant shall have the right to improve the present electrical and telecommunication cabling and outlets and any other such infrastructure that would reasonably be associated with Tenant's intended use of the Premises, all at Tenant's sole cost and expense. Any communication and/or computer lines brought in by Tenant must be reviewed and approved by City staff; Tenant cannot splice into Landlord's existing City telephone or computer lines. ARTICLE 3 - IMPROVEMENTS AND ACCESS Section 3.01 The Premises/Miscellaneous (a) Tenant shall repair any damage to the Premises and will leave the Premises in satisfactory condition as approved in writing by Landlord. Tenant shall be required to remove all its fixtures upon expiration/termination of the Agreement, and if Tenant fails to do so within thirty (30) days, Landlord may elect to do so at Tenant's sole cost and expense, or elect to not remove such fixtures, in which case, such fixtures shall become the property of Landlord, at Landlord's option. Any personal property, equipment or other improvements that are not removed within said thirty-day period shall become the property of Landlord, at Landlord's option. Tenant's obligation to pay compensation to Landlord shall not cease, unless and until the fixtures that Tenant must remove, are removed to Landlord's approval. (b) Tenant shall provide access to the Premises to the Landlord, and its employees, agents, contractors and subcontractors, twenty-four (24) hours a day, seven (7) days a week. Except in the case of emergencies, Landlord shall give Tenant twenty-four (24) hours notice prior to entry into the Premises. 3 DO NOT RECORD (c) Tenant shall, at its sole cost and expense, maintain and repair the Premises including, but not limited to, the removal of all trash, debris, graffiti, as well as any special intensive cleaning. If Tenant causes any damage to the Property, to the Premises or to access roadways or other nearby facilities, it shall properly repair same as specified by Landlord. (d) Upon the expiration or termination of this Agreement, Landlord shall approve in writing the surrender of the Premises by Tenant only after being satisfied that the Premises has been left in good and clean condition, less ordinary wear and tear. (e) Quiet Enjoyment. Tenant shall have quiet possession of the Premises for the entire term hereof, subject to all the provisions of this Agreement. Section 3.02 Liens Tenant will not permit any mechanics' or materialmens' or other liens to stand against the Premises by reason of any use or occupancy by Tenant, or any person claiming under Tenant. ARTICLE 4 - INDEMNITY AND INSURANCE Section 4.01 Indemnification, Defense, Hold Harmless Tenant shall protect, defend, indemnify and save and hold harmless Landlord, its officers, officials, employees, and agents from and against any and all liability, loss, damage, expenses, costs (including without limitation costs and fees oflitigation of any nature) arising out of or in connection with Tenant's performance ofthis Agreement or Tenant's failure to comply with any of Tenant's obligations contained in the Agreement by Tenant, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of Landlord. In the event Landlord is named as codefendant, Tenant shall notify Landlord of such fact and shall represent Landlord in such legal action unless Landlord undertakes to represent itself as codefendant in such legal action, in which event Landlord shall bear its own litigation costs, expenses and attorney's fees. Tenant further agrees to indemnify, hold harmless, and pay all costs for the defense of the Landlord, including fees and costs for special counsel to be selected by Landlord, regarding any action by a third party challenging the validity of this Agreement, or asserting that personal injury, damages, just compensation, restitution, judicial or equitable relief due to personal or property rights arises by reason of the terms of, or effects arising from this Agreement. Landlord may make all reasonable decisions with respect to its representation in any legal proceeding. Section 4.02 Insurance In addition to the Tenant's covenant to indemnify and hold harmless Landlord, Tenant shall obtain and furnish to Landlord, a policy of general public liability insurance, 4 DO NOT RECORD commercial general liability, covering the Premises. The policy shall indemnify Tenant and Landlord, their officers, agents and employees, while acting within the scope oftheir duties, against any and all claims arising out of or in connection with the Premises and shall provide coverage in not less than the following amount: combined single limit bodily injury, personal injury and property damage, liability, of $1 ,000,000 per occurrence. The City also requires an Additional Insured Endorsement, as attached and incorporated herein as Exhibit B. The policy shall name the City of Santa Ana, its agents, officers, employees and volunteers as Additional Insureds, and shall specifically provide that any insurance coverage which may be applicable to the Premises shall be deemed excess coverage and that Tenant's insurance shall be primary. Under no circumstances shall the above-mentioned insurance contain a "deductible" or any other similar form of limitation on the required coverage. Tenant is required to give the Landlord no less than thirty (30) days notice of cancellation or reduction in coverage. No cancellation provision in any insurance policy shall be construed in derogation ofthe continuous duty of Tenant to furnish insurance during the term of this Agreement. Section 4.03 Property Insurance Tenant shall provide to Landlord, before entering the Premises, and shall maintain in force during the entire term of this Agreement, property insurance with extended coverage endorsements thereon, on the Premises in an amount equal to the full replacement cost and/or value thereof; this policy shall contain a replacement cost endorsement naming Tenant as the insured and shall not contain a co-insurance penalty provision. The policy shall contain a special endorsement that such proceeds shall be used to repair or rebuild any such improvements so damaged or destroyed; and if not so used, such proceeds shall be paid to Landlord. The proceeds of any such insurance payable to Landlord shall be used for rebuilding or repair as necessary to restore the Premises at the discretion of Landlord. The policy shall name Landlord as an Additional Insured. The policy or policies shall also contain the following endorsements: 1. The insurer will not cancel or reduce the insured's coverage without thirty (30) days prior written notice to Landlord; and 2. Landlord will not be responsible for premiums or assessments on the policy. A complete and signed certificate of insurance with all endorsements required by this Section shall be filed with Landlord prior to the execution of this Agreement. At least thirty (30) days prior to the expiration of any such policy, a signed and complete certification of insurance showing that coverage has been renewed, shall be filed with Landlord. 5 DO NOT RECORD Section 4.04 Certificates of Insurance; Additional Insured Endorsements Prior to execution ofthis Agreement, Tenant shall furnish to Landlord certificates of insurance and additional insured endorsements to each of Tenant' s insurance policies, subject to approval of the City Attorney, evidencing the foregoing insurance coverages as required by this Agreement; these certificates shall: 1. provide the name and policy number of each carrier and policy; 2. shall state that the policy is currently in force; and 3. shall promise to provide that such policies will not be canceled, suspended, voided, reduced in coverage or in limits, or modified without thirty (30) days prior written notice of Landlord. Tenant shall maintain the foregoing insurance coverages in force throughout the term of this Agreement. The requirement for carrying the foregoing insurance coverages shall not derogate from the provisions for indemnification of Landlord by Tenant under the Agreement. Landlord or its representatives shall at all times have the right to demand the original or a copy of all these policies of insurance, which Tenant shall provide within fifteen (15) days of Landlord's request. ARTICLE 5 - TERMINATION AND DEFAULT Section 5.01 Termination in the Event of Casualty or Condemnation (a) In the event of any damage, destruction or condemnation of the Premises, which renders the Premises unusable or inoperable in Landlord's judgment, Tenant shall have the right, but not the obligation, to terminate the Agreement with respect to the subject Premises by giving written notice to Landlord within thirty (30) days after such damage, destruction or condemnation. If by virtue of such casualty or condemnation, Landlord determines that the Premises is no longer adequate for Tenant to continue its operations, or any repairs to the Premises have not been completed or cannot reasonably be completed within sixty (60) days from the date of the damage, destruction or condemnation. This Agreement will become null and void. (b) In the event of condemnation, unless Tenant is allowed by the condemning authority to continue its operations in the Premises, this Agreement shall terminate as of the date title to the Property vests in the condemning authority or Tenant is required to cease its operations, whichever is earlier. If any property described herein or hereinafter added hereto is taken in eminent domain, the entire award shall be paid to Landlord. 6 DO NOT RECORD Section 5.02 Termination This Agreement may be terminated by either party on thirty (30) days prior written notice, after the initial six-month term has expired. ARTICLE 6 - ASSIGNMENT, ABANDONMENT, DEFAULT, INSOLVENCY Section 6.01 Assignment Tenant shall not, either voluntarily or by operation oflaw, assign, transfer, mortgage, pledge, or encumber this lease or any interest therein, and shall not sublet said Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants, and invitees of Tenant excepted) to occupy or use said Premises, or any portion thereof, without the prior written consent of the Landlord. Section 6.02 Abandonment by Tenant Should Tenant breach this Agreement and abandon the Premises prior to the expiration of the Term, Landlord may recover at least one month's rental compensation for Tenant's failure to give notice of such termination/vacation of the Premises. Section 6.03 Default by Tenant Should Tenant default in the performance of any of the terms, conditions, or obligations contained in this Agreement, Landlord may, in addition to the remedies specified in Section 6.02 of this Agreement, re-enter and regain possession ofthe Premises in the manner provided by the laws of unlawful detainer of the State of California then in effect. Section 6.04 Insolvency of Tenant The insolvency of Tenant as evidenced by a receiver being appointed to take possession of all or substantially all ofthe property of Tenant, or the making of a general assignment for the benefit of creditors by Tenant, or the filing of a petition in bankruptcy shall terminate this Agreement and entitle Landlord to re-enter and regain possession of the Premises. Section 6.05 Cumulative Remedies The remedies given to Landlord in this Agreement shall not be exclusive, but shall be cumulative and in addition to all remedies now and hereafter allowed by law or elsewhere provided in this Agreement. Section 6.06 Waiver of Breach 7 DO NOT RECORD The waiver by Landlord of any breach by Tenant of any of the provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by Tenant either of the same or another provision of this Agreement. ARTICLE 7 -HAZARDOUS MATERIALS Section 7.01 At the time of execution ofthis Agreement, Landlord warrants that the Premises is clean and contains no known hazardous materials. Tenant represents and warrants that it will comply with all environmental laws during the term of this Agreement; its use of the Premises herein will not generate any hazardous substance, and it will not store or dispose on the Premises nor transport to or over the Premises any hazardous substance. Tenant further agrees to clean-up and remediate any hazardous substance on the Premises and Property, and hold Landlord harmless from and indemnify Landlord against any release of any such hazardous substance and any damage, loss, or expense or liability resulting from such release including all attorneys' fees, costs and penalties incurred as a result thereof except any release caused by the negligence of Landlord, its employees or agents. "Hazardous substance" shall be interpreted broadly to mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive substance, or other similar term by any federal, state or local environmental law, regulation or rule presently in effect or promulgated in the future, as such laws, regulations or rules may be amended from time to time; and it shall be interpreted to include, but not be limited to, any substance which after release into the environment will or may reasonably be anticipated to cause sickness, death or disease. ARTICLE 8 - MISCELLANEOUS Section 8.01 Force Majeure - Unavoidable Delays Should the performance of any act required by this Agreement to be performed by either Landlord or Tenant be prevented or delayed by reason of an act of God, strike, lockout, labor troubles, inability to secure materials, restrictive governmental laws or regulations, or any other cause except financial inability not the fault ofthe party required to perform the act, the time for performance of the act will be extended for a period equivalent to the period of delay, and performance ofthe act during the period of delay will be excused, provided, however, that nothing contained in this section shall excuse the prompt payment of compensation by Tenant as required by this Agreement or the performance of any act rendered difficult solely because of the financial condition of the party, Landlord or Tenant, required to perform the act. Section 8.02 Notice Any written notice or required submittals, given under the terms of this Agreement, shall be delivered personally, or mailed, certified mail, postage prepaid, addressed to the party concerned as follows: 8 DO NOT RECORD To Landlord: Clerk of the City Council City of Santa Ana 20 Civic Center Plaza (M-30) P.O. Box 1988 Santa Ana, CA 92702-1988 Telefacsimile (714) 647-6956 With courtesy copies to: Executive Director of the Community Development Agency City of Santa Ana 20 Civic Center Plaza (M-25) P.O. Box 1988 Santa Ana, CA 92702 Telefacsimile (714) 647-6549 and, City Attorney City of Santa Ana 20 Civic Center Plaza (M-29) P.O. Box 1988 Santa Ana, CA 92702 Telefacsimile (714) 647-6515 To Tenant: Lennar Homes, Inc. 25 Enterpirse, Suite 250 Aliso Viejo, CA 92656 Telefacsimi1e (949) 349-0956 A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shan be excluded. 9 DO NOT RECORD Section 8.03 Contract Administrator The Executive Director of the Community Development Agency, or hislher designee, shall be City's Administrator for this Agreement and all approval and notices required to be given herein shall be so directed and addressed. Section 8.04 Compliance with Laws Tenant shall at Tenant's own cost and expense comply with all statutes, ordinances, regulations, and requirements of all governmental entities, including federal and state, county and municipal, relating to Tenant's use and occupancy of the Premises whether such statute, ordinances, regulations, and requirements be now in force or hereinafter enacted. The judgment of any court of competent jurisdiction, or the admission by Tenant in a proceeding brought against Tenant by any government entity, that Tenant has violated any such statute, ordinance, regulation, or requirement shall be conclusive as between Landlord and Tenant and shall be considered grounds for termination of this Agreement by Landlord. Tenant will obtain all permits and other governmental approvals, required in connection with Tenant's activities hereunder, and update such permits/approvals as necessary. Section 8.05 Binding on Heirs and Successors This Agreement shall be binding on and shall inure to the benefit ofthe heirs, executors, administrators, successors, and assigns ofthe parties hereto. The provisions of this Section shall not be deemed to be a waiver of any of the conditions against assignment set forth herein. Section 8.06 Partial Invalidity Should any provision ofthis Agreement be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect unimpaired by the holding, so long as the reasonable expectations of the parties hereto are not materially impaired. Section 8.07 Waste or Nuisance Tenant shall not commit or permit the commission by others of any waste on the Premises. Tenant shall not maintain, commit, or permit the maintenance or commission of any nuisance as defined in Section 3479 and/or Section 3480 of the California Civil Code on the Premises; and Tenant shall not use or permit the use ofthe Premises for any unlawful purpose. Section 8.08 Repairs Tenant shall be required to make any repairs to the Premises occurring from damages caused by Tenant, its employees, agents, contractors, and subcontractors. 10 DO NOT RECORD Section 8.09 Time of Essence Time is expressly declared to be of the essence in this Agreement. Section 8.10 Governing Law This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that Orange County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason ofthis Agreement. Section 8.11 Survival Terms and conditions ofthis Agreement which by their sense and context survive the termination or expiration of this Agreement, shall so survive. Section 8.12 State of Emergency/Public Necessity Due to the fact that The Depot has been designated a Homeland Security Evacuation Center, upon the declaration of a state of emergency/public necessity, Landlord may, give immediate notice in writing to Tenant to suspend or revoke normal operation under this Agreement without liability to Tenant when the emergency/public necessity so requires, or to suspend operation immediately hereunder temporarily in the event of such public emergency, as may be determined by the City Manager. Such suspension will terminate as soon as the public necessity or emergency no longer exists. Tenant shall be compensated for any time of suspended use or operation by Landlord in the form of an equal amount oftime added onto the term ofthe Agreement by Landlord (i.e. Tenant suspends operation for 2 months due to state of emergency, Agreement Term is extended an additional 2 months). Section 8.13 Conflict of Interest Tenant covenants that it presently has no interest and shall not have interests, direct or indirect, which would conflict in any manner with performance of this Agreement. Section 8.14 Attorney's Fees In the event suit is brought by either party to enforce the terms and provisions of this Agreement or to secure the performance hereof, each party shall bear its own attorney's fees. Section 8.15 Exclusivity and Amendment 11 DO NOT RECORD This Agreement constitutes the entire agreement and understanding between Landlord and Tenant respecting the Premises and correctly sets forth the obligations of Landlord and Tenant to each other as of such date. Any agreements or representations respecting the Premises or their licensing between the parties not expressly set forth in this instrument are null and void. This Agreement or any part of it may not be changed, altered, modified, limited or extended orally or by any Agreement between the parties, unless such Agreement is expressed in writing, signed and acknowledged by Landlord and Tenant, or their successors in interest. Section 8.16 Captions Captions used in this Agreement are for ease of reference only and shall not affect the construction or interpretation of this Agreement. Section 8.17 Non-Discrimination Tenant shall not discriminate because of race, color, creed, religion, sex, marital status, sexual orientation, age, national origin, ancestry, or disability, as defined and prohibited by applicable law, in the recruitment, selection, training, utilization, promotion, termination or other employment related activities. Tenant affirms that it is an equal opportunity employer and shall comply with all applicable federal, state and local laws and regulations. BALANCE OF PAGE INTENTIONALLY LEFT BLANK SIGNATURES ON NEXT PAGE 12 DO NOT RECORD IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by and through their authorized officers the day, month and year first written above. ATTEST: PATRICIA E. HEALY Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney d, y- .2J;r~ , BY: Lisa E. Storck Assistant City Attorney NDED FOR APPROVAL: t-~ Patricia C. Whitaker, Executive Director Community Development Agency CITY OF SANTA ANA / / y/;/uZ,. DAVID N. AM City Manager TENANT: Qr1lJ-- Douglas Woodward, Division President Lennar Homes of California, Inc. 13