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HomeMy WebLinkAboutCABAN, GEORGE & ANCA 1-2005 N-2005-100 INSURANCE HOl 0;; FILE WORK MAY rial P,<OCEEO CLERK OF COUNCIL c c c- OATE: ;) - \ 1--0-~ DO NOT RECORD LICENSE AGREEMENT BETWEEN THE CITY OF SANTA ANA AND GEORGE AND ANCA CABAN dba CAFE EXPRESS THIS AGREEMENT ("Agreement") is made and entered into this / gth- day of 1"~L1ST , 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 "Licensor", and George and Anca Caban, doing business as the Cafe Express, herein referred to as "Licensee". The parties hereto agree as follows: ARTICLE 1 - TERM OF LICENSE Section 1.01 Premises and Use (a) Licensor 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. Licensor hereby grants to Licensee the privilege of a personal, non-exclusive, revocable license for use of the area designated as Suite 102 (the "Premises") for Licensee's business purpose of running a restaurant type facility for the patrons of The Depot. (b) Licensee's use of the Premises shall be comprised of the normal business hours of The Depot, Monday through Sunday. (c) Licensee hereby accepts the Premises in their condition existing as of the Commencement Date of this Agreement. (d) Any signage Licensee intends to place upon the Premises is subject to prior approval of the Licensor, 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, Licensee shall surrender the Premises to Licensor in good and clean condition, less ordinary wear and tear. Section 1.02 Term (a) The term of this Agreement shall be on a month-to-month basis. DO NOT RECORD (b) Notice of intent to vacate or termination of the Licensor-Licensee relationship is only valid with at least ninety (90) days prior written notice to the other party. Section 1.03 Compensation/Security Deposit (a) Upon the Commencement Date, Licensee shall pay to Licensor monthly compensation in the amount of$2178.00 per month for use of the Premises. Said amount consists of$1485.00 for monthly compensation and $693.00 for Common Area Maintenance fees. Payments will be due upon execution of this Agreement and thereafter on or before the 5th of each month, payable to "The City of Santa Ana" and remitted to: The Depot at Santa Ana, 1000 East Santa Ana Blvd., Suite 108, Santa Ana, CA 92701. A late charge often percent (10%) shall be applied after any payment hereunder is due but unpaid. In addition, one and a half percent (1 Yz%) interest per month shall be added for each month that payment hereunder is due but unpaid. (b) Licensee has previously deposited with Licensor the sum of$I,OOO.OO as a security deposit. The deposit will be held without liability for interest as security for faithful performance by Licensee. ( c) Compensation for any period during the License term which is less than one (1) month shall be a prorated portion of the monthly installment herein, based upon a thirty (30) day month. Section 1.04 Non-Recording Neither party shall record this Agreement. ARTICLE 2 - TAXES AND UTILITIES Section 2.01 Taxes Licensee shall pay before they become delinquent all taxes, assessments or other charges levied or imposed by any governmental entity on Licensee's Premises. If such taxes are not assessed separately to Licensee, Licensor shall provide Licensee with evidence, reasonably acceptable to Licensee, of such tax assessment and the amount due, which is attributable to Licensee. Section 2.02 Utilities (a) Licensor shall pay for all electricity, gas, water sewer and janitorial services furnished to the Premises for the use, operation and maintenance of Licensee's premises during the Term ofthis Agreement, or any extension thereof, and for the removal of trash from the Premises during the Term of this Agreement, or any extension thereof 2 DO NOT RECORD (b) Licensee 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 Licensee's intended use of the Premises, all at Licensee's sole cost and expense. Any communication and/or computer lines brought in by Licensee must be reviewed and approved by City staff; Licensee cannot splice into Licensor's existing City telephone or computer lines. ARTICLE 3 - IMPROVEMENTS AND ACCESS Section 3.01 The Premises/Miscellaneons (a) Licensee shall repair any damage to the Premises and will leave the Premises in satisfactory condition as approved in writing by Licensor. Licensee shall be required to remove all its fixtures upon expiration/termination of the Agreement, and if Licensee fails to do so within thirty (30) days, Licensor may elect to do so at Licensee's sole cost and expense, or elect to not remove such fixtures, in which case, such fixtures shall become the property of Licensor, at Licensor's option. Any personal property, equipment or other improvements that are not removed within said thirty-day period shall become the property of Licensor, at Licensor's option. Licensee's obligation to pay compensation to Licensor shall not cease, unless and until the fixtures that Licensee must remove, are removed to Licensor's approval. (b) Licensee shall provide access to the Premises to the Licensor, and its employees, agents, contractors and subcontractors, twenty-four (24) hours a day, seven (7) days a week. Except in the case of emergencies, Licensor shall give Licensee twenty-four (24) hours notice prior to entry into the Premises. (c) Licensee 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 Licensee 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 Licensor. (d) Upon the expiration or termination of this Agreement, Licensor shall approve in writing the surrender ofthe Premises by Licensee only after being satisfied that the Premises has been left in good and clean condition, less ordinary wear and tear. (d) Quiet Enjoyment. Licensee shall have quiet possession of the Premises for the entire term hereof, subject to all the provisions of this Agreement. 3 DO NOT RECORD Section 3.02 Liens Licensee will not permit any mechanics' or materialmens' or other liens to stand against the Premises by reason of any use or occupancy by Licensee, or any person claiming under Licensee. ARTICLE 4 - INDEMNITY AND INSURANCE Section 4.01 Indemnification, Defense, Hold Harmless Licensee shall protect, defend, indemnify and save and hold harmless Licensor, its officers, officials, employees, and agents from and against any and all liability, loss, damage, expenses, costs (including without limitation costs and fees of litigation of any nature) arising out of or in connection with Licensee's performance of this Agreement or Licensee's failure to comply with any of Licensee' s obligations contained in the Agreement by Licensee, its officers, agents or employees except such loss or damage which was caused by the sole negligence or willful misconduct of Licensor. In the event Licensor is named as codefendant, Licensee shall notify Licensor of such fact and shall represent Licensor in such legal action unless Licensor undertakes to represent itself as codefendant in such legal action, in which event Licensor shall bear its own litigation costs, expenses and attorney's fees. Licensee further agrees to indemnify, hold harmless, and pay all costs for the defense of the Licensor, including fees and costs for special counsel to be selected by Licensor, 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. Licensor may make all reasonable decisions with respect to its representation in any legal proceeding. Section 4.02 Insurance In addition to the Licensee's covenant to indemnify and hold harmless Licensor, Licensee shall obtain and furnish to Licensor, a policy of general public liability insurance, commercial general liability, covering the Premises. The policy shall indemnify Licensee and Licensor, 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$I,OOO,OOO 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 Licensee'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. Licensee is required to give the 4 DO NOT RECORD Licensor 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 of the continuous duty of Licensee to furnish insurance during the term of this Agreement. Section 4.03 Property Insurance Licensee shall provide to Licensor, 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 Licensee 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 Licensor. The proceeds of any such insurance payable to Licensor shall be used for rebuilding or repair as necessary to restore the Premises at the discretion of Licensor. The policy shall name Licensor as an Additional Insured. The policy or policies shall also contain the following endorsements: I. The insurer will not cancel or reduce the insured's coverage without thirty (30) days prior written notice to Licensor; and 2. Licensor 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 Licensor 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 Licensor. Section 4.04 Certificates of Insurance; Additional Insured Endorsements Prior to execution of this Agreement, Licensee shall furnish to Licensor certificates of insurance and additional insured endorsements to each of Licensee's insurance policies, subject to approval of the City Attorney, evidencing the foregoing insurance coverages as required by this Agreement; these certificates shall: I. 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 Licensor. 5 DO NOT RECORD Licensee 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 Licensor by Licensee under the Agreement. Licensor or its representatives shall at all times have the right to demand the original or a copy of all these policies of insurance, which Licensee shall provide within fifteen (15) days of Licensor'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 Licensor's judgment, Licensee shall have the right, but not the obligation, to terminate the Agreement with respect to the subject Premises by giving written notice to Licensor within thirty (30) days after such damage, destruction or condemnation. If by virtue of such casualty or condemnation, Licensor determines that the Premises is no longer adequate for Licensee 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 Licensee 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 Licensee 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 Licensor. 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 Licensee shall not, either voluntarily or by operation of law, assign, transfer, mortgage, pledge, or encumber this License or any interest therein, and shall not sublet said Premises or any part thereof, or any right or privilege appurLicensee thereto, or allow any other person (the employees, agents, servants, and invitees of Licensee excepted) to occupy or use said Premises, or any portion thereof, without the prior written consent of the Licensor. 6 DO NOT RECORD Section 6.02 Abandonment by Licensee Should Licensee breach this Agreement and abandon the Premises prior to the expiration of the Term, Licensor may recover at least one month's compensation for Licensee's failure to give notice of such termination/vacation of the Premises. Section 6.03 Default by Licensee Should Licensee default in the performance of any of the terms, conditions, or obligations contained in this Agreement, Licensor may, in addition to the remedies specified in Section 6.02 ofthis 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 Licensee The insolvency of Licensee as evidenced by a receiver being appointed to take possession of all or substantially all of the property of Licensee, or the making ofa general assignment for the benefit of creditors by Licensee, or the filing of a petition in bankruptcy shall terminate this Agreement and entitle Licensor to re-enter and regain possession ofthe Premises. Section 6.05 Cumulative Remedies The remedies given to Licensor 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 The waiver by Licensor of any breach by Licensee of any ofthe provisions of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach by Licensee either of the same or another provision of this Agreement. ARTICLE 7 -HAZARDOUS MATERIALS Section 7.01 At the time of execution of this Agreement, Licensor warrants that the Premises is clean and contains no known hazardous materials. Licensee represents and warrants that it will comply with all environmental laws during the term of this Agreement; its use ofthe 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. Licensee further agrees to clean-up and remediate any hazardous substance on the Premises and Property, and hold Licensor harmless from and indemnify Licensor against any reLicense of any such hazardous substance and any damage, loss, or expense or liability resulting from such reLicense including all attorneys' fees, costs and penalties 7 DO NOT RECORD incurred as a result thereof except any reLicense caused by the negligence of Licensor, 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 reLicense 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 Licensor or Licensee be prevented or delayed by reason of an act of God, strike, lockout, labor troubles, inability to secure materials, restrictive govemmentallaws or regulations, or any other cause except financial inability not the fault of the 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 of the 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 Licensee as required by this Agreement or the performance of any act rendered difficult solely because ofthe financial condition ofthe party, Licensor or Licensee, 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: To Licensor: 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 8 DO NOT RECORD 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 Licensee: and AnGlk~ e Express t Santa A__ "'''.# .4nOO .~~~"'.0... a, CA 921(}1 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 shall be excluded. Section 8.03 Contract Administrator The Executive Director ofthe Community Development Agency, or his/her 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 Licensee shall at Licensee'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 Licensee'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 Licensee in a proceeding brought against Licensee by any government entity, that Licensee has violated any such statute, ordinance, regulation, or requirement shall be conclusive as between Licensor and Licensee and shall be considered grounds for 9 DO NOT RECORD governmental approvals, required in connection with Licensee'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 of the heirs, executors, administrators, successors, and assigns of the parties hereto. The provisions ofthis 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 of this 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 Licensee shall not cornmit or permit the commission by others of any waste on the Premises. Licensee 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 Licensee shall not use or permit the use of the Premises for any unlawful purpose. Section 8.08 Repairs Licensee shall be required to make any repairs to the Premises occurring from damages caused by Licensee, its employees, agents, contractors, and subcontractors. 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. 10 DO NOT RECORD Section 8.11 Survival Terms and conditions of this 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, Licensor may, give immediate notice in writing to Licensee to suspend or revoke normal operation under this Agreement without liability to Licensee 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. Licensee shall be compensated for any time of suspended use or operation by Licensor in the form of an equal amount of time added onto the term of the Agreement by Licensor (i.e. Licensee suspends operation for 2 months due to state of emergency, Agreement Term is extended an additional 2 months). Section 8.13 Conflict ofInterest Licensee 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 This Agreement constitutes the entire agreement and understanding between Licensor and Licensee respecting the Premises and correctly sets forth the obligations of Licensor and Licensee 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 Licensor and Licensee, 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. II DO NOT RECORD Section 8.17 Non-Discrimination Licensee shall not discriminate because ofrace, 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. Licensee 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: CITY OF SANTA ANA (2~ DAVIDN. REA City Manager j,~)(~' ( .- '"j:., 0 . PATRICIAE. HEALY Clerk ofthe Council IJI\. APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney di{ - c . .~,' y ~-vi- BY: Lisa E. Storck Assistant City Attorney LICENSEE- "Cafe Express" RECO MENDED FOR APPROVAL: Patricia C. Whitaker, Executive Director Community Development Agency George Caban: v0-- Anca Caban: C~' 13 L' lJ!1 iI\ iii'i ]~ II 11111 ;Li ill , I . ~ i V) ~ !-I = -I r..., - -. - 1 r..., - 1.1 ... .. ~ 1r.1I.__HfI' A ~ == tt'1 t::j tt'1 "'0 o ~ ~ - rJJ. ~ = - ~ >- = ~ ~ib ::QJ 0 fD _:0 " nO " ;;;j! r I m,.. )>- a;,y z " ;\'~ 5"~~ Q5' 'I - __ v\;, ~'C y' I o . \..V' .. - '.. -- -- Jl - - I ,- I :- I ,- :. 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