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HomeMy WebLinkAboutCABAN, GEORGE & ANCA 2-2006 INSURANCE NOT ON FILE WORK MAY NOT PROCEED CLERK OF COUNCIL DATE: JUL 11 2.006 0: ('b 4- (..l) (p ()1 'frcaduJ DO NOT RECORD6/7/06 LEASE AGREEMENT BETWEEN THE CITY OF SANTA ANA AND GEORGE AND ANCA CABAN dba CAFE EXPRESS A-2006-159 THIS AGREEMENT ("Agreement") is made and entered into this 1st day of July, 2006, by and between the City of Santa Ana, a charter city and municipal corporation, duly organized and exiting under the constitution and laws ofthe State of California, herein referred to as "Landlord", and George and Anca Caban, doing business as the Cafe Express, 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 Suite 102 (the "Premises") for Tenant's business purpose of running a restaurant facility for the patrons and tenants of The Depot. (b) Tenant's use ofthe Premises shall be comprised of the normal business hours of The Depot which are Monday through Sunday, from 5:00 a.m. to Midnight. (c) Tenant hereby accepts the Premises in their condition existing as of the Commencement Date of this Agreement, and agrees to make improvements thereto, as further described in the Rider attached hereto and incorporated herein. (d) Any signage improvements or construction Tenant intends to make upon the Premises is subject to prior approval of the 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. Section 1.02 Term (a) The term of this Agreement shall be a three (3) year agreement with two three -year options, exercisable by mutual agreement of both parties, subject to Tenant fulfilling the remodeling obligations set forth in the DO NOT RECORD617/06 Rider attached hereto and incorporated herein. Failure of Tenant to fulfill said obligations shall be valid reason for terminating this Agreement and not exercising any options to renew. (b) Notice of intent to vacate or termination of the landlord-tenant relationship is only valid with at least ninety (90) 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 $2,275.00 per month for use of the Premises. Rent payments will be due upon execution ofthis Agreement and thereafter on or before the 5th of each month, payable to "The City of Santa Ana" and remitted to: The Depot at Santa Ana, 1000 East Santa Ana Blvd., Suite 108, Santa Ana, CA 92701. A late charge often percent (10%) shall be applied after any payment hereunder is due but unpaid. In addition, one and a half percent (I Yz%) interest per month shall be added for each month that payment hereunder is due but unpaid. (b) Tenant has previously deposited with Landlord the sum of$I,OOO.OO as a security deposit. The deposit will be held without liability for interest as security for faithful performance by Tenant. (c) Rental Increases: For each subsequent year of the lease, Lessee shall pay the then current Rent, increased by any percentage increase which occurred in the Consumer Price Index as published by the United States Department of Labor Bureau of Labor Statistics, for All Consumers for the Los Angeles, Riverside, Orange County, CA Metropolitan Statistical Area, calculated as of the month of May, annually, going into effect each July. Such increase shall be no less than one percent (I %) and shall not exceed five percent (5%) of the Rent for each subsequent year. (d) Rent for any period during the rental term which is less than one (I) month shall be a prorated portion of the monthly installment herein, based upon a thirty (30) day month. (e) Any holding over after the expiration of the Term or Option periods, with the consent of Landlord, shall be construed to be an extension from month to month at the rents herein specified and shall otherwise be based on the conditions herein specified, so far as applicable. Section 1.04 Non-Recording Neither party shall record this Agreement. 2 DO NOT RECORD6/7/06 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 RECORD6/7/06 (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 ofthis Agreement, Landlord shall approve in writing the surrender ofthe 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 ofthe Premises for the entire term hereof, subject to all the provisions ofthis 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 of litigation of any nature) arising out of or in connection with Tenant's performance of this 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. 4 DO NOT RECORD6/7/06 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, commercial general liability, covering the Premises. The policy shall indemnify Tenant and Landlord, their officers, agents and employees, while acting within the scope of their 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 Tenant's insurance shall be primary. Under no circumstances shall the above-mentioned insurance contain a "deductible" or any other similar form oflimitation 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 of the continuous duty of Tenant to furnish insurance during the term ofthis 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: I. 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 5 DO NOT RECORD6/7/06 certification of insurance showing that coverage has been renewed, shall be filed with Landlord. Section 4.04 Certificates of Insurance; Additional Insured Endorsements Prior to execution of this 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: 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 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 RECORD6/7/06 Section 5.02 Events of Default The occurrence of anyone or more of the following events shall constitute a default and breach of this Lease by Tenant: (1) Failure to pay rent when due if the failure continues for five (5) days after written notice has been given to Tenant. (2) Abandonment and vacation of the Premises (failure to occupy the Premises for fourteen (14) consecutive days shall be deemed an abandonment and vacation). (3) Failure to perform any other provision ofthis Lease, if the failure to perform is not cured within thirty (30) days after written notice thereof has been given to Tenant by Landlord. If the default cannot reasonably be cured within said thirty (30) day period, Tenant shall not be in default under this Lease if Tenant commences to cure the default within the thirty (30) day period and diligently prosecutes the same to completion. (4) The making by Tenant of any general assignment or general arrangement for the benefit of creditors; the filing by or against Tenant of a petition to have Tenant adjudged a bankrupt or a petition for reorganization or arrangement under any law relating to bankruptcy unless the same is dismissed within sixty (60) days; the appointment of a trustee or receiver to take possession of substantially all of Tenant's assets located at the Premises or of Tenant's interest in the Lease, where possession is not restored to Tenant within thirty (30) days; or the attachment, execution, or other judicial seizure of substan- tially all of Tenant's assets located at the Premises or of Tenant's interest in the Lease, where such seizure is not discharged within thirty (30) days. Notices given under this paragraph shall specify the alleged default and the applicable lease provisions, and shall demand that Tenant perform the provisions of this Lease or pay the rent that is in arrears, as the case may be, within the applicable period of time. No such notice shall be deemed a forfeiture or a termination of this Lease unless Landlord so elects in the notice. (b) Landlord's remedies. The Landlord shall have the following remedies if Tenant commits a default under this Lease. These remedies are not exclusive but are cumulative and in addition to any remedies now or hereafter allowed by law. Landlord can continue this Lease in full force and effect, and the Lease will continue in effect so long as Landlord does not terminate Tenant's right to possession, and the Landlord shall have the right to collect rent when due. During the period that Tenant is in default Landlord can enter the Premises and relet them or any part of them to third parties for Tenant's account. Tenant shall be liable immediately to the Landlord for all costs the Landlord incurs in reletting the Premises, including, without limitation, brokers, 7 DO NOT RECORD6/7/06 commissions, expenses of remodeling the Premises required by the reletting, and like costs. Reletting can be for a period shorter or longer than the remaining term of this Lease. Tenant shall pay to Landlord the rent due under this Lease on the dates the rent is due less the rent Landlord receives from any reletting. No act by Landlord allowed by this paragraph shall terminate this Lease unless Landlord notifies Tenant that Landlord elects to terminate this Lease. After Tenant's default and for so long as Landlord has not terminated Tenant's right to possession of the Premises, if Tenant obtains Landlord's consent, Tenant shall have the right to assume or sublet its interest in the Lease, but Tenant shall not be released from liability. Landlord's consent to the proposed assignment or subletting shall not be umeasonably withheld. If Landlord elects to relet the Premises as provided in this paragraph, any rent that Landlord receives from such reletting shall apply first to the payment of any indebtedness from Tenant to Landlord other than the rent due from Tenant to Landlord; secondly to all costs, including maintenance, incurred by Landlord in such reletting; and third, to any rent due and unpaid under this Lease. After deducting the payments referred to in this paragraph, any sum remaining from the rent Landlord receives from such reletting shall be held by Landlord and applied in payment of future rent as rent becomes due under this Lease. In no event shall tenant be entitled to any excess rent received by Landlord. If on the date rent is due under this Lease, the rent received from the reletting is less than the rent due on that date, Tenant shall pay to Landlord in addition to the remaining rent due all costs including maintenance that Landlord shall have incurred in reletting that remain after applying the rent received from the reletting as provided in this paragraph. Landlord can, at its option, terminate Tenant's right to possession of the Premises at any time. No act by Landlord other than giving written notice to Tenant shall terminate this Lease. Acts of maintenance, efforts to relet the Premises, or the appointment of a receiver on Landlord's initiative to protect Landlord's interest in this Lease, shall not constitute a termination of Tenant's right to possession. In the event of such termination, Landlord has the right to recover from Tenant: (1) The worth, at the time of the award, of the unpaid rent that had been earned at the time ofthe termination of this Lease; (2) The worth at the time of the award of the amount by which the unpaid rent that would have been earned after the date of the termination of this Lease until the time of the award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided; , (3) The worth, at the time ofthe award, of the amount by which the unpaid rent for the balance of the term after the time of the award exceeds the amount of the loss of rent that Tenant proves could have been reasonably avoided; and (4) Any other amount, including court costs, necessary to compensate Landlord for all detriment proximately caused by Tenant's default. 8 DO NOT RECORD617!06 Landlord, at any time after Tenant commits a default, can cure the default at Tenant's cost and expense. If Landlord at any time, by reason of Tenant's default, pays any sum or does any act that requires the payment of any sum, the sum paid by Landlord shall be due immediately from Tenant to Landlord at the time the sum is paid, and if paid at a later date shall bear interest, at the maximum rate an individual is permitted by law to charge, from the date the sum is paid by Landlord until Landlord is reimbursed by Tenant. The sum, together with interest thereon, shall be considered additional rent. ARTICLE 6 - ASSIGNMENT, ABANDONMENT, DEFAULT, INSOLVENCY Section 6.01 Assignment Tenant shall not, either voluntarily or by operation of law, 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 Ten ant 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 ofthe Premises. Section 6.03 DefanIt 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 of the Premises in the manner provided by the laws of unlawful detainer of the State of Cali fomi a then in effect, as set forth hereinabove in Section 5.02. 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 of the 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. 9 DO NOT RECORD6/7/06 Section 6.05 Cnmulative 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 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 of this 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 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 Tenant as required by this Agreement or the performance of 10 DO NOT RECORD6/7/06 any act rendered difficult solely because ofthe 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: 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: George and Anca Caban dba Cafe Express 1000 East Santa Ana Blvd., #102 Santa Ana, CA 92701 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 11 DO NOT RECORD617106 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 of the 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 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 of the heirs, executors, administrators, successors, and assigns of the 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 of this Agreement be held by a court of competent jurisdiction to be either invalid, void, or unenforceable, the remaining provisions ofthis 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 12 DO NOT RECORD6/7/06 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 of the 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. Section 8.09 Time of Essence Time is expressly declared to be ofthe 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 of this Agreement. 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, 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 of the 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 ofthis Agreement. 13 DO NOT RECORD6/7/06 Section 8.14 Attorney's Fees In the event suit is brought by either party to enforce the terms and provisions ofthis 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 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 14 DO NOT RECORD617!06 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: ~~.'jJc ~~~E.HEALY 1d Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney tdt;<-- c .~ BY: Lisa E. Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: ./ taker, Executive Director velopment Agency CITY OF SANTA ANA f4/I1z---- DAVIDN. AM City Manager TENANT - "Cafe Express" Go"" C"b~ (? ",SL. t(l i"",- /) ! Anca Caban: ~LG.- ({4J(/~,,-- 15 RIDER CAFE EXPRESS REMODEL PLANS KITCHEN AREA Immediate - within 30 days of contract approval (Upon approval of minimum 3-year lease w/options) *Install a new refrigerator (to right of entryway) *Replace old kitchen flooring (with OC Health Department and Depot management approved product) --Will require possible brief closure which will be minimized by weekend installation by licensed contractor DINING AREA Immediate (Upon approval of minimum 3-yr lease w/options) *Replace chairs Within first term of lease (3 years) Complete remodel: Remodel plans must be approved by City (Executive Director/Designee) prior to issuance of permits or commencement of construction. *Lower ceiling-have engineer work with city regarding air conditioning and lighting standards *Add soffit with special lights over food preparation area *Recessed lighting in dining area, with textured plaster ceiling *Add hanging lamp treatment at Palladian window area *Install small, discreet speakers in ceiling *Painting interior *Install new flooring in Dining Area (approved by Depot management) 'Replace all furniture GENERAL TERMS: 'Tenant agrees to comply with all state and local laws, statutes and ordinances. 'In order to promote its business, Tenant agrees to make available to neighboring residents, businesses and tenants the new catering/take-out and delivery menu, and continue to have "Weekly Specials". Both parties agree to the terms of this Rider and to the lease Agreement to which it is attached and incorporated as if set forth fully therein. Ackn~l.dg.dbyT,".nt' /1~_ r . Acknowledged by landlord: .t:1"".-...-- a.t:..