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HomeMy WebLinkAboutMARIN, JAVIER & MILENA - 2007 . INSURANCE tillI ON FILE WORK MAY tm PROCEED CLERK OF COUNCIL DATE: OCT 1 6 2007 o. coA (0) \, . ~c.b.t /... t> 'YY\ ~ I N-2007 -118 DO NOT RECORD LEASE AGREEMENT BETWEEN THE CITY OF SANTA ANA AND JAVIER AND MILENA MARIN dba EL FAISON THIS AGREEMENT ("Agreement") is made and entered into this ~ day of tXi ' 200 L, by and between the City of Santa Ana, a charter city and municipal corpo ation, duly orgamzed and eXItmg under the constItutIOn and laws of the State of California, herein referred to as "Landlord", and Javier and Milena Marin, doing business as "El Faison", 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 located at 321 E. Fourth Street, Santa Ana, California (the "Premises"). Landlord hereby rents to Tenant sole use ofthe Premises for Tenant's business purpose of providing Mexican imported novelties, western wear, goods and services. Tenant shall have the right to alter the Premises, 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 ofthe Premises shall be comprised of the normal business hours of Monday through Sunday. (c) Tenant hereby accepts the Premises in their condition existing as of the Commencement Date of this Agreement. Tenant shall maintain the Premises in a clean condition, compatible with the architectural style of the Fiesta Marketplace. (d) Any signage Tenant intends to place upon the Premises is subject to prior approval of the Landlord, and must be compliant with 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 of this Agreement shall be on a month-to-month basis. (b) Notice of intent to vacate or termination ofthe landlord-tenant relationship is only valid with at least thirty (30) days prior written notice to the other party. Section 1.03 Rental Amount (a) Upon the Commencement Date, Tenant shall pay to Landlord monthly compensation in the amount of$3,000.00 per month for use of the 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: City of Santa Ana, 20 Civic Center Plaza (M-86), P.O. Box 1988, Santa Ana, CA 92702. A late charge often percent (10%) shall be applied after any payment hereunder is due but unpaid. In addition, one and a half percent (112%) interest per month shall be added for each month that payment hereunder is due but unpaid. (b) Rent for any period during the rental 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 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 2 DO NOT RECORD 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. ARTICLE 3 - IMPROVEMENTS AND ACCESS Section 3.01 The PremiseslMiscellaneous (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 ofthe 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. (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 Premises, 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 ofthe Premises for the entire term hereof, subject to all the provisions of this Agreement. 3 DO NOT RECORD 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. 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$l,OOO,OOO per occurrence. The City also requires an Additional Insured Endorsement, as attached and incorporated herein as Exhibit A. 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 4 DO NOT RECORD cancellation provision in any insurance policy shall be construed in derogation of the 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. 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: 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. 5 DO NOT RECORD 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 Premises 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. 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, DEFAUL T, 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 ofthe Landlord. 6 DO NOT RECORD 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 of the 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 of the property of Tenant, or the making of a general assigrIillent 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 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 Premises, 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 7 DO NOT RECORD 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 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: 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 8 DO NOT RECORD 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: El Faison 321 East Fourth Street 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 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 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. 9 DO NOT RECORD 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 ofthe 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 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. 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 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. 10 DO NOT RECORD Section 8.12 Reserved. 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 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. 11 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: L ~clJL\A Clerk of the Council CITY OF SANTA ANA ~~ City Manager APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney "/1. /' ~ ~~A ~ ,,-. .... BY: Lisa E. Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: TENANT- "EI Faison" JfI i ]t sTEPI'Im/G. WArmING Javier Ma . Deputy City Mgr. for Dev. Services Community Development Agency Milena Marin: 97zL,c/~ 12 DO NOT RECORD EXHIBIT A ADDITIONAL INSURED ENDORSEMENT Insurance Company This endorsement modifies such insurance as is afforded by the provisions of Policy # relating to the following: 1. The City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92702; its officers, employees, agents and volunteers are named as additional insureds ("additional insureds") with regard to liability and defense of suits arising from the operations and uses performed by or on behalf of the named insured. 2. With respect to claims arising out of the operations and uses performed by or on behalf of the named insured, such insurance as is afforded by this policy is primary and is not additional to or contributing with any other insurance carried by or for the benefit of the additional insureds. 3. This insurance applies separately to each insured against whom claim is made or suit is brought except with respect to the company's limits of liability. The inclusion of any person or organization as an insured shall not affect any right which such person or organization would have as a claimant if not so included. 4. With respect to the additional insureds, this insurance shall not be canceled, or materially reduced in coverage or limits except after thirty (30) days written notice has been given to the City of Santa Ana, 20 Civic Center Plaza, Santa Ana, California 92702. (Completion of the following, including countersignature, is required to make this endorsement effective.) , this endorsement form as a issued to Effective part of Policy # Named Insured Countersigned by Authorized Representative 13