HomeMy WebLinkAboutFULLERTON AUXILIARY SERVICES CORPORATION, CALIFORNIA STATE UNIVERSITY AND TRUTH AND ALCHEMY, INC. - 2014W 1 24{ N-2014-014-401
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SUBLEASE AMENDMENT
This Sublease Amendment is made and entered into this 22nd day of April 2014 by and between CSU
EULLERTON AUXILIARY SERVICES CORPORATION, a California non-profit corporation ("ASC") and TRUTH
AND ALCHEMY, INC ("Tenant"), in reference to that certain Sublease Agreement between the parties
hereto dated October 1, 2013 (the "Sublease").
RECITALS
A. Section 1 of the Sublease is hereby amended in Its entirety to read as follows:
1. PREMISES. The space subleased to Tenant at Grand Central is hereinafter referred to as the
("Premises"). The Premises are situated at 125 N. Broadway, Suite D, in the City of Santa Ana
and are more particularly described In Exhibit A attached hereto and incorporated herein. The
Premises contain approximately two thousand eight hundred (2,800) square feet of floor area,
as well as an outdoor dining area consisting of three hundred forty three (343) square feet on
the public sidewalk adjacent to the Premises authorized through the Outdoor Dining License
Agreement dated July 1999 between the City of Santa Ana and the Gypsy Den Cafe ("License")
attached hereto and incorporated herein as Exhibit B.
B. The Sublease shall remain in full force and effect.
IN WITNESS WHEREOF, the parties have duly executed this Sublease Amendment the day and year first
above written.
CSU FULLERTON AUXILIARY SERVICES CORPORATION
A California rwn-prDfit ujorporation ,
By:
Frank A. Mumford
Executive Director
TRUTH AND ALCHEMY INC.
By:�'
Emily Meyer
By: _....
Ryan Shuck
The City of Santa Ana is not a party to this Sublease Amendment; however, consent is granted to CSU
Fullerton Auxiliary Services Corporation to enter into this Sublease Amendment.
CITY OF SANTA ANA
By: — a 4
—
David Cavazos
City Manager
Attest: Akkv( "— �° ll
Maria D. Huizar
Cleric of the Council
Approved: Ode
JVr. Sonia R. Carvalho
City Attorney
EXHIBIT A
Premises Description
ound Central M Center
1CXUDBIT "A"
PRO PERTY DEsC.RIPTION
Pi
EXHIBIT B
Outdoor Dining License Agreement
OUTDOOR DINING
LICENSE AGREEMENT
This OUTDOOR DINING LICENSE AGREEMENT (hereinafter "License
Agreement"), entered into this day of �',.,� a''- —19 by and between the
City of Santa Ana, a charter city and municipal corporation of the State of California (hereinafter
"City") and THE GYPSX DEN, INC. doing business as THE GYPSY DEN CAFE ,
(hereinafter "Licensee"), is made. with reference to the following:
RECITALS
WHEREAS, in accordance with Chapter 33 of the Santa Ana Municipal Code, ARTICLE VI,
Section 33-168 and Ordinance No. NS2350 , the City has authorized the use of public sidewalks for
outdoor dining subject to certain conditions; and
WHEREAS, City and Licensee desire to enter into a License Agreement for the operation of an
outdoor dining area on the public sidewalk adjacent to real property located at_,_,_
125 NORTH BROADWAY , which is hereinafter described, upon the terms and conditions set
forth herein.
NOW, THEREFORE, it is mutually agreed by and between the undersigned parties as follows:
i. TERM AND PURPOSE OF LICENSE
The City hereby grants to Licensee upon each of the covenants and conditions set forth
herein for the period commencing on (hereinafter "Commence Date"), and ending
on subject to annual renewal or cancellation as herein set forth, a license to operate
an outdoor dining area consisting of 343 sq. ft, on the public sidewalk adjacent to certain real
property located at 125 NORTH BROADWAY , in the City of Santa Ana, County of Orange, State
of California, more particularly described in Exhibit "A" attached hereto and incorporated herein by
reference (hereinafter referred to as "Premises").
2. PREMISES AND USE
(a) The Premises covered by this License Agreement shall be only such as are described in
Paragraph 1 and Exhibit "A" hereto. Licensee shall not use any premises or property that is not
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specifically described herein. The products Licensee shall dispense on the Premises are food and
beverage products only.
(b) Licensee shall at all times comply with the City's Outdoor Dining Ordinance Standards.
and Procedures on file with the City's Public Works Agency and as provided to the Licensee as part of
this License Agreement,
3. LICENSE AND RENEWAL PEE
Licensee shall pay to the City, a one time non-refundable application fee of
$ 300.00 . Every. year thereafter, the Licensee may renew the license subject to a license renewal
fee for the use of the Premises as follows;
year.
0,50_ per square foot which is computed to be 1171.50 per
Payments to the City shall be made payable to the order of the "City of Santa Ana" and
delivered to the Transportation & Development Services Division.
4. EQUIPMENT
(a) Licensee shall, at its sole cost and expense, furnish all required physical barriers or
other design elements, consistent with the City's Outdoor Dining Standards and Procedures, around
the Premises in such a manner to insure that use of the Premises will not cause a safety hazard to
pedestrians.
(b) All equipment and furnishings and the cost of their installation shall be provided at the
sole expense of the Licensee. All such equipment which is affixed to the Premises, shall be used in
the Premises, be deemed to be Licensee's personal property, and shall be removed immediately by
Licensee at the termination of this License Agreement.
(e) Licensee shall not modify the public sidewalk in any manner without prior approval of
the Executive Director of the Public Works Agency (or his designee).
(d) Concurrent with removal of Licensee's fixtures and equipment, Licensee, at its own
expense, shall return the Premises to its original condition to the satisfaction of the Executive Director
of the Public Works Agency (or his designee),
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5. VULITIES
The Licensee shall pay all charges for fuel, gas, water, electricity, telephone services, and any
other utilities necessary to carry on the operations of Licensee, Licensee may apply to the City's
Building and Safety Division for a permit to run electricity to the outdoor dining area. Such permit
would be for a lighting plan which abides by the requirements in the City's Outdoor Dining Standards
and Procedures and pertinent City codes.
6. FOOD AND BEVERAGES
(a) All food and beverages sold or kept for sale by Licensee shall conform to federal, state,
county and municipal food laws, ordinances and regulations in all respects.
(b) No adulterated, misbranded, or impure food or beverage shall be sold or kept for sale by
Licensee, and all food or beverage shall be stored and handled with due regard for sanitation.
Licensee shall not sell, give away, or serve any food or beverage in the outdoor dining area in any
container made from styrofoam or any other material which, in the opinion of the City, will cause
undue litter on or around the Premises. The sale of alcoholic beverages is allowed if in compliance
with all applicable federal, slate and City statutes, regulations, rules and ordinances.
7. SIDEWALK MAINTENANCE AND SIDEWALK MAINTENANCE DEPOSIT
(a) Licensee at its own expense shall keep the Premises in a clean and sanitary condition
and upon expiration of this License Agreement, or upon earlier termination of this License Agreement,
shall return the Premises to the City in as good a condition as they now are.
(b) Upon execution of the License Agreement, Licensee shall provide a sidewalk
maintenance deposit in the form of a cash deposit or letter of credit, issued by a financial institution
and in a form acceptable to the Public Works Agency and City Attorney's Office, in the amount of
One Thousand ($1,000.00) per dining area.
In the event of a cash deposit, said deposit shall be held by the City, without liability for
interest, as security for the faithful performance by Licensee of terms, covenants and conditions of this
Agreement pertaining to Licensee's maintenance of the public sidewalk, paving and fixtures.
In the event of a letter of security , the following are standard items that should be included in
the letter of credit. Additional items may be required by the City Treasurer or City Attorney upon
review:
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1. The name and mailing address of Licensee;
2. The dollar amount;
3. Reference to the outdoor dining license;
4. A statement for the automatic extension as follows:
"This letter of credit shall be, deemed automatically extended without
amendment unless notice of expiration is provided 60 days prior to the
expiration date, Such notice shall be in writing mailed to the Executive
Director of the Public Works Agency, P.0 Sox 1988, M-21, 101 West
Fourth Street, Santa Ana, California 92702 by personal service or
registered mail."
S. A statement that the account cannot be closed or drawn upon by the Licensee without a
written release from the Executive Director of the Public Works Agency for the City of
Santa Ana;
6, A statement granting permission to the City of Santa Ana to draw upon the account in
the event Licensee does not comply with the specifications of the outdoor dining
license.
During the term of this License Agreement, the City shall have the right, at its option, to
appropriate and apply the entire sidewalk maintenance deposit or so much thereof as may be necessary
to compensate the City for all repairs to the sidewalk due to breach of this covenant on the part of
Licensee. Should the entire deposit or any portion thereof be appropriated and applied by the City
hereunder, Licensee shall, upon written demand of the City, forthwith remit to the City sufficient
amount to restore said outdoor dining area maintenance deposit to the original sum deposited.
Licensee's failure to do so within five (5) days after receipt of such demand shall constitute a breach of
this Agreement. The rights and remedies granted to City pursuant to this Paragraph are in addition to
City's other remedies as provided in this License Agreement and by law, The deposit will be
refunded, and/or letter of credit released, upon termination of the License Agreement after an
inspection of the condition of the sidewalk, paving and fixtures by the City's Public Works Agency.
8. GARBAGE AND RUBBISH
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Licensee's management shall keep the Premises clear of litter, food scraps and soiled dishes
and utensils. No boxes, barrels, supplies or rubbish in any form shall be kept, piled or stored in the
Promises or surrounding areas unless approved in advance by City. As required by the City,
Licensee shall provide standard garbage receptacles, shall place therein all garbage and refuse, and
shall arrange with the City's Sanitation Division or other approved contractor for collection from an
approved location at Licensee's expense, If disposable materials are used, the Licensee shall comply
with all applicable City recycling programs.
91 ALTERATIONS AND REPAIRS
Licensee accepts the Promises in the condition they now are, and City shall not be required to
make any alterations, improvements or repairs therein or thereon. Licensee hereby waives any and
all rights, if any it may have, to any expressed or implied warranties concerning the condition of
Premises. Licensee shall not make any changes or remove any portion of the Premises without first
securing the prior consent of the Executive Director of the Public Works Agency (or his designee).
All such approved changes or removals shall be at the sole expense of Licensee,
10. SIGNS, AWNINGS, UMBRELLAS, MUSIC AND MERCHANDISE
Licensee shall be allowed to use awnings or free-standing umbrellas provided they meet the
City's Outdoor Dining Standards and Procedures for placement and maintenance, No signs or
advertising matter of any kind shall be displayed in the outdoor dining area, except as approved by the
City's Planning Department, Unamplified musical instruments or sound reproduction systems are
permitted in outdoor dining areas, but shall be maintained at sufficiently low volumes so as not to
unduly intrude on neighboring businesses, residents, or users of the ,public right-of-way beyond the
Premises.
11. CONDUCT
License shall at all times condition its business or operate its business in a quiet and orderly
maturer to the satisfaction of the City so that same shall not become or constitute a nuisance either
public or private.
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12. EMPLOYEES AND MECHANICS' LIENS
Licensee shall keep said Premises and every estate, right, title and interest therein, or in or to
any part thereof, at .all times during the term of this License Agreement, free and clear of any
mechanics' license, and other liens, and liens for labor, services, supplies, equipment, or material
incurred by it, and Licensee will at all times fully pay and discharge and wholly protect, defend and
hold harmless the City on account of said liens, or claims, or assertions, or filing thereof.
13. INGRESS AND EGRESS
The City reserves the right to enter upon the Premises covered by this License Agreement at
any and all times during the term of this License Agreement, No merchandise may be stored or
displayed in entrances or exits of restaurants.
14. TAXES
The Licensee shall exonerate, indemnify, and hold harmless the City from and against, and
shall defend the City from and against, and shall assume full responsibility for, payment of all wages
or salaries and all federal, state, and local taxes or contributions imposed or required under the
Unemployment Insurance, Social Security, Income Tax laws, Workers' Compensation laws, or other
laws with respect to the Licensee's employees engaged in the performance of Licensee's obligations
and operations hereunder.
This Agreement may create a possessory interest in public property which is subject to
taxation. In the event such interest is created, Licensee shall pay any and all taxes levied on such
interest.
Licensee shall pay any and all taxes upon personal property and improvements belonging to
said Licensee and upon its possessory interests, if any, and Licensee shall pay all sales and other taxes
levied against the operation of said business.
15. INSURANCE
Prior to commencing occupancy of the Premises or commencing construction of any
improvements on the Premises, Licensee shall procure and maintain at Licensee's own cost and
expense for the duration of the License Agreement, the following insurance against claims for injuries
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to persons or damages to property which may arise from or in connection with the condition of the
Premises or the possession, occupancy, operation and use of the Premises by Licensee, Licensee's
agents, representatives, employees, or subcontractors.
(a) Minimum Limits of Insurance,
License shall maintain limits of insurance coverage in the following minimum amounts:
1. Commercial (3eneral Liability: One million dollars ($1,000,000,00),
combined single limit per occurrence for bodily injury and property damage.
Such general liability policy shall expressly include coverage for fire -legal
liability.
2. Workers' Compensation and Employers' Liability: Workers'
Compensation limits as required by the Labor Code of the State of California
and Employers' Liability limits of one million dollars ($1,000,000.00) per
accident,
3. Personal Property Insurance: Property insurance shall be provided for
all Licensee's contents, inventory, equipment, and for any improvements or
betterments made by Licensee to the Premises, Licensee shall obtain and keep
in force during the term of this License Agreement a policy or policies of
insurance covering loss or damage to such equipment, improvements or
betterments located in, on, or upon the Promises, in the amount of at least one
hiradred percent (100%) of the full replacement value thereof, as the same may
exist from time to time, against all perils included within the classification of
fire, extended coverage endorsement, vandalism, and malicious mischief
endorsement, The City shall bear no responsibility for any loss, damage, or
destruction of Licensee's equipment, improvements or betterments, even if
Licensee fails to procure and maintain the personal property insurance required
hereunder.
(b) other insurance Provisions.
insurance carriers providing coverages shall be "admitted carriers" as determined by the
State of Califoria. Licensee shall procure an endorsement for the comprehensive commercial
general liability policy naming the City of Santa Ana, its elected and appointed boards, officers, agents
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and employees as additional insureds, on a City -approved Special Endorsement form, attached hereto
as Exhibit "B." City shall be provided at least thirty days written notice of any change in the terms of
insurance.
(c) Verification of Coverage.
Licensee shall furnish the City with certificates of insurance required by this clause, and
the City's duly executed Special Endorsement form. All verifications of coverage shall be in a form
satisfactory to the City Attorney's Office of City. The certificates are to be signed by a person
authorized by that insurer to bind coverage on its behalf. Evidence of personal property insurance
shall expressly provide for coverage of the outdoor dining area .
(d) Increase in Required Insurance Coverages.
City may increase the dollar amount of coverage required raider any of the polices
described above, upon prior written notice to Licensee,
16. COMPLIANCE WITH LAWS AND ORDINANCES
Licensee shall conduct its business in accordance with all the laws, ordinances, rules and
regulations including the City's Outdoor Dining Standards and Procedures, applicable to such business
as from time to time adopted by City, County, State and the United States.
17. PERMITS AND LICENSES
The Licensee shall be required to obtain any and all permits or licenses that may be required
from time to time in connection with the services to be performed under this License Agreement and
the operation of an outdoor dining area for food and beverages.
19. PROHIBITION AGAINST TRANSFER
Licensee shall not assign, sublease, hypothecate, or transfer this Agreement or any interest
therein directly or indirectly, by operation of laws or otherwise. Any attempt to do so shall be null
and void, and any assignee, sublease, hypothecatee or transferee shall acquire no right or interest by
reason of such attempted assignment, hypothecation or transfer.
19. WAIVER
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A waiver by the City of any breach of any term, covenant or condition contained herein shall
not be deemed to be a waiver of any subsequent breach of the same or any other term, covenant or
condition contained herein, whether of the same or a different character.
Any holding over by Licensee after the expiration or any termination of this License
Agreement or by any extension or renewal thereof shall not constitute a renewal or extension of the
term hereof.
21. HOLD HARMLESS
Licensee agrees to defend, indemnify and hold harmless the City of Santa Ana, members of its
City Council, boards and commissions, officers, agents, volunteers and employees (hereinafter,
collectively "the City"), from and against all loss, damage, cost, expense, liability, claims, demands,
suits, attorneys' fees and judgments arising from or in any manner connected to Licensees' possession,
occupancy or use of the Premises and/or arising from or in any manner connected to the condition of
the Premises and Licensee" business, activities, operations, services or work conducted in, on or about
the Premises.
Licensee further agrees to indemnify, defend and hold harmless the City, from and against all
loss, damage, costs, expense, liability, claims, demands, suits, attorneys' fees and judgments arising
from or in any manner connected to the furnishing or supplying of any work, services, materials,
equipment or supplies by any persons, firms, corporations or other entities in connection with this
License Agreement or Licensee's operations.
Without limiting the generality of the foregoing, Licensee agrees that City shall not be liable
for any injury to Licensee's business or any loss of income therefrom, or for damage to the goods,
wares, merchandise, improvements or other property of Licensee, Licensee's officers, agents,
employees, contractors, invitees, or customers, or any other person in, on or about the Premises, or
personal injury or death of Licensee, its officers, agents, employees, contractors invitees, and
customers.
22. INDEPENDENT CONTRACTOR
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It is understood and agreed that Licensee, in the performance of this License Agreement, will
be acting in a wholly independent capacity and not as agents, employees, partners, or joint ventures of
the City. This Agreement does not create a tenancy of any nature whatsoever between the City and
Licensee.
23. TERMINATION
In the event Licensee hereto fails to, or refuses to, perform any of the provisions hereof at the
time and in the manner required hereunder, Licensee shall be deemed in default in the performance of
its obligations under this License Agreement. If such default is a monetary default which is not
cured within a period of three (3) days after receipt of written notice of default from the City to
Licensee, specifying the nature of such default and the steps necessary to cure such default, the City
may terminate this License Agreement forthwith by giving to the defaulting party written notice
thereof If such default is a non -monetary default which is not cured within ten (10) days after
written notice of default from City to Licensee, specifying the nature of such default and the steps
necessary to cure such default, the Executive Director of the Public Works Agency (or his designee),
may suspend, terminate, or revoke this License Agreement forthwith by giving to the defaulting party
written notice thereof,
The City shall have the option at any time, without cause, of terminating this License
Agreement on thirty (30) days written notice.
Licensee shall have the option of terminating this License Agreement on thirty (30) days
written notice.
Upon any termination, the Licensee shall pay to the City that portion of the compensation
specified in paragraph 3 hereof unpaid by Licensee prior to the effective date of termination.
24. NOTICES
All notices, demands, requests, or approvals to be given under this License Agreement, shall be
given in writing and shall be deemed served when delivered personally, or seventy-two (72) hours
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after the deposit thereof in the United States Mail, postage prepaid, registered, or certified, addressed
as hereinafter provided.
All notices, demands, requests, or approvals from Licensee to the City shall be addressed to the
Executive Director, Public Works Agency, P.0 Sox 1998, M-21, 101 West Fourth Street, Santa Ana,
California 92702,
Any party hereto may, from time to time by notice in writing served upon the other party as
aforesaid, designate a different mailing address or a different person to whom all such notices or
demands are thereafter to be addressed.
25, VALIDIT Y
The validity of this License Agreement and any of its terms or provisions, as well as the rights
and duties, shall be interpreted and construed pursuant to the laws of the State of California,
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IN WITNESS WHEREOF, the parties have caused this License Agreement to be executed the
day and year first above written.
APPROVED AS TO FORM: CITY OF SANTA ANA
JOSEPH W. FLETCHER A Municipal Corporation
CITY ATTORNEY
1
By: ��al. By,... JA,
Cristine L. Shaw JAM8 G. ROSS
Deputy City Attorney Executive Director
Public Works Agency
LICENSEE:
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