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City Council Meeting Minutes - March 17, 2009 Page 26
7. CONSENT CALENDAR
MOTION BY COUNCILMEMBER ANDERSON, SECOND BY COUNCILMEMBER EGGLESTON, CARRIED 5-0, to approve the Consent Calendar, with the removal of ltems Land M.
ITEMS REMOVED FROM THE CONSENT CALENDAR FOR DISCUSSION
L. 204 South El Camino Real (Duke's Restaurant} - Lease Agreement to Provide for Conversion of Private Parking Resources to Public Parking Resources
Community Development Director Holloway responded to questions by Council and John Tengdin.
MOTION BY COUNCILMEMBER BAKER, SECOND BY COUNCILMEMBER
EGGLESTON, CARRIED 5-0, to approve, and authorize the Mayor to execute, a Lease Agreement, Contract No. C09-16, by and between the City of San Clemente and M.S. Clipper, Inc., dba Reno Room and Cocorenos, for the purpose of converting private parking resources at 204 South El Camino Real to public parking resources.
Attachment 2
Department:
Prepared By:
Subject:
Summary:
Recommended
AGENDA REPORT
SAN CLEMENTE CITY COUNCIL MEETING
Meeting Date: March 17, 2009
Community Development
James S. Holloway, Community Development Director
Agenda Item
Approvals:
CityManag
Finance
APPROVAL OF LEASE AGREEMENT TO PROVIDE FOR CONVERSION OF PRIVATE PARKING
RESOURCES TO PUBLIC PARKING RESOURCES IN THE DOWNTOWN AREA -AT DUKE'S
RESTAURANT,
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At the City Council's direction, the staff has been engaged in negotiations with private property owners in the Downtown area for the purpose of converting private parking resources to public parking resources by way of lease agreements between the City and private property owners. The basis for the Council direction is ongoing analysis that has been conducted over the last six years. The analysis has pointed out that parking resources have been poorly utilized for several reasons. First, public parking resources• have been poorly managed due to a lack of consistent enforcement of time regulations that are posted on the various public streets and parking lots in the Downtown area. This problem is being addressed by increased public education and enforcement, which commenced on January 2008. Second, private parking resources have been under utilized due to posted Pcl;rking restriction signs on many of the private lots located throughout the downtown. In fact, analysis has consistently shown that while public parking resources are utilized at nearly 100% capacity during peak times, at those same times, private parking resources are averaging about 50% capacity utilization.
By leasing private parking resources for use as public parking resources, the City hopes to address the second problem area described above. Five lease agreements have previously been approved by the City Council.
Action: STAFF RECOMMENDS THAT the City Council:
1) Approve the lease agreement with M. S. Clipper, Inc.
Fiscal Impact: A monthly rent of $800/month with some minor capital cost for signage, striping, etc.
All improvements and ongoing rent and maintenance will be paid by the $1 million set aside for this purpose by the City Council in 2006 ($700,000 +/- balances currently).
Attachments: Lease agreement:
A) M. S. Clipper, Inc.
Notification: M. S. Clipper, 204 S. El Camino Real, San Clemente, CA 92672 p :\ \jsh\09-jsh-120admin. doc
Community Development Agenda Report
PARKING LOT SUBLEASE AGREEMENT
This PARKING LOT SUBLEASE AGREEMENT ("Agreement") is made and entered into as of this __ day of ____ ., 2009, by and between M.S. CLIPPER, INC. dba RENO ROOM and COCORENOS the ______ ("Sublessor"), and the CITY OF SAN CLEMENTE, a California municipal corporation ("City"). Sublessor and City are hereinafter sometimes referred to collectively as "parties" and individually as a "party." A. Sublessor is the lessee of that certain real property located at 204 South El Camino Real in the downtown area of the City of San Clemente, County of Orange, State of California (the "Property").
B. Sublessor has offered to sublease to City and City is interested in subleasing from Sublessor, those portions of the Property more particularly depicted in Exhibit "A", attached hereto and incorporated by this reference (the "Premises"), for the purpose of providing public parking according to the terms and conditions of this Agreement.
COVENANTS
Based upon the foregoing Recitals, which. are incorporated into this Agreement by reference, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by both parties, Sub1essor and City hereby agree as follows:
1. Right to Sublease Parking/Peaceable Possession. Sublessor hereby warrants and represents that it has the authority to sublease the Premises to City for public parking, ingress, and egress under the terms contained in this Agreement, and to execute this Agreement.
Sublessor further covenants and agrees that City, upon performing and obse¥Ving the terms and conditions of this Agreement, shall have the right to hold, occupy, and enjoy the Premises for the Permitted Uses during the Term without any interruption or hindrance from Sublessor, its successors or assigns, or any person or entity lawfully claiming by or through it. .
2. Grant of Sublease. Sublessor hereby subleases to City, and City hereby subleases from Sublessor, the Premises and all landscaping, improvements, and structures that will be used for the Permitted Uses (defined below) according to the terms and conditions of this Agreement.
3.1 Initial Term. The sublease of the Premises will commence on April 1, 2009 (the "Commencement Date"), and will continue on a month~to~month basis until tenninated after either party gives sixty (60) day's written notice of termination to the other party as provided for in Section 3.2 below.
3.2 Termination of Sublease. Either party, in its sole and absolute discretion, may terminate the sublease of the Premises at any time by delivering to the other party written notice thereof no later than sixty (60) days prior to the date of termination.
4. Rent and Security Deposit.
4.1 Rent. City shall pay to Sublessor as rent for the Premises eight hundred Dollars ($800.00) per month (the "Rent"). The first payment of Rent shall be prorated pursuant to Section 4.4 below (if applicable) and shall be delivered to Sub lessor no later than the date that is three (3) weeks after the Commencement Date. Each and every subsequent payment of Rent· shall be delivered to Sub lessor no later than the tenth (10th) day of the month for which the Rent is due.
4.2 Delivery. All payments and charges due under this Agreement shall be paid by City in lawful money of the United States of America, which shall be legal tender at the time of payment, at: M. S. Clipper. hie.
204 S. El Camino Real
San Clemente. California· 92672
or to such other person or at such other place as Sublessor may from time to time designate in writing. ~ublessor shall promptly deliver to City any change in address or person responsible for receiving payment of Rent. City shall not be in default of this Agreement if Sub lessor fails to receive any payment of Rent when Sublessor fails to promptly deliver any change in address or person responsible for receiving payment.
4.3 Prorated Amounts. Any Rent due under this Agreement for any fractional part of a calendar month shaJJ be prorated based on the ratio that the number of days in that month during the Term bears to the total number of days in that month.
5. Permitted Uses. For the duration of the Term, the Premises shall be used for parking by the general public and incidental uses relating thereto (the "Permitted Uses"), and for no other purpose, subject to the following conditions: (i) no overnight parking shall be permitted except by special mirror hanger permit for patrons advised not to drink and drive; (ii) parking for each vehicle used by a member of the general public shall be limited to three (3) hours for any . twenty-four (24) hour period, provided, however, that the time limits may be adjusted by mutual consent of the parties;· (iii) any vehicle [ up to eight (8)] used by current employees of the Reno Room may park all day on the Premises, but only if such vehicle has a mirror hanger permit issued by the City for such all day use clearly posted; and (iv) any other rules and regulations that City may impose on the general public for the use of the Premises.
6. Improvement and Maintenance of Premises. City, at its own cost and expense, and in its sole and absolute discretion, may itpprove the Premises for use as a public parking lot, by undertaking improvements which could include ·but not be limited to the following:
(i) surfacing the parking lot; (ii) striping parking lot spaces; and (iii) providing signage, as needed. Signage shall indicate, where City determines is appropriate, that the parking lot is open for use by the general public.
7. Insurance.
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7.1 General Liability. City shall obtairi and keep in force and effect for the entire Term a commercial general liability insurance policy which names Sublessor as an additional insured, protecting against claims of bodily 'injury, personal injury and property damage based upon, involving, or arising out of the use or maintenance of the Premises by City.
Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than One Million Dollars ($1,000,000.00) per occurrence.
7.2 Certificates. City shall provide to Sublessor a certificate of insurance evidencing insurance coverage as provided herein no later than the date that is three (3) weeks after the Commencement Date, and thereafter as requested by Sublessor until the termination of this Agreement.
7.3 Self.Insurance. In lieu of the obligations set forth in Section 7.1 and 7.2 above, City may satisfy its obligation to provide general liability insurance for the Premises through a self•insurance program, but only if City remains self.insured for no less than One Million Dollars ($1,000,000.00) in liability claims. In the event that City is self-insured, City shall deliver to Sublessor, no later than the date that is three (3) weeks after the Commencement Date, a statement, certificate, or other proof of financial responsibility, duly acknowledged by City's authorized representative, for One Million Dollar ($1,000,000.00) in self-insurance.
8. Indemnity. Sublessor shall indemnify, defend, and hold harmless City and its officers, officials, employees, agents, or representatives (collectively the ''City lndemnitees") against any and all claims, demands, causes of action, damages, costs, expenses, losses and liabilities, at law or in equity arising out of or relating to (i) any claim that Sublessor lacked the legal or equitable right to sublease to city the Premises; and (ii) the acts or omissions of Sublessor or Owner or either of their officers, officials, employees, agents, or representatives acting in an official capacity. City shall indemnify, defend, and hold harmless Sublessor and its officers, officials, employees, agents, or representatives ( collectively the "Sublessor Indemnitees") against any and all claims, demands, causes of action, damages, costs, expenses, losses and liabilities, at law or in equity arising out of or relating to (i) any activity or work done, permitted, or suffered on the Premises; (ii) use of the Premises by City and its officers, officials, employees, agents, representatives, invitees, patrons, or sub-lessees; or (iii) the acts or omissions of City or its officers, officials, employees, agents, or representatives acting in an official capacity. This indemnity shall specifically include the right to indemnification for any claims, demands, causes of action, damages, costs, expenses, lo'sses and liabilities, at law or in equity arising from the acts or omissions, whether negligent, reckless, willful or otherwise, of any member of the public (as that term is defined below) while that member of the public is or was on or about the Premises. Notwithstanding the forgoing sentences in this Section 7, City shall have no obligation to indemnify, defend, and hold harmless the Sublessor Indemnitees for any claim, demand, cause of action, damages, costs, expenses, losses and liabilities arising from or relating to (i) a pre•existing environmental condition concerning hazardous substances on or under the Premises; or (ii) any negligent, reckless, or willful act or omission of Sublessor Indemnitee(s) while on or about the Premises.
For purposes this Agreement, the term "hazardous substance" shall mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, a hazardous or toxic substance, or other similar term by any federal, state. or local ·3-
environmental statute, regulation, or ordinance. For purposes of this Section 8, the term "member of the public" shall mean any person other the officers, officials, employees, agents, or representatives, acting in an official capacity, of Sublessor or City.
9. Default. The occurrence of .any one or more of the following events shall constitute a material default ("default"): (i) the vacating or abandonment of the Premises by City; (ii) the failure by City to pay Rent when due pursuant to this Agreement, and such failure continues for a period of ten (l 0) days after delivery of written notice from Sublessor to City of said failure; and (iii) the failure by either party to observe or perfonn any of the obligations of this Agreement to be observed or performed by- the responsible party ( other than the obligation described in clause (ii) above), where such failure either: (A) continues for a period· of thirty (30) days after delivery of written notice thereof from the party seeking performance, or (B) if performance cannot be completed with thirty (30) days, cure of such failure has not commenced within thirty (30) days after delivery of written notice thereof and diligently prosecuted until completion within sixty (60) days of the expiration of the thirty (30) day period (for a total of ninety (90) days). Upon an event of default and after the expiration of the applicable cure period, this Agreement and City's right to sublease the Premises shall terminate upon the date that is one day after the date of expiration of the applicable cure period unless the party in default cures the default within the applicable cure period.
I 0. Miscellaneous.
I 0.1 Binding on Heirs. This Agreement shall be binding upon the parties hereto and inure to their respective representatives, transferees, successors, and assigns.
10.2 Litigation Expenses. If either party to this Agreement commences an action against the other party to· this Agreement arising out of or in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees, expert witness fees, costs of investigation, and costs of suit from the losing party.
I 0.3 Notices. All notices required to be delivered under this Agreement to another party must be in writing and shall be effective: (i)' when personally delivered by the other party or messenger or courier thereof; (ii) three (3) business days after deposit in the United States mail, registered or certified; (iii) one (1) business day after deposit before the daily deadline time with a reputable overnight courier or service; or (iv) upon receipt of a telecopy or fax transmission, provided a hard copy of such transmission shall be thereafter delivered in one of the methods described in the foregoing (i) through (iii); in each case postage fulJy prepaid and addressed to the respective parties as set forth below or to such other address and to such other persons as the parties may hereafter designat~ by written notice to the other parties hereto:
To City: City of San Clemente
City Hall
100 A venida Presidio
San Clemente, CA 92672
Attn: City Manager
Telecopier: (949) 361-8316
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Copy to:
To Sublessor:
Copy to:
Rutan & Tucker, LLP
~11 Anton Boulevard, Suite 1400
Costa Mesa, CA 92626
Attn: Jeffrey M. Odennan, Esq.
Telecopier: (714) 546-903 5
M. S. Clipper, Inc.
204 S. El Camino Real
San Clemente, CA 92672
None
Attn: -------
10.4 Entire Agreement, Waivers, and Amendments. This Agreement incorporates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the parties ·with respect to all or part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the party to be charged. A waiver of the breach of the covenants, conditions or obligations under this Agreement by either party shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions or obligations of this Agreement. Any amendment or modification to this Agreement must be in writing and executed by the appropriate authorities of City and Sublessor.
I 0.5 Interpretation; Governing Law. . This Agreement shall be construed according to its fair meaning and as if prepared by all of the parties hereto. This Agreement shall be construed in accordance with the internal laws of the State of California without regard to any conflict of law principles in effect at the time of the execution of this Agreement.
10.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
10. 7 Force Majeure. In the event that either party is delayed, hindered, or prevented from performing any act required hereunder by reason of strikes, lockouts, or other labor troubles, inability to procure or shortage of materials or supplies, failure of power, energy shortages, restrictive governmental laws or regulations, inclement weather, fire, explosion, earthquake or other casualty, riots, insurrection, war, act of God, or other causes that are without - the fault and beyond the reasonable control of such Party, then the performance of the party obligated to perform under this Agreement shan be excused for and extended by the period of such delay.
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10.8 Headings. Section and Subsection headings in this Agreement have been inserted solely for the convenience of the parties, and such captions, headings, and titles shall in no way define or limit the scope, intent, or application of any provision of this Agreement.
10.9 Time is of the Essence. Time is of the essence with respect to every pro-vision of this Agreement.
10.10 Computation of Time. Unless otherwise specified in this Agreement, use of the word "days" shall mean calendar days, and any provision requiring the computation of time shall be based upon a standard calendar of three hundred sixty five and one-quarter (365 ¼) days.
10.11 Execution in Counterpart. This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. [signatures on ~1ext page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.
ATTEST:
City Clerk
APPROVED AS TO FORM:
Jeffrey M. Odennan
City Attorney
"CITY"
CITY OF SA_N CLEMENTE,
a California municipal corporation
By: ________________ _
Mayor
"OWNER"
By:, _______________ _
Its: _______________ _
By: ______________ _
Its: _______________ _
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EXHIBIT "A"
DEPICTION OF THE PREMISES
EXHIBIT "A"
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EXHIBIT A
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SCOTT KELLY
151 W AVENIDA JUNIPERO
SAN CLEMENTE, CA 92672
CHUCK NAREY
2340 S EL CAMINO REAL
SAN CLEMENTE, CA 92672
GRAY MCELROY
AVE NIDA SAN PABLO
SAN CLEMENTE, CA 92672
17W
CLEMENTE, CA 92672
BARBARA SCHEIN MAN
654 CAMINO DE LOS MARES
SAN CLEMENTE, CA 92673
RANDY AND TONI DIETZ
555 EL CAMINO REAL, #A288
SAN CLEMENTE, CA 92672
WAYNE DEITZ
W AVENIDA RAMONA
SAN CLEMENTE, CA 92672
NICK AND DENISE THATCHER
108 AVE NIDA SAN PABLO
SAN CLEMENTE, CA 92672
ANDRE MEYER
20 W AVENIDA SAN GABRIEL
SAN CLEMENTE, CA 92672
GRAHAM ESPLEY-JONES
2665 BAYSHORE DR
NEWPORT BEACH, CA 92663
14W
CLEMENTE, CA 92672
GARO BABIKIAN
24951 SEAGATE DR
DANA POINT, CA 92629
23 W IDA SAN GABRIEL
CLEMENTE, CA 92672
JOHN TENGDIN
2859 CALLE HERALDO
SAN CLEMENTE, CA 92673
RICHARD WHITE
104 E AVENIDA SAN PABLO
SAN CLEMENTE, CA 92672
CHERYL HOPPER
3351 CALLE LA VETA
SAN CLEMENTE, CA 92672
JAMES MICHAEL MIRANDA
311 AVENIDA CABRILLO, APT B
SAN CLEMENTE, CA 92672
CATHY LEE, SOUTH COUNTY SENIOR SERVICES
24300 EL TORO RD, BLDG A, STE 2000
EL TORO, CA 92637
ALEX AND GEORGIA ALEXANDER
121 AVENIDA TRIESTE
SAN CLEMENTE, CA 92672
ROGER BLICKHAN
935 AVENIDA SALVADOR
SAN CLEMENTE, CA 92672
JOHN PERSICH
211 CALLE DELICADA
SAN CLEMENTE, CA 92672
ROSEANNE KOTZER
25598 PASEO LA VIS
LAGUNA NIGUEL, CA 92677
ALEX ALEXANDER II
121 AVENIDA TRIESTE
SAN CLEMENTE, CA 92672
ABRHIL ARVIZU
BUTSKO UTILITY DESIGN, INC.
1291 PUERTA DEL SOL, STE 200
SAN CLEMENTE, CA 92673
City of San Clemente
City Clerk
Joanne Baade, City Clerk/Executive Analyst
Phone: (949) 361-8345 Fax: (949) 361-8309
[email protected]
March 10, 2008
M. S. Clipper, Inc.
204 South El Camino Real
San Clemente, CA 92672
Enclosed is a copy of the Agenda Report regarding 204 South El Camino Real (Duke's Restaurant) - Lease Agreement to Provide for Conversion of Private Parking Resources to Public Parking Resources, for the City Council meeting of March 17, 2009 to be held in the Council Chambers, located at 100 Avenida Presidio, San Clemente, California. The City Council meeting will commence at 7 :00 p.m. This item is listed on the agenda under Consent Calendar 7-L.
In order to assure that the City Councilmembers have adequate time to consider written materials concerning agenda items, it is strongly recommended that such materials be submitted to my office by noon the day preceding the City Council meeting.
If you have any questions prior to the City Council meeting, please contact my office at (949) 361-8345.
Sincerely,
,..----£t./ __-L / ✓ ./ / (::~---/ffa4·t,_"f~--l.___
/ Joanne Baade
City Clerk
Enclosures
City Clerk 100 Avenida Presidio San Clemente, CA 92672
http:// san-clemente. org
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PARKING LOT SUBLEASE AGREEMENT
(!_ otj-,;t,
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This P ARK~G LOT SUBLEASE AGREEMENT ("Agreement") is made and entered into as of this~ day of~ , 2009, by and between M.S. CLIPPER, INC. dba RENO ROOM and COCORENOS the ______ ("Sublessor"), and the CITY OF SAN CLEMENTE, a California municipal corporation ("City"). Sublessor and City are hereinafter sometimes referred to collectively as "parties" and individually as a "party." A. Sublessor is the lessee of that certain real property located at 204 South El Camino Real in the downtown area of the City of San Clemente, County of Orange, State of California (the "Property").
B. Sublessor has offered to sublease to City and City is interested in subleasing from Sublessor, those portions of the Property more particularly depicted in Exhibit ''A",. attached hereto and incorporated by this reference (the "Premises"), for the purpose of providing public parking according to the terms and conditions of this Agreement. -
COVENANTS
Based upon the foregoing Recitals, which are incorporated into this Agreement by reference, and for good and .valuable consideration, the receipt and sufficiency of which is hereby acknowledged by both parties, Sublessor and City hereby agree as follows:
1. Right to Sublease Parking/Peaceable Possession. Sublessor hereby warrants and represents that it has the authority to sublease the Premises to City for public parking, ingress, and egress under the terms contained in this Agreement, and to execute this Agreement.
Sublessor further covenants and agrees that City, upon performing and observip.g the terms and conditions of this Agreement, shall have the right to hold, occupy, and enjoy the Premises for the Permitted Uses during the Term without any interruption or hindrance from Sublessor, its successors or assigns, or any person or entity lawfully claiming by or through it. .
2. Grant of Sublease. Sublessor hereby subleases to City, and City hereby subleases from Sublessor, the Premises and all landscaping, improvements, and structures that will be used for the Permitted U~es ( defined below) according to the terms anq. cpnditions of this Agreement.
3.1 Initial Tenn. The sublease of the Premises will commence on April I. 2009 (the "Commencement Date"), and will continue on a month-to-month basis until terminated after either party gives sixty (60) day's written notice of termination to the other party as provided for in Section 3 .2 below.
3.2 Termination of Sublease. Either party;in its sole and absolute discretion, may terminate th~ sublease of the Premises at any time by delivering to the other party written notice thereof no later than sixty (60) days prior to the date of termination.
4. Rent and Security Deposit.
4.1 Rent. City shall pay to Sublessor as rent for the Premises eight hundred · Dollars ($800.00) per month (the "Rent"). The first payment of Rent shall be prorated pursuant to Section 4.4 below (if applicable) and shall be delivered to Sublessor no later than the date that is three (3) weeks after the Commencement Date. Each and every subsequent payment of Rent shall be delivered to Sublessor no later than the tenth (10th) day of the month for which the Rent is due.
4.2 Delivery. All payments and charges due under this Agreement shall be paid by City in lawful money of the United States of America, which shall be legal tender at the time of payment, at: M. S. Clipper, Inc.
204 S. El Camino Real
San Clemente. California 92672
or to such other person or at such other place as Sublessor may from time to time designate in writing. Sublessor shall promptly deliver to City any change in address or person responsible for receiving payment of Rent. City shall not be in default of this Agreement if Sublessor fails to receive any payment of Rent when Sublessor fails to promptly deliver any change in address or person responsible for receiving payment.
4.3 Prorated Amounts. Any Rent due under this Agreement for any fractional part of a calendar month shall be prorated based on the ratio that the number of days in that month during the Tenn bears to the total number of days in that month.
5. Permitted Uses. For the duration of the Term, the Premises shall be used for parking by the general public and incidental uses relating thereto (the "Permitted Uses"), and for no other purpose, subject to the following conditions: (i) no overnight parking shall be permitted except by special mirror hanger permit for patrons advised not to drink and drive; (ii) parking for each vehicle used by a member of the general public shall be limited to three (3) hours for any twenty-four (24) hour period, provided, however, that the time limits may be adjusted by mutual consent of the parties; (iii) any vehicle [up to eight (8)] used by current employees of the Reno Room may park all day on the Premises, but only if such vehicle has a mirror hanger permit issued by the City for such all day use clearly posted; and (iv) any other rules and regulations that City may impose on the general public for the use of the Premises.
6. Improvement and Maintenance of Premises. City, at its own cost and expense, and in its sole and absolute discretion, may improve the Premises for use as a public parking lot, by undertaking improvements which could include but not be limited to the following:
(i) surfacing the parking lot; (ii) striping parking lot spaces; and (iii) providing signage, ·as needed. Signage shall indicate, where City determines is appropriate, that the parking lot is open for use by the general public.
7. Insurance.
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7 .1 General Liability. City shall obtairi and keep in force and effect for the entire Term a commercial general liability insurance policy which names Sublessor as an additional insured, protecting against claims of bodily injury, personal injury and property damage based upon, involving, or arising out of the use or maintenance of the Premises by City.
Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than One Million Dollars ($1,000,000.00) per occurrence.
7.2 Certificates. City shall provide to Sublessor a certificate of insurance evidencing insurance coverage as provided herein no later than the date that is three (3) weeks after the Commencement Date, and thereafter as requested by Sublessor until the termination of this Agreement.
7.3 Self-Insurance. In lieu of the obligations set forth in Section 7.1 and 7.2 above, City may satisfy its obligation to provide general liability insurance for the Premises through a self-insurance program, but only if City remains self-insured for no less than One Million Dollars ($1,000,000.00) in liability claims. In the event that City is self-insured, City shall deliver to Sublessor, no later than the date that is three (3) weeks after the Commencement Date, a statement, certificate, or other proof of financial responsibility, duly acknowledged by City's authorized representative, for One Million Dollar ($1,000,000.00) in self-insurance.
8. Indemnity. Sublessor shall indemnify, defend, and hold harmless City and its officers, officials, employees, agents, or representatives ( collectively the "City lndemnitees") against any and all claims, demands, causes of action, damages, costs, expenses, losses and liabilities, at law or in equity arising out of or relating to (i) any claim that Sublessor lacked the legal or equitable right to sublease to city the Premises; and (ii) the acts or omissions of Sublessor or Owner or either of their officers, officials, employees, agents, or representatives acting in an official capacity. City shall indemnify, defend, and hold harmless Sublessor and its officers, officials, employees, agents, or representatives ( collectively the "Sub lessor Indemnitees") against any and all claims, demands, causes of action, damages, costs, expenses, losses and liabilities, at law or in equity arising out of or relating to (i) any activity or work done, pennitted, or suffered on the Premises; (ii) use of the Premises by City and its officers, officials, employees, agents, representatives, invitees, patrons, or sub•lessees; or (iii) the acts or omissions of City or its officers, officials, employees, agents, or representatives acting in an official capacity. This indemnity shall specifically include the right to indemnification for any cl.aims, demands, causes of action, damages,- costs, expenses, losses and liabilities, at law or in equity arising from the acts or omissions, whether negligent, reckless, willful or otherwise, of any member of the public (as that term is defined below) while that member of the public is or was on or about the Premises. Notwithstanding the forgoing sentences ip. this Section 7, City shall have no obligation to indemnify, defend, and hold harmless the Sublessor Indemnitees for any claim, demand, cause of action, damages, costs, expenses, losses and liabilities arising from or relating to (i) a pre:.existing environmental condition concerning hazard~us substances on or under the Premises; or (ii) any negligent, reckless, or willful act or omission of Sublessor Indeninitee(s) while on or about the Premises.
-For purposes this Agreement, the term "hazardous substance" shall mean any substance or material defined or designated as hazardous or toxic waste, hazardous or toxic material, a hazardous or toxic substance, or other similar term by any federal, state, or local -3-
environmental statute, regulation, or ordinance. For purposes of this Section 8, the term "member of the public" shall mean any person other the officers, officials, employees, agents, or representatives, acting in an official capacity, of Sublessor or City.
9. Default. The occurrence of any one or more of the following events shall constitute a material default ("default"): (i) the vacating or abandonment of the Premises by City; (ii) the failure by City to pay Rent when due pursuant to this Agreement, and such failure continues for a period of ten (10) days after delivery of written notice from Sublessor to City of said failure; and (iii) the failure by either party to observe or perform any of the obligations of this Agreement to be observed or performed by the responsible party ( other than the obligation described in clause (ii) above), where such failure either: (A) continues for a period· of thirty (30) days after delivery of written notice thereof from the party seeking performance, or (8) if performance cannot be completed with thirty (30) days, cure of such failure has not commenced within thirty (30) days after delivery of written notice thereof and diligently prosecuted until completion within sixty (60) days of the expiration of the thirty (30) day period (for a total of ninety (90) days). Upon an event of default and after the expiration of the applicable cure period, this Agreement and City's right to sublease the Premises shall terminate upon the date that is one day after the date of expiration of the applicable cure period unless the party in default cures the default within the applicable cure period.
10. Miscellaneous.
10.1 Binding on Heirs. This Agreement shall be binding upon the parties hereto and inure to their respective representatives, transferees, successors, and assigns.
10.2 Litigation Expenses. If either party to this Agreement commences an action against the other party to this Agreement arising out of or in connection with this Agreement, the prevailing party shall be entitled to recover reasonable attorneys' fees, expert witness fees, costs of investigation, and costs of suit from the losing party.
I 0.3 Notices. All notices required to be delivered under this Agreement to another party must be in writing and shall be effective: (i) when personally delivered by the other party or messenger or courier thereof; (ii) three (3) business days after deposit in the United States mail, registered or certified; (iii) one (1) business day after deposit before the daily deadline time with a reputable overnight courier or service; or (iv) upon receipt of a telecopy or fax transmission, provided a hard copy of such transmission shall be thereafter delivered in one of the methods described in the foregoing (i) through (iii); in each case postage fully prepaid and addressed to the respective parties as set forth below or to such other address and to such other persons as the parties may hereafter designate by written notice to the other parties hereto:
To City: City of San Clemente
City Hall
100 A venida Presidio
San Clemente, CA 92672
Attn: City Manager
Telecopier: (949) 361-8316
Copy to:
To Sublessor:
Copy to:
Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92626
Attn: Jeffrey M. Oderman, Esq.
Telecopier: (714) 546-9035
M. S. Clipper, Inc.
204 S. El Camino Real
San Clemente, CA 92672
None
Attn: -------
I 0.4 Entire Agreement. Waivers, and Amendments. This Agreement incorporates all of the terms and conditions mentioned herein, or incidental hereto, and supersedes all negotiations and previous agreements between the parties with respect to all or part of the subject matter hereof. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the party to be charged. A waiver of the breach of the covenants, conditions or obligations under this Agreement by either party shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions or obligations of this Agreement. Any amendment or modification to this Agreement must be in writing and executed by the appropriate authorities of City and Sublessor.
10.5 Inter_pretation; Governing Law. This Agreement shall be construed according to its fair meaning and as if prepared by all of the parties hereto. This Agreement shall be construed in accordance with the internal laws of the State of California without regard to any conflict of law principles in effect at the time of the execution of this Agreement.
I 0.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable;· the remaining provisions will nevertheless continue in full force without being impaired or invalidated in any way.
10. 7 Force Majeure. In the event that either party is delayed, hindered, or prevented from performing any act required hereunder by re~on of strikes, lockouts, or other labor troubles, inability to procure or shortage of materials or supplies, failure of power, energy shortages, restrictive governmental laws or regulations, inclement weather, fire, explosion, earthquake or other casualty, riots, insurrection, war, act o~ God, or other causes that are without the fault and beyond the reasonable control of such Party, then the performance of the party obligated to perform under this Agreement shall be excused for and extended by the period of such delay.
10.8 Headings. Section and Subsection headings in this Agreement have been inserted solely for the convenience of the parties, and such captions, headings, and titles shall in no way define or limit the scope, intent, or application of any provision of this Agreement.
10.9 Time is of the Essence. Time is of the essence· with respect to every provision of this Agreement.
l O. l O Computation of Time. Unless otherwise specified in this Agreement, use of the word "days" shall mean calendar days, and any provision requiring the computation of time shall be based upon a standard calendar of three hundred sixty five and one-quarter (365 ¼) days.
10.11 Execution in Counterpart. Th_is Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on all parties hereto, notwithstanding that all parties are not signatories to the original or the same counterpart. [ signatures on next page]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first set forth above.
"CITY"
CITY OF SAN CLEMENTE,
a California municipal corporation
By.
Mayor
~ ~ ATTEST:
~ALll~4 ~ ~~;........;..._ ______ _
APPROVED AS TO FORM:
ffr y M. Werman
ity Attorney
"OWNER"
By: _______________ _
Its: ---------------
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. . '· .
EXHIBIT "A"
DEPICTION OF THE PREMISES
EXHIBIT "A"
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i .. •·
EXHIBIT A
•
To:
From
Subject:
Copies:
Memorandum
City Clerk
3/30/2009
Jim Holloway, Community Development Director
Rita Mueller, Records Management Coord.
Parking Lot Sublease Agreement - Clipper dba Reno Room and Cocorenos
Lynne Fuller
Attached are two fully executed contracts for the above subject. Please forward one original to the contractor and retain one document for your files.
I have retained the original document for the City Clerk's files.
City Clerk Memorandum