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HomeMy WebLinkAboutWatkins, Howard K. - 1555 Van Ness Ave. - 2015SUBLEASE AGREEMENT 1555 Van Ness Avenue Fresno, California 937 21 , 2015 (.Effective Date"), by and between the City of Fresno, a nicipal corporation ("City"), and Howard K. Watkins, an individual ("Tenant"). RECITALS WHEREAS, City owns the building commonly known as 1555 Van Ness Avenue in Fresno, California, which is part of a structure known as the Historic Bee Building (the "Building"); and WHEREAS, the Gift Shop of the Building located on the first floor of the Building, as outlined on the floor plan attached hereto as Exhibit "4" (the "Property"), is currently vacant and not subject to any lease or sublease; and WHEREAS, the City is currently marketing the Property for a permanent tenant; and WHEREAS, Howard K. Watkins has been declared the Photo Laureate of the City of Fresno, has a large collection of printed photography, and would like to utilize the Property for short term storage of photographs, including photo boards and framed or matted photographs, and display easels, and for no other purpose; and WHEREAS, City and Tenant have agreed that City will lease, and Tenant will rent, the Property during the term of this Lease subject to the terms and conditions of this Lease' AGREEMENT NOW, THEREFORE, in consideration of the above recitals, which recitals are contractual in nature, and of the covenants, conditions, and promises hereinafter contained, to be kept and performed by the respective parties, it is mutually agreed as follows: 1. DESCRIPTION OF PROPERTY. City hereby leases to Tenant and Tenant hereby leases from City the Property, subject to the terms, covenants and conditions hereinafter set forth. The Property is described on Exhibit A attached hereto and incorporated herein by this reference. -1- 2. CONDITION OF THE PROPERTY. Tenant accepts the Property "as is", in its existing physical condition, without warranty by City or any duty or obligation on the part of City to maintain the Property, except as expressly set forth in this Lease. 3. TERM. This Lease shall be for a term of one year commencing on the Effective Date, unless earlier terminated in accordance with the provisions of this Lease. The term of this Lease may only be extended in writing approved by both parties. 4. TERMINATION, SURRENDER OF POSSESSION. City may terminate the Lease at any time by providing Tenant 30 days' notice of termination. Upon such notice, Tenant shall have 30 days to vacate the Property and shall have no further rights to the Property. At Tenant's sole cost and expense, Tenant shall remove all of Tenant's personal property and all debris and waste material resulting from Tenant's activities and City shall bear no liability for any costs caused or related to any termination of this Lease. ln the event Tenant fails to comply with the requirements of this section, City may elect to remove such personal property and effect such removal, repair, or restoration as necessary and recover such costs and expenses therefore from Tenant. Tenant shall pay such costs and expenses within 10 days of receipt of an invoice therefor. Tenant's obligations under this section shall survive the expiration or termination of this Lease. It is mutually understood and agreed that upon termination of this Lease under this Paragraph 4, Tenant will surrender the Property to City in the same or better condition as on the Effective Date. All improvements constructed or placed upon the Propefty by Tenant prior to or after the Effective Date shall become the property of City, and Tenant warrants that such improvements are free and clear of any and all liens, claims, demands and other encumbrances. This warranty shall survive expiration or termination of this Lease. 5. RENT. Rent for the entire term of this Lease shall be One Dollar ($1.00). Rent shall not be prorated upon early termination. 6. MAINTENANCE AND SECURITY DURING TERM OF LEASE. City will not be obligated to provide security, maintain, or make any repairs to the Property or any improvement thereon. Tenant covenants and agrees to keep the Propefi clean and free from debris and trash during the term of the Lease and any extension, and be responsible for any maintenance or repair to the improvements on the Property. Tenant shall prohibit any person from using the Property for any use other than the use set forth in Section 7 of this Lease. 7. USE OF PROPERTY. Upon the Effective Date, Tenant may use the Property for storage of photographs, including photo boards and framed or matted photographs, and display easels, and for no other purpose. a 8. MARKETING DURING TERM. During the term of this Lease, City may advertise for prospective tenants to occupy the Property. 9. UTILITIES. City shall pay for utilities. 10. TENANT IMPROVEMENTS. Tenant shall not make any improvements to the Property without prior written approval of the City. 11. CONDEMNATION; DAMAGE OR DESTRUCTION. (a) Total Condemnation. Should, during the term of this Lease, title and possession of all of the Property be taken under the power of eminent domain by any public or quasi-public agency or entity, this Lease shall terminate as of 12:01 a.m. of, whichever first occurs, the date legal title of said Property becomes vested in or actual physical possession of said Property is taken by the agency or entity exercising the power of eminent domain and both City and Tenant shall thereafter be released from all obligations under this Lease. (b) Condemnation Award. Any compensation or damages awarded or payable because of the taking of all or any portion of the Property by eminent domain shall be allocated between City and Tenant as follows: (1) All compensation or damages awarded or payable for the taking by eminent domain of any land and improvements that are a part of the Property shall be paid to and be the sole property of City free and clear of any claim of Tenant or any person claiming rights to the Property through or under Tenant, (2) Upon condemnation and allocation of proceeds, hereunder, this Lease shall terminate. (c) Damage or Destruction. ln the event of damage or destruction to any improvement that is part of the Property during this Lease, Tenant shall immediately notify City in writing thereof. lf such damage or destruction is caused by the negligence or willful misconduct of Tenant or any of its employees, agents or invitees, then Tenant shall replace or rebuild the improvement within 30 days after such damage or destruction, and in such manner and according to such plans and specifications which would restore the respective Property, to substantially the same condition as immediately before its destruction or substantial damage. City, at its sole option, and subject to budget appropriations, may repair the Property or terminate this Lease upon written notice to Tenant if the Property is otherwise partially destroyed or damaged. lf City elects to repair or restore the Propefty, it will notify Tenant within 20 business days, and shall complete the work within 120 days after, the casualty date, and this Lease will not terminate. Tenant waives any right to terminate the Lease under California Civil -3 - Code sections 1932(2) or 1933(4). This paragraph shall survive expíration or termination of this Lease. 12. RIGHT OF ENTRY. City, and City's representatives, shall have the right to enter the Property at any time during the Lease, to protect, inspect, exercise, or investigate any rights of City herein reserved. 13. LEGALREQUIREMENTS. (a) Tenant covenants and agrees, at Tenant's sole cost and expense, promptly to comply, and cause all of Tenant's representatives, to comply, with all "Legal Requirements" defined as follows: "Legal Requirements" include each of the following: (i) all applicable laws, statutes, ordinances, rules, regulations, requirements or orders of municipal, state, and federal authorities now in force or that may later be in force, including, without limitation, those laws which relate to the generation, use, storage, handling, treatment, transportation or disposal of Hazardous Substances or to health, safety, noise, environmental protection, air quality or water quality; (ii) the conditions of any permit, occupancy cedificate, license or other approval issued by public officers relating to Tenant's activities, or Tenant's use or occupancy of the Property; and (iii) any liens, encumbrances, easements, covenants, conditions, restrictions and servitudes (if any) of record, or of which Tenant has notice, which may be applicable to the Property regardless of when they become effective, insofar as they relate to Tenant's activities or Tenant's use or occupancy of the PropeÍy. (b) The judgment of any court of competent jurisdiction, or the admission of Tenant in any action or proceeding against Tenant, whether or not City is a party in such action or proceeding, that Tenant has violated any Legal Requirement relating to Tenant's activities and Tenant's use or occupancy of the Property, shall be conclusive of that fact as between City and Tenant. (c) Tenant shall furnish satisfactory evidence of compliance with the Legal Requirements upon request by City. 14. INDEMNIFICATION (a) To the furthest extent allowed by law, Tenant shall indemnify, hold harmless and defend City and each of its offícers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to -4- personal injury, death at any time and property damage) incurred by City, Tenant or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of performance of this Agreement. Tenant's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or volunteers are actively or passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the sole negligence or willful misconduct of City or any of its officers, officials, employees, agents or volunteers, except when such officers, officials, employees, agents or volunteers are under the direct supervision and control of Tenant. (b) lf Tenant should contract any work on the Property or subcontract any of its obligations under this Lease, Tenant shall require each consultant, contractor and subcontractor to indemnify, hold harmless and defend City and its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. (c) Tenant's occupancy, maintenance, use, renovation, and improvement of the Property shall be at Tenant's sole risk and expense. Tenant accepts all risk relating to Tenant's: (i) occupancy, maintenance, use, renovation, and/or improvement of the Property; and (ii) the performance of, or failure to perform, this Lease. City shall not be responsible for any loss or theft of Tenant's property. City shall not be liable to Tenant or Tenant's insurer(s) for, and Tenant and his insurer(s) hereby waives and releases City from, any and all loss, liability, fines, penalties, forfeitures, costs or damages resulting from or attributable to an occurrence on or about the Property in any way related to the Tenant's operations and activities. Tenant shall immediately notify City of any occurrence on the Property resulting in injury or death to any person or damage to property of any person. (d) The provisions of this Section 14 shall survive the expiration or termination of this Lease. 15. ASSIGNMENT. Tenant shall not assign, hypothecate or mortgage this Lease or any interest therein, or sublet the Property, or any part thereof, or any right or privilege pertaining thereto. 16. DEFAULT. (a) lf either party materially defaults in the performance of any condition or covenant in this Lease, the other party may terminate this Lease, but only if the defaulting party fails to rectify said default within 30 days after written notice thereof is served upon defaulting party by the other party. In the event, however, that any default complained of hereunder is of such nature that the same cannot -5- be rectified in such 30 days, then such default shall be deemed to be rectified if the defaulting party shall have commenced the compliance of the provisions hereof breached by it within such 30 day period and shall with all diligence prosecute the work or perform the pafticular provisions until the same shall have been fully rectified or performed. (b) The occurrence of any of the following events shall constitute a material default by Tenant: (1) The failure of Tenant to keep, perform, and comply with all other promises, covenants, conditions and terms set forth in this Lease. (2) Tenant becoming insolvent, or the making by Tenant of any general arrangement, or any assignment for the benefit of creditors; or the filing by, or against Tenant of a petition to have Tenant adjudged bankrupt, unless in the case of a petition filed against Tenant the same is dismissed within 60-calendar days. 17. CHOICE OF LAW. Subject to any provisions hereof, this Lease shall bind the parties, their personal representatives, successors, and assigns. This Lease shall be governed by the laws of the State of California, excluding, however, any conflict of laws rule, which would apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the enforcement or interpretation of this Lease and rights and duties hereunder shall be Fresno County, California. 18, NOTICES. All notices, demands, consents or requests, which may be or are required to be given by a party hereunder, shall be in writing. All notices, demands, consents or requests given shall be sent by United States registered or certified mail, postage prepaid, return receipt requested, addressed to the respective party at the address set forth on the signature page of this Lease or at such other place as the party may from time to time designate in a written notice to the other party. Notices, demands, consents or requests served in the manner above described shall be deemed sufficiently served or given at the time of the mailing thereof. 19. ATTORNEY'S FEES. lf either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Lease, the prevailing party in such proceeding or action shall be entitled to recover from the other party its reasonable attorney's fees and legal expenses. 20. THIRD PARTY BENEFICIARIES. The rights, interests, duties, and obligations defined within this Lease are intended for the specific parties hereto as identified in the preamble of this Lease. It is not intended that any rights or interests in this Lease benefit or flow to the interest of any third parties. -6- 21. GENERALPROVISIONS. (a) The section headings in this Lease are for convenience and reference only and shall not be construed or held in any way to explain, modify, or add to the interpretation or meaning of the provisions of this Lease. (b) The provisions of this Lease are severable. The invalidity or unenforceability of any one provision in this Lease shall not affect the other provisions. (c) The parties acknowledge that this Lease in its final form is the result of the combined efforts of the parties and that, should any provision of this Lease be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Lease in favor or against any party, but rather by construing the terms in accordance with their generally accepted meaning. (d) Each exhibit and attachment referenced in this Lease is, by the reference, incorporated into and made a part of this Lease. (e) No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. (f) Subject to Section 14, above, once this Lease is signed by all pafties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferee, agents, servants, employees and representatives. (g) The waiver by a party of a breach by another of any provision of this Lease shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Lease. No provisions of this Lease may be waived unless in writing and signed by all parties to this Lease. Waiver of any one provision herein shall not be deemed to be a waiver of any other provision herein. (h) Tenant is an independent contractor. This Lease is not intended, and shall not be construed, to create the relationship of agent, servant, employee, partnership, joint venture, or association as between City and Tenant. 22. WASTE, NUISANCE, QUIET POSSESSION. (a) Tenant will not do any of the following: (i) commit or permit any waste on the Property, (ii) maintain, commit, or permit the maintenance or commission of any nuisance, as defined in California Civil Code section 3479, on the Property, (iii) use or permit use of the Propeily for any unlawful purpose, or (iv) maintain, commit, or permit any other act or condition which may disturb the quiet enjoyment of City or any other tenant of City adjacent to the Property. -7 - (b) Upon Tenant keeping, observing, and performing all of the covenants, conditions, promises and provisions on Tenant's part to be kept, observed, or performed under this Lease, Tenant shall have quiet possession of the Property during the term hereof subject to all of the provisions of this Lease. 23. ENTIRETY-SUCCESSION. This Lease merges and supersedes all prior negotiations, representations, agreements and constitutes the entire agreement concerning City's leasing of the Property to Tenant and the consideration therefore. This Lease may be modified only by written instrument duly authorized and executed by both Tenant and City. lN WITNESS WHEREOF, the parties have caused this Lease to be executed by their authorized representatives in Fresno, California as of the date first above written. çity City of Fresno, a California municipal corporation fia,- Btuce Rudd, CitY Manager Attest: Yvonne Spence, CMC City Clerk Tenant Howard K. Watkins, an individual By t'ltí Approved as to form: Douglas Sloan Addresses: Attachments:Exhibit A - Description of Property Raj Singh Badhesha, -8- EXHIBIT "A'' DESCRIPTION OF PROPERTY First Ftoor