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HomeMy WebLinkAboutTRUTH AND ALCHEWY, INC.;,:au(RED N-2021-046 ARP, 2 VIA �JUttiCiL CDAi-C2)C;O(tt, Ca*D) f1- This Sublease is made and entered into this first day of June 2020 by and between CSU FULLERTON AUXILIARY SERVICES CORPORATION, a California non-profit corporation ("ASC") and TRUTH AND ALCHEMY, INC. ("Tenant"). 1. ASC leases the GRAND CENTRAL BUILDING ("Grand Central") located In Santa Ana, California from the City of Santa Ana under a Lease Agreement dated June 19, 1995, as amended June 20,1998, and April 5, 2004, December 5, 2011, collectively, ("Master Lease Agreement"). 2. Under the terms and conditions of said Master Lease Agreement, ASC is permitted to sublet portions of Grand Central with the approval of the property owner, the City of Santa Ana. 3. This Sublease sets forth the terms of the parties' agreement. Therefore, the parties to this Sublease mutually agree to the following terms and conditions: TERMS AND CONDITIONS 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 C, 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. 2. USE. The Premises are subleased to Tenant for the purpose of conducting thereon the following use: Coffeehouse and Restaurant with scheduled entertainment and with the sale of beer and wine. Tenant shall not sue the Premises for any other purpose without ASC's prior written consent. Tenant agrees to sue such Premises under the name "The Gypsy Den Cafe." 3. TERM. The term of this Sublease ("Term") shall be for a period of five (5) years. The term shall commence on June 1, 2020 ("Commencement Date"). 4. RENT AND UTILITIES. Tenant shall pay rent for the Premises at $5,000.00 per month ("Rent" which includes utilities). S. TAXES. During the Term, Tenant shall pay priorto delinquency, all taxes assessed against and levied upon its occupancy, the Sublease, or any of its fixtures, furnishings, equipment or other personal property contained in the Premises. 11Page 6. USES PROHIBITED. Tenants hall not use or permit the Premises or any part thereof, to be used for any purpose or purposes other than the express purpose or purposes for which the Premises are leased pursuant to Article 1 above or carry on its business other than under the trade name designated in Article 1. No use shall be made or permitted to be made of the Premises, nor acts done, which will violate any use restrictions or exclusive use provisions existing as of the date of this Sublease or that are subsequently placed upon the real property of which the Premises are a part, or which will increase the existing rate of insurance on the building in which the Premises are located, or cause a cancellation of any insurance policy covering said building or any part thereof. 7. ALTERATIONS AND FIXTURES. Tenant shall not make, or suffer to be made, any alterations to the Premises or change the appearance of the Premises without the prior written consent of the ASC. Any alterations to the Premises, except moveable furniture and trade fixtures, shall at the expiration or earlier termination of this Sublease belong to ASC or be promptly removed by Tenant at ASC's option. Any and all fixtures and appurtenances installed by Tenant shall conform with the requirements of all municipal, state, federal and governmental authorities Including requirements pertaining to the health, welfare or safety of employees or the public. B. MAINTENANCE AND REPAIR. Tenant shall at all times during the Term, and at its sole cost and expense, keep, maintain and repair the Premises (including plumbing) and other improvements within the Premises in good and sanitary order, condition and repair. Based upon the terms and conditions of the License (Section 7), Tenant must maintain the public sidewalk, paving and fixtures that are subject to the License. A cash deposit or letter of credit from Tenant can be applied to make repairs to the sidewalk due to breach of the sidewalk maintenance covenant. 9. COMPLIANCE WITH LAWS. Tenant shall, at its sole cost and expense, comply with all the requirements of all municipal, state and federal authorities now in force or which may hereafter be in force, including, without limitation, the requirements of the Americans with Disabilities Act (ADA) and all regulations issued thereunder, pertaining to the Premises, and shall faithfully observe all said municipal ordinances, state and federal statutes, or other governmental regulations now in force or which shall hereinafter be in force. The ASC is responsible for all ADA compliance issues outside the Premises. Tenant's violation of law shall constitute a default under this Sublease. The judgment of any court of competent jurisdiction, or the admission of Tenant in any action or proceeding against Tenant, whether ASC is a party thereto or not, that Tenant has violated such order or statute in said use, shall be conclusive of that fact as between ASC and Tenant. 10. INSURANCE. A. Personal Property Insurance. Tenant, at its expense, shall maintain fire and extended coverage insurance, together with insurance against sprinkler and water damage, vandalism, theft and malicious mischief on its trade fixtures, equipment, personal property and inventory within the Premises from loss or damage to the extent of their replacement value. Tenant 2)Page assumes all risks from theft or vandalism and agrees to keep Premises secured and provide appropriate alarm systems. B. Workers Compensation. Tenant shall also carry Worker's Compensation Insurance with limits no less than $1,000,000 per accident for bodily injury or disease. C. Tenant to Provide Liability Insurance. During the Term, Tenant shall, at its cost and expense, maintain general liability insurance against claims for bodily injury, death or property damage occurring in, upon or about the Premises with an insurance company that has a Best Rating of AM or better. Such insurance shall have combined single limits of not less than Two Million Dollars ($2,000,000.00) for bodily injury, death and property damage written on occurrence form. All such policies of insurance shall be issued in the name of Tenant and shall name ASC and the parties set forth below as additional insureds. Tenant shall provide ASC with a certificate of insurance evidencing such policy and limits. Such policy shall provide that not less than thirty (30) days written notice shall be given to ASC prior to the cancellation or modification of any such policy. CSU Fullerton Auxiliary Services Corporation, California State University, Fullerton, and the State of California are not liable for the payment or premiums or assessments on this policy. The Tenants' policies will be considered primary and ASC's policies in excess. This policy or policies of liability insurance shall provide an additional insured endorsement containing the following special endorsement: Truth and Alchemy, INC shall indemnify, defend and hold harmless the State of California, the Trustees of the California State University, California State University Fullerton, CSU Fullerton Auxiliary Services Corporation, their officers, employees, directors, agents and volunteers from and against any and all liability, loss, damage, expense, costs (including without limitation costs and fees of litigation) of every nature arising out of or in connection with Truth and Alchemy, INC's performance or its failure to comply with any of its obligations contained in this agreement except where such loss or damage is caused by the sole negligence or willful misconduct of the CSU Fullerton Auxiliary Services Corporation. 11. WAIVER AND INDEMNIFICATION. Tenant, as a material part of the consideration to be rendered to ASC under this Sublease, hereby waives all claims against ASC, California State University Fullerton, the Trustees of the California State University, the State of California, employees, officers, directors, volunteers, and agents for damage to equipment or other personal property, trade fixtures, leasehold improvements, goods, wares, inventory and merchandise, in, upon or about the Premises and for injuries to persons in or about the Premises, from any cause arising at any time (including but not limited to the foregoing, rain or water leakage of any character from the roof, windows, walls, basement, pipes, plumbing works or appliances, the Building or Premises not being in good condition or repair, gas, fire, oil, electricity or theft), except to the extent caused by of arising from the gross negligence or willful misconduct of Landlord or its agents, employees or contractors; and Tenant agrees 3 1 P a g e indemnify, defend and hold ASC, the City of Santa Ana, and the State of California harmless from any loss, damage or injury to any person, equipment or property arising from the use of the Premises by Tenant or its invitees, or from Tenant's breach of this Sublease, including but not limited to Tenant's failure to keep the Premises in good condition and repair. 12. ABANDONMENT. Tenant shall not vacate or abandon the Premises at any time during the term of this Sublease; and if Tenant shall abandon, vacate or surrender the Premises or be dispossessed by process of law or otherwise, any personal property belonging to Tenant left on the Premises shall be deemed to be abandoned after thirty (30) days and shall disposed of by ASC at its discretion. 13. ENTRY AND INSPECTION. Tenant shall permit ASC, the City of Santa Ana, and their respective agents to enter into and upon the Premises at all reasonable times for the purpose of inspecting the same or for the purpose of making repairs, alterations or additional to any other portion of Grand Central. 14. DAMAGE AND DESTRUCTION OF PREMISES. In the event of (a) partial or total destruction of the Premises or the building, containing same during the Term which requires repairs to either the Premises or building, or (b) the Premises or building being declared unsafe or unfit for occupancy or occupation, which declaration requires repairs to either the Premises or building, ASC intends to repair or restore the building of the Premises or to cancel the Sublease. Damage to the Premises shall not terminate this Sublease unless ASC provides notice to Tenant of its intent not to rebuild or restore the Premises. In the event of damage to the Premises or a governmental declaration requiring repairs be made, Tenant shall be entitled to a proportional to the extent to which the ASC determines that the damage or repairs shall interfere with the business carried on by Tenant in the Premises. 15. FORCE MAIEURE. Neither Tenant nor ASC shall be liable for the failure to perform their respective obligations under this Sublease when such failure is caused by fire, explosion, water, acts of God or inevitable accident, civil disorder or disturbances, strikes, vandalism, war, riot, weather, governmental rules or regulations, or like causes beyond the control of each party, nor for real or personal property destroyed or damaged due to such causes. 16. ASSIGNMENT AND SUBLEASE. Tenant shall not sublease the Premises or any part thereof, without first obtaining the prior written consent of ASC and the City of Santa Ana. Any attempt to sublease the Premises or to assign the Sublease without the written consent of ASC shall be a breach of the Sublease and shall be null and void. 17. DEFAULT. The occurrence of any one or more of the following events shall constitute a default and breach of this Sublease by Tenant. A. The failure by Tenant to make any payment of Rent, as and when due, where such failure shall continue for a period of three (3) days after receipt by Tenant of written notice from ASC of such failure. 4 1 P a g e B. The failure by Tenant to observe or perform any of the non -monetary obligations of this Sublease where such failure shall continue for a period of ten (10) days after receipt by Tenant of written notice from ASC of such failure; provided, however, that if the nature of the condition is such that more than ten (10) days are reasonably required for Tenant's performance, then Tenant shall not be deemed to be in default if Tenant commences performance within such ten (10) day period and thereafter diligently pursues the same to completion. C. The making by Tenant of a general assignment for the benefit of creditors; the filing by or against Tenant of a petition to have Tenant adjudged a bankrupt, or a petition for reorganization or arrangement under any law relating to bankruptcy; the appointment of a trustee or a receiver to take possession of substantially all of Tenant's assets located at the Premises or of Tenant's interest In this Sublease; or the attachment, execution or other judicial seizure of substantially all of Tenant's assets located at the Premises or of Tenant's interest In this Sublease. 18. REMEDIES FOR DEFAULT. In the event of any default by Tenant after notice and opportunity to cure, as provided for In Section 17, ASC may at any time thereafter, in Its sole discretion, without limiting ASC in the exercise of any right or remedy now or hereafter available to ASC at law or in equity by reason of such default, do any of the following: A. Terminate Tenant's right to possession of the Premises by any lawful means, in which case this Sublease shall terminate and Tenant shall immediately surrender possession of the Premises to ASC. In such event ASC shall be entitled to recover from Tenant all damages incurred by ASC by reason of Tenant's default including, but not limited to, unpaid Rent, insurance and the cost of recovering possession of the Premises, and reasonable expenses of reletting. B. Pursue any other remedy now or hereafter available to ASC under the laws of the State of California. 19. TERMINATION WITHOUT CAUSE. The Sublease is subject to termination without cause by either party upon one -hundred and eighty (180) days written notice. 20. NOTICES. Wherever in this Sublease it shall be required or permitted that notice and demand be given or served by either party to this sublease or on the other, such notice or demand shall be given or served in writing and shall not be deemed to have been duly given or served unless in writing, and personally forwarded by registered or certified mail, postage prepaid, addressed as follows: To: ASC Executive Director CSU Fullerton Auxiliary Services Corporation 1121 N. State College Blvd. Fullerton, CA 92831-3106 5 1 P a g e To:Tenant Ryan Shuck Truth and Alchemy, INC 125 N. Broadway, Suite D Santa Ana, CA 92701 21. INTERPRETATION. ASC and Tenant have both had the opportunity to review and revise this Sublease. As such, this Sublease shall be construed and interpreted as the joint work product of ASC and Tenant and/or their attorneys. The rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in any interpretation of this Sublease. This Sublease and all of its terms shall be construed equally as to ASC and Tenant. 22. HAZARDOUS MATERIALS. A. As used in this Sublease, the term "Hazardous Material" means any flammable items, explosives, radioactive materials, hazardous or toxic substances, material or waste or related materials, including, without limitation, any substances defined as or included in the definition of "hazardous substances," "hazardous wastes," "infectious wastes," "hazardous materials," or "toxic substances" now or subsequently regulated under any federal, state or local laws or regulations including, without limitation, petroleum -based products, printing inks, acids, pesticides, asbestos, PBs and similar compounds, and including any different products and materials which are subsequently found to have adverse effects on the environment or the health and safety of persons and are outside the scope of a reasonable restaurant operation. B. Tenant shall not cause or permit any Hazardous Material to be generated, produced, brought upon, used, stored, treated or disposed of in or about the premises by Tenant, its agents, employees, contractors, affiliates, or invitees. Tenant shall protect, indemnify, defend and hold ASC harmless from all actions (including, without limitation, remedial or enforcement actions of any kind, and administrative orjudicial proceedings and orders orjudgments), costs, claims, damages (including punitive damages), expenses (including attorneys', consultants' and experts' fees, court costs), amounts paid in settlement, fines, forfeitures or other civil, administrative or criminal penalties, injunctive or other relief, liabilities or losses in any way arising or resulting from a breach of this prohibition by Tenant, its agents, employees, contractors, affiliates or invitees. Upon expiration or earlier termination of this Sublease, Tenant shall cause any Hazardous Materials arising out of the use or occupancy of the Premises by Tenant or its agents, affiliates, customers, employees, business associates or assigns to be removed from the Premises and properly transported for use, storage or disposal in accordance with all applicable laws, regulations and ordinances. 23. GENERAL PROVISIONS, A. Waiver. The waiver by ASC or Tenant of any term, covenant on condition in this Sublease shall not be deemed to be a waiver of any other term, covenant or condition or any subsequent waiver of the same or any other term, covenant or condition contained in this Sublease. The 6 1 P a g e subsequent acceptance of Rent hereunder by ASC or any payment by ASC or Tenant shall not be deemed to be a waiver of any preceding default of any term, covenant or condition of this Sublease, other than the failure to pay the particular amount so received and accepted, regardless of the knowledge of any preceding default at the time of the receipt or acceptance. B. Headings. The headings and paragraph titles in this Sublease are not a part of this Sublease and shall have no effect upon the construction or interpretation of any part of this sublease. C. Time of the Essence. Time is of the essence of this Sublease and each and all of its provisions. D. Late Charges. If any installment of Rent or any sum due from Tenant shall not be paid by Tenant within the first 15 days of the month, then Tenant shall pay to ASC a late charge of fifty dollars ($50) in addition to the overdue amount. Acceptance of such late charge by ASC shall in no event constitute a waiver of Tenant's default with respect to such overdue amount, nor shall it prevent ASC from exercising any of the other rights and remedies granted under this Sublease. E. Prior and Future Agreements. This Sublease contains all of the agreements of ASC and Tenant with respect to any matter covered or mentioned in this Sublease and except as provided herein no prior agreements or understanding pertaining to any such matters shall be effective for any purpose. No provision of this Sublease may be amended or supplemented except by an agreement in writing signed by both ASC and Tenant or their respective successors in interest. F. Partial Invalidity. Any provision of this Sublease which shall be held by a court of competent jurisdiction to be invalid, void or illegal shall in no way affect, impair or invalidate any other provision or term of this Sublease, and such other provision or terms shall remain in full force and effect. G. Dispute Resolution. Except for suits by ASC seeking eviction or unpaid Rent, the parties agree to mediate their claims arising out of this Sublease before a third party mediator prior to initiating legal action. Any party that files suit without diligently attempting to meditate its claim shall be barred from collecting any attorneys' fees or costs. H. Choice of Law. This Sublease shall be governed by the laws of the State of California, and any action brought under this Sublease shall be filed in Orange County Superior Court. I. Attorneys' Fees. In the event of any action or proceeding brought by one party against the other under this Sublease, provided it complied with subsection (G) the prevailing party shall be entitled to recover it reasonable attorneys' fees and costs in such action or proceeding from the other party, including all reasonable attorneys' fees and costs incurred in connection with any appeals or efforts to collect on any judgment. 7 1 P a g e J. Counterparts. This Sublease may be executed in one or more separate counterparts, each of which, once are executed, shall be deemed to be an original. Such counterparts shall be and constitute one and the same instrument. 24. NON-DISCRIMINATION. Tenant herein covenants by and for Itself, its heirs, executors, administrators and assigns and all persons claiming under or through it, and this Sublease is made and accepted upon and subject to the following conditions. That there shall be no discrimination against or segregation of any person or group of persons on account of race, gender, genetic information, sexual preference, gender expression, gender identity, medical condition, marital status, pregnancy, color, creed, national origin, ancestry, disability, handicap or status as a veteran, in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the Premises herein Subleased, nor shall Tenant itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subleases, subtenants or vendees in the Premises. 8 1 P a g e IN WITNESS WHEREOF, the parties have duly executed this Sublease together with herein referred to Exhibits which are attached thereto, on the day and year first above written. CSU FULLERTON AUXILIARY SERVICES CORPORATION A California non-profit cor tion By: Charles D. Kissel Executive Director TRUTH AND ALCH C By: Ryan Shuck The City of Santa Ana is not a party to this Sublease Agreement; however, consent is granted to CSU Fullerton Auxiliary Services Corporation to enter into this Sublease Agreement. CITY OF SANTA ANA By: -, Kristine Ridge City Manager Attest: U - Daisy Gomez Clerk of the Council Approved: 1' for Sonia R. Carvalho City Attorney 9 1 P a g e