1993-066-Execute A Lease Agreement With Ronald L. Schivo To Operate A Bus Terminal On Town Property At 145 South Santa Cruz AvenueRESOLUTION 1993 -66
RESOLUTION OF THE TOWN OF LOS GATOS AUTHORIZING THE
TOWN MANAGER TO EXECUTE A LEASE AGREEMENT WITH
RONALD L. SCHIVO TO OPERATE A BUS TERMINAL ON TOWN
PROPERTY AT 145 SOUTH SANTA CRUZ AVENUE
RESOLVED, by the Town Council of the Town of Los Gatos, County of Santa
Clara, State of California, that the Town of Los Gatos enter into the lease agreement with
Ronald L. Schivo (attached as Exhibit A) to operate a bus terminal on Town property at
145 South Santa Cruz Avenue, and that the Town Manager is authorized, and is hereby
directed, to execute said lease agreement in the name and on behalf of the Town of Los
Gatos
PASSED AND ADOPTED at a regular meeting of the Town Council of the Town
of Los Gatos, California, held on the 17th day of May, 1993 by the following vote.
COUNCIL MEMBERS:
AYES: Randy Attaway, Steven Blanton, Linda Lubeck, Patrick O'Laughlin
Mayor Joanne Benjamin
NAYS: None
ABSENT: None
ABSTAIN: None
SIGNED:
MAYOR OF THE TOWN OF OS GATOS
I:{-1S GATOS, CALIFORNI1k,
ATTEST:
CLERK OF THE TOWN OF LOS GATOS
LOS GATOS, CALIFORNIA
6. LESSOR'S WARRANTY OF TITLE. Lessor represents and warrants that:
(a) Lessor is the sole owner in fee simple of the Premises and has full right and
power to grant the estate demised and to execute and perform this Lease;
(b) the Premises is now and will remain free and clear of all encumbrances which
could adversely affect Lessee's leasehold estate;
(c) the intended use of the Premises for purposes stated in Paragraph 5 is
permitted by all applicable zoning laws and regulations; and
(d) the Premises complies with all applicable ordinances, regulations and zoning
and other laws.
7. OUIET ENJOYMENT. Lessor covenants and agrees that so long as Lessee observes
and performs all of the agreements and covenants required of it hereunder, Lessee
shall peaceably and quietly have, hold and enjoy the Premises for the Term without
any encumbrance or hindrance by Lessor. If Lessee's use of the Premises is limited
or denied through rezoning, environmental impact edict, or other action of any public
or quasi - public agency, this Lease, at the sole option of Lessee, shall terminate as
of the effective date of such action and the rent applying to the unexpired portion
of the Term will abate.
8. UTILITIES. Lessee shall pay for all utilities used, including water and janitorial
services. Lessor, subject to timely payment of all utility charges by Lessee, shall at
all times provide to Lessee at the Premises adequate:
(a) Heat and air conditioning;
(b) Hot and cold water;
(c) Electricity;
(d) Sewerage disposal facilities;
(e) Trash collection services
9. ASSIGNMENT AND SUBLETTING. Lessee shall have the right to assign this Lease,
or sublease all or a part of the Premises, with Lessor's prior written consent, to any
person or entity. If Lessee subleases all or a part of the Premises, Lessee agrees to
remain primarily liable for the payment of rent for the remaining Term. This section
is to be construed in connection with Section 5 if the use does not violate
requirement for Town approval. Any sub -lease not permitted by Section 5 would
require written approval from the Town. Sub - leases permitted under Section 5
require a 30 day notification prior to implementation.
ATNYOOS;A: \PEERLFSSATH May 18, 1993
LEASE AGREEMENT --
LOS GATOS BUS DEPOT
PARTIES. This "LEASE," dated as of is made by and between the
TOWN OF LOS GATOS, California, a municipal corporation ( "Lessor ") and
RONALD L. SCHIVO, an independent contractor ( "Lessee').
2. PREMISES. Lessor hereby leases to Lessee and Lessee leases from Lessor for the
term, at the rental, and upon all of the conditions set forth herein, that certain real
property described or designated in Exhibit "A ", which is attached hereto and made
a part hereof, situated in the Town of Los Gatos, County of Santa Clara, State of
California, commonly known as 145 South Santa Cruz Avenue ('Premises "), together
with:
(a) all improvements thereon and appurtenances thereto;
(b) the continuous and uninterrupted right of Lessee and its subleases, tenants
and licensees, and their respective officers, employees, business invitees,
customers and patrons of access to and from the Premises over and across any
part(s) of Lessor's adjacent property which is not a part of the Premises, for
any purpose related to the use and enjoyment of the Premises.
TERM. The "Term" of this Lease shall be one (1) year, commencing February 1,
1993 and extending through January 31, 1994, unless sooner terminated pursuant to
any provision hereof. The lease can be extended by mutual agreement for up to four
additional years. Lease extension can be denied by the Town for lack of
performance by the Lessee and if the Town determines the use of the site to be for
something other than a bus depot.
4. RENT. Lessee shall pay to Lessor as rent for the use of the Premises 1% of gross
revenue, of all funds received by Lessee or Sublessees from all business operations
on the Premises. "Gross Revenue" shall include the total ticket price charged by any
bus company using the Premises and shall not mean the portion of the ticket price
to be kept by Lessee as his commission or payment. Rent shall be payable at the
end of each calendar month of the Term beginning February 28, 1993. Rent for any
period less than one month shall be based on 1% of gross revenue for that period.
Rent shall be payable to Lessor at the address stated herein or to such other person
at such other place as Lessor may designate by notice as provided herein. The
Lessor's finance staff will review the gross receipts to determine correct rent.
5. USE. The Premises shall be used by Lessee exclusively for the conduct of Lessee's
business operation for an intercity bus terminal and relate uses (e.g., newspaper
stand) and for all other lawful purposes that Lessor may consent to.
ATNY005;A: \PEERLESS.4TH May 18, 1993
10. ALTERATIONS AND ADDITIONS. Lessee, with Lessor's consent, may make any
alterations, improvements, or additions in, on or about the Premises, except for
structural alterations. Lessee with Lessor's consent may remove such alterations,
improvements, or additions made by it in, on or about the Premises. Lessee's
personal property and its trade fixtures, including all machinery, equipment and
furnishings, shall remain the property of Lessee and may be removed by Lessee.
Any personal property, trade fixtures, alterations, improvements or additions not
removed by Lessee within 30 days after the end of the Term shall automatically
become the property of Lessor. Lessee shall repair any damage to the Premises
caused by Lessee's removal of its personal property, trade fixtures, alterations,
improvements, or additions, but Lessee shall have no obligation to remove such items
from the Premises at any time.
11. REPAIRS AND MAINTENANCE. Lessee accepts the Premises in their present
conditions and shall make ordinary interior repairs and replace broken glass in the
Premises. Lessor shall maintain and promptly make all exterior repairs (including
landscaping), all repairs and replacements of a permanent character (including, but
not limited to, components in the air conditioning, boiler and heating systems,
sprinkler system, electrical and plumbing fixtures and hot water heater), and all floor,
driveway, wall, roof, foundation, Building Systems and structural repairs, strengthen-
ing, alterations, reconstructions, or additions necessitated by reason or weakness or
decay, insect infestation, or damage to or destruction of the Premises, or to any part
thereof, or which may, at any time, be required by public authority, except for any
damage caused by Lessee's negligence. The "Building Systems" shall be construed
as the building utility elements essential for Lessee's use and occupancy of the
Premises including, but not limited to, such systems as are not readily accessible to
Lessee, such as underground water, sewer and electric lines. Lessee shall maintain
the Premises in good order and a sanitary condition. Upon the expiration of the
Term, Lessee shall surrender the Premises in as good order, repair and condition
as the same were in at the commencement of the Term, damage by fire and items
covered by extended coverage insurance, unavoidable casually, reasonable wear and
tear, and Lessor's failure to repair excepted.
12. TAXES.
12.1 Pavment of Taxes. Lessee, during the Term, shall pay promptly when due all
business taxes and assessments which may be imposed upon the Premises. Lessee
shall pay all taxes assessed against and levied upon Lessee's trade fixtures and all
other personal property of Lessee contained in the Premises. The Lessee is held
harmless for any claims for taxes arising before the date of this lease.
12.1 Definition of "Business Taxes ". As used herein, the term "business tax" includes
any form of assessment, license fee, rent tax, possessory interest tax, levy, penalty,
or tax imposed by any authority having the direct or indirect power to tax, including
any city, county, state or federal government, or any school, agricultural, lighting,
drainage or other improvement district thereof, upon any legal or equitable interest
of Lessor in the Premises, upon Lessor's right to rent or business of leasing the
ATIWO05;A: \PEERLESS.4TH May 18, 1993 3
Premises, or upon Lessee's use or occupancy of the Premises. Pursuant to Revenue
& Taxation Code §107.6, Lessee is hereby notified that the property interest created
by this Lease may be subject to property taxation due to Lessee's or any Sublessee's
possessory interest in the Premises. In such event, Lessee and any Sublessee is liable
under this Lease for payment of such property tax.
13. INSURANCE.
Lessee shall maintain in full force and effect during the term of this Lease,
comprehensive general liability insurance with bodily injury and property damage
liability limits of not less than $500,000 per person and $1,000,000 per occurrence
of death and bodily injury and $25,000 per occurrence of property damage naming
Lessor, its officers, agents and employees as additional insured without off -set against
Lessor's insurance under such liability policy or policies. Lessee shall provide Lessor
with a certificate of insurance evidencing such coverage(s) and such policy or policies
shall not be cancelled without giving Lessor at least 30 days written notice prior to
such cancellation.
14. INDEMNITY. Lessee shall defend, indemnify and save harmless Lessor and its
officers and employees from all claims, suits or actions of every name, kind and
description brought for or on account of injuries to or death of any person or
damage to property resulting from anything done or ommitted to be done by the
Lessee under or in connection with the use or operations on the Premises by Lessee.
15. DAMAGE OR DESTRUCTION. If the Premises is damaged or destroyed in whole
or in part by fire or other casualty, so as to render the Premises untenantable, this
lease is terminated or shall abate pro rata for the portion rendered untenantable
condition. Lessee shall be liable to Lessor for damage to the Premises caused by
fire or other risks embraced within Lessor's insurance coverage, if the same is due
to the negligent act or omission of Lessee. If Lessee does not commence the repair
or restoration within thirty (30) days after the damage or destruction occurs, or if
repair or restoration will require more than 120 days to complete, Lessee may, at
Lessee's option, terminate this Lease by giving Lessor notice of Lessee's election to
do so at any time prior to the commencement of the repair or restoration. In that
event, this Lease shall terminate as of the date of notice.
16. CONDEMNATION. If all the Premises or a substantial portion thereof is taken
under the power of eminent domain, or sold under the threat of the exercise of said
power (all of which are herein called "condemnation "), this Lease shall automatically
terminate as of the date the condemning authority takes title or possession,
whichever occurs first.
Any award or payment made upon condemnation of all or any part of the Premises
shall be property of Lessor, whether such award or payment is made as compensa-
tion for the taking of the fee or as severance damages; provided Lessee shall be
entitled to the portion of any such award or payment for loss of or damage to
Lessee's trade fixtures, removable personal property, and additions, alterations and
ATNY005;A: \PEERLESS.4TH May 18, 1993 4
improvements made to the Premises by Lessee, or for its loss of the leasehold herein
created.
Lessor shall give notice to Lessee within five (5) days after receipt of notification
from any condemning authority of its intention to take all or a portion of the
Premises.
Notwithstanding anything, expressed or implied, to the contrary contained in this
Lease, Lessee, at its own expense, may in good faith contest any such award for loss
of or damage to Lessee's trade fixtures, removable personal property, and additions,
alterations and improvements made to the Premises by Lessee, and for its loss of
the leasehold herein created.
IT DEFAULTS, REMEDIES.
17.1 Defaults. The occurrence of any one or more of the following events constitutes
a material default and breach of this Lease by Lessee:
(a) The failure by Lessee to make any payment or rent or any other payment
required to be made by Lessee hereunder, as and when due, where the failure
continues for a period of ten (10) days after notice thereof from Lessor to
Lessee.
(b) The failure of the Lessee to maintain insurance coverage as defined in Section
13.1 and 13.2.
(c) The failure by Lessee to observe or perform any of the covenants, conditions,
or provisions of this Lease to be observed or performed by Lessee, other than
those described in subparagraph (a) above, where the failure continues for a
period of thirty (30) days after notice thereof from Lessor to Lessee; provided,
however, that if the nature of Lessee's default is such that more than thirty
(30) days are reasonably required for its cure, then Lessee shall not be in
default if Lessee commences such cure within the thirty (30) day period and
thereafter diligently completes the cure.
(d) The making by Lessee of any general assignment, or general arrangement for
the benefit of creditors.
(e) The filing by Lessee of a petition to have Lessee adjudged a bankrupt.
(f) The judicial declaration of Lessee as bankrupt.
(g) The appointment of a trustee or receiver to take possession of substantially
all Lessee's assets located at the Premises or of Lessee's interest in this Lease,
if possession is not restored to Lessee within thirty (30) days.
ATNY005;A: \PEERLESS.4TH May 18, 1993
(h) The attachment, execution or other judicial seizure of substantially all Lessee's
assets located at the Premises or of Lessee's interest in this Lease, if the
seizure is not discharged within thirty (30) days.
17.2 Remedies upon Default. If Lessee materially defaults or breaches this Lease
as defined in Section 17.1, Lessor may, after giving notice as provided above, elect
to terminate this Lease upon specifying the default and giving 30 days written notice
to Lessee of Lessors intention to do so. In that event, this Lease shall terminate
upon the date specified in the notice unless Lessee has meanwhile cured the default.
Lessor may also pursue those remedies available to Lessor under the laws or judicial
decisions of the State of California.
17.3 Default by Lessor. Lessor shall not be in default unless Lessor fails to perform
obligations required of it within a reasonable time, but in no event later than thirty
(30) days after notice by Lessee to Lessor; provided that if the nature of Lessor's
obligation is such that more than thirty (30) days are reasonably required for
performance, then Lessor shall not be in default if Lessor commences performance
within the thirty (30) day period and thereafter diligently completes performance.
17.4 Remedies upon Lessor's Default. If Lessor defaults in the performance of any
of the obligations or conditions required to be performed by Lessor under this Lease.
Lessee may, after giving notice as provided above, elect to terminate this Lease upon
giving 30 days notice to Lessor of its intention to do so. In that event, this Lease
shall terminate upon the date specified in the notice, unless Lessor has meanwhile
cured the default. Lessee may also pursue those remedies available to it under the
laws or judicial decisions of the state in which the Premises is located.
18.. SUBORDINATION. Lessor shall have the right at any time or times during the
Term of this Lease, to mortgage Lessor's interest in the Premises for any purposes,
and Lessee will, if requested by the lender, subordinate its interest in the Premises
to the lien of lender's mortgage or trust deed, provided the lender agrees in writing,
in recordable form, not to disturb Lessee's possession of the Premises under this
Lease, so long as Lessee is not in default of any of the terms, conditions, and
covenants of this Lease, and to accept the performance by Lessee of its covenants
and obligations hereunder if such mortgage shall be foreclosed (hereinafter referred
to as "non- disturbance agreement ").
Any mortgage or lien created against the Premises or any portion thereof shall
contain, and the mortgage or lienholder shall execute, a non - disturbance agreement
in favor of Lessee and its successors and assigns.
19. HOLDING OVER. If Lessee remains in possession of the Premises after the
expiration or termination of this Lease, and without the execution of a new Lease,
Lessee shall be deemed to be occupying the Premises as a tenant from month -to-
month, subject to all of the conditions, provisions and obligations of this Lease
insofar as they are applicable to a month -to -month tenancy.
ATNY005;A: \PEERLESSATH May 18, 1993 6
20. SIGNS. Lessee may erect such signs on the exterior or interior of the Premises as
Lessee may deem desirable if the signs do not violate the laws, rules, or regulations
of the Town of Los Gatos.
21. LESSOR'S ACCESS. Lessor and Lessor's agent shall have the right to enter the
Premises at reasonable times during normal business hours for the purpose of
inspecting, showing to prospective purchasers or lenders, and making such alterations,
repairs, improvements or additions to the Premises or to the building of which it is
a part as Lessor deems necessary or desirable. Lessor may, at any time during the
last sixty (60) days of the term, place on or about the Premises any ordinary "For
Lease" sign, and may at any time, place any ordinary "For Sale' sign, all without
abatement of rent or liability to Lessee.
22. NOTICES. All acceptances, approvals, consents, notices, demands or other
communications required or permitted to be given or sent by either party to the
other, shall be deemed to have been fully given when made in writing and delivered
in person or deposited in the United States mail, certified and postage prepaid,
addressed to:
LESSOR: Town Manager
Town of Los Gatos
P.O. Box 949, Los Gatos, CA 95031
LESSEE: Ronald L. Schivo
39 Euclid Avenue
Los Gatos, California 95032
The address to which any such written communication may be given or sent to either
party may be changed by written notice given by such party as above provided.
23. RECORDING. Upon the written request of either party, the parties hereto agree
to execute a memorandum for recording purposes in lieu of recording the entire
Lease and, among other things to be continued in said memorandum, there shall be
included that portion of Paragraph 18 relating to the requirement of Lessor to obtain
non - disturbance from any mortgage or lienholder.
24. SEVERABILITY: CHOICE OF LAW. The invalidity of any provision of this Lease,
as determined by a court of competent jurisdiction, shall in no way affect the validity
of any other provision hereof. This Lease shall be governed by the laws of the State
of California. The language in all parts of this Lease shall be construed as a whole
according to its fair meaning, and not strictly for or against either Lessor or Lessee.
25. EFFECT OF WAIVERS. No waiver by Lessor or Lessee of any provision hereof
shall be deemed a waiver of any other provision or of any subsequent breach by
Lessee or Lessor of the same or any other provision. Lessor's consent to or approval
of any act by Lessee shall not be deemed to render unnecessary the obtaining of
Lessor's consent to or approval of any subsequent act by Lessee.
ATNY005;A: \PEERLESS.4TH May 18, 1993 7
26. CUMULATIVE REMEDIES. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law
or in equity.
27. WAIVER OF SUBROGATION. Lessor and Lessee and all parties claiming under
or through them hereby mutually release and discharge each other, any other tenants
or occupants of the building in which the Premises is located, and the officers,
employees, agents, representatives, customers and business visitors of Lessee or such
other tenants or occupants, from all claims, losses and liabilities arising from or
caused by any hazard covered by insurance on or in connection with the Premises
or said building, even if caused by the fault or negligence of a released party. This
release shall apply only to the extent that such claim, loss or liability is covered by
insurance.
28. BINDING EFFECT. This Lease shall bind the parties hereto and their personal
representatives, successors and assigns.
29. ENTIRE AGREEMENT. All preliminary and contemporaneous agreements and
understandings are merged and incorporated into this Lease which contains the
entire agreement between the parties. The Lease may not be modified or amended
in any manner except by an instrument in writing executed by the parties hereto.
30. BROKERAGE. Lessor covenants and agrees to save and hold Lessee harmless from
any and all claims for brokerage fees arising out of this Lease, which covenant and
agreement shall be binding upon the successors and assigns of Lessor. Lessor
represents that no one has acted as broker in this transaction.
31. TAXES UTILITIES AND MECHANICS' LIENS. Notwithstanding anything
expressed or implied to the contrary contained in this Lease, Lessee, at its own
expense, may in good faith contest charges for taxes or utilities or mechanics' lien
claims and, in the event of such contest, may permit the items contested to remain
unpaid during the period of the contest and any appeal therefrom; provided that
such nonpayment shall not be permitted to cause a loss or forfeiture of any part of
the Premises. Should any refund be made of any charges paid by Lessee, the
amount of such refund shall belong to and be paid to Lessees.
32. MISCELLANEOUS.
32.1 Attachments, Headings, Terms. All attachments referred to herein are hereby
incorporated by reference into this Lease. The headings and underscorings contained
herein are for convenience purposes only and shall not be interpret nor be deemed
to extend or limit the specific sections. The word or words enclosed in quotation
marks shall be construed as defined terms for purposes of this agreement. The
terms "Lessor" and "Lessee" shall be construed to mean, when required by the
context, the directors, officers, employees, invitees, contractors, materialmen, servants
and agents of Lessor and Lessee.
ATNY005;A: \PEERLESS.4TH May 18, 1993 8
32.2 Attorney's Fees. If either party named herein brings an action to enforce this
Lease or declare rights hereunder, the prevailing party in any such action, on trial
or appeal, shall be entitled to its reasonable attorney's fees to be paid by losing
party as fixed by the court.
32.3 Execution and Deliverv. This Lease shall not be binding nor confer any rights
upon either party unless and until executed and mutually delivered by and between
both parties.
32.4 Relationship of Parties. This Lease does not create the relationship of principal
and agent or a partnership or joint venture, or of any association other than that of
Lessor and Lessee.
33. Business License. The Lessee shall obtain and maintain for the duration
of this agreement a Business License in the Town of Los Gatos.
IN WITNESS WHEREOF, the parties hereto have executed or caused this
instrument to be executed as of the day and year first above written.
WITNESS
WITNESS:
APPROVED AS TO FORM:
ATNY005;A: \PEERLESS.4TH May 18, 1993 9
LESSOR: TOWN OF LOS GATOS
By:
David W. Knapp
Title: Town Manager
LESSEE: RONALD L. SCHIVO
By:
Title:
By:
James J. Jackson
Title: Interim Town Attorney