HomeMy WebLinkAboutAgenda Report - January 7, 2004 E-11AGENDA ITEM &P11
CITY OF LODI
COUNCIL COMMUNICATION
TM
AGENDA TITLE: Adopt resolution approving a rental agreement between the City of Lodi and
Richard and Teresa Mojica, dba Mojica's Batting Cages, for use of 125 E. Elm
Street, Unit D, Lodi
MEETING DATE: January 7, 2004
PREPARED BY: Parks and Recreation Director
RECOMMENDED ACTION: That the City Council adopt a resolution approving the rental
agreement between the City of Lodi and Richard and Teresa Mojica,
dba Mojica's Batting Cages for use of 125 E. Elm Street, Unit D,
Lodi.
BACKGROUND INFORMATION: The City of Lodi owns the above referenced property and has rerded
Unit D to Mr. Mojica for the purpose of conducting a batting cage
business since the building's purchase in 2000. The current rental
agreement expired December 31, 2003. The rental rate for 2003
was $728.98.
Staff recommends entering into a two-year agreement with Mr. Mojica for a monthly rental of $775, with
rent adjusted annually based upon the Consumer Price Index.
FUNDING: Will be absorbed in the current budget.
Ton G ri
Tony
Parks and Recreation Director
TG/5B:tl
Attachments
cc: City Attorney
RENTAL AGREEMENT
Ali T H :
PROPERTIES. That for and in consideration of the rents to be paid, an -1 the cov nant ;to
ire faithfully kept and perfbrmed by said Tenant, sold T h nt does herf�zby rent from said
Owner, 125 East Elm Street, Unit D, Lodi, California for the operation of Molica's Batting
Cages,
TERM: : Th term of this Agreement shall be for e period of two () years, commencing
January t, 2004 and terminating ting Decemb r 31, 2005.
3, RENT. Inconsideration of said Agreement, Tenant agrees to gay to Owner as rent for the
d rnis d premises $77S,00 per month, due and payak 1e by the 1st day of each month. A
late charge of $60,00 may be assessed for any payment more. that 0 days {fast due,
Rental payments shall be directed to the Q]1bL of Lo i Atte: arks�Sdr tion
m nt 1 N. ,o qtr et t odi f i Q, for processing and shall` be
o id without nrlor noboa or demand.
4. USDUSE ' OHWITED: The property shall be used stalely for the urp,-, e of carrying: on
the business of Molica's Batting Cages, Tenant shall not use any poKwn of the prerni es
for purposes other than those sp=a red, and no use shall be made cr, pgrmitted to b
made opon the pTemise , nor acts done, which v+rill increase the exlsti , rate of insurance
upon the property, or cause cancellation of insurance policies my rng said property.
Tenant shall not conduct or permit any sale by auction on the premises.
ORDINANCES ANDSTATUTES: It is further understood and agreed L�y Tenant that
Tenant must empty with all present and future laws, ordinanoes, rules, and regulations
promulg ted by any governmental authority of competent jurisdi tion m-gulating this type
of business during the tenancy and any extension thereof, Tenet she;'! use and occupy
said premises in a quiet, le i, and orderly manner_ The oommenoernent or pendency of
any state or federal court abatement proceeding affecting the use of the premises shail, at
the option of the Owner, be deemed a breach hereof.
SIGNS: Owner reserves the exclusive right to the roof, side and Kir galls of the
Prem, ices. `tenant shall not construct any projecting sign or awning;wi'_hout prior written
consent of Owner which consent shall net be unre tunably withhold, ld, it ,s agreed that
Tenant will post uHours of Operation" signs on the doers of the building. .All signs and
!ca tions of Signs lust be approved by the City of Lodi Parks & l ogre tion Director_ All
costs associated with the purchase and installation of signs strap be th,, r sponsibill of
Tenant,
7, A AhiDC: NMF.NT OF PREMISES: Tenant shall not vacate or abandon the premises at
any time during the terra hereof, and if Tenant shall abandon or vacate tho premises, or
be dispossessed by process of law, or otherwise, any personal pr pDrty belonging to
Tenant left upon the premises shall be doiamed to be abandoned, at the Dption of Owner.
-FRADE FIXTURES. Any and all improvements made to the premise=, during the term
hereof shall belong to the Owner, except trade fixtures of the Tenant. Tenons may, upon
termination hereof, remove all his trade fixtures, but shall repair or. :ay for all repairs
necessary for damages to the premises occasioned by removal.
1.
DESTRUCTION OF PREMISES. in the event of a partial destruction of the premises
during the taunt hereof, from any cause, Owner shall fovaith repair th � same, provided
that each repairs corn be arida within sixty ( 0) days under existing govemrrtent laws and
regolations, but such partial de truWan small not terminote this gt e-'ner,t, except that
Tenant shall be entitled to a proportionate reduction of rent while such repairs are being
raids, based upon the extent to which the making of such repairs shall interfere with the
business of Tenant on the premises. If such repairs cannot be mads within sixty (60)
days, Owner, at his option, may maka the same within a reasonable titrtr., this Agreement
continuing in effect with the rent proportionately abated as aforesaid, and in the event that
Owner shall not elect to make such repairs which cannot be made witW,, sixty (60) days,
this Agreement may be terminated at the option of either party.
in the event that the building in which the demised premises may be situated is destroyed
to an extent of not lass than one-third of the replacement costs thereof, Owner may eiect
to terminate this Agreement whether the demised premises be injured cis not, A total
destruction of the building in which the premises may be situated h?ll terminate this
Rental Agreement.
In the event of any dispute between Owner and Tenant with respect `c tete provisloms
h r of, the matter shalt be se i d by arbitration in such a manner as the parties may
agree upon, or if they nnot agree, in accordance with the rule ^f Me American
Arbitration Association -
10, [N$OLVE CY-, In the event a receiver is appointed to take over the business of Tenant,
or in the event Tenant makes a germ assignment for the benefit of credftors, or T na t
takes or suffers any aconin under any insolvency or bankruptcy act, the sante Shall
constitute breach of this Agreement by Tenant.
11, REMED'IES OF OWNERN DEFAULT, In the event of any breach of tt,is Agreement by
Tenant, Owner may, at his option, terminate the Rental Agreement ,d recover from
Tenant: (a) the worth at the Vrne of award of the unpaid rent which .,is narned at the
time. of termination, (b) the worth at the time of award of the arnount by which the unpaid
rent which would have heen earned after termination until the time of the avard exceeds
the amount of such rental loss that the Tenant prove could have b(,.eo reasonably
avoided; (o) the worth at the time of award of the amount by which the ut'p id rent for the
balance of the term after the time of award exceeds the amount of such rental [(sss that
Tenant proves could be rea.sonably avoided, and (d) any ether amount rteoessary to
compensate Owner for all detriment prox)rn tely caused by Tenant's failu-P. to perform his
obligations under the Rental Agreement or which in the ordinary coarse of I.,hings would
be Rely to result T r from,
Owner may, in the alternative, cantinue this Agreement in effect, as long as Owner does
not terminate T n ntg right to possession, and Owner may enforce a i his rights '9nd
rerredies under the Rental Agreement, incNd#ng the right to recover the real as it
becomes due under the Rental Agreement, if such breach continues, Ownermay, at any
time thereafter, elect to terminate the Rental Agreement -
Nothing olontaine<1 herein stall be deemed to limit any outer rights or which
Owner may have.
12, RELATIONSHIP OF PARTIES: It is understood and agreed that the relationship b tween
t parties is that of landlord and tenant and not s a paw or agent of Owner, Tenant,
nt,
shall oarry Worker's Compensation insurance and observe all l we and regulation
applicable to employers.
1 . BUILDING MAINTENANCE: Building Maintenance �J nitorial ervines) shall be the
responsibility ofTenant,
14, ASSIGNMENT AND SUBLETTING, Tenant shall not assign this Agreement or sublet any
pottilan of the premises without prig wrift n consent of the Owner, %A-hich shall not
unreasonaWy withheld, Any such assignmept or subletting without Consent shall be maid
and, at the option of the Owner, may terminate this Agreement.
15, ENTRY AND INSPECTION: Tenant shall permit Owner or Owner's agents to enter upon
the premises t reasonable times and upon reaSonable notice, for the purpo e of
inspecting the sante,
16. MAINTENANCE, REPAIRS, ALTERATIONS OR ADDITIONS' Tenant ,knowledge that
the premises are in good order and repair, unless otherwise indicateO, herein. Tenant
shall, at his own expense and at Ali tunes, maintain the premises in good and safe
cundition, including plate glass, and shall surrender the same, at t rr InE `ien hereof, in as
good conditl n as received, normal wear and tear excepted. Tenant shri'I to responsible
for all repairs required, excepting the roof, exterior waft, structural foundations, and'
common areas which shall W maintained by Owner. No repairs, sit r lJons or additions
to the premiss shall be wade without prig written consent of }w �r. prior to the
Gornmencement of any substantial repair, improvement, or alteration, `-ens at shall give
Owner at least two (2) days written notice in order that Owner may put appropriate
notices to avoid any liability for l€errs. Tenant shall not commit any waste upon the
premises, or any nuisance or act which may disturb the quiet njoyrnen' of any tenant in
the building. Any concerns shall be submitted in writing to the RecreaWn
Director, City of Lodi, P. 0. Box 3006, Lodi, CA 95241.
17� SURRENDER OF PREMISES: 'Tenant shall, at the termination of the A�rec1rnent hereby
crated, or upon the earlier termination hereof for any reason, or upon the extension of
the terra herein t forth, quit and surrender said promises in good. order, condition, and
repair, reasonable wear and tear and acts of God or Mire excepted.
18. FEES: Tenant shall pay all license fe s, or other fees or taxes, includinr# possessory
inforest taxes, lurid by any governments[ agency which May be lrrr-ased upon the
u tress of Tenant or Its subtenant conducted upon the premises.
it any of the above charges are assessed against the real property, and because of said
assessment, the Owner pays the same, which Owner will have the right to do regardless
of the validity of any such levy, the Tenant, upon demand, will repay to Owner all faxes
and tither assessments so levied against Owner which are due by the Ter, ant
t eTl MES -1 Tenant agrees that he shall be responsible for the p y€rtext of all utilities,
including water, gasp electricity, heat and other services delivered to the premises_ During
the term of this Agreement, and any extension thereof, it is understood ar,d agreed by the
parties hereto that Tenant stall be responsible for the installation, rn inte lance and oast
of any telephone lines that are required to operate their business, at not cost to the Owner.
20. MECHANIC'S IEN, Tenant agrees to keep said premises free from all 'len a and clalms
of mechanics, laborer , material suppliers, and others for work done , and material
furnished, and Tenant shall not create, or suffer to be created, any tier= or encumbrance
cast said premises.
21, PUBLJC LIABILITY AND PROPERTY (DAMAGE INSURANCE. TenanI, at his expense,
sha(l maintain plate glass and Public,* liability insurance ino )udling
coveragedamage InsudrIg Tenant and Owner with minimum r
follows:,000 each
occurrence. More particularly described as
Tenant agrees to indemnify and save harmless Owner from and age nst at[ claims of
whatever nature';afising from any act, omission, or negligence of Tenant or Tenants
contractors, licensees, agents, servants, or employees, or arising from any accident,
injury, or damage whatsoever caused any person, or to the pro ert,, of any person,
occurring during the term thereof, in or about the demised premises where such acpldent,
damage, or injury, Including death, results, or is ci lm d to have resulted, from any act or
omission can the part of Tenant or Tenants agents or employees, This ire Jer nity and bold
harmless agreement shall include indemnity against all casts and expenFes, including
attorney's fees incurred in or in connection with any suvh claire or prop,, eding brought
thereon and the defense thereof.
Tenant agrees to maintain in full force during the term hereof a policy of public iiabill'tyy
insurance under which Tenant Is named as insured, and containing an idddon l named
M*sured endomem nt naming Owner as an additional insured, and -ind r which the
insurer ag s to indernn['fy and told Tenant and towner harmless from acrd against all
costs, p :n es, and liability arising out of, nr based upon, any and all property damage,
or damages for personal injuries, including death, sustained in accideWs occurring in or
about the premises, where such accident, damage, or injury, including death. results, or i
claim -ed to have resulted, from any act,, or omission on the part of Ter -ant, or Tenant's
agents or employees_ The minimum limits of such insurance shall be $1,'W,000,00 ,00 (Orae
Million Dollars). In addition to the additional named insured endor erien: on owner's
polic�yy of insurance, said insurance policy shall be endorsed to inclu,.4e the following
language:
"Insurance as is afforded by the endorsement for additional lnsurds shall
apply as primary insuranoe. Any other insurance maintained by tVo t;ity of
Lodi or its offters and employees snail be excess only and not contributing
with the coinsurance afforded by thisendorsement,"
To the maximum extent permitted bar insurance policies which may be cwned by
Owner or Tenant, owner and Tenant, for the benefit of each otter, waive any and
all rights of subrogatian which mi nt otherwise exist.
A dupk,,ate or certificate of said public liability and property damage insunance poNcy
containing the above -stated Mquired endomements shall b liv r d. to Owner r within ten
(I G) days after the issuance and each renewal of said policy. This p ~argraph, and all
other provisions of this Agreement, shall apply and be wnstrued ms �3pplying to any
subtenant of Tenant,
22, BANKRUPTCY, RECEIVERSHIP, AND INSOLVENCY: If Tenant should rake a general
assignment for the benefit of creditors, or file a voluntary ,petition in b� nkruptcy, or be
adjudicated bankrupt or insolvent, or permit a receiver to be appointed to possession
of a substantial portion of its assets or of the premises, and such bankruptcy. insolvency,
or receivership proceeding shall not be dismissed within ninety (4) d. -yrs, then Owner
r ay, wfthout notice or demand, terminate this Agreement and forth,411M reenter and
Il
repossess the properties, and remove all persons therefrom, and under no circurnstances
shall this Agreement be assignable or transferable by operation of law.
23. ATTORNEY'S PEES: in ease suit should be brought for recovery of th-. premises, or for
any sum due hereunder, or because of any act which may arise out of `!is possession of
the premises, by either party, the prevailing party shall be entitled to alt costs incurred in
connection with such action, including a reasonable attorney's fee, the amount of which
shall be determined by the court in such suit and added to and become a part of the
judgment therein_
24, WAIVER: Failure of Owner to insist upon performance of . d ,
of this Agreement in any one or xinstances shall in no event
com4rued as a waiver
or a relinquishment of its right
o future performance thereof,
effect.such future performance shall continue in full force and
Thereneipl by Owner .
rent, with the knowledge of the breach of any agreement or condition hnroof, shall not be
determined to be a waiver of any such breach,
2& NOTICE$: Any notice which either party may or is
required to give, shall be given by
mailing the same, Postage Prepaid, topremises,
shown below, or at such other places As May be designated by
time
OWNER: TENANT:
Parks & Recreation Director Richard Moilca and
City of Lodi Teresa E. Mefca
P. Q. Box 3006 511 E. Sonora Avenue
Lodi, California 95241 Lodi, California 9524)
26, HOLDING OVER: Any holding over after the expiration of this Agri err.ent, with the
consent of towner, shall be construed as a month-ta-month tenancy at a rental of
$1,400.00 per month, otherwise in accordance with the terms hereof, as pplicabie.
27, TIME: Time is of the essence of this Rental Agreement.
28. HEIR, ASSIGNS, SUCCESSORS: This Rental Agreement is binding upon and inures to
the benefit of the heirs, assigns and successors in interest to the parties.
29- COST O FLIVING INCREASE: The rent provided for in paragraph 3 Thai, be adjusted
effective upon the first day of the month immediately following the ;expi-ation of 12
months from date of commencement of the term and upon the expiration of each 1
months thereafter in accordance with changes in the U.S. Consumer Price Index for Ali
Urban Consumers (1952-54100) hereinafter called the "GPI", The morthly rent shall be
increased to an amount equal to the monthly rent set forth in paragraph 3 multiplied by a
fraction the numerator of which is the Clof for the second calendar month immediately
preceding the adjustment date and the denominator of which is the CF'! for the second
calendar month preceding the commencement of the lease term. Provi;tcac. however, in
no event shall the monthly rent be less than the amount set forth in parag-,spi, 3.
30, OWNER'S LIABILITY: The term 'Owner" as used In this paragraph, sha!l mean only the
owner of the real property, in the event of any transfer of such title or inforesit, the Owner
named herein (or the grantor in case of any subsequent transfers) shall ho relieved of all
liability related to Owner's obligations to be performed after such transfer. Provided,
however, that any funds in the hands of Owner or Grantor at the time of such transfer
shall be delivered to Grantee. Owner's aforesaid obligations shall be binding u
Owner's successor's and assigns only during their respective Periods of -1wnership, p
31. ACCEPTANCE OF PREMISES: Tenant has examined the brerrise.�, knows
conditions thereof, and accepts possession thereof in their condition, ti
32. CONTRACT: This written agreement constitutes the entire contract boA(een the Tenant
and Owner, and no representation or agreement, unless expressed herein, shall be
binding on the Tenant or Owner.
IN WITNESS WHEREOF, Owner and Tenant have executed this Agreement on the date
and year first above written,
CITY OF LODI, a municipal corporation Richard Molica a -d Teresa E. Mojica
Hereinabove called "Owner dba Mojica's Bsfrj� ' g Cages
heremabove calli,!rj 10renant"
TT—DTX—O—N �FLYNN-
City Manager
TUS-86 J. �SlackstQrr---
City Clerk
Dated:
Approved at to Form:
Randall A, Hays
City Attorney
By
RICHARD MO ICF
511 E. Sonora A�,enue
Lodi, California 952,ao
By
NOW, THEREFORE, R IT RESOLVED that the Lodi City Council hereby
approves the recital agreement between the City of Lodi and Richard and Teresa Mojica,
dba MOca's Batting Cages, for use of 125 E. EIrn Street, Unit D; and
BE IT FURTHER RESOLVED that the teras of the rental agreement shall . be
$775.00. per month for the period commencing January 1, 2004 and terminating
December 31,2005; and
BE IT FURTHER RESOLVED that the monthly rental amount will be adjusted
annually based upon the Consumer Price Index, and
BE.. IT FURTHER RESOLVED that the City Manager is hereby authorized to
execute said agreement an behalf of the City of Lodi.
Dated: January 7, 2004
I heresy certify that Rosalution No 2004-06 was passed and adapted by the Lodi
City Council in a regular meeting hold January 7, 2404, by the following vote:
AYES: COUNCIL MEMBERS — Beckman, Hitchcock, Howard, Land, and
Mayor Hansen
SUSAN J. BLACKSTON
City Clerk
O,
ABSENT:
COU NOIL. MEMBERS — None
ABSTAIN:-
SUSAN J. BLACKSTON
City Clerk