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Resolution No. 92901 RESOLUTION NO. 9290 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF 3 VERNON APPROVING AND AUTHORIZING THE EXECUTION OF A LEASE OF PARKING LOT BY AND BETWEEN THE CITY OF 4 VERNON AND WINDOWBOX.COM, INC. FOR A PORTION OF 5 2265 38TH STREET IN THE CITY OF VERNON 6 WHEREAS, the City of Vernon (the "City") is a municipal 7 corporation and a chartered city of the State of California organized 8 and existing under its Charter and the Constitution of the State of 9 California; and 10 WHEREAS, the City is the owner of certain real property 11 located at rear portion of the fenced parking area located at 2265 12 38th Street in the City of Vernon consisting of approximately 3,500 13 square feet (50 feet by 70 feet) of land (the "Property"), which is 14 surplus to the City's present needs; and 15 WHEREAS, Section 37380(a) of the Government Code of the 16 State of California provides that a city may lease property owned or 17 held or controlled by it, or any of its departments, for a term not to 18 exceed 55 years; and 19 WHEREAS, Section 37395 of the Government Code of the State 20 of California provides that a city may lease property for commercial 21 development for business purposes, when the governing body determines 22 that the property is not required for other city purposes; and 23 WHEREAS, Windowbox.com, Inc., a California Corporation 24 ("Windowbox"), desires to lease the Property for outdoor storage of 25 stable, inert materials from April 16, 2007 to June 30, 2008 for a 26 monthly rental rate of $525.00; and 27 WHEREAS, on July 1, 2008, the lease will automatically 28 become a month -to -month lease terminable upon 30 days prior written 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16' 17 18 19 20 21 22 23 24 25 26 27 28 notice for a rental increase of 3% on July 1 of every year. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF VERNON AS FOLLOWS: SECTION 1: The City Council of the City of Vernon hereby finds and determines that the recitals contained hereinabove are true and correct. SECTION 2: The City Council of the City of Vernon hereby approves the Lease of Parking Lot with Windowbox.com, Inc., a copy of which is attached hereto as Exhibit A and incorporated by reference. SECTION 3: The City Council of the City of Vernon hereby authorizes the Mayor to execute said Lease for, and on behalf of, the City of Vernon and the Acting City Clerk is hereby authorized to attest thereto. SECTION 4: The City Council of the City of Vernon hereby authorizes the Acting City Administrator, or his designee, to make whatever nonsubstantive, administrative and/or text changes, upon advice of counsel, to the Lease. SECTION 5: The City Council of the City of Vernon hereby directs the Acting City Clerk, or his designee, to send one fully executed Lease to: Windowbox.com, Inc. Attn: Ben Swett, CEO _ 3821 S. Santa Fe Avenue Vernon, CA 90058 - 2 - 1 2 3 4 5 6 7 8 9 10 11 12 13 141 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SECTION 6: The Acting City Clerk of the City of Vernon shall certify to the passage of this resolution, and thereupon and thereafter the same shall be in full force and effect. APPROVED AND ADOPTED this 16th day of April, 2007. J J i LEONIS C. MAL RG, Ma r AT EST: -i-j'2 M NUELA GIROW, Abting City Clerk - 3 - 1 STATE OF CALIFORNIA ) ss 2 COUNTY OF LOS ANGELES ) 3 4 I, MANUELA GIRON, Acting City Clerk of the City of Vernon, do 5 hereby certify that the foregoing Resolution, being Resolution No. 6 9290, was duly adopted by the City Council of the City of Vernon at a 7 regular meeting of the City Council duly held on Monday, April 16, 8 2007, and thereafter was duly signed by the Mayor of the City of 9 Vernon. 10 11 "NUELAN,rActing City Clerk 12 (SEAL) 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 - EXHIBIT ulk LEASE OF PARKING LOT This Lease of Parking Lot ("Lease") is made and entered into as of this 16 th day of April, 2007 by and between the City of Vernon ("Landlord") and Windowbox.com, Inc., a California Corporation ("Tenant"). Landlord and Tenant hereby agree as follows: 1. PREMISES: Landlord hereby leases to Tenant and Tenant hereby takes and leases from Landlord, for the term, at the rental and upon all conditions set forth herein, the real property commonly known as the rear portion of the fenced parking area located at 2265 38d' Street, Vernon, California consisting of approximately 3,500 square feet (approximately 50 feet by 70 feet) as shown on Exhibit "A" attached hereto and incorporated herein by this reference (the "Premises"). 2. TERM: The term of the Lease shall commence on the day on which the Lease has been executed by both parties (anticipated to be on or about April 17, 2007) and terminate on June 30, 2008. On July 1, 2008, this Lease shall automatically, without further action by either party, become a month to month Lease, which month to month Lease shall be terminable by either party upon thirty (30) days' prior written notice to the other, with or without cause, and without penalty or termination fee. 3. RENT: The rent payable hereunder shall be due and payable on the first day of each month, except that the first month's rent shall be payable upon executiorl of this Lease. Tenant shall make all checks for sums owed to Landlord, unless otherwise notified in writing, payable to the City of Vernon, at 4305 Santa Fee Avenue, Vernon, California 90058. Rent for any period less than one month shall be a pro rata portion of the monthly installment. Tenant shall pay Landlord as rental for the Premises the sum of 01910/0001 154319.1 $525 per month, based on $0.15 per square foot per month. Commencing on July 1, 2008, the rental amount shall increase by 3% on July I of every year. 4. USE: Tenant shall use the Premises solely for outdoor storage of stable, inert materials (mostly palletized ceramic flower pots). Tenant shall ensure that a clear aisle is maintained so that City trucks are able to back up to the door of the adjacent building in order to load and unload documents. Tenant covenants and agrees that it will not use or permit the Premises, or any part thereof, to be used for any disorderly, unlawful or illegal purposes and warrants that it will comply with all applicable laws and regulations, including, without limitation, all environmental laws. 5. INSURANCE: Tenant shall at all times maintain general liability insurance with policy limits of not less than TWO MILLION and N0/100 DOLLARS ($2,000,000.00). The policy limits shall not be less than ONE MILLION and NO/100 DOLLARS ($1,000,000.00), for any one incident. Tenant's policy shall be provided by a company with a rating of "A minus" or better, with AM Best or a similar rating company, and be otherwise reasonably acceptable to Landlord, shall name Landlord as additional insured by endorsement (without right of subrogation against said insured), which insurance shall be considered primary. Tenant shall provide Landlord with a Certificate of Insurance, including the Declaration Page and Schedule of Forms of Endorsement, showing such coverage in effect, and showing Landlord as additionally insured prior to any entry onto or use of the Premises. 6. MAINTENANCE, REPAIRS, ALTERATIONS: Tenant accepts the Premises "as is", with all faults; provided, however, that prior to the commencement date of this Lease, Landlord shall, at its cost, repair the paved surface of the Premises to eliminate deep cracks and repair the fencing. No warranties are offered as to the condition of the Premises whatsoever, and except as 01910/0001 154319.1 specifically described in this Paragraph 6, Landlord has no obligation to improve, maintain, or repair the Premises. Tenant, at Tenant's expense, will keep the Premises in good order, clean and free of debris and hazardous materials. Tenant, at Tenant's expense, shall cover the inside of the fence with green shade cloth and Tenant may, at its option and expense, plant screen trees around the Premises, inside the fence. Tenant shall not install or construct or maintain any improvements on the Premises without first: (a) obtaining the prior written consent of Landlord, which consent shall not be unreasonably denied, and (b) obtaining any required permits. All such improvements shall be made and maintained in accordance with all applicable laws. 7. UTILITIES: Tenant shall be responsible for procuring service and paying for any and all utilities to be used by Tenant on the Premises. 8. INDEMNITY: Tenant shall indemnify, protect, defend, and hold harmless Landlord and Landlord's employees, elected officials, and agents from and against any and all liabilities, claims, obligations, damages, expenses (including, without limitation, reasonable attorneys' fees and costs), causes of action, suits, claims and judgments arising out of or resulting from (a) injury or damage to persons or property on the Premises; (b) the use of the Premises by Tenant and its employees, officers, directors, agents, representatives, invitees, and strangers; (c) damage caused to the Premises, including, without limitation, causing or permitting hazardous materials to be placed, stored, spilled, or left on the Premises; (d) Tenant's breach of its obligations under this Lease, and (e) Tenant's negligence. 9. PERSONAL PROPERTY: All property on the Premises shall be and remain at the Tenant's sole risk. Landlord shall not be liable for any damage to or theft or loss of such property nor shall Landlord be liable for any injury to Tenant or any other person in or about the Premises. At the termination of this Lease, Tenant shall surrender and deliver up the Premises to 01910/0001 154319.1 Landlord in the same condition as received, less normal wear and tear, free of debris and Tenant's personal items and equipment. 10. COMPLIANCE WITH LAWS AND REQUIREMENTS. Tenant shall at all times comply with all federal, state, and local laws applicable to the use and occupancy of the Premises, including, without limitation, laws related to environmental matters, health and safety matters, and requirements under the Americans with Disabilities Act (ADA) and requirements under the National Pollution Discharge Elimination System (NPDES). 11. SECURITY. Tenant is solely responsible for the maintenance of safety, order, and security on the Premises, and acknowledges that Landlord shall not monitor, patrol, or secure the Premises, shall not prevent unauthorized persons from entering onto the Premises, and shall not ensure that unauthorized persons do not park in or loiter by the Premises. Tenant, at Tenant's expense, shall install two separate padlocks and a common chain for the gate. Tenant shall link the two padlocks together and between the ends of the chain so that opening either padlock opens the chain. The gate shall be left locked at any time when there are not people actively working on the Premises. 12. ASSIGNMENT, SUBLETTING: Tenant shall not transfer or assign this Lease or sublet the whole or any part of the Premises without the prior written consent of Landlord, which consent may be denied in the sole and absolute discretion of the Landlord. 13. WAIVER: No waiver by Landlord of any provision hereof shall be deemed a waiver of any other provision. Landlord's consent to or approval of any act shall not be deemed to render unnecessary the obtaining of Landlord's consent to or approval of any subsequent acts by Tenant. 01910/0001 154319.1 14. NOTICES: Whenever a party to this Lease is required or permitted to give or serve notice, request or demand to or on the other, such notice, request or demand shall be given or served upon the party to whom it is directed in writing and shall be delivered by overnight courier or forwarded by United States registered or certified mail, postage prepaid, posted in Los Angeles County, California, return receipt requested, and addressed as follows: If to Landlord: City of Vernon 4305 Santa Fee Ave. Vernon, California 90058 Attn: Robert Toering If to Tenant: Mr. Ben Swett Windowbox.com, Inc. 3821 South Santa Fe Ave. Vernon, CA 90058 Notices delivered in such manner shall be deemed received upon actual receipt or refusal to accept delivery. Notice addresses may be changed by sending notice in accordance with the terms of this paragraph. 14. MISCELLANEOUS PROVISIONS: 14.1 This Lease represents the entire agreement between the parties as to the matters contained herein, and supersedes all prior and contemporaneous discussions, negotiations, and writings. This Lease may be modified only by an agreement in writing signed by all the parties to this Lease or their respective successors in interest. 01910/0001 154319.1 14.2 Tenant shall not cause or permit any mechanics' or materialmens' liens to be filed against the Premises, and shall cause any such lien that may be filed to be removed within 10 days after it has been filed. 14.3 If either party to this Lease brings an action to enforce the terms hereof, 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 the losing party as fixed by the court. 14.4 Tenant shall not place, use, or keep any additional building, shed, office, awning, projection, sign, device, or notice on the Premises without Landlord's prior written approval, which approval shall not be unreasonably withheld. 14.5 This Lease shall be governed by and construed under the internal laws of the State of California, without regard to conflicts of laws principles. Executed as of the date first above written. By LANDLORD: By TENANT: City of Vernon Windowbox.com, Inc. a California corporation By: Leonis C. Malburg, Mayor Attest: By: Manuela Giron, Acting City Clerk Approved As to Form: By: Jeff Harrison, City Attorney Address: 4305 Santa Fe Avenue Vernon, CA 90058 Telephone: 323-583-8811 01910/0001 154319.1 Address: 3821 South Santa Fe Avenue' Vernon, CA 90058 Telephone: 323-277-1137 , I - WX II Exhibit A Leased Lot Space 3,500 sq ff (---50 x-70) Common Drive \ & Load Area \ Document Storage building 38th Street SUPPORTING DOCUMENTS 4305 Santa Fe Avenue, Vernon, California 90058 Telephone (323) 583-8811 April 30, 2001 Mr. Ben Swett, CEO Windowbox.com, Inc. 3821 South Santa Fe Avenue Vernon, CA 90058 Re: Lease of Parking Lot for Property Located at 2265 38th Street in the City of Vernon Dear Mr. Swett: The insurance requirements have been met. Transmitted herewith is a fully executed lease of parking lot as referenced above, approved by City Council on April 16, 2007, through Resolution No. 9290. If you have any questions regarding this matter, please call Mr. Jeff Harrison, at (323) 583-8811 ext. 173. Very truly yours, ''X et G do Acting City Clerk NG:dr c: Resolution No. 9290 Agreement File No. 07-036 F ccfusive(y IndustridC LEASE OF PARKING LOT This Lease of Parking Lot ("Lease") is made and entered into as of this 16 th day of April, 2007 by and between the City of Vernon ("Landlord") and Windowbox.com, Inc., a California Corporation ("Tenant") Landlord and Tenant hereby agree as follows: 1. PREMISES: Landlord hereby leases to Tenant,and Tenant hereby takes and leases from Landlord, for the term, at the rental and upon all conditions set forth herein, the real property commonly known as the rear portion of the fenced parking area located at 2265 38th Street, Vernon, California consisting of approximately 3,500 square feet (approximately 50 feet by 70 feet) as shown on Exhibit "A" attached hereto and incorporated herein by this reference (the "Premises"). 2. TERM: The term of the Lease shall commence on the day on which the Lease has been executed by both parties (anticipated to be on or about April 17, 2007) and terminate on June 30, 2008. On July 1, 2008, this Lease shall automatically, without further action by either party, become a month to month Lease, which month to month Lease shall be terminable by either party upon thirty (30) days' prior written notice to the other, with or without cause, and without penalty or termination fee. 3. RENT: The rent payable hereunder shall be due and payable on the first day of each month, except that the first month's rent shall be payable upon execution of this Lease. Tenant shall make all checks for sums owed to Landlord, unless otherwise notified in writing, payable to the City of Vernon, at 4305 Santa Fee Avenue, Vernon, California 90058. Rent for any period less than one month shall be a pro rata portion of the monthly installment. Tenant shall pay Landlord as rental for the Premises the sum of 01910/0001 154319.1 $525 per month, based on $0.15 per square foot per month. Commencing on July 1, 2008, the rental amount shall increase by 3% on July 1 of every year. 4. USE: Tenant shall use the Premises solely for outdoor storage of stable, inert materials (mostly palletized ceramic flower pots). Tenant shall ensure that a clear aisle is maintained so that City trucks are able to back up to the door of the adjacent building in order to load and unload documents. Tenant covenants and agrees that it will not use or permit the Premises, or any part thereof, to be used for any disorderly, unlawful or illegal purposes and warrants that it will comply with all applicable laws and regulations, including, without limitation, all environmental laws. 5. INSURANCE: Tenant shall at all times maintain general liability insurance with policy limits of not less than TWO MILLION and NO/100 DOLLARS ($2,000,000.00). The policy limits shall not be less than ONE MILLION and NO/100 DOLLARS ($1,000,000.00), for any one incident. Tenant's policy shall be provided by a company with a rating of "A minus" or better, with AM Best or a similar rating company, and be otherwise reasonably acceptable to Landlord, shall name Landlord as additional insured by endorsement. (without right of subrogation against said insured), which insurance shall be considered primary. Tenant shall provide Landlord with a _Certificate of Insurance, including the Declaration Page and Schedule of Forms of Endorsement, showing such coverage in effect, and showing Landlord as additionally insured prior to any entry onto or use of the Premises. 6. MAINTENANCE, REPAIRS, ALTERATIONS: Tenant accepts the Premises "as is", with all faults; provided, however, that prior to the commencement date of this Lease, Landlord shall, at its cost, repair the paved surface of the Premises to eliminate deep cracks and repair the fencing. No warranties are offered as to the condition of the Premises whatsoever, and except as Ol 9 ] 0/0001 154319.1 specifically described in this Paragraph 6, Landlord has no obligation to improve, maintain, or repair the Premises. Tenant, at Tenant's expense, will keep the Premises in good order, clean and free of debris and hazardous materials. Tenant, at Tenant's expense, shall cover the inside of the fence with green shade cloth and Tenant may, at its option and expense, plant screen trees around the Premises, inside the fence. Tenant shall not install or construct or maintain any improvements on the Premises without first: (a) obtaining the prior written consent of Landlord, which consent shall not be unreasonably denied, and (b) obtaining any required permits. All such improvements shall be made and maintained in accordance with all applicable laws. 7. UTILITIES: Tenant shall be responsible for procuring service and paying for any and all utilities to be used by Tenant on the Premises. 8. INDEMNITY: Tenant shall indemnify, protect, defend, and hold harmless Landlord and Landlord's employees, elected officials, and agents from and against any and all liabilities, claims, obligations, damages, expenses (including, without limitation, reasonable attorneys' fees and costs), causes of action, suits, claims and judgments arising out of or resulting from (a) injury or damage to persons or property on the Premises; (b) the use of the Premises by Tenant and its employees, officers, directors, agents, representatives, invitees, and strangers; (c) damage caused to the Premises, including, without limitation, causing or permitting hazardous_ materials to be placed, stored, spilled, or left on the Premises; (d) Tenant's breach of its obligations under this Lease, and (e) Tenant's negligence. 9. PERSONAL PROPERTY: All property on the Premises shall be and remain at the Tenant's sole risk. Landlord shall not be liable for any damage to or theft or loss of such property nor shall Landlord be liable for any injury to Tenant or any other person in or about the Premises. At the termination of this Lease, Tenant shall surrender and deliver up the Premises to 01910/0001 154319.1 Landlord in the same condition as received, less normal wear and tear, free of debris and Tenant's personal items and equipment. 10. COMPLIANCE WITH LAWS AND REQUIREMENTS. Tenant shall at all times comply with all federal, state, and local laws applicable to the use and occupancy, of the Premises, including, without limitation, laws related to environmental matters, health and safety matters, and requirements under the Americans with Disabilities Act (ADA) and requirements under the National Pollution Discharge Elimination System (NPDES). 11. SECURITY. Tenant is solely responsible for the maintenance of safety, order, and security on the Premises, and acknowledges that Landlord shall not monitor, patrol, or secure the Premises, shall not prevent unauthorized persons from entering onto the Premises, and shall not ensure that unauthorized persons do not parkin or loiter by the Premises. Tenant, at Tenant's expense, shall install two separate padlocks and a common chain for the gate. Tenant shall link the two padlocks together and between the ends of the chain so that opening either padlock opens the chain. The gate shall be left locked at any time when there are not people actively working on the Premises. 12. ASSIGNMENT, SUBLETTING: Tenant shall not transfer or assign this Lease or sublet the _whole or any part of the Premises without the prior written consent of Landlord, which consent may be denied in the sole and absolute discretion of the Landlord. 13. WAIVER: No waiver by Landlord of any provision hereof shall be deemed a waiver of any other provision. Landlord's consent to or approval of any act shall not be deemed to render unnecessary the obtaining of Landlord's consent to or approval of any subsequent acts by Tenant. 01910/0001 154319.1 14. NOTICES: Whenever a party to this Lease is required or permitted to give or serve notice, request or demand to or on the other, such notice, request or demand shall be given or served upon the party to whom it is directed in writing and shall be delivered by overnight courier or forwarded by United States registered or certified mail, postage prepaid, posted in Los Angeles County, California, return receipt requested, and addressed as follows: If to Landlord: City of Vernon 4305 Santa Fee Ave. Vernon, California 90058 Attn: Robert Toering If to Tenant: Mr. Ben Swett Windowbox.com, Inc. 3821 South Santa Fe Ave. Vernon, CA 90058 Notices delivered in such manner shall be deemed received upon actual receipt or refiisal to accept delivery. Notice addresses may be changed by sending notice in accordance with the terms of this paragraph. 14._ MISCELLANEOUS. PROVISIONS: 14.1 This Lease represents the entire agreement between the parties as to the matters contained herein, and supersedes all prior and contemporaneous discussions, negotiations, and writings. This Lease may be modified only by an agreement in writing signed by all the parties to this Lease or their respective successors in interest. 01910/0001 154319.1 14.2 Tenant shall not cause or permit any mechanics' or materialmens' liens to be filed against the Premises, and shall cause any such lien that may be filed to be removed within 10 days after it has been filed. 14.3 If either party to this Lease brings an action to enforce the terms hereof, 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 the losing party as fixed by the court. 14.4 Tenant shall not place, use, or keep any additional building, shed, office, awning, projection, sign, device, or notice on the Premises without Landlord's prior written approval, which approval shall not be unreasonably withheld. 14.5 This Lease shall be governed by and construed under the internal laws of the State of California, without regard to conflicts of laws principles. Executed as of the date first above written. By LANDLORD: By TENANT: City of Vernon Windowbox.com, Inc. a California corporation By: Attest: Address: 3821 South Santa Fe Avenue Vernon, CA 90058 Telephone: 323-277-1137 orm: City Clerk Address: 4305 Santa Fe Avenue Vernon, CA 90058 Telephone: 323-583-8811 01910/0001 154319.1 Exhibit A 33th Street Page 1 of 1 Juarez, Debbie From: Giron, Nelly Sent: Thursday, January 28, 2010 4:28 PM To: Juarez, Debbie Subject: FW: WINDOWBOX.COM, INC. Fyi From: Arellano, Claudia Sent: Thursday, January 28, 2010 4:24 PM To: Giron, Nelly Subject: WINDOWBOX.COM, INC. Nelly, as discussed the original letter to Windowbox.com, Inc. was sent to the business address on Santa Fe however, it was returned since they vacated the building. We re -sent the letter to the Agent for Service of Process which is filed with the California Secretary of State. The Agent's name and address is: Ben Swett 614 San Vicente Boulevard, Suite G Santa Monica, California 90402 Claudia 1/28/2010