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HomeMy WebLinkAboutFIESTA MARKETPLACE PARTNERS (5)INSURANCE P_Ql ON Fit INSURANCE ON FILE WORK MAY Lqj PROCEED IAIORK MAY PROCEED 1,,-: adg-I CLERK OF COUNCIL CI-ERK OF COUNCIL 1/6/87 DATE-0 DA TE LEASE AGREEMENT BETWEEN THE CITY OF SANTA ANA AND FIESTA MARKETPLACE PARTNERS THIS AGREEMENT, made and entered into this ',,1- day of 1987, by and between the City of Santa Ana, a mun1 corporation of the State of California, ic1pa hereinafter referred to as "CITY," and FIESTA MARKETPLACE PARTNERS, a limited partnership, hereinafter referred to as "TENANT," W-1-T-N-E-S-S-E-T-H CITY, in consideration of the rent to be paid and agreements to be performed by TENANT, hereby leases to TENANT on the fallowing terms and conditions those premises located generally at the northwest corner of Fourth and French Streets in the City of Santa Ana, County of orange, State of California, and more specifically described in "Exhibit A," attached hereto and incorporated herein by reference, hereinafter referred to as the "leased property." I. TERM The term of this Agreement shall commence on the first day of the first complete calendar month following the issuance of a "Certificate of Completion" pursuant to that certain "Disposition and Development Agreement" between the TENANT and the Community Redevelopment Agency of the City of Santa Ana ("Agency"), dated August 20, 19$5, a public record on file in the offices of the CITY ("Commencement Date") and shall termin- ate on December 31, 1999, unless earlier terminated pursuant to Section VIII of this Agreement. II. RENT A. Obligation to Pay Rent TENANT agrees to pay to CITY or its assignee as rent for the leased property, at such place as CITY'S City Manager, or CITY's assignee may specify, rent equal to thirty-five percent (35%) of the net income received by TENANT from the leased property and the "Paseo" during each Calendar Quarter which occurs during the term of this Agreement. B. Definitions (1) "Paseo" means the area presently occupied by Spurgeon Street between Third and Fourth Streets and continues to mean such area if said portion of Spurgeon Street should hereafter be vacated by the City. (2) "Net Income" means all income received by TENANT from vendors who conduct business on the leased property or the Paseo less Operating Expenses. (3) "Operating Expenses" means all operating, main- tenance, repair, construction and reconstruction costs and expenditures by Redeveloper pertaining to the leased property or the "Paseo". (4) "Calendar Quarter" means, with regard to each Calendar year, the following four three-month periods: -2- January through March, April through June, July through September, and October through December. C. Amortization of Operating Expenses For purposes of determining Operating Expenses, any expenditure for a single purpose which exceeds $5,000.00 may be amortized over a reasonable period subject to the prior approval of CITY's City'Manager, which shall not be unreasonably withheld. D. Time of Payment Within sixty (60) days after the end of each Calendar Quarter occurring during the term of this Agreement, TENANT shall pay to CITY the rent due to CITY for such Calendar Quarter together with a detailed statement of Net Income and Operating Expenses for such Calendar Quarter. E. Records and Inspections (1) TENANT shall keep, at its primary office, full and accurate books of account, records, cash receipts, and other pertinent data showing its Net Income and operating Expenses pertaining to the leased Property and the Paseo. (2) Such books of account, records, cash receipts and other pertinent data shall be maintained by TENANT for a period of time as necessary to allow CITY to inspect them to verify statements submitted by TENANT pursuant to paragraph D of this Section. -3- (3) CITY shall be entitled to inspect and examine all TENANT's books of account, records, cash receipts, and other pertinent data. TENANT shall cooperate with CITY in making the inspection. CITY shall also be entitled, not more than once during each calendar year, to an independent audit of TENANT's books of account, records, cash receipts and other pertinent data by a certified public accountant to be designated by CITY. The inspection or audit shall be limited to the determination of Net Income and Operating Expenses, and shall be conducted during usual business hours at TENANT's offices, upon ten (10) days prior written notice to TENANT. (4) If an independent audit correctly shows that TENANT has underpaid any payments made or due to CITY pursuant to this section by more than four percent (4%) of the correct amount, TENANT shall pay all CITY's costs of the independent audit. Otherwise, the cost of the audit shall be borne by the CITY. (5) In the event that an audit or inspection cor- rectly discloses that any payment made by TENANT to CITY pursuant to this Section was deficient, or that any such payment should have been made but was not made, TENANT shall promptly pay to CITY the amount due, together with interest thereon from the date such payment was due at an annual rate equal to the reference rate of the Bank of America. -4- F. Assignment CITY may assign its rights under Subsections A, D, and E of this Section to the Downtown Santa Ana Business Assoc- iation ("D.S.A.B.A."). In the event TENANT receives written notice from CITY's City Manager that CITY has assigned such rights to the D.S.A.B.A. then, until such time as TENANT receives written notice from CITY's City,.Manager that such assignment has been revoked, TENANT shall pay rent and provide statements to the D.S.A.B.A. in lieu of the CITY and the D.S.A.B.A. shall be entitled to exercise all the rights ,of the CITY under Sub- section A, D and E of this Section, provided, however, that CITY shall retain its rights under Subsection E of this Section concurrently with the D.S.A.B.A. III. USE The leased property is let to TENANT for the purpose of using the same as an open-air market and TENANT shall not use or permit said leased property or any part thereof, to be used for any purpose or purposes other than an open-air market without the prior consent of the CITY; TENANT shall not permit said real properties or any part thereof to be used for the conduct of any offensive or noisy activity, the creation or maintenance of a public nuisance, or for any purpose or in any manner which obstruct, interfere with, or infringe upon the rights of occupants of adjoining property. -5- IV. TAXES TENANT recognizes and understands that this Lease Agree- ment may create a possessory interest subject to property taxation, and that TENANT may be subject to the payment of property taxes levied on such interest. V. IMPROVEMENTS TENANT shall make no structural improvements on the leased property without first having obtained written consent of CITY. Any structural improvements on the leased property shall become at once a part of the leased property and belong to CITY. TENANT shall keep the leased property free of any liens arising out of any work performed, material furnished, or obligations incurred by TENANT. VI. INDEMNITY TENANT agrees to indemnify and save harmless CITY and its officers, agents and employees, against any and all damages to property, and injuries to or death of any person or persons, including property and employees or agents of CITY, and shall defend, indemnify and save harmless CITY, and its officers, agents and employees, from any and all claims, demands, suits, actions, or proceedings of any kind or nature, including, but not by way of limitation, workers' compensation claims, of or by anyone whomsoever, in any way resulting from or arising out of TENANT'S use of the leased property pursuant to this Agreement. -6- Vii. ASSIGNMENT AND SUBLETTING TENANT shall not assign this Agreement, nor sublet the leased property or any interest therein, without the written consent of CITY first had and obtained. Any assignment or subletting by TENANT without the written consent of CITY, or any assignment or subletting by operation of law, shall be void and shall, at the option of CITY, terminate this Agreement. VIII. DEFAULT BY TENANT If TENANT breaches any of its covenants hereunder or fails to comply with any of the terms hereof, other than failure to pay rent when due as specified herein, this Agreement shall, at the option of CITY, terminate, and TENANT agrees that upon the happening of any such event, within ten (10) days after service by CITY on TENANT of a notice to terminate, TENANT shall vacate the premises and peaceably quit and surrender up possession of the leased property; provided, however.,. that in any such case CITY shall not terminate this Agreement unless and until CITY has first served a notice,of default, specifying the nature thereof, on TENANT, and TENANT fails to cure or correct such default within thirty (30) days after service of such notice. In the event TENANT fails to pay rent when due as specified in this Agreement, then, in addition to any other remedies to which CITY may be entitled by law or under this Agreement, CITY may terminate this Agreement by service of -7- thirty (30) days prior written notice of termination on TENANT and TENANT shall, on or before the expiration of said thirty - day period, vacate the leased property and surrender possession thereof to CITY. Ix. NOTICE Notices to the parties shall, unless requested in writing, be sent by United States Mail, postage prepaid, and addressed as follows: If sent to CITY: City of Santa Ana 20 Civic Center Plaza Santa Ana, California 92701 Attention: Executive Director of Community Development If sent to TENANT: Fiesta Marketplace Partners 890 W. Baker Street , Suite 200 Costa Mesa, CA 92626 Attention: Irving M. Chase X. INSURANCE TENANT shall obtain, at its sole cost and file with CITY's Clerk of the Council, prior to exercising any right or performing any obligation pursuant to this Agreement, and maintain for the period covered by this Agreement, a policy or policies of liability insurance or a certificate of such insurance, satis" factory to the City Attorney, naming CITY, its officers, agents and employees, as insured or additional insured, which provides coverage not less than that provided in the form of a comprehensive liability insurance policy against liability for any and all claims and suits for damages or injuries to persons or property resulting from or arising out of TENANT'S use of the leased property pursuant to,this Agreement. Said policy or policies of insurance shall provide coverage for both bodily injury and property damage in not less than the following minimum amounts: Five Hundred Thousand Dollars ($500,000.00) combined single limit, or equivalent. Said policy or policies shall also contain a provision that no termination, cancellation or change of coverage or of insured or additional insured shall be effective until after thirty (30) days notice thereof has been given in writing to CITY. TENANT shall give to CITY prompt and tamely notice of claim made or suit instituted arising out of TENANT'S operations hereunder. TENANT shall procure and maintain at its own cost and expense, any additional kinds and amounts of insurance which, in its own judgment, may be necessary for its proper protection. XI. WAIVER OF BREACH The waiver by CITY of any breach of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of the same or a different provision of this Agreement. XII. VALIDITY The invalidity in whole or in part of any provision of this Agreement shall not void or affect the validity of any other provision of this Agreement. XIII. LAWS GOVERNING THIS AGREEMENT This Agreement shall be governed by and construed in accordance with the laws of the State of California, and all applicable federal statutes and regulations as amended. XIV. MAINTENANCE Except as otherwise provided herein, TENANT shall, at its sole cost, maintain the leased property and every part thereof in good and sanitary condition and repair, and shall repair all damage resulting from use by TENANT or any person suffered to be on the leased property by TENANT. TENANT shall pay promptly as they become due all charges for the furnishing of water, electricity, garbage collection service, and other public utilities to the leased property during the term of this Agreement. XV. ABANDONMENT TENANT shall not vacate or abandon the leased property at any time during the term hereof; and if TENANT shall abandon, vacate, or surrender the leased property or be dispossessed by -10- process of law, or otherwise, any personal property belonging to TENANT and.left on said real property.or properties shall be deemed abandoned at the option of CITY, provided CITY shall first give written notice and a reasonable opportunity to TENANT to remove said personal property. XVI. EXCLUSIVITY This Agreement supersedes any and all other agreements, either oral or in writing, between the parties hereto with respect to the use of the leased property by TENANT, and contains all.of the covenants and agreements between the parties with respect to such use in any manner whatsoever. Each party to this Agreement acknowledges that no representa- tions, inducements, promises or agreements, orally or other- wise, have been made by any party or anyone acting on behalf of any party which are not embodied herein, and that no other agreement or amendments hereto shall be effective unless executed in writing and signed by both CITY and TENANT. XVII. NONDISCRIMINATION The lessee herein covenants by and for himself, his heirs, executors, administrators, and assigns, and all persons claim- ing under or through him, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segrega- tion of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, -11- or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee himself, or any person claiming under or through him, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sub- lessees, subtenants, or vendees in the premises herein leased. XVIII. PRESENT VENDORS With regard to the TENANT'S initial efforts to rent space in the leased premises upon commencement of the term of this Agreement, the TENANT shall not offer to rent space to persons other than present vendors without having first offered to rent space to present vendors on the same terms and conditions and having had such offer refused by such present vendors. As used herein, "present vendors" means vendors renting space in the leased premises as of January 20, 1987 and evidencing a desire to continue to rent space therein after the commencement of the term of this Agreement. IN WITNESS WHEREOF, the parties hereto have executed this Agreement the date and year first above written. THE CITY OF SANTA ANA ATTEST: 16iniel.'H. You-n�T Mayor i6CGuy /el"rke of. the CounclC 'i' APPROVED AS TO FORM: Ecrward/J City &tt brsroved,, er By "TENANT" EXHIBIT A All that certain real property situated in the State of California, County of Orange, City of Santa Ana, described as follows: Lot 5 and that portion of Lot 4, in Block 1 of Fruit's Addition to Santa Ana, as shown on,a Map recorded in Book 9, page 91 of Miscellaneous Records of Los Angeles County, California, lying Easterly of the following described line: Beginning at a point in the Northerly line of said Lot 4, said point being distant Westerly 74.58 feet, measured along said Northerly line and the Northerly line of said Lot 5, from the Easterly line of said Block 1; thence Southerly to a point in the Southerly line of said Lot 4, said point being distant Westerly 74.45 feet, measured along the Southerly line of said Block 1, from the Southeast corner of said Block 1;