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HomeMy WebLinkAboutCOMMUNITY REDEVELOPMENT AGENCY 2 - 2002 . ;1-.) tIL'.J-. -,337 COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA and INSURANCE NOT REQUIREO CITY OF SANTA ANA WORK M~Y PROCEED CLERK OF COUNCIL DATE: I - I <i-a /, Memorandum of Sublease of 150 Parking Spaces in the Sycamore Parking Garage The COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body corporate and politic ("Agency"), and THE CITY OF SANTA ANA, a charter city duly organized under the Constitution and laws of the State of California ("City") hereby memorialize a sublease they have mutually entered into, as follows: RECITALS: WHEREAS, the Agency and Sycamore Parking Concepts ("Sycamore") are parties to that certain Private Disposition and Development Agreement dated on or about December 16, 2002, which is recorded as Document No. 2003000063398 with the Recorder of the County of Orange (hereafter "the DDA"); and WHEREAS, the Agency and Sycamore are also parties to a lease dated June 12,2003, more particularly described in Exhibit A, attached hereto and incorporated herein by this reference as through fully set forth (hereafter "the Lease"); and WHEREAS, pursuant to the Lease Agency is the tenant of 150 spaces in the parking garage located generally at the southwest comer of Sycamore and Tenth Streets in the City of Santa Ana ("the parking garage"); and WHEREAS, City Resolution No. 2002-110, adopted December 16, 2002, provides that: "The City Manager is further authorized to negotiate and execute a Lease Agreement for the 150 parking spaces in this parking garage from the Community Redevelopment Agency on a month to month basis subject to approval as to form by the City Attorney"; and WHEREAS, a final certificate of occupancy, permitting its use, was issued for the parking garage in December 2004; and WHEREAS, in December 2004 the City paid $40.00 per month for each parking space in two other parking garages operated by the County of Orange located in the Civic Center of the City (i.e., in the general vicinity ofthe parking garage); NOW THEREFORE, it is agreed by and between the parties, that the foregoing Recitals are a substantive part of this Memorandum of Sublease and that the following terms and conditions are approved and together with the Recitals and all exhibits and attachments hereto, shall constitute the entire Memorandum of Sublease between the Agency and City. 1 1. Lease. City shall sublease from Agency its 150 parking spaces in the parking garage on the same terms and conditions as under the Lease. 2. Term. The term of this sublease shall commence as of the date of the Certificate of Occupancy, as that term is defmed in section 314 of the DDA, and shall continue as a month- to-month tenancy. 3. Rent. City shall pay Agency a monthly rent of $40.00 per parking space, due and payable the first of each month beginning the 1st day of January 2005, that constituting the first full month following issuance of the Certificate of Occupancy for the parking garage. 4. Late Pavrnents. Any rent payment due on a Saturday, Sunday or City holiday shall be made by the City the next business day. City shall pay Agency late fees equal to the interest the Agency would have earned under the then Agency rate for investments for any rent payment late by more than five (5) business days. 5. Notices. All notices or other communication shall be in writing and sent by first- class mail, faxed or personally delivered to the notice address set forth under the signature blocks below, or at such other places as the parties may hereafter designate in writing. Agency: Community Redevelopment Agency of the City of Santa Ana .. 20 Civic Center Plaza, M-25 Santa Ana, CA 92702 Attn: Patricia C. Whitaker, Executive Director Fax: (714) 647-6549 With Copy to: Agency General Counsel Community Redevelopment Agency ofthe City of Santa Ana 20 Civic Center Plaza, M-29 Santa Ana, California 92702 Fax: (714) 647-6515 City: Clerk ofthe Council City of Santa Ana 20 Civic Center Plaza, M-30 Santa Ana, CA 92702 Fax: (714) 647-6956 With Copy to: City Attorney City of Santa Ana 20 Civic Center Plaza, M-29 Santa Ana, California 92702 Fax: (714) 647-6515 2 ATTEST: COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA ) ..~...'. ..._" '- Patricia E. Healy Secretary of Agency APPROVED AS TO FORM: ATTEST: Patricia E. Healy Clerk ofthe Council APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney I aufinan i ., istant City 'A.ttorney By 3 Patricia C. Whitaker Executive Director CITY OF SANTA ANA Ua David N. Ream City Manager COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA and SYCAMORE PARKING CONCEPTS, LLC Assignable Lease of 150 Parking Spaces THIS LEASE AGREEMENT ("Lease")is entered into as of ~ay of JUI1e., 2003, by and between the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a public body corporate and politic ("Agency"), and SYCAMORE PARKING CONCEPTS, LLC., a California limited liability company ("Sycamore"). RECITALS: WHEREAS, Sycamore is the owner of the parking garage located generally at the southwest comer of Sycamore and Tenth Streets in the City of Santa Ana ("the parking garage"), more particularly described in Exhibit A, attached hereto and incoiporated herein by this reference as through fully set forth; and WHEREAS, Agency desires a Lease to utilize 150 spaces in the parking lot of the Proiect ("the parking garage"); and WHEREAS, the Agency and Sycamore are parties to that certain Private Disposition and Development Agreement dated on or about December 16,2002, which is recorded as Document No. 2003000063398 with the Recorder of the County of Orange (hereafter "the DDA"); and WHEREAS, the DDA provides that these parties shall enter into this Lease; and NOW THEREFORE, it is agreed by and between the parties, that the foregoing Recitals are a substantive part ofthis Lease Agreement and that the following terms and conditions are approved and together with the Recitals and all exhibits and attachments hereto, shall constit~te the entire Lease Agreement between the Agency and Sycamore. I. Lease. Sycamore hereby grants to Agency a lease for 150 parking spaces in the parking garage to be initially assigned as follows: ~,. a. 25 dediCated parking spaces on the first floor the parking garage closest to the YMCA building located south of the parking garage. b. 25 dedicated parking spaces on the second floor the Parking Garage closest to the YMCA building located south of the parking garage. 1 J EXHIBIT A c. 100 non-dedicated parking spaces. 2. Term. The teml of this Lease shall commence as of the date of the Certificate of Completion, as that term is defined in section 314 of the DDA, and shall continue for a period of twenty five (25) years with two (2) ten (10) year mutual options to renew at the then current market rates but not less than the original lease agreement per space. Exercise of an option is subject to both parties consent in writing. 3. Conditions of Use. a. During the term of the parking lease, Sycamore shall undertake technical means, approved by the Agency, which approvai shall not be unreasonably withheld, conditioned or delayed, to ensure that the 100 non-dedicated spaces are available during all hours of operation of the parking garage, a minimum of 6:00 a.m. to 6:00 p.m. Monday through Friday, such as a computerized system to advise the operator to take no more visitor parking into the parking garage. Prior to full-time occupancy of the YMCA building all or part of the ISO parking spaces may be sublet by the Agency to any person or business. Prior to executing any parking sublease, --the Agency shall advise Sycamore, in writing of the terms and conditions of the proposed sub~ let. Sycamore shall have ten (10) business days to advise Agency in writing if Sycamore believes that the proposed sublease is less than the average monthly lease that the Sycamore is, as of the date of notice, receiving for spaces in the parking garage.. If Agency, concludes that it disagrees with Sycamore purported average monthly lease rate and that its proposed sub-lease is still appropriate, then Sycamore shall have ten (10) days from the Agency's written notice to agree to lease the spaces to be sublet from the Agency at the rate it contends is the average monthly lease rate for the same period, and under all other terms, as the Agency proposed sublease. If Agency's sublease rates exceeds $100 per month per space, then Agency shall share the actual proceeds of the sublease which exceeds $100 per month per space with Sycamore on a 50-50 basis. b. Sycamore and Agency agree that this lease of 150 parking spaces is fully assignable to any occupant of the YMCA building without further approval or consent of Sycamore. In addition, the Agency may at any time sublease all or part of its 150 spaces for. City employees. Any other assignment shall be subject to approval in writing by Sycamore, which shall not be unreasonably withheld. If the lease is not assigned or sublet, the parties hereto acknowledge and agree that the Agency may not, under current iaw, continue to exist beyond the month of June 2023; however, it is the parties intent that this Lease shall be. .' interpreted to be for a twenty-five (25) year term to the full extent permitted by law. .",::~ c. Should Sycamore receive five (5) verifiable written complaints in any thirty (30) day period that the 100 non-dedicated spaces are not available during normal operating hours to any sub lessee or Agency user, which written complaints are not addressed by Sycamore to the reasonable satisfaction of the Agency's Executive Director within ten (10) days of transmittal to 2 J Sycamore, then Sycamore shall, within thirty (30) days of receipt of written notice by the Agency designate an additional ten (10) parking spaces on the third floor of the parking garage immediately adjacent to the YMCA Building as dedicated parking spaces for the remainder of the term of the Lease; provided, however, the total number of parking spaces leased to the Agency shall remain at 150. For each occurrence thereafter, the following remedy shall apply (in each case the parking spaces shall be the closest to the YMCA parking spaces): 2nd Occurrence: 3rd Occurrence: 4th Occurrence: 5th Occurrence: 6th occurrence: 7th Occurrence: 8th Occurrence: 9th Occurrence: lOth Occurrence: 10 additional dedicated parking spaces on third floor 10 additional dedicated parking spaces on third floor 10 additional dedicated parking spaces on third floor 10 additional dedicated parking spaces on fourth floor 10 additional dedicated parking spaces on fourth floor 10 additional dedicated parking spaces on fourth floor 10 additional dedicated parking spaces on fifth floor 10 additional dedicated parking spaces on fifth floor 10 additional dedicated parking spaces on fifth floor LIQUIDATED DAMAGES CLAUSE. SYCAMORE PARKING CONCEPTS, INC. AND AGENCY AGREE THAT FOR EVERY DAY THAT SYCAMORE PARKING CONCEPTS FAILS TO DESIGNATE OR MAINTAIN THESE ADDITIONAL DESIGNATED PARKING SPACES IN THE FIRST AND SECOND FLOOR OF THE PARKING GARAGE, THE DAMAGES TO THE AGENCY WOULD BE EXTREMELY DIFFICULT AND IMPRACTICABLE TO ASCERTAIN, AND THAT THEREFORE, THE SUM OF ONE HUNDRED FIFTY DOLLARS ($150.00) PER DAY IS A REASONABLE ESTIMATE OF THE DAMAGES TO THE AGENCY, SUCH DAMAGES INCLUDING COSTS OF NEGOTIATING AND DRAFTING OF THIS AGREEMENT, THE LAND USE ENTITLEMENTS AND THE SALE OF PARCEL A AND PARCEL B; COSTS .OF COOPERATING IN SATISFYING CONDITIONS TO CLOSING; AND OTHER COSTS INCURRED IN CONNECTION HEREWITH. ACCORDINGLY, SYCAMORE PARKING CONCEPTS AGREES THAT UPON SYCAMORE PARKING CONCEPTS' RECEIPT OF NOTICE OF SUCH DEFAULT- FROM AGENCY PURSUANT TO SECTION 501(F), WHICH NOTICE SHALL SPECIFY THE DEFAULT, AND FAILURE BY SYCAMORE PARKING CONCEPTS TO CURE SAID DEFAULT WITHIN FIFTEEN (15) DAYS AFTER RECEIPT OF SUCH NOTICE; THE AGENCY SHALL BE ENTITLED TO WITHHOLD ONE. HUNDRED FIFTY DOLLARS ($150.00) PER DAY FROM THE SUBSEQUENT MONTH'S RENTAL PAYMENT DUE SYCAMORE PARKING CONCEPTS SO LONG FOR EACH DAY THAT THIS DEFAULT CONTINUES, AS AGENCY'S SOLE REMEDY IN THE EVENT OF ANY SUCH MA TERlAL BREACH OR DEFAULT BY SYCAMORE.PARK!NG .. CONCEPTS HEREUNpER .. .. Agency's Initials: ~ Sycamore's Initials: . ".. Thereafter, for each additional five (5) complaints received by the Agency, these provisions in subsection c. shall be repeated as though it were the first time, until all 150 spaces 3 are dedicated (the parties acknowledge that at some point the south end ofthe third floor the garage would have be converted into dedicated spaces). Once all 150 spaces have been dedicated in the locations herein specified, this subparagraph c. shall be of no further force and effect. d. The use of the Parking Garage pursuant to this Lease shall be subject to the normal rules and regulations of Sycamore governing use of its parking facilities and common areas. Overnight parking shall not be permitted for residents of the YMCA project except upon agreement by lessee to pay all costs reasonably incurred by Sycamore to operate and keep open the parking garage for monthly parkers after normal hours which shall be a minimum of 6:00 a.m. to 6:00 p.m., Monday through Friday; Sycamore's approval of such after-hours parking not to be unreasonably withheld. Agency shall coordinate with Sycamore to obtain the nec~ssary access cards to the parking garage by completion of Sycamore's standard parking form for each employee to whom a card will be issued. Agency shall be solely responsible for a deposit on each such access card. Said deposit shall be refunded for each card returned to Agency upon receipt of such card to Sycamore. 4. Lease Fee. Agency shall pay to Sycamore, through Sycamore's parking operator for the Project, a monthly fee ("Lease Fee") of FIFTEEN THOUSAND DOLLARS ($15,000) per month. The fee shall be paid monthly in advance in accordance with Sycamore's standard parking facility procedures. As hereinafter more particularly provided, the Agency shall pay such amount on the schedule provided in monthly installments, until Agency has paid a total of FOUR MILLION FNE HUNDRED THOUSAND DOLLARS ($4,500,000,00) or until the payment period expires or the DDA terminates or Agency's ability to make such payments is rescinded, whichever occurs first; however, it is the parties intent that this Lease shall be interpreted to be for a twenty-five (25) year term to the full extent permitted by law. 5. Validations. Agency shall be entitled to purchase validation books for transient visitors to the YMCA building in II, hour and 1 hour increments. The cost to purchase the validation books will be at a rate Sycamore and Agency agree to be the average validation book rate. 6. Indemnity and Sycamore's Liability. Sycamore shall defend, indemnify and hold . harmless Agency from and against any and all claims, liability, losses, damage, causes of action, expenses and costs (including, but not limited to, reasonable professional fees and costs), arising out of or in connection with this Lease to the extent caused by the gross negligence or willful misconduct of Sycamore. Agency shall defend, indemnify and hold harmless Sycamore from and against any and all claims, liability, losses, damage, causes of action, expenses and costs (including, but not limited to, reasonable professional fees and costs), of every nature, arising out of or in connection with any act or omission of Agency or any of its employees in co!)nection . with this Lease excepting only to the extent caused by the gross negligence or willful misconduct of Sycamore. In addition, Agency agrees to reimburse Sycamore for the cost of repairing any. damage caused by Agency, sublesees or its employees. Without limiting the generality of the foregoing, should Sycamore deem it necessary to cause any vehicle of Agency or any of its. employees that is parked in violation of the requirements herein to be removed from the Project, Agency shall indemnify Sycamore from any and all costs incurred in connection therewith. 4 J 7. Notices. All notices or other communication shall be in writing and sent by first-class mail, faxed or personally delivered to the notice address set forth under the signature blocks below, or at such other places as the parties may hereafter designate in writing. Agency: Community Development Agency City of Santa Ana 20 Civic Center Plaza, M-25 Santa Ana, CA 92702 Altn: John Reekstin, Executive Director Fax: (714) 647-6549 With Copy to: Agency General Counsel Community Redevelopment Agency of the City of Santa Ana 20 Civic Center Plaza, M-29 Santa Ana, California 92702 Fax: (714) 647-6515 Sycamore: Sycamore Parking Concepts, Inc. c/o Michael F. Harrah, President Caribou Industries, Inc. 1200 North Main Street, Suite 900, Santa Ana, California 92701. Fax: (714) 543-9972 " 8. Force Maieure. The term and any obligation under this Lease Agreement shall be tolled during conditions of Force Majeure. "Force Majeure" shall mean delays of performance by either party hereunder due to war; insurrection; strikes; lockouts; labor disputes; riots; floods; earthquakes; fires; casualties; acts of God; acts of the public enemy; epidemics; quarantine restrictions; freight embargoes; lack of transportation; governmental restrictions or priority; litigation including, but n0t llInited to, litigation challenging the validity ofthis transaction or any element thereof (except condemnation); severe weather; inability to secure necessary labor, materials or tools; delays of any contractor, subcontractor, or supplies; acts of the other p.arty; acts or failure to act of the City or any other public or govemmental agency or entity (other than acts or failure to act on the part ofthe Agency or the City shall not excuse performance by the . Agency); or any other cause beyond the control, or without the fault ofthe party claiming an extension oftime to perform; provided that notice by the party claiming such extension is sent to the other party within thirty (30) days of the commencement of the cause or event resulting in such delays. Any such extension shall be for the duration of the cause of the delay. ~ However, the Agency shall continue to be obliged to make lease payments in the event of Force Majeure. Sycamore shall be obliged to eliminate the Force Majeure, including but not limited to repair and restoration of the Parking Garage, not later than 24 months after any Force Majeure event. 5 J , ' . 9. Choice of Documents. To the extent there are any disputes between the DDA and this Lease, then upon its execution the terms of this Lease shall prevail. The parties hereto have executed this Lease as of the date first above written. ATTEST: COMMUNITY DEVELOPMENT AGENCY OF THE CITY OF SANTA ANA a~ Patricia E. Healy Secretary of Agency By 0', _. APPROVED AS TO FORM: " SYCAMORE PARKING CONCEPTS, LLC Mich"J F ~ President .~ ~ ., . 6 -- J >- < :;:: o < o II: CO '. !'--CIVIC CENTER I W II: o :2 < o >- C/) Exhibit A 812 N. Sycamore r: C/) ~ DRIVE . . . - .,~:.~, --.