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HomeMy WebLinkAboutCOMMUNITY DEVELOPMENT AGENCY-2008A-2007-296 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Clerk of the Council ~~ City of Santa Ana 20 Civic Center Plaza M-30 P.O. Box 1988 Santa Ana, California 92702 FREE RECORDING GOVERNMENT CODE § 6103 WORK MA`s NQI PROCEE~ CLERK OF COUNC~~ HATE: ~~-~~- ' CONTINGENT GROUND LEASE S ~ ~' ~ ~ `THIS CONTINGENT GROUND LEASE ("Lease") is made and entered into as of 13th day of October, 2008 by and between the CITY OF SANTA ANA, a charter city duly organized under the Constitution and laws of the State of California (the "City"), the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SAl`~T`A ANA, a redevelopment agency pursuant to Health & Safety Code ti § 33000 et seq. and a public body corporate and politic (the "Agency"), and LATINO CENTER FOR PREVENTION AND ACTION IN HEALTH, INC., dba LATINO HEALTH ACCESS, a California non- profit public benefit corporation ("Tenant"), with respect to the following: RECITALS: A. The City warrants and guarantees that it is the owner of that certain real property located on Third Street in the City of Santa Ana, California, described as 601 East Third Street (Orange County Assessor's Parcel. Number [APN] 398-481-21) (hereafter "City parcel"). B. The Agency warrants and guarantees that it is the owner of that certain real property described as 526 East Fourth Street (Orange County Assessor's Parcel Number [APN] 398-481-04), and 523 East Third Street (Orange County Assessor's Parcel Number [APN] 398-481-29) (hereafter "Agency parcels"). C. Tenant warrants and guarantees that it is the owner of that certain real property described as 602 East Fourth Street (Orange County Assessor's Parcel Number [APN] 398-481-05) (hereafter "LHA parcel"). D. The City parcel and Agency parcels are collectively hereinafter referred to herein as "the Premises," and the City and Agency are collectively hereinafter referred to herein as "Landlord." The legal description of the Premises is set forth on Exhibit A hereto and shown on Exhibit B hereto, both of which are incorporated herein by this reference as though fully set forth. E. Tenant desires to lease the City parcel, Agency parcels and combine them with the LHA parcel for the purpose of constructing a community center ("the Community Center"), appurtenant parking areas, and other related improvements (collectively referred to in this lease as "the Improvements") in accordance with the agreement of the parties as set forth in this lease, as shown in concept in Exhibit C hereto, which is incorporated herein by this reference as though fully set forth F. The City enters into this lease, in part, based upon the express finding after close of a noticed public hearing by the City Council of the City that, after consideration of all terms and conditions of this Lease, it has found and determined that the lease and the redevelopment of the Agency parcels pursuant to the Lease is the best interests of the City of Santa Ana and the health, safety and welfare of its residents, and is in accord with the public purpose and provisions of the applicable state and local laws G. The Agency enters into this lease after full conformance with the Community Redevelopment Act, California Health & Safety Code section 33000 et seq., following a duly noticed public hearing. H. At the time of approval of this lease by the City Council and the Agency Board of Directors, acquisition by Tenant of the LHA parcel had not been accomplished and its acquisition was at that time made a condition of this lease. ARTICLE 1 LEASE OF PREMISES AND TERM OF LEASE Section 1.01. Agreement to Lease For and in consideration of the rents to be paid and covenants to be performed by Tenant under this Lease, Landlord agrees to lease the Premises to Tenant, and Tenant agrees to lease the Premises from Landlord, on the terms and conditions set forth in this Lease. Except as expressly otherwise provided in this lease, "the Premises" includes the real property plus any appurtenances and easements whether recorded or unrecorded, exclusive of any Improvements now or subsequently located on the Premises, notwithstanding that any Improvements may or shall be construed as affixed to and as constituting part of the described Premises, and without regard to whether ownership of the Improvements is in Landlord or in Tenant. Section 1.02. Contingencies to Commencement of Lease The parties hereto agree and acknowledge that the lease contemplated herein cannot be achieved without the Tenant having satisfied the following contingencies, and that Tenant shall have no rights under this Lease until all of these contingencies have been satisfied: A. Tenant demonstrating, to satisfaction of City Manager and Executive Director of Agency, that it has the fmancial ability to construct and operate the Community Center and Improvements over the term of the Lease. B. Tenant obtaining all City entitlements from City. The parties further agree and acknowledge that the existence of this Lease does not in any way constrain or restrict the City's discretion to approve, approve with conditions or deny any application submitted by Tenant regarding the Community Center or Improvements. Section 1.03. Term of Lease The term of this lease shall be for a term of approximately 20 years, commencing on the execution of all of the contingencies set forth in section 1.02 above, and ending at 12:01 a.m. on September 22, 2029 ("Original Term"), unless terminated earlier pursuant to the provisions of this lease. Section 1.04. Extended Term In the event Tenant is not then in default under this lease, Tenant shall have the option and right to extend the Original Term of this lease for up to two extensions of 10 years, commencing on the expiration of the Original Term and/or Extended Term. If Tenant elects to extend the term of this lease, Tenant must give Landlord written notice of Tenant's election to extend at least 30 days before expiration of the Original Term and/or Extended- Term. The written notice shall be deemed effective on personal delivery to Landlord at the Office of the Clerk of the Council or on the date it is deposited in the United States mail in accordance with the provisions of Section 12.03. During the Extended Term of this lease, if any, Landlord and Tenant shall be bound by all of the obligations, covenants, and agreements of this lease except that Tenant shall have no right to further extend the term of this lease beyond or after expiration of the second extended term granted under this section, unless agreed to in writing by the Landlord and Tenant. References throughout this lease to "the term of this lease" shall include both the Original Term and the Extended Terms, if any, unless otherwise indicated. Section 1.05. Holding Over Unless and until a new or amended lease is executed by the parties, in the event Tenant holds over and continues in possession of the Premises after expiration of the Original Term, when Tenant has not validly exercised its option to extend the term of the lease in accordance with Section 1.03, or after expiration of the Extended Term, when Tenant has validly exercised its option to extend the term of the lease in accordance with Section 1.04, Tenant's continued occupancy of the Premises shall be considered amonth-to-month tenancy subject to all the terms and conditions of this lease. Said holdover month-to-month tenancy may be terminated by the Landlord by thirty (30) days written notice, or in any other manner permitted by State law. Section 1.06 Early Termination Should Tenant fail to achieve each and every of the contingencies set forth in section 1.02 of this Lease on or before September 22.2009, then this Lease shall by its own terms terminate and be null and void for all purposes. ARTICLE 2 RENT Section 2.01. Annual Rent Tenant agrees to pay Landlord annual rent ("Annual Rent") for each year during the term of this lease in the amount of $2.00 (Two Dollars) per year for each year of this lease, including each ensuing year of this lease subject to the option to renew, pursuant to Section 1.04 of this lease. Rent shall be paid on or before April 1 of each year by a check in the amount of $1.00 (One Dollar) made payable to the City of Santa Ana, and a second check in the amount of $1.00 (One Dollar) made payable to the Community Redevelopment Agency of the City of Santa Ana. Section 2.02. Time and Place for Payment of Rent All Annual Rent provided for in Section 2.01 of this lease shall be paid by Tenant on an annual basis on the first day of each calendar year. Tenant may elect to pay the full amount due under the term of this lease on the original date of execution of this lease. All rent required under this lease shall be paid to Landlord at 20 Civic Center Plaza, M-30, Santa Ana, California, or any other place or places that Landlord may designate by written notice to Tenant. Section 2.03. No Partnership or Joint Venture Nothing in this lease shall be construed to render Landlord in any way or for any purpose a partner, joint venturer, or associate in any relationship with Tenant other than that of Landlord and Tenant, nor shall this lease be construed to authorize either to act as agent for the other. ARTICLE 3 USE OF PREMISES Section 3.01. Permitted Use Tenant shall use the Premises solely for the purpose of constructing, maintaining, and leasing a Community Center to provide social, educational and recreational programs to the general public, as set forth in more detail in Exhibit D to this Lease. Section 3.02. Compliance With Laws Tenant shall, at Tenant's own cost and expense, comply with all statutes, ordinances, regulations, and requirements of all governmental entities, both federal and state and county or municipal, including those requiring capital improvements to the Premises or Improvements, relating to any use and occupancy of the Premises, and specifically not limited to any particular use or occupancy by Tenant, whether those statutes, ordinances, regulations, and requirements are now in force or are subsequently enacted. If any license, permit, or other governmental authorization is required for the lawful use or occupancy of the Premises or any portion of the Premises, Tenant shall procure and maintain it throughout the term of this lease. The judgment of any court of competent jurisdiction in a proceeding brought against Tenant by any government entity, that Tenant has materially violated any such statute, ordinance, regulation, or requirement shall be conclusive as between Landlord and Tenant and shall constitute grounds for termination of this lease by Landlord. Section 3.03. Prohibited Uses Tenant shall not use or permit the Premises or any portion of the Premises to be improved, developed, used, or occupied in any manner or for any purpose that is in any way in violation of any valid law, ordinance, or regulation of any federal, state, county, or local governmental agency, body, or entity. Furthermore, Tenant shall not maintain, commit, or permit the maintenance or commission of any nuisance as now or hereafter defined by any statutory or decisional law applicable to the Premises or any part of the Premises. ARTICLE 4 TAXES AND UTILITIES Section 4.01. Tenant to Pay Taxes Tenant shall pay, if applicable, during the term of this lease, without abatement, deduction, or offset, any and all real and personal property taxes, general and special assessments, and other charges, including any increase caused by a change in the tax rate or by a change in assessed valuation, of any description levied or assessed during the term of this lease by any governmental agency or entity on or against the Premises, the Improvements located on the Premises, personal property located on or in the Premises or Improvements, and the leasehold estate created by this lease. Section 4.02. Taxable Interest Tenant recognizes that this Lease 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. Tenant shall pay, before delinquency, all taxes, assessments, license fees and other charges (hereinafter referred to as "taxes") that are levied or assessed during the term hereof against the Tenant's leasehold interest in the real property or installed or located in or upon the Premises. Section 4.03. Payment Before DelinquencX Any and all taxes and assessments and installments of taxes and assessments required to be paid by Tenant under this lease shall be paid by Tenant at least 10 days before each such tax, assessment, or installment of tax or assessment becomes delinquent. On the written request of Landlord, Tenant shall deliver to Landlord the official and original receipt evidencing the payment of any taxes, assessments, and other charges required under this Article, or evidence that Tenant is exempt from said taxes. Section 4.04. Contest of Tax Tenant shall have the right to contest, oppose, or object to the amount or validity of any tax, assessment, or other charge levied on or assessed against the Premises or any part of the Premises; provided, however, that the contest, opposition, or objection must be filed before the tax, assessment, or other charge at which it is directed becomes delinquent and that written notice of the contest, opposition, or objection must be given to Landlord at least 10 days before the date the tax, assessment, or other charge becomes delinquent. Landlord shall, on written request of Tenant, join in any such contest, opposition, or objection if Tenant determines that joinder is necessary or convenient for the proper prosecution of the proceedings. Tenant shall be responsible for and shall pay all costs and expenses in any contest or legal proceeding instituted by Tenant. In no event shall Landlord be subjected to any liability for costs or expenses connected to any contest by Tenant, and Tenant agrees to indemnify and hold Landlord harmless from any such costs and expenses. Section 4.05. Tax Hold-Harmless Clause Tenant shall indemnify and hold Landlord and Landlord's property, including the Premises and any Improvements now or subsequently located on the Premises, free and harmless from any liability, loss, or damage resulting from any taxes, assessments, or other charges required by this Article to be paid by Tenant and from all interest, penalties, and other sums imposed thereon and from any sales or other proceedings to enforce collection of any such taxes, assessments, or other charges. Section 4.06. Utilities Tenant shall pay or cause to be paid, and hold Landlord and Landlord's property including the Premises free and harmless from, all charges for the furnishing of gas, water, electricity, telephone service, and other public utilities to the Premises during the lease's term and for the removal of garbage and rubbish from the Premises during the term of this lease. ARTICLE 5 CONSTRUCTION BY TENANT Section 5.01. Dutv to Construct Tenant shall, construct or cause to be constructed on the Premises and LHA parcel, a Community Center in the manner and according to the terms and conditions specified in this Article. Section 5.02. Requirement of Landlord's Written Ap royal No structure or other improvement of any kind shall be constructed on the Premises or LHA parcel unless and until the plans, specifications, and proposed location of that structure or improvement have been approved in writing by Landlord. Furthermore, no structure or other improvement shall be constructed on the Premises or LHA parcel that does not comply with plans, specifications, and locations approved in writing by Landlord. Section 5.03. Potential Lar er Proiect No structure or improvement of any kind shall be constructed on the Premises or the LHA parcel if it would hinder development of the potential future public park on the Premises. If said future park is constructed, then the definition herein of Premises shall be modified to refer only to the real property under the Community Center itself, together with any needed easements. Section 5.04. Operational Standards The Community Center and Improvements shall at all times be operated to comply with the provisions of Exhibit D to this Lease. Section 5.05. Time. for Com lep tion Tenant shall cause construction of the Community Center to be commenced in accordance with the Schedule for Completion, provided by the Tenant not later than November 1, 2009, which shall be approved by the City Manager and Agency Executive Director. Tenant shall further cause construction of the Community Center to be diligently pursued without unnecessary interruption, and shall cause the Community Center to be completed and ready for occupancy not later than eighteen (18) months after commencement of its construction. The time of performance by either party hereunder shall be extended where delays are 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 not limited to, litigation challenging the validity of this 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 party; acts or failure to act of the City or any other public or governmental agency or entity (other than acts or failure to act of the City shall not excuse performance by the City); or any other cause beyond the control, or without the fault of the party claiming an extension of time 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. Any such extension shall be for the duration of the cause of the delay. Section 5.06. Ownership of Improvements Title to all Improvements to be constructed on the Premises by Tenant shall be owned by Tenant until expiration of the term or earlier termination or modification of this lease. All Improvements on the Premises at the expiration of the term or earlier termination of this lease shall, without compensation to Tenant, then 6 automatically and without any act of Tenant or any third party become Landlord's property. Tenant shall surrender the Improvements to Landlord at the expiration of the term or earlier termination of this lease, free and clear of all liens and encumbrances, other than those, if any, permitted under this lease or otherwise created or consented to by Landlord. Tenant agrees to execute, acknowledge, and deliver to Landlord any instrument requested by Landlord as necessary in Landlord's opinion to perfect Landlord's right, title, and interest to the Improvements and the Premises. Section 5.07 Annual Self-Audit Report Beginning on the first anniversary of the date of City Council and Agency Board of Directors approval of this Lease, and continuing each year on said anniversary, Tenant shall deliver to Landlord an annual report setting forth in detail its construction, repair and replacement, and operation activities during the prior year, and describing its compliance, or lack thereof with the terms and provisions of this Lease. ARTICLE 6 ENCUMBRANCE OF LEASEHOLD ESTATE Section 6.01. Tenant's Iti~ht to Encumber Tenant may, at any time and from time to time during the term of this lease, encumber to any institutional lender regulated by state or federal authority (referred to in this lease as "Lender"), by deed of trust or mortgage or other security instrument, all of Tenant's interest under this lease and the leasehold estate hereby created in Tenant (referred to in this lease as a "Leasehold Encumbrance") for any purpose or purposes without the consent of Landlord. However, no Leasehold Encumbrance incurred by Tenant in accordance with this Section shall, and Tenant shall not have power to incur any encumbrance that shall, constitute in any way a lien or encumbrance on Landlord's fee interest in the Premises. Any Leasehold Encumbrance shall be subject to all covenants, conditions, and restrictions set forth in this lease and to all rights and interests of Landlord, except as is otherwise provided in this lease. Tenant shall give Landlord prior written notice of any Leasehold Encumbrance, together with a copy of the deed of trust, mortgage, or other security interest evidencing the Leasehold Encumbrance. Section 6.02. Notice to and Service on Lender Landlord shall mail to any Lender who has given Landlord written notice of its name and address, a duplicate copy of any and all notices Landlord may from time to time give to or serve on Tenant in accordance with or relating to this lease, such as any notice of default, notice of termination, or notice regarding any matter on which Landlord may predicate or claim a default. Any notices or other communications permitted by this or any other section of this lease or by law to be served on or given to Lender by Landlord shall be deemed duly served on or given to Lender when deposited in the United States mail, first-class postage prepaid, addressed to Lender at the last mailing address for Lender furnished in writing by Lender to Landlord. Section 6.03. Additional Right to Encumber Tenant may, at any time and from time to time during the term of this lease, encumber the Improvements to the California Department of the Youth Authority, pursuant to California Welfare and Institutions Code Section 990, et seq. Tenant may not encumber the Landlord's fee or remainder interest in the Premises. Section 6.04. Lender as Includin Subsequent Security Holder The term "Lender" as used in this lease shall mean not only the institutional lender that loaned money to Tenant and is named as beneficiary, mortgagee, secured party, or security holder in the Security Instrument creating any Leasehold Encumbrance, but also all subsequent purchasers or assignees of the leasehold interest secured by the Leasehold Encumbrance. Section 6.05. Two or More Lenders In the event two~or more Lenders each exercise their rights under this lease and there is a conflict that renders it impossible to comply with all requests of Lenders, the Lender whose Leasehold Encumbrance would have senior priority in the event of a foreclosure-shall prevail. Section 6.06 Obligations of Foreclosing Lender In the event that a Lender forecloses any or all of Tenant's rights or interest under this Lease, said Lender shall be deemed an assignee of this Lease, and. subject to all it terms and provisions as though it were Tenant. ARTICLE 7 REPAIRS AND RESTORATION Section 7.01. Maintenance by Tenant At all times during the term of this lease Tenant shall, at Tenant's own cost and expense, keep and maintain or cause to be maintained the Premises and all Improvements on the Premises and the Gonzalez property (including but not limited to the Community Center) in good working order, condition and appearance. Tenant shall make all reasonable and necessary repairs, replace broken, damaged or worn structural components or fixtures so as to keep the Community Center in a safe, usable condition, and perform housekeeping operations as required, so as to keep the premises and Improvements clean, attractive and free from the accumulation of any litter, garbage, debris or waste material. If; at any time, Tenant fails to maintain or cause to be maintained the Premises as required by this section, and said condition is not corrected after the expiration of a reasonable period of time not to exceed thirty (30) days from the date of written notice from Landlord, Landlord may perform the necessary maintenance and Tenant shall pay all costs incurred for such maintenance. Section 7.02. Requirements of Governmental A eg ncies At all times during the term of this lease, Tenant, at Tenant's own cost and expense, shall do all of the following: A. Make all alterations, additions, or repairs to the Premises or the Improvements on the Premises required by any valid law, ordinance, statute, order, or regulation now or hereafter made or issued by any federal, state, county, local, or other governmental agency or entity; B. Observe and comply with all valid laws, ordinances, statutes, orders, and regulations now or hereafter made or issued respecting the Premises or the Improvements on the Premises by any federal, state, county, local, or other governmental agency or entity; C. Contest if Tenant, in Tenant's sole discretion, desires by appropriate legal proceedings brought in good faith and diligently prosecuted in the name of Tenant, or in the names of Tenant and Landlord when appropriate or required, the validity or applicability to the Premises of any law, ordinance, statute, order, or regulation now or hereafter made or issued by any federal, state, county, local, or other governmental agency or entity; provided, however, that any such contest or proceeding, though maintained in the names of Tenant and Landlord, shall be without cost to Landlord, and Tenant shall protect the Premises and Landlord from Tenant's failure to observe or comply during the contest with the contested law, ordinance, statute, order, or regulation; and D. Indemnify and hold Landlord and the property of Landlord, including the Premises, free and harmless from any and all liability, loss, damages, fines, penalties, claims, and actions resulting from Tenant's failure to comply with and perform the requirements of this Section. Section 7.03. Tenant's Duty to Restore Premises If at any time during this lease's term, any Improvements now or hereafter on the Premises are destroyed in whole or in part by fire, theft, the elements, or any other cause not the fault of Landlord, this lease shall continue in full force and effect and Tenant, at Tenant's own cost and expense, shall repair and restore the damaged Improvements. Any restoration by Tenant shall comply with original plans for the Improvements described in Article 5, except as may be modified by Tenant to comply with the terms of any sublease of the Improvements, or except as may be otherwise modified by Tenant and approved in writing by Landlord. The work of repair and restoration shall be commenced by Tenant within 240 days after the damage or destruction occurs and shall be completed with due diligence not later than one year after the work is commenced. In all other respects, the work of repair and restoration shall be done in accordance with the requirements for original construction work on the Premises set forth in Article 5 of this lease. Tenant's obligation for restoration described in this Section shall exist whether or not funds are available from insurance proceeds. Section 7.04. Option to Terminate Lease for Destruction Notwithstanding Section 7.03 of this lease, Landlord shall have the right to terminate this lease if the Improvements are damaged or destroyed by a casualty for which Tenant is not required under this lease to carry insurance and the cost to repair or restore the damaged or destroyed Improvements exceeds 50 percent of the fair market value of the Improvements immediately before the damage or destruction, provided Tenant does not notify Landlord, in writing, of its intent to repair, subject to Section 7.03 of this Agreement. Section 7.05. Application of Insurance Proceeds Any and all fire or other insurance proceeds that become payable at any time during the term of this lease because of damage to or destruction of any Improvements on the Premises shall be paid to Tenant and applied by Tenant toward the cost of repairing and restoring the damaged or destroyed Improvements in the manner required by Section 7.03 of this lease, or, if this lease is terminated under Section 7.04, applied by Tenant toward payment of the Leasehold Encumbrance(s). ARTICLE 8 INDEMNITY AND INSURANCE Section 8.01. Indemnity Agreement Tenant shall indemnify and hold Landlord and Landlord's property, including the Premises and Improvements now or hereafter on the Premises, free and harmless from any and all liability, claims, loss, damages, or expenses resulting from Tenant's occupation and use of the Premises, specifically including, without limitation, any liability, claim, loss, damage, or expense arising by reason of the following: A. The death or injury of any person, including Tenant or any person who is an employee or agent of Tenant, or by reason of the damage to or destruction of any property, including property owned by Tenant or by any person who is an employee or agent of Tenant, from any cause whatever while that person or property is in or on the Premises or in any way connected with the Premises or with any of the Improvements or personal property on the Premises; B. The death or injury of any person, including Tenant or any person who is an employee or agent of Tenant, or by reason of the damage to or destruction of any property, including property owned by Tenant or any person who is an employee or agent of Tenant, caused or allegedly caused by either (1) the condition of the Premises or some building or improvement on the Premises, or (2) some act or omission on the Premises of Tenant or any person in, on, or about the Premises with the permission and consent of Tenant; C. Any work performed on the Premises or materials furnished to the Premises at the instance or request of Tenant or any person or entity acting for or on behalf of Tenant; or D. Tenant's failure to perform any provision of this lease or to comply with any requirement of law or any requirement imposed on Tenant or the Premises by any duly authorized governmental agency or political subdivision. Section 8.02. Liability Insurance Tenant shall, at Tenant's own cost and expense, procure and maintain during the entire term of this lease a broad form comprehensive coverage policy of public liability insurance issued by an insurance company licensed by the State of California insuring Tenant and Landlord against loss or liability caused by or connected with Tenant's occupation and use of the Premises under this lease in amounts not less than the following: (a) Public liability and property damage insurance with a single combined liability limit of not less than $1,000,000.00 (One Million Dollars) insuring against all liability of Tenant and its authorized representatives arising out of and in connection with Tenants use or occupancy of the Premises. Said insurance shall name Landlord as additional insured and be primary. Section 8.03. Fire and Casualty Insurance Tenant shall, at Tenant's own cost and expense, at all times during the term of this lease, keep all Improvements on the Premises insured for their full replacement value by insurance companies authorized to do business in the State of California against loss or destruction by fire and the perils commonly covered under the standard extended coverage endorsement to fire insurance policies in the county where the Premises are located. For as long as there is any Leasehold Encumbrance in existence, that policy shall also contain a standard lender endorsement. Said insurance shall be primary, and shall meet the requirements of section 8.02(b) of this Lease. Section 8.04. Specific Perils to Be Insured Notwithstanding anything to the contrary contained in Section 8.03 of this lease, the insurance required by Section 8.03 of this lease shall, whether or not included in the standard extended coverage endorsement referred to in Section 8.03, insure all Improvements on the Premises against loss or destruction by windstorm, cyclone, tornado, hail, explosion, riot, riot attending a strike, civil commotion, malicious mischief, vandalism, aircraft, fire, smoke damage, and sprinkler leakage. Furthermore, the insurance required by Section 8.03 of this lease during the construction of the Community Center described in Article 5 shall include coverage for course of construction, vandalism, and malicious mischief, insuring the Community Center during its construction and all materials delivered to the site of the Community Center for their full insurable value. 10 Section 8.05. Deposit of Insurance With Landlord and Lender Tenant shall, within fifteen (15) days after the execution of this lease and promptly thereafter when any such policy is replaced, rewritten, or renewed, deliver to Landlord and Lender a true and correct copy of each insurance policy required by this Article of this lease or a certificate executed by the insurance company or companies or their authorized agent evidencing that policy or policies. Section 8.06. Notice of Cancellation of Insurance Each insurance policy required under this Article shall comply with the following requirements: (a) Tenant shall maintain all insurance required above in full force and effect for the entire period covered by this Lease. (b) Certificates of insurance shall be furnished to Landlord upon execution of this Lease and shall be approved in form by the City Attorney. (c) Certificates and policies shall state that the policies shall not be canceled or reduced in coverage or changed in any other material aspect without thirty (30) days prior written notice to the Landlord. Section 8.07 Failure to Maintain Insurance During T~ If Tenant fails or refuses to produce or maintain the insurance required by this Article or fails or refuses to furnish the Landlord with required proof that insurance has been procured and is in force and paid for, Landlord shall have the right, at the Landlord's election, to forthwith terminate this Agreement. ARTICLE 9 CONDEMNATION Section 9.01. Total Condemnation If, during the term of this lease, fee title to all of the Premises or to all of the Improvements, or the entire leasehold estate of Tenant is taken under the power of eminent domain by any public or quasi-public agency or entity (a "Total Taking"), this lease shall terminate as of 12:01 A.M. on whichever of the following occurs first: (1) the date legal title becomes vested in the agency or entity exercising the power of eminent domain, or (2) the date actual physical possession is taken by the agency or entity exercising the power of eminent domain. Thereafter, both Landlord and Tenant shall be released from all obligations under this lease. Section 9.02. Partial Takin -Pg arking Areas If, at any time during the term of this lease, a taking occurs that is less than a Total Taking and affects the parking areas for the Community Center, all compensation and damages payable for that taking shall be made available to and used, to the extent reasonably needed, by Tenant to repair any portion of the remaining parking areas damaged by the taking and to replace the parking areas taken with other new parking areas on the portion of the Premises not taken, provided that replacement is then permitted by existing law. Plans and specifications for the replacement parking areas must first be approved in writing by Landlord. Notwithstanding anything to the contrary in this Section, if the portion of the parking areas taken by eminent domain results in a net loss of 25 percent or more of the area of the Premises that can, after considering any replacement parking areas that can be lawfully constructed on the remaining portion of the Premises by reasonable methods, be devoted to parking areas as compared with the area devoted to those parking areas 11 immediately before the taking, Tenant may terminate this lease in the manner prescribed by Section 9.04 of this lease. Section 9.03. Partial Taking-Improvements If at any time during the term of this lease a taking occurs that is less than a Total Taking and affects the rentable portion of the Improvements on the Premises, all compensation and damages payable for that taking (excluding any portion payable for a taking of parking areas) shall be made available to and used, to the extent reasonably needed, by Tenant to repair any portion of the remaining rentable portion of the Improvements damaged by the taking and to replace the rentable portion of the Improvements taken with other new rentable space on the portion of the Premises not taken, provided that replacement is then permitted by existing law. Plans and specifications for the replacement rental space must be compatible, in terms of architecture and quality of construction, with the Improvements not taken and must be first approved in writing by Landlord. Notwithstanding anything to the contrary in this Section, if the rentable portion of the Improvements taken by eminent domain results in a net loss of 25 percent or more of the area of the Premises that can, after considering any replacement rentable space that can be lawfully constructed on the remaining portion of the Premises, be devoted to rentable space as compared with the area devoted to that rentable space immediately before the taking, Tenant may terminate this lease in the manner prescribed by Section 9.04 of this lease. Section 9.04. Termination for Partial Taking Tenant may terminate this lease for the reasons stated in either Section 9.02 or Section 9.03 of this lease, or both, by serving written notice of termination on Landlord within 90 days after Tenant has received from Landlord or from the condemning authority written notice of an intended taking that sets forth the extent and scope of the intended taking. If Tenant elects to terminate this lease, the effective date of termination shall be the earlier of (1) the date of termination specified in Tenant's notice to Landlord or (2) the date the condemning authority takes physical possession of the portion of the Premises taken by eminent domain. On termination of this lease under this Section, all subleases and subtenancies in or on the Premises or any portion or portions of the Premises created by Tenant under this lease shall also terminate and the Premises shall be delivered to Landlord free and clear of all such subleases and subtenancies; provided, however, that Landlord may, at Landlord's option, by mailing written notice to any subtenant, allow the subtenant to attorn to Landlord and continue its occupancy on the Premises as a tenant of Landlord. ARTICLE 10 ASSIGNMENT AND SUBLEASING Section 10.01. No Assignment or Sublease Without Landlord's Written Consent Tenant may assign this Lease or any interest in this Lease, whether denominated as an assignment or sublease, subject to the prior written consent of Landlord, through its City Council and Agency Board of Directors. Landlord shall grant consent if the proposed assignee or subtenant is financially qualified and has sufficient experience in the operation and management of a community center to perform all the agreements, undertakings, and covenants of this lease and all other agreements entered into by Tenant which relate to the management, operation, maintenance, construction, and restoration of the Improvements and the Premises. To assist Landlord in determining whether or not the proposed assignee or subtenant is so qualified, Tenant shall furnish to Landlord at no expense to Landlord, before that assignment, detailed and complete financial statements of the proposed assignee, audited by a certified public accountant reasonably satisfactory to 12 Landlord (if the proposed transferee causes its statements to be so audited in its normal course of business), together with detailed and complete information about the business of the proposed assignee, including its experience in operating community centers, the use to be made of the Premises and Improvements by the proposed assignee, projections by the proposed assignee of the sources of funds to be used to repay any indebtedness of Tenant that the proposed assignee will assume or take subject to, or agree to pay to Tenant, and other claims on and requirements for those funds, together with any other information as Landlord may reasonably require to assist Landlord in determining whether or not the proposed assignee is so qualified. Landlord shall have sixty (60) days after receipt of the information described above to notify Tenant of whether it consents or does not consent to the proposed assignment or sublease. A consent by Landlord to one assignment or sublease shall not be deemed to be a consent to any subsequent assignment or sublease. Any assignment or sublease made contrary to the terms of this Section shall be null and void unless otherwise permitted by this Article. Section 10.02. Leasehold Encumbrances and Subsequent Transfers Notwithstanding the provisions of Section 10.01 of this lease, Tenant may without the prior written consent of Landlord transfer and assign all Tenant's interest under this lease and Tenant's leasehold estate created under this lease to a Lender under a Leasehold Encumbrance (as defined in Section 6.01 of this lease). Any transfer, conveyance, or assignment resulting from a foreclosure or acceptance of a deed in lieu of foreclosure by any Lender (as defined in Section 6.01 of this lease), or any transfer, conveyance, or assignment by any Lender following its acquisition of this lease and the leasehold estate of Tenant created by this lease as a result of foreclosure or acceptance of a deed in lieu of foreclosure shall not require the prior consent of Landlord, but shall comply with section 6.06 of this Lease. ARTICLE 11 DEFAULT AND REMEDIES Section 11.01. Continuation of Lease in Effect Should Tenant breach this lease and abandon the Premises before the natural expiration of the lease's term, Landlord may continue this lease in effect by not terminating Tenant's right to possession of the Premises, in which event Landlord shall be entitled to enforce all Landlord's rights and remedies under this lease, including the right to recover the rent specified in this lease as it becomes due under this lease. Section 11.02. Termination and Unlawful Detainer In the event of a tenant default under this lease, Landlord may terminate this lease by written notice to Tenant and may also do the following: A. Bring an action to recover the following from Tenant: (1) The worth at the time of award of the unpaid rent that had been earned at the time of termination of the lease; or (2) Any other amount necessary to compensate Landlord for all detriment proximately caused by Tenant's failure to perform Tenant's obligations under this lease; and B. Bring an action, in addition to or in lieu of the action described in subparagraph (a) of this Section, to reenter and regain possession of the Premises in the manner provided by the laws of unlawful detainer of the State of California then in effect. 13 Section 11.03. Breach and Default by Tenant All covenants and agreements contained in this lease are declared to be conditions to this lease and to the term hereby leased to Tenant. Should Tenant fail to perform any provision, covenant, condition, or agreement contained in this lease and the default is not be cured within 30 days after written notice of the default is served on Tenant by Landlord, then Tenant shall be in default under this lease. Section 11.04. Cumulative Remedies The remedies given to Landlord in this Article shall not be exclusive but shall be cumulative with and in addition to all remedies now or hereafter allowed by law and elsewhere provided in this lease. Section 11.05. Waiver of Breach The waiver by Landlord of any breach by Tenant of any of the provisions of this lease shall not constitute a continuing waiver or a waiver of any subsequent breach by Tenant of either the same or a different provision of this lease. Section 11.06. Surrender of Premises On expiration or earlier termination of this lease, Tenant shall surrender the Premises and all Improvements in or on the Premises to Landlord in as good, safe, and clean condition as practicable, reasonable wear and tear excepted. ARTICLE 12 OTHER PROVISIONS Section 12.01. Force Majeure Except as otherwise expressly provided in this lease, if the performance of any act required by this lease to be performed by either Landlord or Tenant is prevented or delayed by reason of any act of God, strike, lockout, labor trouble, inability to secure materials, restrictive governmental laws or regulations, or any other cause, except financial inability, not the fault of the party required to perform the act, the time for performance of the act will be extended for a period equivalent to the period of delay and performance of the act during the period of delay will be excused. However, nothing contained in this section shall excuse the prompt payment of rent by Tenant as required by this lease or the performance of any act rendered difficult or impossible solely because of the financial condition of the party required to perform the act. Section 12.02. Attorne s' Fees Should any litigation be commenced between the parties to this lease concerning the Premises, this lease, or the rights and duties of either in relation thereto, each party in that litigation shall bear its own attorney fees and costs associated therewith. Section 12.03. Notices to Landlord Except as otherwise expressly provided by law, any and all notices or other communications required or permitted by this lease or by law to be served on or given to Landlord by Tenant or any Lender described in Article 6 of this lease shall be in writing and shall be deemed duly served and given when personally delivered to Landlord by personal service on the Clerk of the Council, or, in lieu of personal service, when deposited in the United States mail, first-class postage prepaid, and sent by express mail that allows for tracking, addressed to Landlord at Clerk of the Council, City of Santa Ana, 20 Civic Center Plaza, M-30, Santa Ana, California, 14 92701. Landlord may change Landlord's address for the purpose of this section by giving written notice of that change to Tenant in the manner provided in Section 12.04; Tenant shall then transmit a copy of that notice to any Lender described in Article 6 of this lease. Section 12.04. Notices to Tenant Except as otherwise expressly provided by law, any and all notices or other communications required or permitted by this lease or by law to be served on or given to Tenant by Landlord shall be in writing and shall be deemed duly served and given when personally delivered to Tenant, any managing employee of Tenant, or, in lieu of personal service, when deposited in the United States mail, first-class postage prepaid, and sent by express mail that allows for tracking, addressed to Tenant at 11701 N. Main Street, Suite 200, Santa Ana, California 92706. Tenant may change its address for the purpose of this section by giving written notice of that change to Landlord in the manner provided in Section 12.03 of this lease. Section 12.05. Governin Law This lease, and all matters relating to this lease, shall be governed by the laws of the State of California in force at the time any need for interpretation of this lease or any decision or holding concerning this lease arises. Section 12.06. Binding on Heirs and Successors This lease shall be binding on and shall inure to the benefit of the heirs, executors, administrators, successors, and assigns of the parties hereto, but nothing in this section shall be construed as a consent by Landlord to any assignment of this lease or any interest in the lease by Tenant except as provided in Article 10 of this lease. Section 12.07. Partial Invalidity If any provision of this lease is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions of this lease shall remain in full force and effect unimpaired by the holding. Section 12.08. Sole and Onl~Agreement This instrument constitutes the sole and only agreement between Landlord and Tenant respecting the leasing of the Premises to Tenant and the lease terms set forth in this lease, and correctly sets forth the obligations of Landlord and Tenant to each other as of its date. Any agreements or representations respecting the leasing to Tenant by Landlord, or any other matter regarding this lease not expressly set forth in this instrument are null and void. Section 12.09. Time of Essence Time is expressly declared to be of the essence of this lease. Section 12.10. Recordation of Lease This Lease, its Exhibits, and all attachments thereto, shall be recorded with the County Recorders Office, County of Orange, California, pursuant to California Government Code Section 37393. IS IN WITNESS WHEREOF the parties hereto have executed this Agreement the date and year first above written. ATTEST: CITY OF SANTA ANA, a charter city l../ G~~`t-G~C-c.ce..J Patricia E. Healy Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher, City Attorney By Be ja n Kau an C 'ef ssistant City Attorney ATTEST: David N. Ream City Manager COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a redevelopment agency Patricia E. Healy Secretary APPROVED AS TO FORM: Joseph W. Fletcher, Agency Counsel By B j in Kau n A si t Agenc Counsel Cynthia J. Nelson Executive Director LATINO CENTER FOR PREVENTION AND ACTION IN HEALTH, INC., dba LATINO HEALTH ACCESS, a California nonprofit public benefit corporation Amenca Bracho Chief Executive Officer 16 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ~~~ a ~ On d a/-{ro~a- ~ 5 ~ ~m~ before me, ~.~d 1r~ r!-'~ i ~~ , 1 y iTf'y-~ ~~ 1 t~~ , Date Here Insert Name and Title of the Officer personally appeared ~O~i/~G~ ~ _ ~2~.~^ Name(s) of Signer(s) SANDRA 11111RCf Colmmlaton,fr 1541715 ~p~ CarMy MI-Colmm. ~Iw~Joinb, who proved to me on the basis of satisfactory evidence to be the persor~s'f whose name~ubscribed to the within instrument and acknowledged to me that U~executed the same in~+~cn'theirauthorized capacityf j,~°)° and that by is 'gnature,(a)`on the instrument the person or the entity upon behalf of which the person) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature G~ ~ ~s~~~..Lc~c...~ Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Cori n~,ev~~- ~~©JnQ ~2~s-~:-- Document Date: ~('~rob.~r' ~3 , o'?DO~ Number of Pages: Signer(s) Other Than Named Above: ~mLi! I• pct.. ~1'Gt-G~O Capacity(ies) Claimed by Signer(s) Signer's Name: ^ Individual ^ Corporate Officer -Title(s): _ ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing Top of thumb here Signer's Name: ^ Individual ^ Corporate Officer -Title(s): ^ Partner - ^ Limited ^ General ^ Attorney in Fact ^ Trustee ^ Guardian or Conservator ^ Other: Signer Is Representing: Top of thumb here ®2007 National Notary Association • 9350 De Soto Ave., P.O. Box 2402 • Chatsworth, CA 91313-2402 • www.NationalNotary.org Item #5907 Reorder: Call Toll-Free 1-800-876-6827 (signatures continued from prior page) LATINO CENTER FOR PREVENTION AND ACTION IN HEALTH, INC., dba LATINO HEALTH ACCESS, a California nonprofit public benefit corporation America Bracho Chief Executive Officer 17 ACKNOWLEDGMENT State of California County of Orange ) On before me, (insert name and title of the officer) personally appeared America Bracho, Chief Executive Officer who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) EXHIBIT A LEGAL DESCRIPTION Real property in the City of Santa Ana, County of Orange, State of California, described as follows: LOTS 3, 8 AND 9 IN BLOCK 1 OF "THE H.C. JENNINGS ADDITION TO SANTA ANA", AS SHOWN ON A MAP RECORDED IN BOOK 11, PAGE 54 OF MISCELLANEOUS RECORDS OF LOS ANGELES COUNTY, CALIFORNIA N N N ~ ~ FIFTH STREET w ~ ~ ~ W ~J H ~ Z ~ O ~ O ~ a FOURTH STREET 2 ~ W ~ N THIRD STREET U J SECOND STREET ~ U i I I w I Q ~~ ¢ ~, -~ - ~~ W ti ~ ~ ~ U I C Exhibit B p ~ a 'mil 5 v a~i o !~ v C ~ ~v a y~j•ti ~~ > ~ 3 ~ - 3aE as ~g ~pp ,TIS~ Ci] 3 Op _ i 5 v E: 3 ^I y F ti ti z Q J a w a Z ¢ in to cn ~ v v Z Z a O z ? 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O Z _ ~ tii ~ W ~ m L Q ~ n ~ J H y Q A = O g ~ ~ ~ o_ Z f0 _ _ - Q g3 5 EXHIBIT D PROGRAMS TO BE CONDUCTED BY COMMUNITY CENTER AND OPERATIONAL STANDARDS • The Community Center and open space area to be accessible to the public, no less than 30 hours per week and opened no earlier than 7:OOa.m. and no later than 10:00 p.m. • Center Programs will include: • youth and adult recreational programs • educations programs • referral information to city programs • Programs to be available to residents of Santa Ana and general public • .Programs will be offered for free or if fee is charged, at fee consistent with that charged by City for comparable programs. • Improvements to be constructed by Latino Health Access at its sole cost, to include (if approved by City: • decorative 8 foot high wrought iron fence • playground equipment and play area • recreation building with restrooms (Program Recreation Office only). • park walkways and exercise area • security lighting • on-site parking • landscaping and automatic irrigation system • park is to be kept in neat condition during construction, including but not limited to dust control, noise control, protective fencing, street/site cleaning. Entire site must be maintained to city standards: • Daily trash pick up • all graffiti to be removed within 24 hours • weekly mowing of turf • periodic tree and shrub maintenance and repair • irrigation and lighting to be kept in good repair and replaced as necessary • daily inspection for safety items and to address repairs in a reasonable time period 20 A-2007-296 Clerk of the Council City of Santa Ana 20 Civic Center Plaza M-30 P.O. Box 1988 Santa Ana, California 92702 Recorded in Official Records, Orange County Tom Daly, Clerk-Recorder IIIIIIIIII~ 111111111 11m 1I1~ 1I111111111~111111111111I1U 1111111~ 1111 NO FE E 2008000497434 01:45pm 10/29/08 116415 L02 32 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00 RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CONFORMED copy FREE RECORDING GOVERNMENT CODE S 6103 CONTINGENT GROUND LEASE THIS CONTINGENT GROUND LEASE ("Lease") is made and entered into as of 13th day of October, 2008 by and between the CITY OF SANTA ANA, a charter city duly organized under the Constitution and laws ofthe State of California (the "City"), the COMMUNITY REDEVELOPMENT AGENCY OF THE CITY OF SANTA ANA, a redevelopment agency pursuant to Health & Safety Code S 33000 et seq. and a public body corporate and politic (the "Agency"), and LATINO CENTER FOR PREVENTION AND ACTION IN HEALTH, INC., dba LATINO HEALTH ACCESS, a California non- profit public benefit corporation ("Tenant"), with respect to the following: RECITALS: A. The City warrants and guarantees that it is the owner of that certain real property located on Third Street in the City of Santa Ana, California, described as 601 East Third Street (Orange County Assessor's Parcel Number [APN] 398-481-21) (hereafter "City parcel"). B. The Agency warrants and guarantees that it is the owner of that certain real property described as 526 East Fourth Street (Orange County Assessor's Parcel Number [APN] 398-481-04), and 523 East Third Street (Orange County Assessor's Parcel Number [APN] 398-481-29) (hereafter "Agency parcels"). C. Tenant warrants and guarantees that it is the owner of that certain real property described as 602 East Fourth Street (Orange County Assessor's Parcel Number [APN] 398-481-05) (hereafter "LHA parcel"). D. The City parcel and Agency parcels are collectively hereinafter referred to herein as "the Premises," and the City and Agency are collectively hereinafter referred to herein as "Landlord." The legal description of the Premises is set forth on Exhibit A hereto and shown on Exhibit B hereto, both of which are incorporated herein by this reference as though fully set forth. E. Tenant desires to lease the City parcel, Agency parcels and combine them with the LHA parcel for the purpose of constructing a community center ("the Community Center"), appurtenant parking areas, and other related improvements (collectively referred to in this lease as "the Improvements") in accordance with