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HomeMy WebLinkAboutFIESTA MARKETPLACE PARTNERS #1 -2009INSURANCE NOT REQUIRED WORK MAY PROCEED CLERK 0~ COUNCIL OA7F~ ~j_~~_{'j ~-~ N~ a ~~ 1. PARTIES LEASE AGREEMENT BETWEEN THE CITY OF SANTA ANA AND FIESTA MARKETPLACE PARTNERS #1 A-2009-108 This Lease is made and entered by and between Fiesta Marketplace Partners #1 ("Landlord") and the City of Santa Ana, a charter city and municipal corporation duly organized and existing under the Constitution and laws of the state of California ("Tenant"). 2. PREMISES Landlord does hereby lease to Tenant, and Tenant hereby leases from Landlord that certain office space ("Premises") indicated on Exhibit A, attached hereto and incorporated herein, said Premises being agreed, for purpose of this Lease, to have an area of approximately Three Thousand Nine Hundred Ten (3,910) square feet, being situated within that certain building known as 305 E. Fourth Street, Second Floor, in the City of Santa Ana 92701 ("Property"). 3. TERM OF LEASE The term of this Lease shall be for one (1) year, commencing on the first (1St) day of August 2009, and ending on the thirty-first (31St) day of July, 2010. Upon expiration of said term, there shall be two 1-year options, each exercisable at the sole option of the Tenant. 4. RENT/IMPROVEMENTS (a) Rent. Tenant shall pay Landlord monthly rent in the amount of Five Thousand Eight Hundred Sixty Five Dollars ($5,865.00) for the one-year term. Tenant agrees to pay rent payments on or before the fifth (5th) day of each full calendar month during the term hereof. Rent for any period during the rental term which is less than one (1) month shall be a prorated portion of the monthly installment herein, based upon a thirty (30) day month. (b) Annual Adjustment. There shall be a 2% annual increase in the rent amount at the time each option to renew is exercised. (c) Improvements. Landlord shall provide the following modifications to the Property/Premises at no cost to the Tenant so long as Tenant exercises at least one 1-year option. Should Tenant terminate this Lease after the one (1) year term, Tenant will be required to reimburse Landlord for half of the Improvement costs. Landlord shall provide Tenant with documentation pertaining to the cost of the Improvements prior to the time of execution of this Agreement. The Improvements shall consist of the following: (1) construct a divider wall (L-shaped) to separate SAPD and front reception area from Parking Meter operations; (2) construct a divider wall between two restrooms and construct a doorway opening on east side so each operation will have their own restroom; (3) reconfigure lights and switches; (4) install locks on front office (#'s 5 & 6 in drawing) for SAPD security; (5) either relocate cabinets or request new in file/storage area; (6) replace metal industrial entry doors on east wall with doors that match those on front; (7) remove "Downtown Development" signage from the canopy on 4cn Street. 5. USE Tenant shall use the Premises for general office purposes, and shall not use or permit the Premises to be used for any other purpose without the prior written consent of Landlord. Tenant shall be entitled to access and use of all facilities located on and within the Property. Tenant shall not do or permit anything to be done in or about the Premises, nor bring or keep anything therein which will in any way increase the existing rate of, or affect any fire or other insurance upon the building or any of its contents. Tenant shall not do or permit anything to be done in or about the Premises which will in any way obstruct or interfere with the rights of other tenants or occupants of the Property, or injure or annoy them, or use or allow the Premises to be used for any improper, immoral unlawful, or objectionable purpose, nor shall Tenant cause, maintain or permit any nuisance in, on, or about the Premises. 6. COMPLIANCE WITH LAW Tenant shall not use the Premises, or permit anything to be done in or about the Premises, which will in any way conflict with any law, statute, ordinance, or governmental rule or regulation now in force, or which may hereafter be enacted or promulgated. Tenant shall, at its sole cost and expense, promptly comply with all laws, statutes, ordinances, and governmental rules, regulations, or requirements now in force or relating to, or affecting the condition, use, or occupancy of the Premises, excluding structural changes not related to or affected by Tenant's improvements or acts. 2 7. REPAIRS Tenant shall, at Tenant's sole cost and expense, keep the Premises and every part thereof in good condition and repair, damage thereto from causes beyond the reasonable control of Tenant and ordinary wear and tear excepted. Tenant shal l upon the expiration or sooner termination of this Lease, surrender the Premises to the Landlord in good condition, ordinary wear and tear and damage from causes beyond the reasonable control of Tenant excepted. Not withstanding the provisions contained herein, Landlord shall repair and maintain the structural portions of the Property, including the basic plumbing, air conditioning, heating and electrical systems, installed or furnished by Landlord, unless such maintenance and repairs are caused in whole or in part by the act, neglect, fault or omission of any duty by the Tenant, its agents, employees or invitees, in which case Tenant shall pay to Landlord the reasonable cost of such maintenance and repairs. Landlord shall not be in breach of its obligations under this article unless Landlord fails to make repairs or perform maintenance which Landlord is obligated to perform hereunder, and such failure persists for an unreasonable time after written notice of the need for such repairs or maintenance is given to Landlord by Tenant. 8. ASSIGNMENT AND SUBLETTING Tenant shall not, either voluntarily or by operation of law, assign, transfer, mortgage, pledge, or encumber this lease or any interest therein, and shall not sublet said Premises or any part thereof, or any right or privilege appurtenant thereto, or allow any other person (the employees, agents, servants, and invitees of Tenant excepted) to occupy or use said Premises, or any portion thereof, without the prior written consent of the Landlord. 9. HOLD HARMLESS Tenant shall indemnify Landlord against all claims, damages, losses, costs, liabilities and expenses, arising from Tenant's use of the Premises for the conduct of its business, or from any activity, work, or other thing done, permitted, or suffered by the Tenant in or about the building, and shall further indemnify and hold harmless Landlord against and from any and all claims arising from any breach or default in the performance or any obligation on Tenant's part to be performed under the terms of this Lease, or arising from any act or negligence of the Tenant, or any officer, agent, employee, guest, or invitee of Tenant, and from and against all costs, attorney's fees, expenses and liabilities incurred by any such claim or any action or proceeding brought thereon and, in any case, action, or proceeding brought against Landlord by reason of any such claim. Landlord or its agents shall not be liable for any damage to property entrusted to employees of the building, nor for loss or damage to any property by theft or otherwise, nor for any injury to or damage to persons or property resulting from fire, explosion, falling plaster, steam, gas, electricity, water, or rain which may leak from any part of the building or from the pipes, appliances, or plumbing works therein or from the roof of any structure on the Property, or from any other place resulting from dampness or any other cause whatsoever, unless caused by or due to negligence of Landlord, its agents, servants or employees for failing to repair such condition(s) within a reasonable time after written notice of the need for such repair is given to Landlord by Tenant. Tenant shall give prompt notice to Landlord with respect to any defects, fire or accidents observed by Tenant on the Premises, or on the Property, or of defects therein, or in the fixtures or equipment. 10. SUBROGATION As long as their respective insurers so permit, Landlord and Tenant hereby mutually waive their respective rights of recovery against each other for any loss insured by fire, extended coverage and other property insurance policies existing for the benefit of the respective parties. Each party shall obtain any special endorsements, if required by their insurer to evidence compliance with the aforementioned waiver. 11. SERVICES AND UTILITIES Landlord agrees to furnish to the Premises, on all days that the Property is open to the public, subject to the rules and regulations of the Property, water and electricity suitable for the intended use of the Premises, heat, ventilation and air conditioning required for the comfortable use and occupation of the Premises. Landlord agrees to provide janitorial services pursuant to Exhibit B, "Janitorial Specifications", a copy of which is attached hereto and incorporated herein. The Landlord shall also maintain the plumbing, gas, air conditioning and electrical systems on the Property, as well as the common areas of the Property. Landlord shall pay the cost of providing the above utilities, and shall determine the amount expended in the first twelve months of the Lease as a "Base Year". Assuming that the options to renew are exercised, the Tenant shall pay the cost of all such utilities to the extent such exceed the cost in the Base Year. Landlord shall bill Tenant for such additional utility costs as additional rent, on a quarterly or other convenient basis, which shall be due and payable by Tenant within thirty (30) days after receipt. Tenant shall be entitled to, and Landlord shall provide, accounting records to confirm the cost of utilities over the Base Year cost. 12. RULES AND REGULATIONS Tenant shall faithfully observe and comply with the rules and regulations that Landlord shall from time to time promulgate. Landlord reserves the right from time to time to make all reasonable modifications to said rules. The additions and modifications to those rules shall be binding upon Tenant upon delivery of a copy of them to Tenant. 13. ENTRY BY LANDLORD Landlord reserves and shall at any and all times have the right to enter the Premises, with reasonable notice to Tenant, for the purposes of inspection, supplying janitorial service and any other service to be provided by Landlord to Tenant hereunder, and to alter, improve, or repair the Premises, providing that the business of the Tenant shall not be interfered with unreasonably. 14. RECONSTRUCTION In the event that the Premises or the building of which the Premises are a part are damaged by fire or other perils covered by extended coverage insurance, Landlord agrees to forthwith repair the same; and this Lease shall remain in full force and effect, except that Tenant shall be entitled to a proportionate reduction, to be based upon the extent to which the making of such repair shall materially interfere with the business carried on by the Tenant in the Premises. In the event that the Premises or the building of which the Premises are a part are damaged as a result of any cause other than the perils covered by fire and extended coverage insurance, then Landlord shall repair the same, provided the extent of the destruction be less than ten percent (10%) of the then full replacement cost of the Premises or the building of which the Premises are a part. In the event the destruction of the Premises or the building is greater than ten percent (10%) of the full replacement cost, then Landlord shall have the option: (1) to repair or restore such damage, this Lease continuing in full force and effect, but the rent to be proportionately reduced as hereinabove in this article provided; or (2) give notice to Tenant within sixty days (60) of the damage, at which time this Lease shall expire and all interests of the Tenant in the Premises shall terminate on the date so specified in such notice and the rent, reduced by a proportionate amount based upon the extent, if any, to which such damage materially interfered with the business carried on by the Tenant in the Premises, shall be paid up to the date of such termination. The Tenant shall not be entitled to any compensation or damages from Landlord for loss of the use of the whole or any part of the Premises, Tenant's personal property, or any inconvenience or annoyance occasioned by such damage, repair, reconstruction, or restoration. 15. DEFAULT, REMEDIES A. Default. The occurrence of any one or more of the following events shall constitute a default under this Lease by Tenant: 1. Non-curable defaults: (a) The vacating or abandonment of the Premises by Tenant. (b) Any attempted or involuntary transfer of Tenant's interest in this Lease without Landlord's prior consent. (c) If Tenant makes, or has made, or furnishes any warranty, representation or statement to Landlord in connection with the Lease which is or was false or misleading in any material respect when made or furnished. 2. Curable defaults: (a) The failure by Tenant to make any payment of rent or any other payment required to be made by Tenant hereunder, as and when due, where such failure shall continue for a period of three (3) days after written notice thereof by Landlord to Tenant, this Lease shall be terminable at Landlord's option. (b) The failure by Tenant to observe or perform any of the covenants, conditions, or provisions of this Lease to be observed or performed by the Tenant, where such failure shall continue for a period of thirty (30) days after written notice thereof by Landlord to Tenant; provided; however, that if the nature of Tenant's default is such that more than thirty (30) days was reasonably required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such cure within said thirty (30) day period, and thereafter diligently prosecutes such cure to completion. B. Remedies. In the event of any non-curable default or breach by Tenant, Landlord shall have the right to terminate this Lease and Tenant's right to possession of the Premises, and Tenant shall immediately surrender possession of the Premises to Landlord. If Landlord terminates this Lease and Tenant's right to possession for the Premises, Landlord may recover the following from Tenant: (a) The worth at the time of award of the unpaid rent which was due, owing and unpaid by Tenant to Owner at the time of termination; (b) The worthy at the time of the award of the amount by which the unpaid rent for the balance of the Lease term after the time of award exceeds the amount of rental loss which Tenant proves could be reasonably avoided; (c) Pursuing any other remedies now or hereafter available to Landlord under the laws or any judicial decision of the state in which the Premises are located. 16. PARKING Tenant shall have the right to use the parking facilities of the building in common with other tenants or occupants of the Property. 17. ATTORNEY FEES AND COSTS In the event that any action is instituted to enforce payment or performance under this Agreement, or otherwise in connection with this Agreement, the parties agree that the prevailing party shall be reimbursed by the other party for all costs and attorneys' fees incurred by the prevailing party in such action. 18. GENERAL PROVISIONS Waiver. The waiver by Landlord of any term, covenant or condition herein contained shall not be deemed to be a waiver of such term, covenant, or condition on any subsequent breach of the same or any other term, covenant, or condition herein contained. The subsequent acceptance of rent hereunder by Landlord shall not be deemed to be a waiver of any preceding breach by Tenant of any term, covenant, or condition of this lease, other than the failure of the Tenant to pay the particular rental so accepted, regardless of Landlord's knowledge of such preceding breach at the time of the acceptance of such rent. Time. Time is of the essence of this Lease, and each and all of its provisions in which performance is a factor. Successors and Assigns. The covenants and conditions herein contained, subject to the provisions as to assignment, apply to and bind the heirs, successors, executors, administrators, and assigns of the parties hereto. Quiet Possession. Upon Tenant paying the rent reserved hereunder, and observing and performing all of the covenants, conditions, and provisions on Tenant's part to be observed and performed hereunder, Tenant shall have quiet possession of the Premises for the entire term hereof, subject to all the provisions of this Lease. Prior Agreements. This Lease contains all of the agreements of the parties hereto with respect to any matter covered or mentioned in this Lease, and no prior agreements or understanding pertaining to any such matters shall be effective for any purpose; no provision of this lease may be amended or added to except by an agreement in writing signed by the parties hereto or their respective successors-in-interest. This Lease shall not be effective or binding on any party until fully executed by both parties hereto. Inability to Perform. This Lease and the obligations of the Tenant hereunder shall not be affected or impaired because the Landlord is unable to fulfill any of its obligations hereunder, or is delayed on doing so, if such inability or delay is caused by reason of strike, labor troubles, acts of God, or any other cause beyond the reasonable control of the Landlord. Severability. Any provision of this lease which shal l prove to be invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision hereof, and such other provision shall remain in full force and effect. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. Choice of Law. This Lease shall be governed by the laws of the State of California, with venue in the courts of Orange County. 18. NOTICES All such notices and demands which may or are to be required or permitted to be given by either party to the other hereunder shall be in writing. All notices and demands sent by either party shall be sent by United States Postal Service, postage prepaid, addressed as follows: To Tenant-- City of Santa Ana Community Development Agency 20 Civic Center Plaza (M-25) Santa Ana, CA 92701 ATTN: Cynthia J. Nelson To Landlord-- S & A Properties P.O. BOX 10728 Costa Mesa, CA 92627-0728 ATTN: Irving M. Chase A party may change its address by giving notice in writing to the other party. Thereafter, any notice, tender, demand, delivery, or other communication shall be addressed and transmitted to the new address. If sent by mail, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given three (3) days after it has been deposited in the United States mail, duly registered or certified, with postage prepaid, and addressed as set forth above. If sent by telefacsimile, any notice, tender, demand, delivery, or other communication shall be effective or deemed to have been given twenty-four (24) hours after the time set forth on the transmission report issued by the transmitting facsimile machine, addressed as set forth above. For purposes of calculating these time frames, weekends, federal, state, County or City holidays shall be excluded. ATTEST: Patricia E. Healy Clerk of the Council APPROVED AS TO FORM: Joseph W. Fletcher City Attorney BY: Lisa E. Storck Assistant City Attorney RECOMMENDED FOR APPROVAL: "Tenant" ,~. Cyn is J. Nel n, Deputy City Manager for Development Services CITY OF SANTA ANA David N. Ream City Manager "Landlord" Fiesta Marketplace Partners # 1 BY: Irving M. Chase TITLE: C ~, > ..~ - ,, 1 ~~`, ti ~ ~. TAX ID #: y ~ EXHIBIT A Q EXHIBIT B JANITORIAL SPECIFICATIONS It is the intent of this Exhibit to provide general guidelines for minimum janitorial service. Any absence of a specific janitorial service from this Exhibit does not relieve Landlord of the obligation to provide such service, should it become necessary. "Three-days-per-work-week, Monday through Friday" janitorial service for Tenant as required in Section 11 (SERVICES AND UTILITIES) of the Lease Agreement, shall be inclusive of, but not limited to, the services as detailed below: OFFICE AREAS MONDAY, WEDNESDAY, FRIDAY (CITY OF SANTA ANA HOLIDAYS EXCEPTED): 1. Empty and clean all waste receptacles, supply liners for waste receptacles, replace light bulbs and fluorescent tubes, remove waste materials from the Premises, and wash receptacles as necessary. 2. Mop all uncarpeted areas. Vacuum all carpeted areas in offices, lobby, and corridors. 4. Hand-dust all office furniture, fixtures, and all other horizontal surfaces. Remove all finger marks and smudges from doors, door frames, around light switches, and from private entry glass and partitions. 6. Spot-clean carpet as necessary. 7. Clean sink and wipe down tables and counter areas in all break areas and coffee bars. WEEKLY: Wipe clean and polish all metal and bright work. 2. Mop and polish all resilient flooring. Use "wet floor" signs to indicate wet areas. 3. Dust in place all picture frames, charts, graphs, and similar wall hangings. 4. Spot-clean all wall marks. 5. Sweep balcony. 6. Clean finger prints/markings from interior windows. 7. Clean and maintain balcony drainage. MONTHLY.• 1. Dust all miniblinds with the Premises. 2. Vacuum all HVAC vents, high moldings and other areas not reached by nightly or weekly cleaning. 3. Scrub and wax uncarpeted floors. 4. Clean exterior windows. SEMIANNUALLY: 1. Clean ceiling light diffusers. 2. Clean carpet in high-traffic areas (corridors, near lunchroom, etc.) and other areas as needed. 3. Clean interior walls as needed. 4. Strip and wax uncarpeted floors. ANNUALLY.• Clean carpet throughout Premises. RESTROOMS MONDAY, WEDNESDAY, FRIDAY (CITY OF SANTA ANA HOLIDAYS EXCEPTED): 1. Clean and damp-mop floors. 2. Wash all mirrors, bright work and enameled surfaces. 3. Wash and sanitize all basins, bowls, urinals, and toilet seats. 4. Clean, and wash down all partitions, the walls, dispensers and receptacles. 5. Empty and sanitize all receptacles and sanitary napkins disposals. 2 6. Provide materials and fill all toilet tissue, towel, seat cover, sanitary napkin and soap dispensers. MONTHLY.• 1. Machine-strip restroom floors and apply finish sealer where applicable. 2. Wash all partitions, the walls, and enamel surfaces. Vacuum all louvers and vents, and dust light fixtures. MSCELLANEOUS SERVICES Maintain building lobby, corridors, stairwell to space, and other public areas in a clean condition.