HomeMy WebLinkAbout305 W. FOURTH ST. PARTNERS - 2005
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A-2002-199:
: . INSURANCE NOT ON FILE
.. WORK MAY NOT PROCEED
CLERK OF COUNCIL
· DATE: /1-3-05
CITY OF SANTA ANA
and
305 W. Fourth ST. PARTNERS, LLC
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(L. 80( f.>)
License of nineteen (19) Parking Spaces
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THIS LICENSE AGREEMENT ("License") is entered into as of L day of
~l1f'J11bee, 2005, by and between THE CITY OF SANTA ANA, a public corporate and
politic ("City"), and 305 W. Fourth STREET PARTNERS, LLC ("Developer").
THE CITY OF SANTA ANA AND DEVELOPER HEREBY AGREE AS FOLLOWS:
RECITALS:
WHEREAS, the Community Redevelopment Agency of the City of Santa Ana
and Developer are parties to that certain Private Disposition and Development
Agreement, recorded with the County of Orange Recorder's Office as Document Number
2003-000159468 on February 11, 2003 (the DDA); and
WHEREAS, the DDA provides that Developer, together with the other two
owners of the Phillips-Hutton building, shall License from City nineteen (19) non-
designated spaces of which three (3) may be converted by exercise of a one-time option
into dedicated, reserved parking spaces in the approximately 375 space parking lot
located at the Third and Birch Street Parking Garage ("the Parking Garage"); and
WHEREAS, the City has agreed to license to Developer said designated spaces as
covered, assigned spaces to be located at the City's discretion based upon operational
constraints and to provide the remaining parking spaces as non-designated spaces to be
located on a space by space basis at the first available non-designated location
NOW THEREFORE, it is agreed by and between the parties, that the foregoing
Recitals are a substantive part of this License Agreement and that the following terms and
conditions are approved and together with the Recitals and all exhibits and attachments
hereto, shall constitute the entire License Agreement between the City and the Developer.
1. License. City hereby grants to Developer nineteen (19) non-designated parking
spaces. Of these nineteen (19) spaces, the Developer hereby exercises its one time option
to designate three (3) spaces as dedicated parking spaces to be located on a space by
space basis at the first available non-designated location of the Parking Garage at the
location shown on Exhibit A hereto, which is incorporated herein by this reference as
though fully set forth. Said dedicated and non-dedicated parking spaces will hereafter be
collectively known as the "Premises." The license granted to Developer is subordinate to
the prior and paramount right of City to use the Property in its entirety for the public
purposes to which it presently is and may, at the option of City, be devoted. It is
expressly understood by all parties that this license does not extend or vest any property
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right in the said Parking Garage and, further, that all parties agree never to assail the
City's property rights.
2. Term. The term of this License shall commence as of the date of the execution of
this agreement, and shall continue for a period of ten (10) years.
(a) Developer may choose not to initially license the entire nineteen (19)
parking spaces from the City, but may instead choose to license some
portion of the nineteen (19) spaces. In this case, the following
additional terms shall apply:
i. During the initial ten (10) year License term, Developer will have
the option to increase or decrease the number of non-dedicated
parking spaces licensed to it at any time; provided, however that in
no event shall this number exceed nineteen (19) non-dedicated
spaces less any dedicated spaces licensed by Developer.
ii. During the initial ten (10) year License term, City shall increase or
decrease the number of spaces licensed to Developer within thirty
(30) days of its receipt of Developer's written request.
iii. Developer shall have no option to increase the number of dedicated
spaces it licenses from the City from that number shown on
Exhibit A hereto.
(b) Developer may choose to decrease the number of dedicated parking
spaces; provided however, that such action shall terminate all
remaining right to increase the number of dedicated parking spaces
and shall relieve the City of any and all such obligations.
(c) Developer will have an Option to renew the License for an additional
year with City under the same terms and conditions established within
this License agreement. This Option is exercisable by Developer each
year for up to fifteen (15) years, and shall be exercised by submittal of
a written request to the Executive Director of the City's Community
Development Agency of the Developer's intent to exercise said option
no later than thirty (30) days before the end of that year's term.
Failure to exercise the Option in any year terminates all remaining
Licenses and shall relieve the City of any and all obligations.
3. License Fee. The license fee shall be $40 per space for non-dedicated spaces, and
may be adjusted upon thirty (30) days written notice from time to time during the term of
this License and any extension hereto; provided, however, that such adjustment shall not
exceed the monthly rent changed by the City to the public at large to park at the Parking
Garage. The license fee shall be due and payable on the 1st of each month in advance,
made payable to "The City of Santa Ana, Attention Administrative Services Division" at
the following address: 20 Civic Center Plaza, Community Development Agency (M-25),
P.O. Box 1988, Santa Ana, CA 92701. The location for payment may be modified in
writing by the City to the Developer with thirty (30) days notice. The aforementioned
three (3) dedicated, covered parking spaces will be Licensed for a monthl y rate equal to a
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premium of 50% of the established monthly rate for non-dedicated parking spaces.
During the term of the License of any extension thereto, City reserves the right to adjust
the rates for the monthly or annual rates at the City's sole discretion to the same extent as
the City adjusts rates for members of the general public. A late charge of ten percent
(10%) shall be applied after any payment hereunder is due but unpaid by the 5th of each
month. In addition, one and a half percent (1 Y2%) interest per month shall be added for
each month that payment hereunder is due but unpaid. If after any ninety (90) day period
the fees, late charge, and/or interest remain due but unpaid on any space(s), the
Developer shall have ten (10) days, after City provides notice as specified in section 11,
paragraph b hereinbelow, to cure the default. If the Developer fails to cure the default,
any and all rights provided with this Agreement related to any parking space(s) in default
shall be terminated and the City shall be relieved of any and all obligations relating to
those spaces.
4. Use. The parking spaces in the Parking Garage shall be used exclusively for the
purpose as parking for motor vehicles of Developer's employees, and may not be
otherwise sublet, sold or assigned. The City, at its sole discretion, may need to close off
or alter the number of available spaces within the parking structure for the purposes of
performing maintenance, construction and/or repairs. The City will provide Developer
with thirty (30) days notice, except in the case of emergency activities, when said
maintenance, construction and/or repair activities will impact the ability for the City to
provide the Developer with the parking spaces specified in Section I of this Agreement.
If the City cannot provide the parking spaces within the parking structure, the City may at
its sole discretion, provide parking spaces at another City owned parking structure at the
same monthly rate or abate the license fee prorated by the number of days and the
number of spaces impacted by said maintenance, construction and/or repair activities.
5. Rules and Regulations. The Developer shall faithfully observe and comply with
the rules and regulations that City shall from time to time promulgate on the use of the
Parking Garage. At a minimum, Developer must agree to abide by the terms of the City's
standard "no bailment" release. City 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 Developer upon delivery of a copy to Developer. City shall not be
responsible to Developer for the nonperformance of any said rules by any other
occupants. The City will provide the Developer with a thirty (30) day written notice to
cure any of Developer's failure to comply with the provided rules and regulations. Any
failure of Developer's parking space occupant(s) to comply with the provided rules and
regulation will subject said occupant(s), at City's sole discretion, to expulsion from the
parking facility. If Developer fails to cure the occupant(s) behavior to comply with the
rules and regulations within the thirty (30) day period, the City, at its sole discretion, may
permanently expel occupant from access to the parking facility.
6. Indemnitv and Developer's Liability. City shall defend, indemnify and hold
harmless Developer 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 License to the extent caused by the
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gross negligence or willful misconduct of Developer. Developer shall defend, indemnify
and hold harmless City 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 Developer or any of its employees in connection with this License
excepting only to the extent caused by the gross negligence or willful misconduct of City.
In addition, Developer agrees to reimburse City for the cost of repairing any damage
caused by Developer, or its employees, invitees, guests, visitors or customers. Without
limiting the generality of the foregoing, should City deem it necessary to cause any
vehicle of Developer or any of its employees that is parked in violation of the
requirements herein to be removed from the Parking Garage, Developer shall indemnify
City from any and all costs incurred in connection therewith.
7. Waiver. The Developer shall require each principal or employee who uses a
parking space to sign Exhibit B hereto and shall transmit the original to the City as a
condition of receipt of each monthly parking pass.
8. Force Majeure. The term and any obligation under this License 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 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 City or entity (other than acts or failure to act
on the part of the City or 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 or event resulting in such
delays. Any such extension shall be for the duration of the cause of the delay.
9. Taxes. Developer recognizes and understands that should this Agreement be
deemed by the County of Orange to create a possessory interest subject to property taxation,
that Developer shall be subject to the payment of property taxes levied on such interest, and
that it shall defend, indemnify and hold the City and its officers, officials, members,
employees, agents and representatives, harmless from and against any and all such
claims. As such, Developer shall pay all real property taxes and general assessments
levied and assessed against the Premises during the term of this License. If it shall be
Developer's obligation to pay such real property taxes and assessments hereunder, City
shall use its best efforts to cause the Premises to be separately assessed from other real
property owned by the City. If City is unable to obtain such a separate assessment, the
assessor's evaluation based on the building and other improvements that are a part of the
Premises shall be used to determine the real property taxes. If this evaluation is not
available the parties shall equitably allocate the property taxes between the building and
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other improvements that are a part of the Premises and all buildings and other
improvements included in the tax bill. In making the allocation the parties shall reasonably
evaluate the factors to determine the amount of the real property taxes so that the allocation
of the building and other improvements that are a part of the Premises will not be less than
the ratio of the total number of square feet of the building and other improvements that are
a part of the Premises bear to the total number of square feet in all buildings and other
improvements included in the tax bill. Real property taxes attributable to land in the
Premises shall be determined by the ratio that the total number of square feet in the
Premises bears to the total number of square feet of land included in the tax bill.
10. Eminent Domain: If more than twenty-five (25%) percent of the Parking Garage
or the premises shall be taken or appropriated by any public or quasi-public authority
under the power of eminent domain, either party hereto shall have the right to terminate
this License, and City shall be entitled to any and all income, rent, award, or any interest
therein whatsoever which may be paid or made in connection with such public or quasi-
public use or purpose, and Licensee shall have no claim against City for the value of any
unexpired term of this License. If more than 25 % of the premises are taken, and neither
party elects to terminate as herein provided, the License fees thereafter to be paid shall be
equitably reduced. If any part of the Parking Garage or the premises may be so taken or
appropriated, City shall have the right, at its discretion, to terminate this License, and
shall be entitled to the entire award as above provided.
II. Insurance:
(a) Fire Insurance. City, at its cost shall maintain during the term of this License
on the Premises a policy or policies of standard fire and extended coverage insurance to the
extent of at least ninety (90%) percent of full replacement value thereof, or a policy of self-
insurance.
(b) Liability Insurance. Developer at its sole cost and expense shall maintain
during the term of this License public liability and property damage insurance with a single
combined liability limit of one million dollars ($1,000,000) and property damage limits of
not less than one million dollars ($1,000,000), insuring against all liability of Developer
and its authorized representatives arising out of and in connection with Developer's use or
occupancy of the Parking Garage. Both public liability insurance and property damage
insurance shall insure performance by Developer of the indemnity provisions provided in
this License, but the limits of such insurance shall not, however, limit the liability of
Developer hereunder. Both City and Developer shall be named as additional insureds and
the policies shall contain cross-liability endorsements. If Developer shall fail to procure
and maintain such insurance, the City may but shall not be required to procure and
maintain same at the expense of Developer and the cost thereof together with interest
thereon at the rate of ten (10%) percent per annum shall become due and payable as
additional rental to City together with Developer's next payment installment.
12. General Provisions:
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(a) Waiver. The waiver by City 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.
(b) Notice. Any notice, tender, demand, delivery, or other communication
pursuant to this License shall be in writing and shall be deemed to be
properly given if delivered in person or mailed by first class or
certified mail, postage prepaid, or sent by facsimile or other
telegraphic communication in the manner provided in this Section, to
the following persons:
To City:
Clerk of the City Council
City of Santa Ana
20 Civic Center Plaza (M-30)
P.O. Box 1988
Santa Ana, CA 92702-1988
facsimile (714) 647-6956
With courtesy copies to:
Community Development Agency
Attn: Administrative Services Manager
City of Santa Ana
20 Civic Center Plaza (M-25)
P.O. Box 1988
Santa Ana, California 92702
facsimile (714) 647-6549
and,
City Attorney
City of Santa Ana
20 Civic Center Plaza (M-29)
P.O. Box 1988
Santa Ana, California 92702
facsimile (714) 647-6515
To Licensee:
305 W. Fourth St. Partners, LLC
c/o Nestor + Gaffney Architecture, LLP
305 W. 4th St.
Santa Ana, CA 9270 I
Facsimile (714) 571-0600
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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 facsimile,
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.
(c) Marginal Headings. The marginal headings and article titles to the
articles of this License are not a part of this License, and shall have no effect upon the
construction or interpretation of any part hereof.
(d) 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.
(e) Prior Agreements. This License contains all of the agreements of the
parties hereto with respect to any matter covered or mentioned in this License, and no
prior agreements or understanding pertaining to any such matters shall be effective for
any purpose; no provision of this License may be amended or added to except by an
agreement in writing signed by the parties hereto or their respective successors-in-
interest. This License shall not be effective or binding on any party until fully executed
by both parties hereto.
(f) Use of Parking Garage by City. In the event of any sale of the
Parking Garage, City shall be, and is entirely, freed and relieved of all liability under any
and all of its covenants and obligations contained in or derived from this License arising
out of any act, occurrence, or omission occurring after the consummation of such sale;
and the purchaser, at such sale or any subsequent sale of the Parking Garage shall be
deemed, without any further agreement between the parties or their successors-in-interest
or between the parties and any such purchaser; to have assumed and agreed to carry out
any and all of the covenants and obligations of the City under this License.
(g) Cumulative Remedies. No remedy or election hereunder shall be
deemed exclusive but shall, whenever possible, be cumulative with all other remedies at
law or in equity.
(h) Jurisdiction-Venue. This License and all questions relating to its
validity, interpretation, performance, and enforcement shall be government and construed
in accordance with the laws of the State of California. This License has been executed
and delivered in the State of California and the validity, interpretation, performance, and
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enforcement of any of the clauses ofthis License shall be determined and governed by
the laws ofthe State ofCalifomia. Both parties further agree that Orange County,
California, shall be the venue for any action or proceeding that may be brought or arise
out of, in connection with or by reason of this License.
(i) Signs and Auctions. Developer shall not place any signs upon the
Parking Garage or premises, or conduct any auction thereon without City's prior written
consent.
(j) Authority To Execute License. Each undersigned represents and
warrants that its signature hereinbelow has the power, authority and right to bind their
respective parties to each of the terms of this License, and shall indemnify City fully,
including reasonable costs and attorney's fees, for any injuries or damages to City in the
event that such authority or power is not, in fact, held by the signatory or is withdrawn.
(k) Exhibits Incorporated By Reference. All Exhibits referenced herein
and attached hereto shall be incorporated as if fully set forth in the body of this License.
(I) Choice of Documents. To the extent there are any disputes between the
DDA and this License, then upon its execution the terms ofthis License shall prevail.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the
date and year first above written.
ATTEST:
CITY OF SANTA ANA
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~ATRICIAE. HEAL~
Clerk of the Council
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DA V N. REAM
City Manager
APPROVED AS TO FORM:
JOSEPH W. FLETCHER
City ey
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TO REGISTER PLEASE FILL OUT, SIGN AND RETURN THIS FORM
Please provide ALL requested information, including data on up to three vehicles. Mail
form to City of Santa Ana, Community Development Agency (M-25), P.O. Box
1988,Santa Ana, CA 92701, Attention "Administrative Services Division."
Name: First:
MI:
Last:
Company
Name:
Street
Cffy
State
Zip
Mailing Address
Phones:
Home
Work
Mobil
Please circle one
Automobile(s): Make / Model Add/Delete License Plate
state
Color
A)
Please circle one
Automobile(s): Make / Model Add/Delete License Plate
State
Color
B)
Please circle one
Automobile(s): Make 1 Model Add/Delete License Plate
State
Color
C)
THIS CONTRACT LIMITS OUR LIABILITY - READ IT
Customer leaves car at his own risk. This proximity card licenses the holder to park ONE
AUTOMOBILE in this garage in the area designated by the operator. PARK PROPERLY
and LOCK YOUR CAR! Only rental space license is granted and no bailment is created.
The City of Santa Ana, our employees, agents, officers, and assigns assume no liability
and shall not be responsible for thefts, collision, fire, flood or damage in any case to said
automobile or any other article left in same. We shall not be responsible for articles left in
car. No employee or agent may alter or enlarge our liability hereunder orally or
otherwise. This constitutes the entire contract and your signature below constitutes
acknowledgement by patron that you have read and agree to the foregoing.
Signature
Date
For Office Use Only
Exhibit B
JOINT PUBLIC HEARINGS
Structures, Inc., Nestor & Gaffney Architecture and Rosenow, Spevacek
Group for the sale of certain real property in the Central City
Redevelopment Project and approving the sale of said real property
upon the terms and conditions contained in that agreement
2. Direct the City Attorney to prepare and authorize the City Manager
and Clerk of the Council to execute agreement.
AGMT NO. 2002-199 - Execute a parking license agreement with
Griffin Structures, Inc., Rosenow Spevacek Group, Inc. and Nestor +
Gaffney Architects
3. Adopt resolution.
RESOLUTION NO. 2002-090 - A resolution of the City Council of Santa
Ana authorizing lease financing relating to renovation of the historical
Phillips HtlttDm Building in the maximum principal amount of
$2,800,000.00, and approving related documents and actions
MOTION: Alvarez
SECOND: Bist
VOTE:
AYES:
Alvarez, Sist, Christy, Franklin, Pulido, Solorio
(6)
NOES:
None (0))
ABSENT:
McGuigan (1)
** CITY COUNCIL MEETING RECONVENED AT 7:49 P.M. WITH ALL MEMBERS
PRESENT EXCEPT PULIDO, McGUIGAN AND FRANKLIN **
WSA
CORNERSTONE VilLAGE IMPROVEMENT PROJECT UPDATE _
Presentation by Housing Manager Patricia Whitaker
Highlights of the presentation given by Housing Manager Pat Whitaker are
as follows:
· Cornerstone Village - formerly "Minnie Street" neighborhood
· Originally built in the late 1960's as off base military housing
· Street and Landscape Improvements intended to lay foundation for
strengthened community
· Improved landscaping adds to visual quality, unifying buildings
CITY COUNCIL MINUTES
386
OCTOBER 21, 2002