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HomeMy WebLinkAbout1986-06-10; City Council; Resolution 8602I 0 RESOLUTION NO. 8602 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A LEASE FOR PROPERTY SOUTH OF GRAND AVENUE AND WEST OF STATE STREET BETWEEN THE RAILROAD TRACKS AND THE ALLEY WHEREAS, the City Council of the City of Carlsbad has determined it necessary and in the public interest to construct the Depot Parking Lot; and WHEREAS, the City desires to lease property from the Atchison, Topeka and Santa Fe Railway; NOW, THEREFORE, BE IT HEREBY RESOLVED by the City Council of the City of Carlsbad as follows: 1. 2. That the above recitations are true and correct. That the property lease attached hereto as Exhibit A is hereby approved. That the Mayor is hereby authorized to sign said lease on behalf of the City. PASSED, APPROVED AND ADOPTED at a regular meeting of the 3. ad, California, held on the 10th g vote, to wit: Council Members Casler, Lewis, Kulchin, Chick and Pettine ABSENT : None ABSTAIN: LWd&. CASLER, Mayor 1 I. 0 Ganta Fe Origha! 11000258-26 CCMMBRCIAL LAND LEXSE THIS LEASE, made as of the 1st day of May 1986, between THE ATCHISOP, TOPEKA AND SANTA FE RAILWAY COHPAW, a Delaware corporation (hereinafter called "Lessor") and CITY OF CARLSBAD, (hereinafter, whether one party or more, called "Lessee"). UITMeS S ETH: For and in consideration of the rental and of the covenants and agreements hereinafter contained, the parties hereto agree as follows: 1. TERM Lessor hereby leases to Lessee, subject to the rights and easements hereinafter excepted and reserved and upon the terms and conditions hereinafter set forth, the land (hereinafter called "Premises") situated at or near Carlsbad, County of San Diego, State of California, as described or shown on print hereto attached, No. 1-04944, dated December 11, 1985, marked Exhibit "A", and made a part hereof, for a term beginning on May 1, 1986, and continuing thereafter on a month-to-month basis, unless or until this Lease shall be terminated as hereinafter provided. 2. EXISTING FACILITIES Lessor hereby excepts and reserves the right, to be exercised by Lessor and by any others who have obtained or may obtain permission or authority from Lessor so to do, to: (a) Operate, maintain, renew and relocate any and all existing pipe, power and com- munication lines and appurtenances and other facilities of like character upon, over or under the surface of Premises; and (b) Construct, operate, maintain, renew and relocate such additional facilities of the same character as will not unreasonably interfere with Lessee's use of Premises as specified in Section 6 hereof. Lessee shall pay to Lessor for the use of the Premises rental as follows: "(a) Subject to Subsection 3(c) below, the base rent shall be Six Hundred Sixty-Five and Bo/lOO Dollars ($665.00) per month payable, for convenience only, annually in advance without demand. Said base rent shall be adjusted annually in Rev. 1/86 (H4WCD6) -1- accordance with Subsection 3(b) below. beginning or end of the contract term shall be prorated. on or before the date this Contract commences and thereafter shall be payable on or before the first day of each year during the contract term. termination of this Contract, unless Lessee is then in default, any unearned portion of said rental, paid in advance, will be refunded to Lessee upon written demand by Lessee therefor made within thirty (30) days following termination. Rent for any fractional month at the Rent is due and owing Upon (b) Commencing on the first annual anniversary of the first day of the first full calendar month of the lease and all annual anniversaries of such date thereafter, the base rental shall be adjusted in accordance with the changes in the Consumer Price Index indicated in the column for Urban Wage Earners and Clerical Workers, U.S. city average, (hereinafter called the "Index"), published by the Bureau of Labor Statistics, U.S. Consumer Price Index from the base index number to the current index number. The index number indicated in the column for Urban Wage Earners and Clerical Workers, entitled "all items", for the period most recently released prior to the anniversary date in the previous calendar year, shall be the "base index number" and the corresponding index number for the period most recently released prior to the annual anniversary of this Lease shall be the "current index number". number, to form the rental adjustment factor. The current index number shall be divided by the base index The new base rent shall be determined by multiplying the then current base rent by the rental adjustment factor and this figure shall be rounded to the nearest $5.00. accordance with Subsection 3(a) above. In no event, however, shall such new base rent be less than the then current base rent. If publication of the Consumer Price Index shall be discontinued, the parties hereto shall thereafter accept comparable statistics on the cost of living for Urban Wage Earners and Clerical Workers, as they shall be computed and published by an agency of the United States or by a responsible financial periodical of recognized authority then to be selected by the Lessor. In the event of (1) use of comparable statistics in place of the Consumer Price Index as above mentioned, or (2) publication of the Index figure at other than quarterly intervals, there shall be such revisions as the circumstances may require to carry out the intent of this provision. Lessor may, at its sole discretion and in conjunction with its overall rental adjustment program, use index numbers in the column for All Urban Consumers, U.S. city average, entitled "all items", or such similar index that may be published in the future to indicate statistics comparable to the indexes named above. The new base rent, as so determined, shall be due and payable in '* (c) The base rental shall be subject to revision at five-year intervals to adjust same to a fair market value basis. Lessee covenants and warrants that Lessee either owns, or has obtained from the owner or owners thereof the right to use, any improvements now on the Premises shown or described Rev. 1/84 (l44WCD6) -2- l4 on said Exhibit "A" as "Lessee's existing Improvements". together with any other improvements and/or personal property hereafter placed upon the Premises by or for account of Lessee are hereinafter called "Improvements". Such improvements, if any, Lessee shall use the Premises exclusively as a site for vehicle parking purposes. Lessee covenants that it will not treat, store or dispose of on the Premises "hazardous waste" or "hazardous substances", as "hazardous waste" and "hazardous substances" may now or in the future be defined by any federal, state, or local governmental agency or body. or in the future used in generating, handling, or transporting of "hazardous waste" or "hazardous substances", Lessee agrees fully to comply with all applicable federal, state, and local laws, rules, regulations, orders, decisions and ordinances (hereinafter referred to as "Standards") concerning "hazardous waste" and "hazardous substances". Lessee further agrees periodically to furnish Lessor with proof, satisfactory to Lessor, that Lessee is in such compliance. In any event, Lessee shall allow Lessor to enter upon the Premises at reasonable times for the purpose of inspection. In the event the Premises are now Should Lessee not comply fully with the above-stated obligations of this Section, notwithstanding anything contained in any other provision hereof, Lessor may, at its option, terminate this Lease by serving five (5) days' notice of termination upon Lessee; but any waiver by Lessor of any breach of Lessee's obligations shall not constitute a waiver of the right to terminate this Lease for any subsequent breach which may occur, or to enforce any other provision of this Lease. sections of this Lease regarding Lessee's surrender of possession of the Premises. Upon termination, Lessee shall be governed by the two Notwithstanding anything contained in the liability sections hereof, in case of a breach of the obligations contained in this Section, or any of them, regardless of the negligence or alleged negligence of Lessor, Lessee agrees to assume liability for and to save and hold harmless Lessor from and against all injuries to any person and damage to property, including without limitation, employes and property of Lessor and Lessee and all related expenses, including without limitation attorneys' fees, investigators' fees and litigation expenses, resulting in whole or in part from Lessee's failure to comply with any Standard issued by any governmental authority concerning hazardous substances and/or hazardous waste. Lessee, at its cost, shall assume the defense of all claims, suits or actions brought for damages, and fines or penalties hereunder, regardless of whether they are asserted against Lessor or Lessee. Lessee also agrees to reimburse Lessor for all costs of any kind incurred as a result of the Lessee's failure to comply with this Section, including, but not limited to, fines, penalties, clean-up and disposal costs, and legal costs incurred as a result of Lessee's generating, handling, transporting, treating, storing, or disposing of "hazardous waste" or "hazardous substances" on the Premises. Rev. 1/86 (H4Om/CD6) -3- (c) It is understood and agreed that a'lessee who does not now, or in the future, generate, handle, transport, treat, store or dispose of "hazardous waste" or "hazardous substances" within the meaning of this Section, is not subject to the provisions of Subsection (b) supra. (d) Lessee shall not use or permit the use of the leased premises in any manner that will tend to create waste or a nuisance. constructing, maintaining, operating and using the Improvements thereon, Lessee shall comply with any and all requirements imposed by federal or state statues, or by ordinances, orders or regulations of any governmental body having jurisdiction thereover, including,. but not limited to, building and zoning ordinances, restricting or regulating or prohibiting the occupancy, use or enjoyment of the Premises or regulating the character, dimensions or locations of any improvements on the Premises. Should any governmental body having jurisdiction in the matter require Lessor to dedicate, restrict or otherwise encumber any portion of the Premises, or any of its adjoining property, as a condition to approval of Lessee's use of the Premises, Lessor may, if said condition is unacceptable to Lessor, terminate this Lease. Lessee covenants to properly notify Lessor accordingly should any of the above occur. In using the Premises, and in 6. TAXES (not including federal by Lessor by any agency . -having the authority so to do. 7. CQM)ITIOI? OF PREMISES Lessee warrants that, prior to taking possession of the Premises under this Lease, he has examined Premises and accepts the use and occupancy thereof with full and complete knowledge of the physical condition of the Premises and of the conditions, covenants, restrictions, encumbrances and all matters of record relating to Premises. 8. ALTERATIOMS Lessee shall make no change or alteration in nor additions to Premises without first obtaining the written consent of Lessor. Rev. 1/86 (M4WCD6) -4- -- 9. WAINTeblABlCE OF PREMISES Lessee shall keep and maintain the Premises and any and all Improvements in condition and repair satisfactory to Lessor and shall not cause or permit any waste or nuisance in, on or about Premises. expense and Lessee hereby waives all right to make repairs at the expense of Lessor. If Lessee fails to make repairs within fifteen (15) days after notification in writing that repairs are necessary, Lessor may make such repairs as Lessor deems necessary to maintain them in a clean, sightly, sanitary and good condition and Lessee agrees to promptly reimburse Lessor for the cost of such repairs upon receipt of bill therefor. Any and all necessary repairs shall be made at Lessee's 10. UTILITIES (a) Lessee shall pay any and all charges for water, gas, sewer, heat, light, power Lessee agrees that Lessor shall not and telephone service and all other services supplied to or used on Premises or available, assessed or taxed to Premises. be required to furnish to Lessee any water, gas, sewer, heat, light, power or telephone service or any other facilities, equipment, labor, materials or services of any kind whatsoever. (b) If any utility company requires a license or permit from Lessor to cross property of Lessor, other than Premises, before the aforesaid services will be provided, Lessee shall pay to Lessor the sum of Two Hundred Fifty and No/100 Dollars ($250.00), or such other sum as Lessor may from time to time put into effect, to cover the expense of preparing and,processing each such license or permit. 11. FENCE Lessee shall, at Lessee's expense, construct and thereafter maintain a fence or barricade, of a type approved in writing by Lessor, along the boundary lines of Premises adjoining other property of Lessor. 12. FIRE HAZARD SAFEGUARDS Lessee shall at all times use and occupy Premises in such manner and shall adopt such safeguarhs as will minimize fire hazard to the fullest extent possible consistent with the use of Premises specified in Section 6 hereof. 13. INDEHMITY (a) Lessee shall indemnify and save harmless Lessor against all loss, damage or expense which Lessor may sustain, incur or become liable for, including loss of or damage to property or injury to or death of persons, including the person or property of the parties hereto and their employes, and fines or penalties imposed upon or assessed against Lessor, arising in any manner out of: (1) The use of Premises by Lessee, its employes, licensees and invitees; Rev. 1/86 (M4WCD6) -5- (2) Any breach by Lessee of the terms, covenants or conditions herein contained; (3) The construction, maintenance or location on Premises of Improvements, utility lines or services; or (4) The sole or contributing acts or omissions of Lessee or the employes, licensees or invitees of Lessee in, on or about Premises or Improvements, except that if Lessor shall participate in any such contributing acts or omissions, then the loss, damage or expense arising therefrom shall be borne by the parties hereto equally. (b) Lessee shall also indemnify and save harmless Lessor against all fines or penalties imposed upon or assessed against Lessor, resulting from the violation by Lessee of any statute or order of competent governmental authority. (c) Upon written request by Lessor, Lessee shall assume the defense of any suit or action brought against Lessor, its agents or employes, alleging any claim for loss or damage against which it indemnifies Lessor hereunder, and Lessee shall pay all expense, including attorneys’ fees, incurred by Lessee and/or Lessor in defending and settling all claims and liabilities against which it indemnifies Lessor hereunder. 14. LIENS Lessee shall promptly pay and discharge any and all liens arising out of any construction, alterations or repairs done, suffered or permitted to be done by Lessee on Premises and/or Improvements and shall indemnify Lessor against any loss incurred by Lessor on account of such liens. Lessor is hereby authorized to post any notices’or take any other action upon or with respect to Premises that is or may be permitted by law to prevent the attachment of any such Liens to Premises; provided, however, that failure of Lessor to take any such action shall not relieve Lessee of any obligation or liability under this Section 15 or any other section hereof. 15. INSURMICE (a) Lessee shall, term of this including but Lessee under 1’ (b) All insurance shall be in the State in which shall fu@ish Lessor insuratyie. Each materwlly Rev. 1/86 (W4WCD6) -6- /Q furnish Less request from Lessor. of sl)ezl insu dey"Sec tion 16. SIGNS Lessee shall not place nor permit to be placed on Premises or Improvements any sign not solely for the purpose of advertising Lessee's business conducted on Premises, without having first obtained the written consent and approval of Lessor in each instance. Upon request by Lessor, Lessee shall immediately remove any sign or decoration which Lessee has placed or permitted to be placed in, on or about Premises or Improvements which, in the opinion of Lessor, is objectionable or offensive. removal, Lessor may enter Premises or Improvements and remove said sign or decoration at Lessee's expense. If Lessee fails to make such 17. KMTIRO"I! Notwithstanding any other provisions of this Lease, Lessee shall comply with all statutes, ordinances, rules, regulations, orders and decisions (hereinafter referred to as "Standards"), issued by any federal, state or local governmental body or agency established thereby (hereinafter referred to as "Authority"), relating to Lessee's use of the Premises hereunder. In its use of the Premises, Lessee shall at all times be in full compliance with all Standards, present or future, set by any Authority, including, but not limited to, Standards concerning air quality, water quality, noise, hazardous substances and hazardous waste. In the event Lessee fails to be in full compliance with Standards set by any Authority, Lessor may, after giving reasonable notice of the failure to Lessee, and Lessee, within thirty (30) days of such notice, fails either to correct such noncompliance or to give written notice to the Lessor of its intent to contest the allegation of noncompliance before the Authority establishing the Standard or in any other proper forum, take whatever action is necessary to bring the Premises into compliance. Lessee shall reimburse the Lessor for all costs (including but not limited to, consulting, engineering, clean-up and disposal costs, and legal costs) incurred by the Lessor in complying with such Standards, and also such costs incurred by the Lessor in abating a violation of such Standards, protecting against a threatened violation of such Standards, defending any claim of violation of such Standards in any proceeding before any Authority or court, and paying any fines or penalties imposed for such violations. Lessor from any claim of a violation of such St.andards regardless of the nature thereof or the-Authority or person asserting such claim, which results from Lessee's use of the Premises, whether such claim arises in whole or in part from the negligence or alleged negligence of the Lessor or otherwise. Lessee, at its cost, shall assume the defense of all such claims regardless of whether they are asserted against Lessee or Lessor. Lessee shall assume liability for and shall save and hold harmless the Upon written notice from Lessor, Lessee agrees to assume the defense of any lawsuit, administrative action or other proceeding brought against Lessor by any public body, individual, partnership, corporation, or other legal entity, relating to any matter covered by this Lease for which Lessee has an obligation to assume liability for andlor to save and hold harmless the Lessor. Lessee shall pay all the costs incident to such defense, including, but not limited to, attorneys' fees, investigators' fees, litigation Rev. 1/86 (M40m/CD6) -7- expenses, settlement payments, and amounts paid in satisfaction of judgments. Any and all lawsuits or administrative actions brought or threatened on any theory of relief available at law, in equity or under the rules of any administrative agency shall be covered by this Section, inc,luding, but not limited to, the theories of intentional misconduct, negligence, breach of statute or ordinance, or upon any theory created by statute or ordinance, state or federal. 18. EVICTION In case of eviction of Lessee by anyone owning or claiming title to or any interest in Premises, Lessor shall not be liable to Lessee for damage of any nature whatsoever or to refund any rental paid hereunder, except the proportionate part of any rental paid in advance. 19. ASSIGNHEW Lessee shall not assign this Lease without first obtaining Lessor's written consent theref or. 20. SUBLEASE Lessee shall not sublease Premises or any part thereof without first obtaining Lessor's written consent therefor. 21. TERHINATIOI (a) This Lease may be terminated at any time by either party hereto serving thirty (30) days' written notice of termination upon the other party, stating therein the date such termination shall take effect. the time specified in such notice, this Lease and all rights of Lessee hereunder shall absolutely cease and detekmine; but upon any such termination, Lessee shall be entitled to have refunded by Lessor, a proportionate part of any rentals paid in advance. Upon the expiration of (b) Upon termination of this Lease in any manner provided herein, Lessee shall remove from Premises, at Lessee's expense, any Improvements and appurtenances, including all trade fixtures, personal property, utility lines, paving, foundations and any and all debris, leaving Premises in a cleared and reasonably level condition satisfactory to Lessor. the removal of said Improvements and appurtenances within thirty (30) days after termination of this Lease, Lessor shall havethe option, to be exercised in writing at any time thereafter, to either: If Lessee fails to complete (1) Perform such removal and clear Premises for the account of Lessee and in such event Lessee shall reimburse Lessor for all costs so incurred within fifteen (15) days after rendition of bill therefor; or (2) Take and hold said Improvements and appurtenances as its sole property without compensation to Lessee, and in such event Lessee shall be relieved of the obligation to remove or pay for removal of said Improvements and appurtenances. Rev. 1/86 (MI4Om/CD6) -8- .- 22. HOTICES All notices to be given hereunder shall be given in writing, by depositing same in the United States mail duly registered or certified, with postage prepaid, and addressed to the Lessee or Lessor as the case may be at the address shown on the signature page hereof or addressed to such other address as the parties hereto may from time to time designate. 23. BMTKRUPTCY If Lessee should become insolvent or fail in business, or make an assignment for the benefit of creditors, then Lessor may, at its option, terminate this Lease upon five (5) days' written notice. 24. FORFEITLlRE FOR DEFAULT If any rental hereunder shall be due and unpaid, or if default shall be made in any of the covenants or agreements of Lessee herein contained, or in case of any assignment or transfer of this Lease by operation of law, Lessor may, at its option, terminate this. Lease by serving five (5) days' notice in writing upon Lessee or serve notice in writing upon Lessee notifying Lessee to cure any default or defaults within five (5) days from service and if Lessee fails to do so, this Lease will be deemed forfeited and terminated; but any waiver by Lessor of any default or defaults shall not constitute a waiver of the right to terminate this Lease for any subsequent or continuing default or defaults . 25. HOLDOVER If Lessee fails to surrender Premises to Lessor upon any termination of this Lease, all the liabilities and obligations of Lessee hereunder shall continue in effect until Premises are surrendered. or obligation hereunder, whether of indemnity or otherwise, resulting from any acts, omissions or events happening prior to the date of termination, or date of surrender if it be later. No termination hereof shall release Lessee from any liability 26. ATTORNEYS' FRKS If Lessoc commences an unlawful detainer action or any other action against Lessee to enforce any obligation arising under'the terms and provisions of this Lease, or against any subtenant or assignee of Lessee using the Premises, Lessee shall pay all court costs and reasonable attorneys' fees associated with such action. 27. COHD~ATIOI In the event all or any portion of the Premises shall be taken for any public use or quasi-public use under any statute or by right of eminent domain, or by purchase in lieu thereof, Lessee shall have no claim to any compensation awarded for the taking of the Premises or any portion thereof, including Lessee's leasehold interest therein or to any compensation as severance damages, or for loss of or damage to Lessee's Improvements. Rev. 1/86 (M4WCD6) -9- 28. WAIVER No waiver by either party hereto at any time of any of the terms and conditions of this Lease shall be deemed a waiver at any time thereafter of the same or any other terms or conditions hereof, nor shall any provision hereof be waived except by an instrument in writing executed by duly authorized representatives of the parties. , 29. TIME OF THE ESSKNCE Time and specific performance are each of the essence of this Lease. . 30. HEXDINGS MID TITLES The headings and titles to the sections of this Lease are not a part of this Lease and shall have no effect upon the construction or interpretation of any part of this Lease. 31. FUBLIC RECORD It is understood and agreed that this Lease shall not be placed of public record. 32. AHeEIDHENT OF LEASE It is agreed that neither Lessor nor Lessee nor any of their employes or agents have made any statement, promises or agreements verbally or in writing in conflict with the terms of this Lease and that this Lease sets forth all of the promises, agreements, conditions, inducements and understandings between the parties relative to the lease of the Premises by Lessee and that there are no promises, agreements, conditions, understandings, inducements, warranties or representations, oral or written, express or implied, between them or their employes or agents other than as herein set forth and that this agreement shall not be modified in any manner except by an instrument in writing executed by duly authorized representatives of the parties. 33. BINDING All the covenants and agreements of Lessee herein contained shall be binding upon the heirs, legal representatives, successors and assigns of Lessee, and shall inure to the benefit of the successors and assigns of Lessor. X x Rev. 1/86 (H40m/CD6) -10- .. IM UITBESS WHEREOF, -this Lease has been duly executed, in duplicate, by the parties hereto as of the day and year first above written. THE ATCHISOI, TOPEKA AM) SAWA E'E RAILWAY COMPAW One Santa Fe Plaza 5200 E. Sheila Street Los Angeles, CA 90040 ., ... ,? ., , - . .-. --, -. - . >fl .... .'i L_ .. . . .., -.. , r.- BY Its CITY OF CARLSBAD 1200 Elm Avenue MARY H. GSLER BY Its Mayor (Lessee) 46515CR(4) Rev. 1/86 (l44om/CD6) -11- -1 SECY'S NO. w8c58 - EXHIBIT "A" e ATTACHED TO CONTRACT BETWEEN AND 1 THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY CHICAGO, ILLINOIS SCALE: 1 IN. TO /Qd FT. LOX ANcZZY.Kr DIV. HG. kvSA.8 ------------- CHIEF ENGINEER DESCRIPTION APPROVED