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HomeMy WebLinkAbout2015-07-28; City Council; 22051; Lease Agreement Aviara Residence Club Owners' Association, Hawthorne Property 2065 Camino Roble APN 213-061-28-00CITY OF CARLSBAD-AGENDA BILL 10 rc,. AB# 22,051 ADOPTION OF A RESOLUTION AUTHORIZING THE CITY DEPT. DIRECTOR\)~\. DATE 07/28/15 MANAGER TO EXECUTE A LEASE AGREEMENT WITH CITY ATIY. /!-J~ AVIARA RESIDENCE CLUB OWNER'S ASSOCIATION FOR THE HAWTHORNE PROPERTY (2065 CAMINO ROBLE APN ~ DEPT. PW-PEM 213-061-28-00) FOR A PERIOD OF ONE YEAR CITY MGR. RECOMMENDED ACTION: Adopt Resolution No. 2015-205 authorizing the City Manager to execute a lease agreement with the Aviara Residence Club Owner's Association for the Hawthorne property {2065 Camino Vida Roble APN 213-061-28-00) for a period of one year. ITEM EXPLANATION: The Aviara Residence Club Owner's Association {Aviara) is in need of temporary parking for its employees. The employees in the past had been parking on city streets which caused concerns in the impacted neighborhood. In July 2014, the city entered into a one year lease agreement with Aviara as a temporary resolution while Aviara pursued a permanent parking solution for the site. Aviara has requested a maximum of one additional year while they continue to finalize plans for the site. The city owns the property at 2065 Camino Vida Roble APN 213-061-28-00 {Hawthorne Property) that can be utilized for temporary parking purposes. City staff has negotiated a lease agreement with Aviara for a monthly rental with a term not to exceed one year. The lease is for the market rate of a property of similar size and put to a similar use. Prior to use of the property, the applicant will be required to meet the city's insurance requirements and obtain a Minor Conditional Use Permit. FISCAL IMPACT: The city will receive monthly revenue according to the rent schedule below. At the end of the 12 month period, the lease will generate $63,000 for the Community Facilities District #1 Fund. Period (Months) ;IVJ()nthly Rent Amount 1-6 $4,500 7-9 $5,500 10-12 $6,500 DEPARTMENT CONTACT: Steve Hodges 760-434-2925 steve.hodges@carlsbadca.gov FOR CLERK USE. COUNCIL ACTION: APPROVED 121' CONTINUED TO DATE SPECIFIC D DENIED D CONTINUED TO DATE UNKNOWN D CONTINUED D RETURNED TO STAFF D WITHDRAWN D OTHER-SEE MINUTES D AMENDED D REPORT RECEIVED D Hawthorne Paridng Lease Agreement July 28, 2015 Page 2 of 2 ENVIRONMENTAL IMPACT: The proposed action is exempt from the California Environmental Quality Act (CEQA) per State CEQA guidelines 15301 - Existing Facilities. Section 15301 exempts the leasing of property involving negligible or no expansion of use beyond that existing at the time ofthe agency's determination. EXHIBITS: 1. Resolution No. 2015-205 authorizing the City Manager to execute a lease agreement with the Aviara Residence Club Owner's Association for the Hawthorne property (2065 Camino Vida Roble APN 213-061-28-00) for a period of one year. 2. Lease agreement between the City of Carlsbad and Aviara Residence Club Owner's Association. 3. Location site map identifying portion of premises to be leased. EXHIBIT 1 1 RESOLUTION NO. 2015-205 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, 3 CALIFORNIA, AUTHORIZING THE CITY MANAGER TO EXECUTE A LEASE AGREEMENT WITH AVIARA RESIDENCE CLUB OWNER'S 4 ASSOCIATION FOR THE HAWTHORNE PROPERTY (2065 CAMINO VIDA ROBLE APN 213-061-28-00) FOR A PERIOD OF ONE YEAR 5 ^ WHEREAS, the Aviara Residence Club Owner's Association (Aviara) is in need of 7 temporary parking for it's employees; and 8 ^ WHEREAS, it's employees had been parking on residential streets and impacting IQ neighborhoods; and 11 WHEREAS, city staff identified city owned property located at 2065 Camino Vida Roble ^2 as being appropriate for such use; and 13 WHEREAS, city staff negotiated a lease for said property at fair market value for 14 temporary parking; and 15 WHEREAS, the lease agreement will generate $63,000 for the Community Facilities 16 17 District #1 Fund; and 18 WHEREAS, Aviara is concurrently seeking a permanent parking plan; and WHEREAS, the council authorizes the City Manager to execute the lease agreement on behalf of the city for a term of one year. NOW, THEREFORE, BE IT RESOLVED bythe City Council ofthe City of Carlsbad, California as follows: 20 21 22 23 24 1. That the above recitations are true and correct. 25 2. The City Manager is hereby authorized to execute the lease agreement with Aviara Residence Club Owner's Association for a term one year with a lease payment at 27 fair market value for such use. 28 ^ 1 PASSED, APPROVED AND ADOPTED at a Regular Meeting ofthe City Council of the City 2 of Carlsbad on the 28th day of July, 2015, by the following vote to wit: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 AYES: Council Members Hall, Blackburn, Schumacher, Wood, Packard. NOES: None. ABSENT: None. MATI HALL, Mayor ATIEST: LEASE AGREEMENT THIS LEASE AGREEMENT (the "Lease"), made and entered into this 3o~ day of .:Tu fft 20 I<: , by and between the City of Carlsbad, hereinafter called "Lessor", and Aviara esidence Club Owners' Association "Lessee", without reference to number or gender, for a portion of the property located at 2065 Camino Vida Roble, Carlsbad, California, 92008. WITNESETH: WHEREAS, the City of Carlsbad is the owner of the real property located at 2065 Camino Vida Roble, Carlsbad, California, 92008 (the "Real Property"); and WHEREAS, Lessee desires use of a portion of such Real Property, specifically excluding the building located thereon, which portion to be used by Lessee ("Leased Premises") totals approximately 62,500 square feet, and is shown in Exhibit A; and WHEREAS, Lessor and Lessee desire to enter into a new lease for the Leased Premises for a one ( 1) year term; NOW, THEREFORE, it is understood and agreed by and between the parties hereto as follows, to wit: Lessor shall lease said Leased Premises to Lessee for the term of this lease and upon the conditions as follows: 1. TERM: The term of the lease shall be for a period of one (1) year commencing on August 18, 2015 (the "Commencement Date"), and ending on August 17, 2016, unless earlier terminated as herein provided. 2. RENT: (a) As and for the rent, Lessee agrees to pay to Lessor the sum of Four Thousand Five Hundred Dollars ($4,500) per month for the first six (6) months. Rent will increase to Five Thousand Five Hundred ($5,500) on the anniversary of the sixth (6) month. Rent will increase to Six Thousand Five Hundred ($6,500) on the anniversary of the ninth (9) month. On or before the Commencement Date, the first payment of $4,500 per month will be paid and all subsequent payments shall be payable in advance on or before the monthly anniversary of the Commencement Date during the term of this Agreement. (b) Rent shall be delivered to the Finance Department ofthe City of Carlsbad at 1635 Faraday Avenue, Carlsbad, California, 92008. The designated place of payment and filing may be changed at any tune by Lessor upon ten (1 0) days written notice to Lessee. Lessee assumes all risk of loss if payments are made by mail. (c) In the event Lessee is delinquent in remitting the rent due in accordance with the rent provisions of this lease, then the rent not paid when due shall bear interest at the rate ofTen Per Cent (1 0%) per annum from the date due until paid. Provided, however, that the 1 City Manager of the City of Carlsbad shall have the right to waive for good cause any interest payment upon written application of Lessee for any such delinquency period. (d) Lessee agrees to pay a Security Deposit in the amount of one month's rent, to be paid upon execution of this Lease. Lessee shall submit the Security Deposit in the form of a bank or cashier's check simultaneously with the signed Lease. Security Deposit shall be held in an interest bearing account in which upon expiration of this lease. Lessee shall retain all interest accraed over said lease term. Lessor shall not be required to keep the Security Deposit separate from its general accounts. If Lessee fails to pay Rent, or otherwise defaults under this lease. Lessor may use, apply or retain all or any portion of said Security Deposit for the pajonent of any amount due Lessor or to reimburse or compensate Lessor for any liability, expense, loss or damage which Lessor may suffer or incur by reason thereof If Lessor uses or applies all or any portion of said Security Deposit, Lessee shall within ten (10) days after written request therefore deposit monies with Lessor sufficient to restore said Security Deposit to the full amovmt required this Lease.by 3. USE: (a) Lessee agrees that the Leased Premises shall be used only and exclusively for the parking of cars, pickups and vans used by its agents, employees, consultants, affiliates, guests and invitees ("Parking Lot"), and for no other purposes whatsoever without the written consent of Lessor. (b) Lessee shall be prohibited fi:om the sale or consumption of alcohol on the leases premises. (c) Lessee shall be responsible for obtaining a Conditional Use Permit for the use of the Leased Premises and a Parking Lot from the City of Carlsbad prior to occupation of the Leased Premises. 4. EARLY TERMINATION: Lessee shall have a right to terminate the Lease by first giving thirty (30) days written notice to the Lessor. 5. SURRENDER/RESTORATION: Lessee shall surrender the premises by the expiration date or any earlier termination date, with all of the improvements, parts and surfaces thereof broom clean and free of debris, and in good operating order, condition and state of repair, ordinary wear and tear excepted. "Ordinary wear and tear" shall not include any damage or deterioration that would have been prevented by good maintenance practice. Lessee shall repair any damage occasioned by the use of the Parking Lot, and the removal, replacement or remediation of any soil or groundwater contaminated with hazardous substance (as defmed in Paragraph 20 hereof) by Lessee. The failure by Lessee to timely vacate the premises pursuant to this Paragraph 5 without the express vwitten consent of Lessor shall constitute a holdover under the provisions of Paragraph 29 below. 6. REPRESENTATIONS & INDEMNITIES OF BROKER RELATIONSHIPS: Lessee and Lessor each represent and warrant to the other that it has had no dealings with any person, firm, broker or finder in connection with this Lease, and that no person, firm, broker or finder is I? entitled to any commission or finder's fee in connection herewith. Lessee and Lessor do each hereby agree to indemnify, protect, defend and hold the other harmless firom and against liability for compensation or charges which may be claimed by any such unnamed broker, finder or other similar party by reason of any dealings or actions of the Lessee and/or Lessor, including any costs, expenses, or attomey's fees reasonably incurred with respect thereto. 7. WAIVER OF RELOCATION BENEFITS: Lessee understands this lease agreement is entered into for a specified period of time. Lessee therefore agrees to waive any and all relocation benefits defined in the Califomia Relocation Assistance Law (Govemment Code, Section 7260, et. seq.). 8. LIENS: Lessee agrees that it will at all times hold Lessor free and harmless and indemnify it against all claims for labor or materials in connection with improvements, repairs, or alterations on the Leased Premises, including the costs of defending against such claims, and reasonable attomey's fees incurred therein. In the event that any lien or levy of any nature whatsoever is filed against the lease premises or the leasehold interests of the Lessee there, the Lessee shall, upon written request of Lessor, deposit with Lessor a bond conditioned for the payment in full of all claims upon which said lien or levy has been filed. Such bond shall be acknowledged by Lessee as principal and by a corporation, licensed by the Insurance Commissioner ofthe State of Califomia to transact the business of a fidelity and surety insurance company, as surety. Lessor shall have the right to declare this lease in defauh in the event the bond required by this paragraph has not been deposited with the Lessor v^thin ten (10) days after written request has been delivered to Lessee. 9. LEASE ENCUMBRANCE: Lessee understands and agrees that it cannot encumber the lease, leasehold estate and the improvements thereon by a deed of tmst, mortgage or other security instrument. If any deed of trast, mortgage or other security instrument that encumbers the lease, leasehold estate and the improvements thereon is entered into by Lessee, Lessor shall have the right to declare this lease in default. 10. ASSIGNMENT-SUBLEASE: Lessee shall not assign or transfer the whole or any part of this lease or any interest therein, nor sublease the whole or any part of the Leased Premises, nor contract for the management or operation of the whole or any part of the Leased Premises, nor permit the occupancy of any part thereof by any other person or business entity, nor permit transfer of the lease by merger, consolidation or dissolution, without obtaining prior written consent of Lessor, in each instance. 11. DEFAULT: It is mutually understood and agreed that if any defauh be made in the payment of rental herein provided or in the performance of the covenants, conditions, or agreements herein (any covenant or agreement shall be constmed and considered as a condition), or should Lessee fail to fulfill in any manner the uses and purposes for which said premises are leased as above stated, and such default shall not be cured within or ten (10) days after written notice thereof if default is in the performance of the use obligation provisions pursuant to Paragraph 16 of this lease, or thirty (30) days after written notice thereof if default is in the payment of rent, or in the performance of any other covenant, condition and agreements (any covenant or 1 agreement shall be constmed and considered as a condition). Lessor shall have the right to immediately terminate this lease; and that in the event of such termination. Lessee shall have no further rights hereunder, the Lessee shall thereupon forthwith remove all personal property fi-om said premises and shall have no further right to claim thereto, and Lessor shall immediately thereupon, without recourse to the courts, have the right to reenter and take possession of the Leased Premises. Lessor shall fiirther have all other rights and remedies as provided by law, including without limitation the right to recover damages ftom Lessee in the amount necessary to compensate the Lessor for all the detriment proximately caused by the Lessee's failure to perform his obligations under the lease or which in the ordinary course of things would be likely to result there from. In the event of the termination of this lease pursuant to the provisions of this paragraph. Lessor shall have any rights to which it would be entitled in the event of the expiration or earlier termination of this lease. 12. BANKRUPTCY: In the event Lessee becomes insolvent, makes an assignment for the benefit of creditors, files a petition in bankruptcy or becomes the subject of a bankmptcy proceeding, reorganization, arrangement, insolvency, receivership, liquidation, or dissolution proceedings, or in the event of any judicial sale of Lessee's interest under this lease. Lessor shall have the right to declare this lease in default. 13. USE OBLIGATION: Lessee shall actively and continuously use and operate the premises for the limited particular exclusive use as expressly provided for in the Use Paragraph 3 of this lease, except for failure to do so use caused by acts of God. Lessee, however, shall not and is expressly prohibited from using the premises for any other purpose or use whatsoever, whether it is purported to be in addition to or in lieu of the particular exclusive use expressed in said Use Paragraph 3. 14. MAINTENANCE AND REPAIR: As part ofthe consideration for the leasing thereof. Lessee agrees to assume full responsibility for maintenance, repair and replacement ofthe Parking Lot on the Leased Premises. Lessor shall have no responsibility for mamtenance or repair of the building located on the Real Property, or any other part of the Real Property. Lessee agrees to keep premises free and clear of frash and garbage, as well as mbbish and litter, or any other fire hazards. Notwithstanding, Lessor shall not be required at any time to maintain or to make any improvements or repairs whatsoever on or for the benefit of the Leased Premises; except that Lessor shall keep the lighting in good operating condition, such that it will illuminate the Leased Premises until 11:00 P.M. each night. For the purpose of keeping the premises in a good, safe, healthy and sanitary condition, Lessor shall have the right but not the duty, to enter, view, inspect, determine the condition of and protect its interests in, the premises. If inspection discloses that the premises are not in the condition described. Lessee must perform the necessary maintenance work within ten (10) days after written notice from Lessor. Further, if at any time during the term of the lease for the premises Lessor determines that the premises are not in the condition described; Lessor may require Lessee to file and pay for a faithful performance bond, to assure prompt correction without additional notice. The amount of this bond shall be adequate, in Lessor's opinion, to correct the unsatisfactory condition. The rights reserved in this section shall not create any obligations or increase any obligations for Lessor elsewhere in this Lease. 15. TAXES AND UTILITIES: This Lease may resuh in a taxable possessory interest. Lessee shall be solely responsible for payment of property taxes associated with its occupancy of the Leased Premises, if any apply. Lessee agrees to and shall pay before delinquency all its pro- rata share of the possessory taxes and assessments of any kind assessed or levied upon Lessee or the Leased Premises by reason of this lease or of any stmctures, machines, or other improvements of any nature whatsoever erected, installed or maintained by Lessee, or by reason ofthe business or other activities of Lessee upon or in connection with the Leased Premises. Lessee shall also pay any fees imposed by law for licenses or permits for any business or activities of Lessee upon the Leased Premises or under this lease, and shall pay before delinquency any and all charges for utilities at or on the Leased Premises. If Lessee fails to pay said possessory taxes. Lessor may declare defauh in accordance with Paragraph 11. Lessee shall be responsible for payment of all utilities, including its pro-rata share of water, gas and electricity. All utilities will be metered at the building site and billed to Lessee separately. 16. CONFORMANCE WITH RULES AND REGULATIONS: Lessee agrees that in all activities on or in connection wdth the Leased Premises and in all uses thereof, it will abide by and conform to all ordinances, mles and regulations prescribed by the City of Carlsbad including, but not limited to, sign regulations and requirements for outdoor areas as set forth within the Carlsbad Municipal Code, and any applicable laws of the State of Califomia and Federal Govemment, as any of the same now exist or may hereafter be adopted or amended. 17. NON-DISCRIMINATION: Lessee agrees not to discriminate against any person or class of persons by reason of sex, color, race, religion, or national origin. If the use provided for in this lease allows the Lessee to offer accommodations or services to the public, such accommodations or services shall be offered by the Lessee to the public on fair and reasonable terms. 18. PARTLALL INVALIDITY: If any term, covenant, condition, or provision of this lease is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby. 19. HOLD HARMLESS: Lessee shall defend, indemnify, and hold harmless Lessor, its officers and employees from liability, damage, and expense of any kind, including reasonable attomey's fees, arising from all claims or causes of action of any kind including but not limited to injury to or death of any person or persons, including Lessee, its employees, and invitees resulting directly or indirectly from granting and performance of this Lease or arising from the use and operation of the Leased Premises. Lessor shall defend, indemnify, and hold harmless Lessee, its officers and employees from liability, damage, and expense of any kind, including reasonable attomey's fees, arising from all claims or causes of action of any kind including but not limited to injury to or death of any person or persons, including employees and invitees of Lessor, resulting directly or indirectly from Lessor's actions or arising from the use of the building on the Real Property. , 20. HAZARDOUS SUBSTANCES: The term "Hazardous Substance" as used in this Lease shall mean any product, substance, or waste whose presence, use, manufacture, disposal, fransportation, or release, either by itself or in combination with other materials expected to be on the premises, is either: (i) potentially injurious to the pubhc health, safety or welfare, the environment or the premises, (ii) regulated or monitored by any govemment authority, or (iii) a basis for potential liability of Lessor to any govemmental agency or third party under any applicable statute or common law theory. Lessee shall not cause or permit any Hazardous Substance to be spilled or released in, on, under, or about the Leased Premises and shall promptly, at Lessee's expense, take all investigatory and/or remedial action reasonably recommended, whether or not formally ordered or required, for the cleanup of any contamination of, and for the maintenance, security and/or monitoring of the premises or neighboring properties, that was caused or materially contributed to by Lessee, or pertaining to or involving any Hazardous Substance brought onto the premises during the term of this Lease, by or for Lessee, or any third party. 21. SUCCESSORS IN INTEREST: Unless otherwise provided in this lease, the terms, covenants and conditions herein shall apply to and bind the heirs, successors, executors, administrators, and assigns of all the parties hereto, all of whom shall be jointly and severally liable hereunder. 22. INSURANCE: Lessee shall obtain and maintain for the duration of this lease agreement and any and all amendments, insurance against claims for injuries to persons or damage to property which may arise out of or in connection v^th use of the subject Leased Premises by Lessee. The insurance will be obtained from an insurance carrier admitted and authorized to do business in the State of Califomia. The insurance carrier is required to have a current Best's Key Rating of not less than "A-VII". The policies for said insurance shall, as a minimum, provide the following forms of coverage: (a) Commercial General Liability- (covering premises and operations in the amount of not less than One Million Dollars ($1,000,000) combined single limit per occurrence for bodily injury, personal injury and property damage. If the submitted policies contain aggregate limits, general aggregate limits will apply separately under this lease or the general aggregate will be twice the required per occurrence limits. (b) Evidence of Insurance - Certificates and endorsements in a form acceptable to Lessor evidencing the existence of the necessary insurance policies shall be kept on file with Lessor during the entire term of this lease. All insurance policies shall be primary coverage, and will name Lessor as an additional insured, protect Lessor against any legal costs in defending claims and will not terminate without ten (10) days written notice to Lessor. (c) Lessor shall retain the right at any time to review the coverage, form, and amount of the insurance required hereby. If, in the opinion of the Lessor, the insurance provisions in this lease do not provide adequate protection for Lessor and/or for members ofthe public using the Leased Premises, Lessor may require Lessee to obtain insurance sufficient in coverage, form and amount to provide adequate protection. Lessor's requirements shall be reasonable but shall be designed to assure protection from and against the kind and extent of risk, which exist at the time a change in insurance is required. (d) Lessor shall notify Lessee in writing of changes in the insurance requirements and, if Lessee does not deposit certificates/endorsements evidencing acceptable insurance policies with Lessor incorporating such changes within thirty (30) days of receipt of such notice, this lease shall be in default without fijrther notice to Lessee, and Lessor shall be entitled to all legal remedies. (e) The procuring of such required policies of insurance shall not be constmed to limit Lessee's liability hereimder, nor to fulfill the indemnification provisions and requirements of this lease. Notwithstanding said policies of msurance. Lessee shall be obligated for the fiill and total amount of any damage, injury, or loss caused by negligence or neglect connected with this lease or with the use or occupancy of the Leased Premises.) Lessee agrees not to use the premises in any manner, even if use is for purposes stated herein, that will result in the cancellation of any insurance Lessor may have on the premises, or on adjacent premises, or that will cause cancellation of any other uisurance coverage for the premises, or adjoining premises. Lessee further agrees not to keep on the premises or permit to be kept, used, or sold thereon, anything prohibited by any fire or other insurance policy covering the premises. Lessee shall, at its sole cost and expense, comply with any and all requirements, in regard to premises, of any insurance organization necessary for maintaining fire and other insurance coverage at reasonable cost. 23. WARR7\NTIES-GUARANTEES-C0VENANTS: Lessor makes no warranty, guarantee, covenant, including but not limited to covenants of title and quiet enjoyment, or declaration of any nature whatsoever conceming the condition of the Leased Premises, including the physical condition thereof, or any condition which may affect the Leased Premises, and it is agreed that Lessor will not be responsible for any loss, damage or costs which may be incurred by Lessee by reason of any such condition or conditions. 24. DAMAGE TO OR DESTRUCTION OF PREMISES: In the event of damage to or destmction by fire, the elements, acts of God, or any other cause, of the improvements located within the demised premises Lessee shall, vdthin ninety (90) days, commence and diligentiy pursue to completion the repair, replacement, or reconstmction of improvements necessary to permit fiill use and occupancy of the demised premises for the purposes required by this lease. Repair, replacement or reconstmction of improvements within the demised premises shall be accomplished in a manner and according to plans approved by Lessor; provided, however, Lessee shall not be obligated to repair, reconstmct or replace the improvements following their destmction in whole or substantial part except to the extent the loss is covered by insurance required to be carried by Lessee pursuant to Paragraph 22 of this Lease (or would be covered whether or not such required insurance is actually in effect). If Lessee elects not to restore, repair or reconstmct as herein provided, then the Lease shall terminate. Notwithstanding the foregoing. Lessor shall be obligated to repair, reconstmct or replace so as to permit fiill use and occupancy of the Leased Premises as a Parking Lot, to the extent that any damage results from acts of Lessor, its employees, agents or invitees, including without limitation resulting from the building on the Real Property. 25. QUITCLAIM OF LESSEE'S INTEREST UPON TERMINATION: Upon termination of this lease for any reason, including but not limited to termination because of default by Lessee, Lessee shall execute, acknowledge and deliver to Lessor within thirty (30) days after receipt of written demand thereof a good and sufficient deed whereby all right, title and interest of Lessee in the demised premises is quitclaimed to Lessor. Should Lessee fail or refuse to deliver the required deed to Lessor, Lessor may prepare and record a notice reciting the failure of Lessee to execute, acknowledge and deliver such deed and said notice shall be conclusive evidence of the termination of this lease and of all right of Lessee or those claiming under Lessee in and to the demised premises. 26. PEACEABLE SURRENDER: Upon the expiration of this lease or sooner termination or cancellation thereof, as herein provided. Lessee will peaceably surrender said premises to Lessor in as good condition as said premises were at the date of this lease, ordinary wear and tear expected. If the Lessee fails to surrender the premises at the expiration of this lease or the earlier termination or cancellation thereof, Lessee shall defend and indemnify Lessor from all liability and expense resulting from the delay or failure to surrender, including, without limitation, any succeeding Lessee's claims based on Lessee's failure to surrender. 27. WAIVER: Any waiver by Lessor of any breach by Lessee of any one or more of the covenants, conditions, or agreements of this lease shall not be nor be constmed to be a waiver of any subsequent or other breach of the same or any other covenant, condition or agreement of this lease, nor shall any failure on the part of Lessor to require or exact fiill and complete compliance by Lessee with any of the covenants, conditions, or agreements of this lease be constmed as in any manner changing the terms hereof or to prevent Lessor from enforcing the full provisions hereof The subsequent acceptance of rent hereunder by Lessor shall not be deemed to be waiver of any preceding breach by Lessee of any term, covenant, or condition of this lease, other than the failure of Lessee to pay the particular rental so accepted, regardless of Lessor's knowledge of such preceding breach at the time of acceptance of such rent. 28. NO RIGHT TO HOLD OVER: Lessee has no right to retain possession of the premises or any part thereof beyond the expiration or termination of this lease. In the event that Lessee holds over, then the Rent shall be increased to one hundred fifty (150%) of the Rent applicable during the month immediately preceding the expiration or termination. Nothing contained herein shall be constmed as consent by Lessor to any holding over by Lessee. 29. ACCEPTANCE OF PREMISES: Lessee shall be entitied to have independent tests performed prior to execution of this lease to satisfy Lessee that the premises are in the condition promised. By signing this Lease, Lessee represents and warrants that it has independently inspected the premises and made all tests, investigations and observations necessary to satisfy itself of the condition of the premises, except as noted in Paragraph 24. Also except as noted in Paragraph 24, Lessee fiirther acknowledges that premises are in the condition called for by this Lease, and that Lessee does not hold Lessor responsible for any defects in premises. The parties mutually acknowledge that an existing wall on or near the Leased Premises has defects, including some crumbling and some holes, and that such are existing conditions. Neither Lessor nor lessee has any obligation to remedy the condition of such wall. 30. QUIET POSSESSION: Lessee will at all times during the terms of this Lease occupy the premises quietly and not commit any act, waste or nuisance which disturbs the quiet enjoyment of the property for the Lessor, public, any neighbor or other tenant of Lessor. 31. ENTIRE UNDERSTANDING: This lease contains the entire and only understanding and agreement of the parties, and Lessee, by accepting the same, acknowledges that there is no other written or oral understanding or agreement between the parties with respect to the demised premises and that this lease supersedes all prior negotiations, discussions, obligations and rights, ofthe parties hereto. No waiver, modification, amendment or alteration of this lease shall be valid unless it is expressly in writing and signed by authorized persons of the parties hereto. Each ofthe parties to this lease acknowledges that no other party, nor any agent or attomey of any other party, has made any promise, representations, waiver or warranty whatsoever, expressed or implied, which is not expressly contained in writing in this lease, and each party fiirther acknowledges that it has not executed this lease in reliance upon any collateral promise, representation, waiver or warranty, or in reliance upon any belief as to any fact not expressly recited in this lease. 32. TIME IS OF THE ESSENCE: Time is ofthe essence of each and all of the terms and provisions of this lease and this lease shall insure to the benefit of and be binding upon the parties hereto and any successors of Lessee as fiilly and to the same extent as though specifically mentioned in each instance, and all covenants, stipulations and agreements in this lease shall extend to and bind any assigns and sublessee of Lessee. 33. NOTICES: Notices given or to be given by Lessor or Lessee to the other may be personally serviced upon Lessor or Lessee or any person hereafter authorized by either in writing to receive such notice or may be served by certified letter addressed to the appropriate address hereinafter set forth or to such other address as Lessor and Lessee may hereafter designate by written notice. If served by certified mail, forty-eight (48) hours after deposit in the U.S. Mail, service will be considered completed and binding on the party served. FOR LESSEE FOR LESSOR Aviara Residence Club Owners' Association City of Carlsbad 7210 Blue Heron Place Municipal Property Manager Carlsbad, CA 92011 405 Oak Avenue Carlsbad, CA 92008 By their signatures below, the Lessor and the Lessee hereby agree to the terms of the Lease as set forth herein, effective as of the date first written above. LESSE~ BY· DE~1I0RTA General Manager and Regional Director A viara Residence Club Owners Association DATE:-------i~r------=-Wu~~:....::......::t=--:Sr-__ _ Note: Signature of Lessee must be Notarized APPROVED AS TO FORM: ~~~lA~ CITY ATTORNEY DATE: ( /:J.:!;.!f~ $ LESSOR BY ~~~~~~~~~~ Kathryn B. Dodson, nterim City Manager CITY MANAGER CITY OF CARLSBAD DATE: __ Ju_ly_3_o_, _2_0_1_5 _____ _ 11 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CiVIL CODE §1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of Califofi=\ia County of Son D'eAQ ) On OuV\| 3.0 O before me, 'Date ^ . Here Insert Nanja^rid Title of the Officer ' appeared Nanjsfs) of Signer(s) personally who proved to me on the basis of satisfactory evidence to be the person^ whose namej^ is/ape- subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/hecabeir authorized capacity(i^, and that by his/beft'their signature(^on the instrument the person)^ or the entity upon behalf of which the personj^cted, 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. I LESLIE MICHELLE UllRER Commission # 2048460 Notvy PubNc-Cilifomia ^ San Oiego Coun^ WITNESS my hand and official seal. Sianatur^of Notarv PuBIlc ^ Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Document x-t^ Title or Type of Document: U-QSe hOfUrC\Q/SA Document Date: Othfer Number of Pages: Signer(s) Than Named Above: CapacltyOes) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Partner — • Limited • General • Individual • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: Signer's Name: • Corporate Officer — Title(s): • Partner — • Limited • General • Individual • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: ©2014 National Notary Association • www.NatlonalNotary.org • 1 -800-US NOTARY (1 -800-876-6827) Item #5907 \6 EXHIBIT "A" The Leased Premises [See attached] 11 RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: Carlsbad City Clerk's Office 1200 Carlsbad Village Drive Carlsbad, CA 92008 MEMORANDUM OF LEASE This Memorandum of Lease, hereinafter "Memorandum", dated 2015, between the CITY OF CARLSBAD, (LESSOR) and Aviara Residence Club Owners' Association, LESSEE, concems the Leased Premises at 2065 Camino Vida Roble, Carlsbad, Califomia 92008. For good and adequate consideration, LESSOR leases the Leased Premises to LESSEE for the term and on the provisions contained in the Lease dated , 2015, the Memorandum of which is recorded hereby, including without limitation provisions prohibiting assignment, subleasing, and encumbering said leasehold, as more specifically set forth in said Lease, which said lease is incorporated in this Memorandum by this reference. The term of this lease is one (1) years beginning August 18, 2015 and ending August 17, 2016. Rent is due and payable on or before the first day of the month each and every month and is to be delivered to the Finance Department of the City of Carlsbad at 1635 Faraday Avenue, Carlsbad, Califomia 92008. The monthly rent is Four Thousand Five Hundred Dollars ($4,500) per month for the furst six (6) months. Rent will increase to Five Thousand Five Hundred ($5,500) on the anniversary of the sixth (6) month. Rent will increase to Six Thousand Five Hundred ($6,500) on the anniversary of the ninth (9) month. This Memorandum is not a complete summary of the Lease. Provisions in this Memorandum shall not be used in interpreting the Lease provision. In the event of conflict between this Memorandum and other parts of the lease, the other parts shall control. IN WITNESS WHEREOF, each of the undersigned has executed this Memorandum as of the dates set forth in the respective notary acknowledgements attached hereto. LESSEE: AVIARA RESIDENCE CLUB LESSOR: CITY OF CARLSBAD, A OWNEB:^^SOCL\TION CHARTERED MUNICIPAL CORPORATION (Name of Entity) By: Print Name: DEMI ORTEGTA Print Name: KATHY DODSON Title: GE^RAL MANAGER AND RGIONAL Omge?® Title: INTERIM CITY MANAGER - JVED AS TO FORM: Ron Kemp , Assistant Cit^-^omey CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE §1189 A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. State of California rpv of An D\eQQ County On MLUSl QJy^ before me, 10.41^, m,i(hf1 AJLT^/; l^t?)r\71^obllCi ' Date ff-x . Here Insert Name and Title of the Officer ' personally appeared N^inkfs) of Signerfs) who proved to me on the basis of satisfactory evidence to be the person^ whose name(^is/€tre- subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/har/thoii-authorized capacity(ie^, and that by his/hefttheir signature(s)-on the instrument the personte^ or the entity upon behalf of which the person^i^ 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. LESLIE imClttLLE LAURER Commistion « 2046460 Notvy PuMic •California 1 I^^K^ San Oioto County g I MvComm.E»ifMNov8.2017l WITNESS my hand and official seal. Signat] hbb my nana and oTTiciai seal. —Signature of Notary PuMcr \ Place Notary Seal Above OPTIONAL Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document. Description of Attached Doc{ Title or Type of Document: Number of Pages: >cument . f , Signer(s) Other Than Named Above: Document Date: Capacity{ies) Claimed by Signer(s) Signer's Name: • Corporate Officer — Title(s): • Partner — • Limited • General • Individual • Attomey in Fact n Trustee • Guardian or Conservator • Other: Signer Is Representing: Signer's Name: • Corporate Officer — Title(s): • Partner — • Limited • General • Individual • Attorney in Fact • Trustee • Guardian or Conservator • Other: Signer Is Representing: ©2014 National Notary Association • www.NatlonalNotary.org • 1 -800-US NOTARY (1 -800-876-6827) Item #5907 CALIFQRNIA AlL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189 • A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. , State of California County of ____,_,_Sq~-'---n-1--:b..OL.!;___,e.-,;;;a~o_,__ __ _ .3.::>1 .JO J S before me, L.Ltic.~ n~; ;j :o {LD yes;. AJ,p h:;oA.J p....,.b \:c. Date Here Insert Name and Title of tde Officer pernon~~appeared_J~~~~v~~~~~BL.~.CO~~~s~o~~~~~~~~~~~~~~~~­ NameJsrof Signer.{87' who proved to me on the basis of satisfactory evidence to be the perso~ whose name~is/are­ subscribed to the within instrument and acknowledged to me that .He/she/~ executed the same in J::ris/herAReir authorized capacity~, and that by J:Hs./her/lfleir signatureJsr on the instrument the person,(sr, or the entity upon behalf of which the person~ acted, executed the instrument. Place Notary Seal Above I certify under PENAL TV 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 ~.j.A.l,~ (<.efF Signature of Notary PuM ------------------------------OPTIONAL---------------------------------- Though this section is optional, completing this information can deter alteration of the docume or fraudulent reattachment of this form to an unintended document. Descn · of Attached Document Title or Type ocument: ____________ _ Number of Pages: Signer(s) Other Than Named Above: ~------------ Capacity{ies) Claimed by Sig Signer's Name: ________ __...::,.,_,------Si s Name: ___________ _ 0 Corporate Officer -Title(s): --------"~-Corporate Officer -Title(s): ______ _ 0 Partner - 0 Limited 0 General 0 Partner - D Limited 0 General 0 Individual D Attorney in Fact Individual D Attorney in Fact 0 Trustee 0 Guardian or Cons ator 0 Tr ee D Guardian or Conservator 0 Other: -----------;;4:..__ ___ _ 0 Other: ~~-----------------------­ Signer Is Representing: -----r"'--------Signer Is Rep ©2014 Nation otary Association· www.NationaiNotary.org • i-800-US NOTARY (1-800-8 Item #5907 o CM .a E B Q. CO apis I es > H 0^ LU CL O DC Q. LLI Z CC o I H I CO-8 LLI Q: 22 CO LU > DC O ^ CL ^ UJ o _l Csj O ro 'c ,o A.