HomeMy WebLinkAbout1989-08-15; Housing & Redevelopment Commission; 135; Lease Agreement with AT&SF Railway2i'
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HOUSING AND”EDEVELOPMENT COMMIS!--)N - AGENDA 61~~ Q
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AB# 135 TlTLE DEPT. HD. Cc ’
MTG. 8/15/89 APPROVAL OF LEASE AGREEMENT CITY A
DEPT. RED % WITH ATCHISON, TOPEKA AND WTA RR-y CITY MGR.
RECOMMENDED ACTION:
If Housing and Redevelopment15Cgommission concurs, your action is to adopt Resolution No. approving a lease with Atchison, Topeka and Santa Fe Railway for property located south of Elm Avenue between the railroad tracks and Washington Streets and authorizing the Chairperson to execute the lease.
RXPLANBTION
Atchison, Topeka and Santa Fe Railway has agreed to lease a portion of the railway right-of-way to the City for the purpose of constructing a thirty-nine (39) space parking lot. Housing and Redevelopment Commission has previously authorized construction of three parking lots downtown as part of the Streetscape Program. This lease is for one of those sites. In addition, the railway has given permission for early occupancy of the lot. The property is located south of Elm Avenue and east of Washington Street. Commission is asked to authorise the Mayor to execute the lease on behalf of the City.
First year cost is $12,000 plus a one time cost of $500 prorated for early occupancy. Budgeted funds are available in account no. 810-820-3410-2360 from the tax allocation - bonds.
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l- Housing and Redevelopment Commission Resolution No. l..,5Q.
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RESOLUTION NO. 150
A RESOLUTION OF THE HOUSING AND REDEVELOPMENT COMMISSION OF THE CITY OF CARLSBAD, CALIFORNIA, APPROVING A LEASE FOR PROPERTY SOUTH OF ELI4 AVENUE
WHEREAS, the Housing and Redevelopment Commission
of the City of Carlsbad, California, has determined it
necessary and in the public interest to construct a
parking lot in‘the railroad right-of-way; and
WHEREAS, the Commission desires to lease property
from the Atchison, Topeka and Santa Fe Railway;
NOW, THEREFORE, BE IT HEREBY RESOLVED by the
Housing and Redevelopment Commission of the City of
Carlsbad, as follows:
1. That the above recitations are true and correct.
2. That the property lease attached hereto as Exhibit A is hereby approved.
3. That the Chairperson is hereby authorized to sign said lease on behalf of the City.
PASSED, APPROVED AND ADOPTED at a regular meeting
of the Housing and Redevelopment Commission of the City
of Carlsbad, California, held on the L5th day of
AuQ&, 1988, by the following vote, to wit:
AYES: Commissioners Lewis, Kulchin, Mamaux & Pettine
NOES: None
*ABSENT: Commissioner Larson
ABSTAIN: None
Ouplicate O&d -
THIRTY DA Y LEASE L-4732
1222L
ly, 1989, between THE ATCHISON, TOPEKA
corporation, (hereinafter referred to
as "Lessor") and CITY OF CARLSBAD, a body corporate and politic (hereinafter
referred to as "Lessee").
THIS LEASE, made thfs 27th day of Ju
AND SANTA FE RAILWAY COMPANY, a Delaware
PART I: BASIC LEASE TERMS
A. Premises: The land and any existing improvements and facilities existing
thereon located at or near Carlsbad, County of San Diego, State of
California, as shown on C.E. Drawing No. l-10291, dated June 6, 1989,
attached as Exhibit A and made a part hereof.
B. Term: The Term shall commence on SEPTEMBER 1, 1988 (the "Lease
Commencement Date") and shall be on a month-to-month basis until
terminated at any time by either party upon 30 days' written notice to the
other party.
C. Use: Site for public parking.
Lessee shall not construct any improvements on the Premises other than
paving and perimeter fencing, without first obtaining Lessor's prior
written consent as set forth In Section 11 hereof.
D. Base Rent: One Thousand and No/100 Dollars ($l,OOO.OO) per month, payable
in advance, for the convenience of the parties hereto, in one annual
installment of $12,000.
Rent Base Date: September 1, 1989
Consumer Price Index: All Urban Consumers, All Items
Los Angeles/Anaheim/Riverside area
1982-84-100
as published by the United States Department of Labor, Bureau of Labor Statistics, or any successor or substitute index published as a
replacement for that Index by any United States governmental agency.
E. Security Deposit: -Waived-
F. Insurance:
Comprehensive General Liability Insurance and Automobile liability
insurance, each with limits of $2,000,000 or more combined single limit
per occurrence.
Workers' Compensation Insurance in at least the statutory amount.
Employers' Liability Insurance with limit of $l,OOO,OOO or more.
(See Addendum)
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G. Addresses for Notices:
To Lessor:
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY
3230 East Imperial Hwy. Suite 100
Brea, California 92621
To Lessee:
CITY OF CARLSBAD
2965 Roosevelt Street, Suite B
Carl sbad, CA 92008-2389
H. Address for Payments to Lessor: Checks payable to THE ATCHISON, TOPEKA
AND SANTA FE RAILWAY COMPANY shall be mailed to P. 0. 80x 73043, Chicago,
IL 60673.
I. Early Possession: Lessor hereby grants Lessee permfsslon to occupy the
Premises for the period August 15, 1989 to the Commencement Date. Such
early occupancy shall be subject to all the terms and conditions of the
Lease, including rent. Rent for such perfod shall be prorated and shall
be due and payable to Lessor on or before the Commencement Date.
3. The foregoing Basic Lease Terms, the General Lease Terms set forth in the
attached Part II, and the attached Addendum(s), Exhibit(s) and Rider(s)
(hereinafter referred to as "Rider(s)") are incorporated into and made a
part of this Lease. If there is any conflict between the Basfc Lease
Terms and the attached General Lease Terms and Rfder(s), the latter shall
control.
LESSOR:
THE ATCHISON, TOPEKA AND SANTA FE RAILWAY
COMPANY, a Delaware corporation
By:
Title:
LESSEE:
CITY OF CARLSBAD
' a body corporate and politic APPROVED AS TO FORM
Vincent Biondo, Jr.
City Attorney
By:
Its: '_
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PART II. GENERAL LEASE TERMS
1. PREMISES AND TERM
Lessor hereby leases to Lessee the Premises for the Term shown in the Basic Lease
Terms, subject to the terms and conditions set forth in this Lease.
Lessee shall not use the Premises for any use other than that stated in the Basic Lease Terms, and shall not make any alterations to the Premises except as required for
such use. LESSEE SPECIFICALLY ACKNOWLEDGES THAT THIS IS A 30 DAY LEASE AND THAT LESSEE
HAS NOT RELIED ON ANY REPRESENTATIONS BY ANY AGENT OR EMPLOYEE OF LESSOR TO THE CONTRARY
IN MAKING ANY IMPROVEMENTS TO THE PREMISES.
Lessee shall not permit to be placed on the Premises or improvements any sign not solely related to the business of Lessee conducted on the Premises.
Lessee shall not petmi t any damage, nuisance or waste on the Premises. Lessee shall
not permit to be placed upon the Premises any gasoline or any hazardous or explosive material, waste or substance.
Lessee, at its expense, shall arrange for the filing of any map required under any
subdivision map act and of an environmental impact report required by any governmental
body having jurisdiction in t z e matter.
If any governmental body seeks to impose any conditions on approval of Lessee’s use
of the Premises, Lessor may terminate this Lease forthwith if any such condition will
affect any other property of Lessor or will affect the Premises after this Lease is no
longer in effect.
3. CONDITION OF PREMISES
Lessee warrants it has examined the Premises and accepts the Premises “AS IS, WHERE IS” condition with all faults and with full knowledge of the physical condition, of all
zoning and other land use laws and regulations affecting the Premises, and of the
conditions, restrictions, encumbrances and all matters of record relating to the
Premises.
There may be subterranean facilities on the Premises, notwithstanding the absence of
markers, monuments or maps indicating their existence.
4. RENT
Lessee shall pay in advance to Lessor as rental for the Premises the amount shown as
Rent in the Basic Lease Terms at the times payable as set forth therein, without deduction, setoff, prior notice or demand. Upon termination of this Lease, unless
Lessee is then in default, any unearned portion of the Rent paid in advance will be
refunded to Lessee upon Lessee’s written demand if made within thirty (30) days after
termination. .
5. RENT RFVISION
Should the Lease continue in effect, Lessor shall have the right, on each anniversary of the Rent Base Date, to increase the Base Rent as further provided
herein. Rent for an fractional month shall be prorated. Nothing contained herein shall affect the rig t of either party hereto to terminate this Lease at any time as may z
be provided el sewhere herein.
The rental at each anniversary of the Rent Base Date shall automatically and without
prior notice to Lessee be adjusted, upwards only, in accordance with changes in the
Consumer Price Index to an amount which is equal to the roduct of (i) the Index (as
defined in Section D of the Basic Lease Terms) for the t R- lrd month preceding the
Adjustment Date (as hereinafter defined), multiplied by (ii) the monthly rental payable during the immediately preceding twelve month period, divided by (iii) the Basic Index which shall mean the index published for the third month preceding the Rent Base Date of
the previous calendar year. The adjusted rental shall be rounded to the nearest $1.00.
The rental, as increased, shall be effective as of each anniversary of the Rent Base
Date (the “Adjustment Date”), notwithstanding Lessor’s acceptance of a lesser amount and
notwithstanding any billing by Lessor for a lesser amount. rental is not revised at such time as herein specified, If, for any reason, the the rental shall continue to be subject to revision by Lessor without prior notice to Lessee and, when so revised, may be retroactive to the date the revised rental should have become effective.
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Said new base rent, as so determined, shall be due and payable in accordance with
Section D of the Basic Lease Terms. In no event, however, shall such new base rent be
less than the then current base rent.
Notwithstanding the above, Lessor may, at any time, upon thirty (30) days’ written
notice to Lessee, revise the rental then in effect based upon the fair rental value of
the Premises at the time of such revision. Nothina in this Section shall be construed
as waiving in any way Lessor’s statutory right to cenoinate.
6. SECURITY DEPOSIT
(a) Concurrently with the execution of this Lease, Lessee shall deposit with Lessor
the Security Deposit indicated in the Basic Lease Terms as security for Lessee’s performance of this Lease. Lessor shall not be required to keep the Security Deposit
separate from its general funds. Lessee shall not be entitled to interest on such
depos i t .
(b) If Lessee breaches any provision of this Lease, including, but not limited to,
the payment of rent, repair of damages to the Premises and the cleaning of the Premises
upon termination of this Lease, Lessor may apply the Security Deposit to the payment of
rent or any other sum in default, or to reimburse Lessor for any amount which Lessor may
spend or become obligated to spend by reason of Lessee’s default or to compensate Lessor
for any other loss or damage which Lessor may suffer by reason of Lessee’s default. If
any portion of the Security Deposit is so applied, Lessee shall, within five (5) days
after written demand therefor, deposit with Lessor an amount sufficient to restore the
Security Deposit to its original amount.
(c) If Lessee has fully perfonned each of its obligations hereunder, the Security
Deposit or any balance thereof shall be returned to Lessee no later than thirty (30)
days after the expiration or termination of the Lease.
(d) Lessor may, upon thirty (30) days’ written notice, require Lessee to increase
the Security Deposit to an amount specified by Lessor.
(a) Lessee shall pay, before they become delinquent, al? taxes, charges, and
assessments which are levied upon, or assessed against any improvement or personal property placed upon the Premises by Lessee.
(b) In addition to the taxes and assessments specified above, Lessee shall pay to
Lessor any privilege, sales, gross income or other tax (not including federal or state
income tax) imposed upon the rent received by Lessor by any agency having the authority
to do so.
8. ADDITIONAL RENT: INTEREST: LATE CHARGES
Additional Rent. All costs and expenses which Lessee assumes or agrees to pay under this Lease shall be deemed additional rent. If Lessee defaults in makino anv oavment
required of Lessee hereunder (other than the payment of Rent) or in perf&iig’aAy
obligation hereunder which can be performed by the expenditure of money, Lessor may,
without obligation to do so, make such payment or expenditure. Such payment or
expenditure by Lessor shall be payable as.additional rent upon demand by Lessor.
late Cha g .
due hereundef zll
Lessee acknowledges that Lessee’s late payment of Rent and other sums
cause Lessor to incur costs (including without limitation processing
and accounting costs) not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Accordingly, Lessee agrees to pay Lessor, as
additional rent and without further notice from Lessor, a late charge equal to the
greater of $50.00 or 5% of any overdue amount, if such amount is not paid within 10 days
after it is due.
Interest. Lessee shall pay Lessor, as additional rent, interest at the rate of ten
percent (10X) per annum or at the highest rate permitted by law, whichever is lower, on
all amounts due hereunder from the date due until paid; provided, however, that, except
as provided elsewhere in this Lease, interest shall not be payable on any such amount if such amount is paid within 10 days after the date is is due or. in the case of amounts
to be demanded by Lessor, within 10 days after the date of such demand.
9. UTILITIES
-Lessee shall arrange and pay for all utilities, including without limitation, water,
power, heat, garbage, communications and sewer services, to be used in connection with
this Lease.
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If Lessor contracts with a utility company to provide access for service to Lessee
at the Premises for Lessee’s sole use, Lessee shall pay to Lessor a minimum sum of $250
upon receipt of a bill therefor to partially defray administrative costs.
10. MAINTENANCE AND REPAIR
Lessee shall, at its expense and to the satisfaction of Lessor, keep and maintain
the Premises and all improvements thereon in good repair and in a neat and safe
condition, and shall promptly make all repairs and replacements that may become
necessary to the Premises or improvements thereon, whether structural or nonstructural,
ordinary or extraordinary.
11. ALTERATIONS
Lessee shall make no alteration or improvement to the Premises without Lessor’s
prior written consent. All repairs, alterations and improvements to or on Premises
shall be property of Lessor, without payment by Lessor of any compensation therefor.
12. LIENS
Lessee shall not commence any repairs (except emergency repairs), changes or
alterations on the Premises until fifteen (15) days after Lessor has received notice
from Lessee stating the date such repairs, changes or alterations are to commence.
Lessor shall have the right to enter the Premises to post notices of nonresponsibility.
Lessee shall not permit any mechanics’ or other liens to be filed against the
Premises nor against Lessee’s leasehold interest therein by reason of labor or materials
furnished to the Premises at Lessee’s instance or request. If any such lien is filed
against the Premises, Lessee shall cause the same to be discharged of record, either by
payment of the claim or by posting and recording the bond contemplated by California
Civil Code 53143, within twenty (20) days after demand by Lessor. Lessee shall
indemnify, hold harmless and defend Lessor from and against any such lien.
13. INDEMNIFICATION
To the extent it lawfully may, Lessee shall release, defend (with counsel satisfactory
to Lessor) and indemnify Lessor from and against all liability, cost and expense for
loss of or damage to property and for injuries to or death of any person (including, but
not limited to, the property and employees of each party hereto) when arising or
resul ti ng from:
(a) the use of the Premises by Lessee, its agents, employees, or invitees;
(b) breach of this Lease by Lessee, or
(c) the condition of the Premises or any part thereof,
regardless of whether such liability, cost or expense is caused or contributed to by the
negl i gence, active or passive, of Lessor.
It is expressly understood and agreed that the foregoing provisions shall survive
the termination of this agreement.
The term “Lessor ‘I as used in this Section 13, Sections 14 and 15, shall include the
successors, assigns &d affiliated companies of Lessor.
14. COMPLIANCE WITH LAW: ENVIRONMENTAL IMPAIRMENT
(a) In the event the Premises are now or in the future used in generating,
handling, or transporting of “hazardous waste” or “hazardous substances”,
Lessee, at its expense, a
state, and local laws, 9
rees fully to comply with all applicable federal,
ru es, regulations, orders, decisions and ordinances
regardless of when they become or became effective, (hereinafter referred to as
“Standards”), concerning “hazardous waste” and “hazardous substances”. Lessee
further agrees periodi tally 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. 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’ written 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. j Upon termination, Lessee shall be
governed by the sections of the Lease regarding Lessee’s surrender of
possession of the Premises.
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(b) 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 1 imitation,
employees 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
penal ties 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.
(c) Should any discharge, leakage, spillage, emission, or pollution of any type
occur upon or from the Premises due to Lessee’s use and occupancy thereof,
Lessee, at its expense, shall clean all property affected thereb
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to the
satisfaction of Lessor (insofar as the property owned or control ed by Lessor
is concerned) and any governmental body having jurisdiction thereover.
(d) 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.
(e) Lessee shall not use or permit the use of the leased premises in any manner .
that will tend to create waste or nuisance. In using the Premises, and in
constructing, maintaining, operating and using the Improvements thereon, Lessee
shall comply with any and all requirements imposed by federal or state
statutes, 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.
15. INSURANCF
While this Lease is in effect, Lessee shall, at its expense, maintain and furnish
evidence of insurance written through an insurance company having a Best’s rating of B +
13 or better and licensed to do business in the state in which the Premises are located,
meeting the requirements stated below in form satisfactory to Lessor, for each of the
following types of insurance in amounts not less than the amounts shown on the Basic
Lease Terms :
A. Comprehensive general 1 iabi lity insurance or conmtercial general 1 iabil i ty
insurance on an occurrence basis which provides for the following:
(1) Such insurance shall be primary, without right of contribution from other
insurance which may be in effect.
(2) Such insurance shall not be invalidated by the acts or omissions
of other insureds.
(3) Such insurance shall not be modifiable or cancellable without 30 days’
prior written notice to Lessor (except in the case of cancellation for
nonpayment of premium in which case cancellation shall not take effect
until at least 10 days’ notice has been given to Lessor). This provision is hereinafter referred to as “Notice of Modification or Cancellation”.
(4) Lessor shall be named as additional insured.
(5) Contractual liability.
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(6) Premi ses/compl eted operati ens, and personal injury endorsements.
(7) Severability of interest clause.
(8) In the case of commercial general liability insurance, the policy must
also provide for aggregate coverage at each location and for reinstatement
of the aggregate in the event the limits of the policy are exhausted.
6. Comprehensive automobile liability insurance which provides for the following:
(1) Such insurance shall be primary, without right of contribution from other
insurance which may be in effect.
(2) Such insurance shall not be invalidated by the acts or omissions of other insureds.
(3) Notice of Modification or Cancellation.
(4) Lessor shall be named as additional insured.
(5) Severability of interest clause.
C. Workers’ compensation insurance which shall cover all persons employed by
Lessee in the conduct of its operations on the Premises and shall provide for the
following:
(1) Waiver of subrogation against Lessor.
(2) Notice of Modification or Cancellation.
(3) All states endorsements.
(4) Coverage for Longshore and Harbor Workers Act, if applicable.
D. Employer’s liability endorsed to provide for Notice of Modification or
Cancellation and waiver of subrogation against Lessor.
E. Any umbrella or excess liability insurance will provide that if the underlyin *9 aggregate is exhausted, the excess coverage will drop down as primary insurance and wi 1
provide for Notice of Modification or Cancellation.
Either a properly completed certificate of insurance executed by an authorised
representative of the insurer or insurers or a certified copy of the policy or policies
shall be furnished to Lessor prior to the Lease Commencement Date and no later than
thirty (30) days prior to expiration of any insurance policy. In the event Lessee fails
to comply with this requirement, Lessor may, but shall not be obli
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ated to, obtain such
insurance and keep the same in effect and, upon demand, Lessee sha 1 pay to Lessor, as
additional rent, the premium cost thereof.
16. TERMINATION: SURRFNDER OF PREMISES
Upon termination of this Lease, Lessee shall leave the Premises in a neat and clean
condition, satisfactory to Lessor and free of all Lessee’s personal property.
Under Section 11 hereof, all repairs, alterations and improvements made by Lessee
shall be the property of Lessor. However, Lessor may, by written notice, require Lessee
to remove any such alterations and improvements from the Premises and to restore the
Premises to their original condition (normal wear and tear excepted) prior to
termination of this Lease. If Lessee fails to do so, lessor may perform such removal
and restoration in which case Lessee shall pay Lessor within thirty (30) days after
demand therefor (1) an amount equal to the Rent (as in effect immediately before
termination) for the period during which such removal is accomplished to corn ensate Lessor for the loss of rent to Lessor resulting from the unavailability of t E e Premises
for leasing to another tenant during such time and (2) the cost of removal of such
improvements. Lessor wi 11 use reasonable di 1 igence in the removal of such improvements.
Termination of this Lease shall not release either party from any liability or
obligation hereunder resulting from an event which occurred before termination.
17. CONDEMNATION
If all or part of the Premises is acquired by eminent domain or 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 paid as severance damages, or for loss of or damage to Lessee’s
improvements.
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18. DEFAULT
Lessee shall be in default hereunder if Lessee fails to pay the rental or to make
any other payment required to be made by Lessee hereunder within three (3) days after written notice by Lessor or fails to perform any other term or condition of this Lease
within fifteen (15) days after written notice by Lessor or abandons or vacates the
Premises. If Lessee is in default hereunder, Lessor, may, in addition to any other
remedies it may have at law or equity, terminate this lease forthwith.
19. ASSIGNMENT. SUBLETTING
Lessee shall not assign or encumber or transfer its interest in this Lease or in the
Premi ses, in whole or in part, or sublease all or any part of the Premises without
Lessor’s prior written consent, which consent may be given or withheld for any reason
whatsoever.
20. DISPOSSESSION
If Lessee is lawfully deprived of the possession of all or any part of the Premises
by a party other than Lessor, Lessor may, upon receipt of notice from Lessee setting
forth the circumstances, either install Lessee in possession of the Premises or
terminate this Lease and refund to Lessee the pro rata amount of any pre aid R rental for the unexpired term of this Lease after receipt of such notice. Lessor s all not be
liable to Lessee for any loss, damage or claims resulting from such deprivation of
possessi on.
21. NOTICES
Al 1 notices shall be in writing and shall be deemed to have been given when
de1 ivered personally or deposited in the United States mail, registered or certified,
postage prepaid, and addressed to the party to whom the notice is directed at the
address set forth in the Basic Lease Terms. Payments to Lessor shall be made at the
address for payments set forth in the Basic Lease Terms. Either party may change the
address for notices or Lessor may change the address for payments by giving the other
party notice to that effect.
22. ATTORNEYS’ FFFS
If either party brings any action against the other to enforce or collect any sum
due under this Lease or if Lessor brings an action for unlawful detainer of the Premises, the losing party shall pay the reasonable attorneys’ fees of the prevailing
party in addition to the judgment and court costs.
23. LESSOR’S RIGHT OF ENTRY
Lessee shall permit Lessor and the agents and employees of Lessor to enter into and
upon the Premises at all reasonable times for the purpose of inspection, posting notices
of nonresponsibility, or exhibiting the Premises to prospective tenants or buyers.
24. NONWAIVER
Lessor’s failure to enforce or exercise its rights with respect to any provision
hereof shall not be construed as a waiver of such rights or of such provision.
Acceptance of rent or an Lessee of any provision K other sum shall not be a waiver of any preceding breach by ereof, regardless of Lessor’s knowledge of such preceding breach at the time of acceptance of such rent.
25. TIME OF ESSENCE
lime is of the essence of each provision of this Lease.
26. ENTIRE AGREEMENT: AMENDMENT
This Lease sets forth the entire agreement between the parties with respect to the
lease of the Premises and supercedes all prior agreements, communications, and
representations, oral or written, express or im lied,
be an integrated agreement. Y
since the parties intend that this
This agreement sha 1 not be modified except by written
agreement of the parties.
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27. 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
(1) operate, maintain, review and relocate any and all existing pipe, track, power
and communication (including without limitation fiber optic) lines and
appurtenances and other facilities of like character upon, over or under the surface of the Premises; and
(2) construct, operate, maintain, review and relocate such additional facilities of
the same character as will not unreasonably interfere with Lessee’s use of the
Premises as specified in Section 2 of the General Lease Terms.
Any such construction, operation, relocation or maintenance shall not be done at
Lessee’s expense unless such work is requested by Lessee or done for the benefit of
Lessee.
28. NOISE FROM TRAIN OPERATION: BARRICAOES
Lessee hereby recognizes and acknowledges that railroad tracks are located on or
adjacent to the Premises.
The term “Lessor” as used in Sections 13. 14 and 15 of the General Lease Terms and
in the next paragraph shall include any railroad company operating on such tracks.
Lessee recognizes that the operation of trains over the tracks does and will produce
noise levels which may be considered objectionable by the employees, agents, tenants, or
invitees of Lessee. Therefore, Lessee agrees that no legal action or complaint of any
kind whatsoever shall be instituted against Lessor on Lessee’s behalf as a result of
such noise levels and to indemnify and save harmless Lessor against any loss, damage,
1 iabil i ty or expense either might incur as a result of such action being taken by
Lessee’s employees, agents, tenants or invitees.
Lessee, at its expense, shall install and maintain barricades, fences, and fence
gates as shown on Exhibit A.
-9-
ADDENDUM TO LEASE DATED JULY 27, 1989
BETWEEN
THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY, AS LESSOR
AND CITY OF CARLSBAD, AS LESSEE
Section F - Part I (Basic Lease Terms) of the Lease Is hereby partially
modified as follows:
Lessee represents to Lessor that Lessee is self-insured. Lessee shall
provide Lessor proof of such self-insurance, acceptable to Lessor, prior to
entry onto the Premises.
INITIAL INITIAL
C.E.4J
EXHIBIT “A”
ATTACHED TO CONTRACT BETWEEN
THE ATCHISON, TOPEKA ANyNEANTA FE RAILWAY COMPANY
c/rw d?! CwALsa~~
TOPEKA, KANSAS SCALE: 1 IN. TO ,+QU FT. m DIV.
s-ah?? A4zFKU SUBDIV.
DATE: &fed& 6, /yfp
- - - -ce GL -h/-f-B_s_ - - CHIEF ENGINEER
DESCRIPTION APPROVED
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