HomeMy WebLinkAbout2008-002 Austin Miller Esteem Skate ParkCITY OF A T ASCADERO
CO,VTRACT# 1 &D � �
LEASE AGREEMENT
1. BASIC LEASE PROVISIONS
1.1 Date And Parties. This Lease ("Lease") is dated, for reference purposes only,
TQ, S , and is between CITY OF ATASCADERO ("City") and AUSTIN
MILLER DAA ESTEEM. ("Tenant") upon the provisions and conditions contained in this Lease. Tenant
is a California corporation, with principal offices at 6455 El Camino Real, Atascadero, Ca. City is a
municipal corporation, organized under the laws of the State of California, with principal offices at 6907 El
Camino Real, Atascadero, California.
1.2 Capacity Of City As Landlord. Except where clearly and expressly provided otherwise in this
Lease, the capacity of the City of Atascadero in this Lease shall be as a landlord only, and any obligations
or restrictions imposed by this Lease on City shall be limited to that capacity and shall not relate to or
otherwise affect any activity of the City of Atascadero in its governmental capacity, including, but not
limited to, enacting laws, inspecting structures, reviewing and issuing permits, and all other legislative,
administrative, or enforcement functions of the City of Atascadero pursuant to federal, state, or local law.
1.3 Execution Date. The phrase "Execution Date" shall mean the date the City Clerk of Atascadero
attests this Lease, except in the event that Tenant executes this Lease after such attestation, in which case
the date of such execution by Tenant shall be the Execution Date.
2. PROPERTY
2.1 Property. City leases to Tenant and Tenant leases from City that certain portion of real property
located in the City of Atascadero, California, comprising approximately 9,800 gross square feet, indicated
on the Site Plan attached to this Lease as Exhibit A, and incorporated herein by this reference ("Property").
2.2 Property Ownership. City warrants that City is the owner of the Property and is legally
authorized to lease the Property described in Section 2.1.
2.3 Reservations. This Lease and the Property delivered hereby are and shall be at all times subject
to the following:
2.3.1 Utility Rights -of -Way. Rights-of-way for sewers, pipelines, conduits and for telephone,
telegraph, light, heat and power lines as may from time to time be determined to be necessary by
City, including the right to enter upon, above, below or through the surface to construct, maintain,
replace, repair, enlarge or otherwise utilize the Property for such purpose, without compensation
or abatement of rent, provided the surface shall be restored as much as possible to the condition
previously existing.
2.3.2 Prior Exceptions. All prior exceptions, reservations, grants, easements, leases, or
licenses of any kind whatsoever as the same appear of record in the office of the Recorder of San
Luis Obispo County, California, or in the official records of the City of Atascadero or any of its
various departments.
2.3.3 Inspection. Tenant has inspected the Property in contemplation of occupying it for the
uses permitted hereunder and agrees that:
2.3.4 Suitability. The Property, including any improvements existing thereon covered by this
Lease, is suitable for Tenant's intended uses. No officer or employee of City has made any
representation or warranty with respect to the Property, including improvements, if any, existing
thereon, unless the nature and extent of such representation or warranty is described in writing and
attached hereto as an addendum.
2.3.5 Additions and Improvements at Tenant's Expense. Any modification, improvement,
or addition to the Property and any equipment installation required by the Fire Department, or any
other local, regional, state or federal agency in connection with Tenant's operations shall be
constructed or installed at Tenant's sole expense.
3. USE
3.1 Use. Tenant may use the Property for the maintenance and operation of a skate/ bicycle park.
Tenant shall provide free public access and use of the facility during days and times approved by the City.
Tennant may apply fees at other times for use of the facility for skating activities and events held at the
premises not conflicting with free public use hours. Tennant shall not use or occupy the Property in
violation of law or for any purpose which is in violation of any zoning or other land use regulation and
shall discontinue any use of the Property which is declared by any governmental authority to be a violation
of law. Tenant, at its sole cost and expense, shall comply with any directive of any governmental authority
which shall impose any duty upon City or Tenant with respect to the Property or the use or occupation
thereof, which arises due to the nature of Tenant's use or occupancy of the Property. Tenant shall not
commit, or suffer to be committed, any waste or nuisance in its occupancy of the Property. Tennant shall
maintain the George C. Beatie Skate Park name for the facility. All tenant improvements shall be subject
to City prior approval and inspection for compliance with applicable fire, building and safety codes.
4. TERM
4.1 Term. The term of this Lease ("Term") shall be three (3) years, commencing on February 1,
2008, and terminating on February, 2011, unless terminated earlier as hereinafter provided. City grants to
the Tenant the option to extend this Lease for two (2) one (1) year periods, following the above ending
date at a rental rate to be agreed upon by the parties at the time Tenant exercises the option. Tenant must
notify City of its intent to exercise the extension no later than 30 days before the expiration date or before
the expiration of any extension period. Should the parties fail to reach agreement on the rental rate to be
paid during any such extension prior to the expiration date or the expiration of any extension, this Lease
shall terminate as of the expiration date or the expiration of any extension.
4.2 Holdover. If Tenant remains in possession of all or any part of the Property after the expiration of
the Term hereof, with the express or implied consent of City, such tenancy shall be from month to month
only, and not a renewal hereof or an extension for any further term, and in such case, monthly rent and
other monetary sums due hereunder shall be payable in the amount and at the time specified in this Lease.
Such month to month tenancy shall be subject to every other provision, covenant and agreement contained
herein. Acceptance by City of rent after such expiration or earlier termination shall not constitute a
holdover hereunder or result in a renewal. The foregoing provisions of this Section 4.2 are in addition to
and do not affect the right of re-entry or any rights of City hereunder or as otherwise provided by law or in
equity, and in no way shall affect any right which City may otherwise have to recover damages from
Tenant for loss or liability incurred by City resulting from such failure by Tenant to surrender the Property.
Nothing contained in this Section 4.2 shall be construed as consent by City to any holding over by Tenant,
and City expressly reserves the right to require Tenant to surrender possession of the Property to City as
provided in this Lease upon the expiration or other termination of this Lease.
4.3 Early Termination.. In addition to City's right to terminate this Lease for default, should the
Premises cease to be used for the purposes stated in Section 3.1, or (in the absence of an assignment)
should the Tenant cease to operate or exist, or should the operations conducted not be in accordance with
the statutes of the United States, State of California, the County of San Luis Obispo, or the City of
Atascadero, upon not less than sixty (60) days notice, City may terminate this Lease.
4.4 Surrender Of Property. The voluntary or other surrender of this Lease by Tenant, or a mutual
cancellation thereof, shall not work a merger, and shall, at the option of City, operate as an assignment to it
of any or all subleases or sub -tenancies. No act or thing done by City or any agent or employee of City
during the Term shall be deemed to constitute an acceptance by City of a surrender of the Property unless
such intent is specifically acknowledged in a writing signed by City. Upon the expiration or termination of
this Lease, Tenant shall peaceably surrender the Property and all alterations and improvements thereto, in
good order, repair and condition, reasonable wear and tear and damage by fire, earthquake, act of God or
the elements alone excepted, and free of debris.
5. BASE RENT
5.1 Base Rent Amount. For the Term of this Lease, the Base Rent amount shall be one dollar per
month payable annually.
6. ALTERATIONS
6.1 Alterations. Any alteration which is made to the Property by Tenant shall be at its own cost and
expense and the construction shall in accordance with plans and specifications approved prior to such
alteration by the City's Director of Planning/Community Development. City may deny permission for any
alteration without stating any cause, unless such alteration is required by a governmental authority having
jurisdiction therefore, in which case permission shall not be unreasonably withheld.
6.2 Mechanic's And Materialmen's Liens. Tenant shall keep the Property free from any liens
arising out of work performed, materials furnished, or obligations incurred by Tenant and shall indemnify,
hold harmless and defend City from any liens and encumbrances arising out of any work performed or
materials furnished by or at the direction of Tenant. In the event that Tenant shall not, within thirty (30)
calendar days following the imposition of any such lien, cause such lien to be released of record by
payment or posting of a proper bond, City shall have in addition to all other remedies provided herein and
by law, the right, but no obligation to cause, upon five (5) business days prior written notice to Tenant, the
same to be released by such means as it shall deem proper, including payment in satisfaction of the claim
giving rise to such lien. All such sums paid by City and all expenses incurred by it in connection therewith,
including costs and attorneys' fees, shall be paid by Tenant as additional rent to City on demand.
6.3 Claims/Nonresuonsibility And Work Commencement Notices. Nothing contained in this
Lease shall constitute any consent or request by City, express or implied, for the performance of any labor
or services or the furnishing of any materials or other property with respect to the Property and/or any or all
improvements thereon or any part thereof, or as giving Tenant any right, power, or authority to contract for
or permit the performance of any labor or services or the furnishing of any materials or other property in
such fashion as would permit the making of any claim against City. City shall have the right at all times to
post and keep posted on the Property any notices permitted or required by law, or which City shall deem
proper for the protection of City and the Property, and any other party having an interest therein, from
mechanics' and materialmen's liens, and Tenant shall give to City at least ten (10) business days prior
written notice of the expected date of commencement of and work relating to alterations or additions to the
Property.
6.4 No Creation Of Liability. Nothing contained herein shall be construed or deemed to create any
obligation or liability, including without limitation liability as a guarantor or surety, on the part of City with
respect to the Property or any other improvements constructed from time to time on the Property, or any
plans or specifications, construction contracts, financing or other matter, instrument or document of any
nature whatsoever relating to such improvements. City is not and shall at no time be liable to any creditor
of Tenant or any other persons occupying any part of the Property or the improvements thereon as a
sublessee, licensee or otherwise or to any claimant against the estate or property of Tenant or such other
occupants for any of their debts, losses, contracts or other obligations. The relationship between City and
Tenant is solely that of landlord and tenant and is not and shall not be deemed a partnership or joint
venture.
7. CONDITION OF PROPERTY
7.1 Tenant's Acceptance Of Property. Tenant hereby accepts the Property in its "as is" condition
existing as of the Execution Date subject to all applicable zoning, municipal, county, state, and other
governmental laws, ordinances and regulations governing and regulating the use of the Property, and any
easements, covenants, restrictions or other matters of record, and accepts this Lease subject thereto and to
all matters disclosed thereby and by any exhibits attached hereto.
7.2 Restoration and Surrender of Property. Tenant shall not be obligated to return the Property to
the state in which the Property existed prior to the execution of this lease. Tenant shall, upon expiration or
earlier termination of this Lease, surrender the Property and offer to dedicate any and all improvements
made to the Property to the ownership of the City, without cost or expense to the City.
8. MAINTENANCE AND REPAIRS
8.1 Maintenance and Repair. Tenant at its cost shall maintain the Property and all Leasehold
Improvements in good condition and repair and free from weeds, debris and rubbish. The City shall be
responsible for exterior capital improvements.
9. UTILITIES AND SERVICES
9.1 Utilities. Tenant acknowledges that City has not made any representation to Tenant regarding the
availability of all communications utilities to the Property and that Tenant is relying solely on its own
knowledge and investigations regarding the availability of such utilities to the Property. Tennant shall pay
the appropriate suppliers for all water, gas, and electrical service, used by Tenant on the Property during the
Term.
9.2 Services. Tenant shall make all arrangements for and pay for services furnished to or used by it in
the ordinary course of its use of the Property, including, without limitation, janitorial service, hazardous
materials disposal, and pest extermination. The City shall provide security alarm service, telephone and
trash collection, subject to the limitations described in Section 9.1. The City will be responsible for the
exterior landscape maintenance building infrastructure and major capital building repairs, such as roofing,
plumbing, etc.
10. TAXES
10.1 Possessory Interest Tax. No fee interest in real property is hereby conveyed; however, by the
execution of this Lease and accepting the benefits thereof, a property interest known as "possessory
interest" may be created and such property interest will be subject to property taxation. Tenant, as the party
to whom the possessory interest is vested, shall be responsible for the payment of all property taxes levied
upon such interest. Tenant acknowledges that the notice required under California Revenue and Taxation
Code Section 107.6 has been provided.
10.2 Personal Property Taxes. Tenant shall pay, or cause to be paid, before delinquency, any and all
taxes levied or assessed and which become payable during the term hereof upon all Tenant's Leasehold
Improvements, equipment, furniture, fixtures and personal property located in or upon the Property.
11. INSURANCE AND INDEMNIFICATION
11.1 Indemnity. Tenant shall at all times relieve, defend, indemnify, protect and save harmless City
and any and all of its elected and appointed officials, officers, agents and employees from any and all
claims and demands, actions, proceedings, losses, liens, costs and judgments of any kind and nature
whatsoever for death of or injury to any person or persons or damage to property including property owned
by or under the care and custody of City, and for civil fines and penalties, that may arise from or be caused
directly or indirectly by:
11.1.1 Any dangerous, hazardous, unsafe or defective condition of, in or on the Property, of any nature
whatsoever, which may exist by reason of any act, omission, neglect, or any use or occupation of the
Property by Tenant, its officers, agents, employees, sublessees, licensees or invitees;
11. 1.2 Any operation conducted upon or any use or occupation of the Property by Tenant, its officers,
agents, employees, sublessees, licensees or invitees under or pursuant to the provisions of this Lease
or otherwise;
11. 1.3 Any act, omission or negligence of Tenant, its officers, agents, employees, sublessees, licensees
or invitees, regardless of whether any act, omission or negligence of City its officers, agents or
employees contributed thereto; or
11. 1.4 Any failure of Tenant, its officers, agents or employees to comply with any of the provisions or
conditions of this Lease or any applicable federal, state, regional, or municipal law, ordinance, rule or
regulation.
11.2 Liability Insurance - Tenant. Tenant shall, at Tenant's sole cost and expense, procure and
maintain in force during the Term and as may be necessary thereafter to satisfy Tenant's obligations under
this Lease, including, but not limited to, the defense, indemnity and hold harmless provisions hereof,
maintain (a) if required by law, Worker's Compensation Insurance in amounts and as otherwise required by
law with a waiver of subrogation as to City, and (b) comprehensive general liability covering all its
operations on or related to the Property, in an amount not less than one million dollars ($1,000,000.00)
combined single limit, and should automobiles be used during the term of this Lease (c) automotive
liability in an amount not less than one million dollars ($1,000,000.00), which policies shall provide
coverage to City as additional insured to the same extent as the named insured but only as respects the
operations of Tenant. All such insurance policies shall be procured and maintained through an insurance
broker and company acceptable to City (which acceptance shall not be unreasonably withheld) and, shall
provide for at least thirty (30) days' prior written notice to City of cancellation, termination, or material
change, and shall contain standard cross -liability endorsements allowing City to recover under the policies
notwithstanding that it is an additional insured. Certified copies of such insurance policies or certificates of
insurance and copies of endorsements evidencing that such insurance is in effect shall at all times be
supplied to City. Tenant shall immediately notify City of any lapse, termination, cancellation or material
change, actual or contemplated, of such policies. Without limiting other provisions of this Lease, such
policies shall be sufficient to insure the defense, indemnity and hold harmless provisions of this Lease.
Insurance requirements shall be subject to reasonable revision by City in the event Tenant's activities
change to such an extent as to make additional protection necessary. For purposes of this Section 12.2,
"operations of Tenant" shall include, but not be limited to, the acts or omissions of Tenant and Tenant's
contractors, agents, employees, guests or invitees.
11.3 Adiustment Of Insurance Levels City reserves the right at any time during the Tenn of this
Lease to change the amounts and types of insurance required hereunder upon giving Tenant three (3)
months prior written notice.
12. DEFAULT BY TENANT
12.1 Default By Tenant. The occurrence of any one or more of the following events shall constitute
an Event Of Default hereunder by Tenant:
12.1.1 Abandonment. The abandonment of the Property by Tenant, as defined in California
Civil Code section 1951.3. However, any notice of belief of abandonment shall be served not less
than thirty (30) calendar days prior to the termination date set forth in such notice. Tenant may, at
its sole option and upon written notice to City, allow the Property, or any portion thereof, to
become or remain vacant without such vacancy constituting an abandonment, subject to
compliance with reasonable requests of City related to the security of the Property.
12.1.2 Material Breach Of Lease Provisions. The failure by Tenant to observe or perform
any of the covenants or provisions of this Lease to be performed by Tenant, where such failure
shall continue for a period of ten (10) calendar days after written notice thereof from City to
Tenant specifying the nature of such failure or such longer period as is reasonably necessary to
remedy such default, provided that Tenant shall continuously and diligently pursue such remedy at
all times until such default is cured.
All notices to be delivered hereunder are in addition to, and not in lieu of, the notice requirements of
California Code of Civil Procedure section 1161.
12.2 City's Remedies. If an Event of Default by Tenant has occurred, the City may at any time
thereafter, with ten (10) calendar days written notice or demand, and without limiting City in the exercise
of any right or remedy at law or in equity which City may have by reason of such default, including,
without limitation, the remedies provided by California Civil Code sections 1951,2m 1951,4 [lessor may
continue lease in effect after lessee's breach and abandonment and recover rent as it becomes due, if lessee
has right to sublet or assign, subject only to reasonably limitations] and 1951.5, take any of the following
actions: (1) terminate the lease effective immediately; (2) reenter and retake possession of the Property and
all alterations and improvements thereto; and/or (3) take any action reasonably necessary to secure the
Property and/or cure any Event of Default. Any charge, cost, fee, or expense (including reasonable
attorneys' fees and costs) incurred by the City in taking any of the actions or exercising any right or remedy
identified in this section shall be paid by Tenant to City within 30 days of written demand.
12.3 City's Cumulative Rights; No Waiver Of Default. Except where otherwise provided, all rights,
options and remedies of City contained in this Lease shall be construed and held to be cumulative, and no
one of them shall be exclusive of the other, and City shall have the right to pursue any one or all of such
remedies or any other remedy or relief which may be provided by law or in equity, whether or not stated in
this Lease. No waiver of any default by Tenant hereunder shall be implied from any acceptance by City of
any rent or other payments due hereunder or any omission by City to take any action on account of such
default if such default persists or is repeated, and no express waiver shall affect any default other than as
specified in said waiver. The consent or approval of City to any act by Tenant requiring City's consent or
approval shall not be deemed to waive or render unnecessary City's consent or approval to any subsequent
similar acts by Tenant.
13. ASSIGNMENT AND SUBLEASE
13.1 Assignment Or Sublease. This Lease may not be assigned, encumbered or subleased unless the
assignment, encumbrance or sublease shall be to an approved assignee or delegee of the contract pursuant
to which the parties have entered into this Lease in which case Tenant may assign, encumber or sublease
this Lease upon receipt of City's consent, which shall not be unreasonably withheld or delayed beyond
thirty (30) days after receipt of Tenant's request. As a part of its reasonable consent, City may require that
each assignee, subtenant, or other transferee agree to an amendment of this Lease imposing any other
reasonable provisions and conditions that City may request. Any assignment, encumbrance or sublease
without City's prior written consent shall be void and of no force and effect.
13.2 Continued Obligation Of Tenant. Consent by City to any assignment or subletting by Tenant
shall not relieve Tenant of any obligation to be performed by Tenant under this Lease, whether occurring
before or after such consent, assignment or subletting. The consent by City to any assignment or subletting
shall not relieve Tenant from the obligation to obtain City's express written consent to any other
assignment or subletting. The acceptance of rent by City from any other person shall not be deemed to be a
waiver by City of any provision of this Lease or to be a consent to any assignment, subletting or other
transfer. Consent to one assignment, subletting or other transfer shall not be deemed to constitute consent
to any subsequent assignment, subletting or other transfer.
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14. NOTICES
14.1 Notices. All notices and demands which may or are to be required or permitted to be given by
either party to the other hereunder shall be in writing. All notices and demands shall be personally
delivered (including by means of professional messenger service), sent by United States registered or
certified mail, postage prepaid, return receipt requested, or transmitted by telecopier (e.g., Fax), in which
case the receiving party shall immediately confirm receipt of such notice. All notices are effective upon
receipt. For the purposes of such notices, the addresses for the parties are set forth in Section 14.2 below.
Either party may from time to time designate another person or place in a notice.
14.2 Notices - Where Sent. All notices given under this Lease which are mailed shall be addressed to
the respective parties as follows:
To Ci
with a copy of any notice to:
City of Atascadero
Office of the City Attorney
c/o City Manager
Burke Williams and Sorensen, LLP
6907 El Camino Real
2310 E. Ponderosa Drive Suite 25
Atascadero, California 93422
Camarillo, California 93010
To Tenant:
Fax:
15. MISCELLANEOUS PROVISIONS
15.1 Binding Effect. The covenants and conditions herein contained, subject to the provisions as to
assignment, apply to and bind the heirs, successors, executors, administrators and assigns of the parties
hereto.
15.2 Captions. The titles or captions of all Articles, Sections, or Paragraphs are for convenience and
reference only, are not intended to define or limit the scope of any provisions of this Lease, and shall have
no effect on the interpretation of any provision of this Lease.
15.3 Conflict Of Laws. This Lease shall be governed by and construed pursuant to the laws of the
State of California.
15.4 Covenants And Aereements. The failure of City or Tenant to insist in any instance on the
strict keeping, observance or performance of any covenant or agreement contained in the Lease, or the
exercise of any election contained in the Lease shall not be construed as a waiver or relinquishment for the
future keeping, observance or performance of such covenant or agreement, but the same shall continue and
remain in full force and effect.
15.5 Exhibits - Incorporation In Lease. All exhibits referred to are attached to this Lease and
incorporated by reference.
15.6 Partial Invalidity. If any provision or condition contained in this Lease shall, to any extent, be
invalid or unenforceable, the remainder of this Lease, or the application of such provision or condition to
persons or circumstances other than those with respect to which it is invalid or unenforceable, shall not be
affected thereby, and each and every other provision and condition of this Lease shall be valid and
enforceable to the fullest extent possible permitted by law.
15.7 Waiver. The waiver by City of any breach of any provision, covenant or condition shall not be
deemed a waiver of such provision, covenant or condition, or any subsequent breach of the same, or any
other provision, covenant or condition of this Lease.
15.8 Sole and Entire Agreement: This Lease constitutes the sole and entire agreement between the
parties with respect to the subject matter hereof. This Lease correctly sets forth the obligations of the
parties hereto to each other as of the date of this Lease. All agreements or representations respecting the
subject matter of this Lease not expressly set forth or referred to in this Lease are null and void. No
amendment, alteration, modification of, or addition to the Lease will be valid or binding unless set forth in
writing and signed by City and Tenant.
IN WITNESS WHEREOF, CITY OF ATASCADERO, a municipal corporation, acting by and through
its Mayor and City Manager, Landlord herein, and Austin Miller have caused this Lease to be executed as
of the date of the last signatory hereto. The last signatory shall cause such date to be entered in the space
provided in Section 1.1 of this Lease if that space is blank, although such date shall be deemed to be the
gate or tins Lease in any case.
APPROVED AS TO FORM: TENAN
City Attorne
.J
By:
By ✓ Esteem, AlUtin Miller
City Attorney
DATE: I— 9" (� DATE: 1 C
LANDLORD:
CITY OF ATASCADERO, a municipal corporation, acting
bey/and through its City Manager
By. Ak
Wade McKinney, City Manager
DATE:
ATTEST:
City Clerk
By
DATE:
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