Item 22 - Lease Agmt. with NCSP for use of Vacant Property for Excess Parking located at Twin Peaks and Espola Rd.June 15, 2021, Item #22DATE: TO: FROM: CONTACT: SUBJECT: Summary: AGENDA RE PO RT City of Poway June 15, 2021 Honorable Chair and Members of the Poway Housing Authority Robert Manis, Director of Development Services/)/\, Craig Ruiz, Economic Development Administrator (858) 668-4509 or cruiz@poway.org CITY COUNCIL Approval of a Lease Agreement Between the Poway Housing Authority and North County Soccer Park, LLC for the temporary use of the vacant property located approximately 300 feet west of the intersection of Twin Peaks Road and Espola Road and known as Assessor Parcel Number 321-190-28 The North County Soccer Park (the "NCSP") is immediately south of the vacant Housing Authority Property on Twin Peaks Road (the "Leased Premises"). Staff is recommending the approval of a lease agreement (the "Lease") to allow for the temporary use of the Leased Premises for parking on weekends. Recommended Action: It is recommended that the Housing Authority approve the Lease Agreement with North County Soccer Park, LLC. Discussion: The Poway Housing Authority is the owner of the Leased Premises, a vacant 2-acre parcel on Twin Peaks Road, approximately 300 feet west of the intersection ofTwin Peaks Road and Espola Road (see Attachment B). The City's Housing Element anticipates that the site will ultimately be developed with a minimum of 22 units of housing affordable to moderate income households. Due to a lack of funding currently, there is no imminent plan to develop the site. The NCSP is adjacent to the Leased Premises on the south side of the property. The NCSP was founded in 1986 and contains two soccer arenas and an outdoor grass field. Current operations are limited due to COVID-19 restrictions. When fully operational, the facility hosts youth soccer and baseball skills camps, and many different youth, adult coed, women's, and men's soccer leagues. In addition to the soccer facilities, the NCSP contains a 6,300 square foot office and retail building with offices, a dance studio and a coffee shop. 1 of 15
June 15, 2021, Item #22The owner of NCSP, David Brennan, has approached the City about using the Leased Premises to help alleviate parking shortages when camps and leagues are in session. Currently, when the parking lot is full, visitors park on Espola Road. Visitors parking on the east side of Espola Road often cross the street mid-block, which is unsafe for pedestrians and cars. Approval of the Lease will help alleviate this unsafe situation. The Lease would allow NCSP to use the Leased Premises on weekends from 7:00 a.m. to 1 :00 p.m. NCSP would be responsible for locking and unlocking the gate each day, trash removal and weed abatement, and for the clean-up of any dirt on Twin Peaks Road that leaves the Leased Premises. Also, there is a provision in the lease that NCSP acknowledges the City's ability, should they so choose, to allow the Poway Rodeo to continue the use of the Leased Premises during their annual event. The Lease contains a provision where either party may terminate the lease with 60 days' notice prior written notice. This will make the Leased Premises available for an affordable housing development should one be contemplated in the future. Environmental Review: This item in not subject to California Environmental Quality Act review. Fiscal Impact: The Lease requires NCSP to pay the Housing Authority $300 per month in exchange for using the site on weekends from 7:00 a.m. to 1 :00 p.m. The rental rate, on a square foot basis, is consistent with recent rent agreements recently entered into by the City and the Housing Authority. Currently, the City pays approximately $1,500 per year for weed abatement on the site. The Tenant will be required to perform periodic weed abatement, alleviating the Housing Authority of this expense. There are no other on-going expenses to maintain the property. Prior to entering into the Lease, the Housing Authority will expend approximately $2,600 to install new gates at the north and south entrances to the property. The funds for the new fencing will come from previously allocated funding in the Housing Authority budget. Public Notification: None Attachments: A. Lease Agreement B. Location Map Reviewed/ Approved By: WendyK~erman Assistant City Manager 2 of 15 Reviewed By: Alan Fenstermacher City Attorney City Manager
June 15, 2021, Item #22LEASE AGREEMENT This LEASE AGREEMENT ("Lease") is entered into as of _____ _, 2021 (the "Effective Date"), by and between the POWAY HOUSING AUTHORITY, a public body, corporate and politic (the "Landlord"), and NORTH COUNTY SOCCER PARK, Inc., a California corporation ("Tenant"). The Landlord and the Tenant are at time referred to herein as the "Parties". RECITALS WHEREAS, Tenant currently owns real property located at 14530 Espola Road, Poway, California 92064, currently improved with a single building containing three commercial uses and soccer fields (the "Tenant Property"). The Tenant Property is located adjacent to and generally south of an unimproved real property owned by the Landlord, consisting of Assessor's Parcel Number ("APN") 321-190-28 (the "Leased Premises"). The legal description of the Leased Premises is attached hereto as Exhibit A. WHEREAS, Tenant operates the North County Soccer Park (the "Soccer Park"), providing area soccer leagues and camps on the Tenant Property. WHEREAS, in connection with the operation of the Soccer Park, the Tenant has requested to temporarily lease the Leased Premises on Saturdays and Sundays from 7 :00 a.m. to 1 :00 p.m. to provide parking for its clients, and no permanent improvements will be constructed or otherwise installed on the Leased Premises pursuant to this use. WHEREAS, Tenant will maintain the Leased Premises by keeping free of weeds and debris and mitigate any dirt leaving the property onto the public right-of-way. WHEREAS, the Tenant understands that the Landlord leases the Leased Premises for the annual Poway Rodeo and therefore will not have access to the Leased Premises for the week prior to and week after the event. The Rent Payment for this time period will be reduced on a pro-rated basis. WHEREAS, in accordance with the above, by this Lease, the Landlord desires to lease the Leased Premises to the Tenant, and the Tenant desires to lease the Leased Premises from the Landlord, upon the terms and conditions set forth herein. WHEREAS, the parties understand and agree that this Lease is what is commonly known as a "triple net" or "net-net-net" lease, except as otherwise provided herein, and Tenant acknowledges and agrees that the Landlord shall not be obligated by the terms of this Lease or otherwise to perform any maintenance or construct or repair any improvements at the Leased Premises. Additionally, Tenant acknowledges and agrees that (i) the Landlord has made no representation or warranty regarding the fitness of the Leased Premises for Tenant's intended use thereof, and (ii) Tenant is familiar with the condition of the Leased Premises and the appropriateness of the Leased Premises for Tenant's operation of the Business thereon. WHEREAS, Tenant acknowledges that the Leased Premises is being held by the Landlord to ultimately be used for housing purposes, and that the Lease is a temporary, interim use of the Land Property until such time that the Landlord finalizes a plan for housing on the Leased Premises; accordingly, the parties agree that the Leased Premises is not considered surplus property under the California Government Code or any other provision of the law. 3 of 15 ATTACHMENT A
June 15, 2021, Item #22NOW, THEREFORE, the Landlord and Tenant hereby agree as follows: 1. Lease Term. The Landlord hereby leases to Tenant the Leased Premises, and Tenant hereby leases the same from the Landlord, for a one-year term commencing on July 1, 2021 ("Commencement Date"). Sixty (60) days prior to the expiration of the Lease Term, the Tenant may request in writing to the Executive Director of the Poway Housing Authority to extend the Lease Term for an additional one-year term upon written agreement of both Parties, which may be accepted or rejected at the Executive Director's sole discretion. This lease may be extended for three additional one-year terms. Also, this Lease can be terminated by either party with 60-days' prior written notice. 2. Relocation Assistance. Tenant hereby acknowledges and agrees that Tenant shall not incur any right, interest, or claim in or to any benefits or assistance arising under Government Code Section 7260, et seq. or any other federal, state or local law, rule, or regulation relating to or arising from Tenant's relocation from the Leased Premises or the termination of this Lease. To the extent Tenant is eligible for such benefits Tenant hereby voluntarily and expressly waives each and every right, title or interest in and to such benefits. (a) Net Lease. It is the intent of the parties that the rent provided herein shall be absolutely net to the Landlord and that Tenant shall pay all costs, taxes, assessments, charges, and expenses of every kind and nature imposed on or against the Leased Premises which may arise or become due during the Lease Term, and which, except for execution hereof, would or could have been payable by the Landlord. Tenant recognizes and acknowledges that this Lease may create a "possessory interest" in the Leased Premises as defined in California Revenue and Taxation Code section 107, and that Tenant's property interest may be subject to property taxation levied on the Tenant's property interest. Tenant further acknowledges, and agrees, that this subdivision (a) meets the requirements set forth in Revenue and Taxation Code section 107.6(a). (b) Rent and Deposit. Tenant shall pay to the Landlord during the Lease Term the amount of Three Hundred Dollars ($300) per month ("Rent"). Tenant shall pay rent in advance, on the 1st day of each calendar month ("Rent Due Date"), without offset, deduction, prior notice or demand, beginning on the Commencement Date. Tenant shall also provide a security deposit in the amount of Three-Hundred Dollars ($300) to guarantee Tenant's obligations to the Landlord under this Lease. Tenant shall not be entitled to earn interest on the amount of the deposit. Tenant's deposit shall be refunded to Tenant within thirty (30) days of the date that Tenant vacates the Leased Property, minus any appropriate deductions. Tenant shall not use the security deposit in lieu of payment of the last month's rent. If this Lease is extended beyond the Initial Term, the Rent shall be increased annually, beginning on _______ _, 2022, by three percent (3%) of the Rent for the previous term. ( c) Additional Charge for NSF Checks. Tenant shall pay to the Landlord the sum of $50 as a late payment charge for any check returned for non-sufficient funds. (d) Failure to Pay Base Monthly Rent. If Tenant fails to pay Rent due hereunder at the time it is due and payable, such unpaid amounts shall bear interest at the rate of ten percent (10%) per year from the Rent Due Date to the date of payment, computed on a monthly compounding basis with actual days elapsed compared to 360-day year. Should Tenant fail to pay all outstanding Rent and interest within thirty (30) days of Rent Due Date, the Landlord may 4 of 15 2
June 15, 2021, Item #22immediately terminate the Lease and issue Tenant notice to vacate the Leased Premises within five ( 5) days of receipt of said Notice. ( e) Delivery of Rent Payments. All rent due under this Lease shall be made payable to the Landlord, and shall be considered paid when delivered to: Poway Housing Authority Attn: Executive Director 13325 Civic Center Drive Poway, CA 92064 The Landlord, at any time, by written notice to Tenant, may designate a different address to which Tenant shall deliver rent payments. The Landlord may, but is not obligated to, send monthly rent invoices to Tenant. 4. Use of Leased Premises. (a) Use. The Tenant shall comply with the following conditions: I. It shall be the Tenants sole obligation to lock and unlock the property each day. 2. The Tenant shall be responsible for the removal of all weeds on the property, including those along the fence line. 3. The Tenant shall place a minimum of four (4) trash cans and recycle bins on the Leased Premises. Trash and recycled materials shall be removed from the Leased Premises at the end of each day the property is used. 4. At all times, the Tenant shall keep a 20-foot clear path from the gate located adjacent to Twin Peaks Road to the City's manhole cover as shown in Exhibit B. 5. The Tenant shall take the necessary steps to keep dirt and mud from leaving the property and on to the City's right-of-way. Any dirt going from the Leased Premises to the public right-of-way shall be immediately removed by the Tenant. Tenant shall not use the Leased Premises while it rains or when the property is in a muddy condition. 6. Tenant shall be allowed temporary signage only during the hours the parking lot is in use. No signage may be permanently affixed to the fence or other City property. (b) Tenant Improvements Prohibition. Tenant shall not make or install any improvements on the Leased Premises, without written permission from the City Manager of the City of Poway and obtaining all necessary permits from all local, regional, state or federal agencies. ( c) Compliance with Law. All uses of the Leased Premises and Landlord Parking Lot hereunder shall be made in accordance with all ordinances, resolutions, statutes, rules, regulations and laws of the City of Poway, and any federal, state or local governmental agency of competent jurisdiction. 5 of 15 3
June 15, 2021, Item #22( d) Title to Improvements; Personal Property of Tenant; Removal of Property Upon Termination of Lease. Upon the expiration of the Term or any earlier termination of this Lease, Tenant shall surrender to the Landlord possession of the Leased Property and remove all of Tenant's personal property, rubbish or debris on the premises. Sixty days following the expiration of the Term, or following any earlier termination thereof, the Landlord may remove from the Leased Premises all personal property, fixtures and equipment remaining on the Leased Premises that belongs to Tenant or any person or entity claiming by, through or under Tenant, including, without limitation, all trade fixtures; provided, however, that upon the request of the Landlord, Tenant shall repair damage to the Leased Premises caused by such removal. Should Tenant fail to make such repairs following reasonable notice, the Landlord may perform same and the cost thereof shall be immediately due from Tenant to the Landlord with interest thereon at the maximum rate permitted by law. ( e) Hazardous Materials. Tenant shall not use, handle, store or dispose of any hazardous, toxic, or radioactive matter at the Leased Premises or Landlord Parking Lot, including, without limitation, those materials identified in Chapter 11, Division 4.5 of Title 22 of the California Code of Regulations ("Title 22"), as amended from time to time (collectively, "Hazardous Materials"). Tenant shall be solely responsible for, shall pay for, defend (with an attorney approved by Landlord, such approval not to be unreasonably withheld, conditioned or delayed), indemnify and hold the Landlord, its officials, officers, employees and agents, harmless against and from all claims, judgments, liabilities, losses, liens, costs and expenses, arising out of or involving any Hazardous Materials brought onto the Leased Premises by or for Tenant or by any of Tenant's employees, agents, contractors, visitors or invitees during the term of this Lease. Tenant's obligations hereunder shall include, but not be limited to, the investigation, removal, clean-up and/or restoration work as required by applicable law or ordered by any regulatory agency, including but not limited to the San Diego Regional Water Quality Control Board, the California Department of Toxic Substances Control, or the United States Environmental Protection Agency. 5. Sublease and Assignment. Tenant shall not sublease all or any part of the Leased Property or assign this Lease in whole or in part without the Landlord's consent. 6. Alterations and Improvements. (a) Maintenance and Repairs. During and upon termination of the Lease Term, Tenant shall make all necessary repairs and maintenance to the Leased Premises, in so that the Leased Premises is returned to the Landlord in the manner of which it was leased, at Tenant's own expense. Tenant shall also make any and all repairs relating to the Tenant's specific use of the Leased Premises at Tenant's expense. Tenant shall maintain all portions of the Leased Premises that are visible to the public in good condition, including the fencing, ground maintenance, and landscaping. Tenant shall exercise due diligence to ensure any airborne dirt/gravel/dust is mitigated for surrounding private properties. Graffiti on the Leased Premises shall be removed by Tenant within seventy-two (72) hours. In no event shall this Lease be interpreted to require the Landlord to expend funds for the purpose of conducting repairs or maintenance of the Leased Premises. Tenant acknowledges and agrees that Tenant is familiar with the condition of the Leased Premises and is aware of the adequacy and fitness of the Leased Premises for Tenant's intended use thereof for the operation of the Business. THE LANDLORD EXPRESSLY DISCLAIMS ANY WARRANTY OF HABITABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR ANY 6 of 15 4
June 15, 2021, Item #22COVENANT OF QUIET ENJOYMENT WITH RESPECT TO THE LEASED PREMISES AND/OR TENANT'S USE THEREOF PURSUANT TO THIS LEASE. (b) Alterations and Improvements. Tenant, at Tenant's expense, shall have the right, following the Landlord's reasonable consent, to make temporary improvements to all or any part of the Leased Premises from time to time as Tenant may deem desirable, provided the same are not permanent structures, and are made in a workmanlike manner, utilizing good quality materials, and in compliance with all applicable federal, state, and local statutes, rules, and regulations. Tenant shall have the right to place and install personal property, trade fixtures, equipment and other temporary installations in and upon the Leased Premises, and fasten the same to the Leased Premises. All personal property, equipment, machinery, trade fixtures and temporary installations, whether acquired by Tenant at the commencement of the Lease term or placed or installed on the Leased Premises by Tenant thereafter, shall remain Tenant's property free and clear of any claim by the Landlord. Tenant shall have the right to remove the same at any time during the term of this Lease; provided that Tenant shall be responsible for the repair of any damage caused by such removal. 7. Liens. Tenant agrees that it will pay or cause to be paid all costs for work done by it or caused to be done by it on the Leased Premises of a character which will or may result in liens on the Landlord's reversionary estate therein, and Tenant shall keep the Leased Premises free and clear of all mechanics' liens and other liens on account of work done for Tenant or persons claiming under it. If any such lien shall at any time be filed against the Leased Premises, Tenant shall either cause the same to be discharged within thirty (30) days after the recording thereof, or if Tenant, in Tenant's discretion and in good faith, determines that such lien should be contested, shall furnish such security as may be reasonably required by the Landlord. If Tenant shall fail to furnish such security, then, in addition to any other right or remedy of the Landlord resulting from Tenant's said default, the Landlord may, but shall not be obligated to, discharge the same either by paying the amount claimed to be due or by procuring the discharge of such lien by giving security or in such other manner as is, or may be, prescribed by law. Tenant shall repay to the Landlord, as "Additional Rent," on demand, all sums disbursed or deposited by the Landlord pursuant to the provisions of this Paragraph 7, including all costs, expenses and attorneys' fees incurred by the Landlord in connection therewith. Nothing contained herein shall imply any consent or agreement on the part of the Landlord to assume any liability under any mechanics' lien or other lien law. Should any claims of lien be filed against the Leased Premises or any action affecting the title to the Leased Premises be commenced, the party receiving notice of such lien or action shall forthwith use its commercially reasonable efforts to give the other party written notice thereof within five (5) days after receipt. The Landlord or its representative(s) shall have the right to post and keep posted upon the Leased Premises notices of non-responsibility or such other notices that the Landlord may deem to be proper for the protection of the Landlord's interest in the Leased Premises. Tenant shall, before the commencement of any work that might result in any such lien, give to the Landlord written notice of its intention to do so in sufficient time to enable the posting of such notices. 8. Insurance. (a) Property Insurance Coverage. Tenant shall, at its own cost and expense, maintain in full force and effect property insurance, including fire and extended coverage insurance, covering Tenant's personal property, including removable trade fixtures, located in the Leased Premises, in such amounts as the Landlord shall deem appropriate. 7 of 15 5
June 15, 2021, Item #22(b) General Liability Insurance. Tenant shall, at its own cost and expense, maintain a policy or policies of comprehensive general liability insurance with respect to the Leased Premises with the premiums thereon fully paid on or before the due date, which insurance shall afford minimum protection in the aggregate of not less than Two Million Dollars ($2,000,000) combined single limit coverage of bodily injury, property damage or combination thereof. ( c) Workers' Compensation Insurance. Tenant shall provide workers' compensation insurance as required by law. ( d) Additional Insurance Requirements. All liability insurance shall include, but not be limited to, personal injury, cross liability, and severability of interest clauses, products/completed operations, broad form property damage, independent contractors, and owned, non-owned and hired vehicles. All insurance policies shall name the Landlord as an additional insured, shall provide for notice to the Landlord no later than thirty (30) days prior to any cancellation or modification of such policies, and shall be provided by Class A-VII rated insurance carriers reasonably acceptable to the Landlord. Tenant shall provide the Landlord with current Certificates of Insurance evidencing Tenant's compliance with this Paragraph no later than the Commencement Date and upon any subsequent request by the Landlord. 9. Indemnification. Tenant shall defend, indemnify and hold the Landlord, its elected and appointed officers, employees and agents, harmless from all liability whatsoever on account of any damage, injury or liability of any kind or for any injury to or death of persons or damage to property of Tenant or any other person occurring during the term of this Lease arising from any of the following (i) the use, occupancy or enjoyment of the Leased Premises or the Landlord Parking Lot, or Tenant's operations thereon, by Tenant or Tenant's customers, employees, contractors, subcontractors, invitees, permittees, and assignees, or (ii) Tenant's negligence or intentional misconduct, including any breach of this Lease beyond any applicable notice and cure period, or (iii) liens, claims and demands related to Tenant's use of the Leased Premises or Landlord Parking Lot. Except to the extent arising due to Landlord's negligence or intentional misconduct, Tenant shall in all cases accept any tender of the defense of any action or proceeding arising out of the foregoing in which Landlord is named or made party and shall defend the Landlord as provided herein with counsel reasonably selected by Tenant. Tenant shall not be liable for such damage or injury to the extent and in the proportion that the same is ultimately determined to be attributable to the negligence or misconduct of the Landlord or its officers, employees, agents or representatives, or the Landlord's failure to perform its obligations pursuant to this Lease. Tenant's obligation to indemnify shall include reasonable attorneys' fees and investigation costs and all other reasonable costs, expenses and liabilities incurred by Landlord. This indemnity provision shall apply to all claims that accrued, or injuries that occurred, prior to Tenant vacating the Leased Premises and Landlord Parking Lot, regardless of when such claims or injuries were discovered. 10. Assumption of Risk. Except for injuries to persons caused by the willful misconduct of Landlord, and not covered by insurance maintained, or required by this Lease to be maintained, by Tenant: (a) Tenant hereby assumes the risk of any and all injury and damage to the personnel (including death) and property of Tenant, including its employees, contractors and subcontractors, in or about the Leased Premises; and (b) the Parties hereby agree that the Landlord is not to be liable for any injury or damage which may be sustained by the person, goods or property of Tenant or its employees, contractors, subcontractors in or about the Property, whether said damage or injury results from conditions arising within the Leased Premises or from other sources. 8 of 15 6
June 15, 2021, Item #2211. Utilities. No utilities on site. To the extent applicable, Tenant shall pay any and all charges for water, sewer, gas, electricity, telephone, and/or any other services and utilities used by Tenant on the Leased Premises during the term of this Lease unless otherwise expressly agreed in writing by the Landlord. Tenant shall indemnify and hold the Landlord harmless from and against any liability or damages resulting from, arising out of, or connected with, the provision of, or failure to provide or pay any charges assessed against the Leased Premises for such utility services; provided, however that Tenant shall not indemnify the Landlord for damages resulting from the loss of any utility service which results from the Landlord's conduct or the conduct of any contractors, engineers or third parties acting on behalf of the Landlord that are in the Landlord's control. 12. Inspection. The Landlord shall have the right to enter upon the Leased Premises at all reasonable hours to inspect the same upon twenty-four (24) hours' notice to the Tenant, provided the Landlord shall not thereby unreasonably interfere with Tenant's business on the Leased Premises. However, the Tenant acknowledges that the property does contain a public sewer line and sewer line clean-out as shown on Exhibit B that may require emergency access and repair. The Landlord will use its best efforts to notify the Tenant that immediate access is necessary, but the Landlord is not required to provide notice prior to access the property in a City-determined emergency. 13. Damage and Destruction. If the Leased Premises or any part thereof or any appurtenance thereto is so damaged by fire, casualty or structural defects that the same cannot be used for Tenant's purposes, or if the Leased Premises cannot be used for Tenant's purposes for any other reason, then Tenant shall have the right within ninety (90) days following such damage to elect to terminate this Lease as of the date of such damage by providing written notice to the Landlord. In the event of minor damage to any part of the Leased Premises, and if such damage does not render the Leased Premises unusable for Tenant's purposes and subject to Paragraph 6(a) above, Tenant shall promptly repair such damage at Tenant's sole cost and expense. In making the repairs called for in this paragraph, Tenant shall not be liable for any delays resulting from strikes, governmental restrictions, inability to obtain necessary materials or labor or other matters which are beyond the reasonable control of Tenant. 14. Quiet Possession. The Landlord covenants and warrants that upon performance by Tenant of its obligations hereunder, the Landlord will keep and maintain Tenant in exclusive, quiet, peaceable, undisturbed and uninterrupted possession of the Leased Premises during the term of this Lease; provided that the Landlord shall have no obligation to expend funds to repair or maintain the Leased Premises to maintain compliance with applicable laws or to maintain the Leased Premises in the condition required for Tenant's intended use and quiet enjoyment thereof. 15. Consent. The Landlord shall not unreasonably withhold or delay its consent with respect to any matter for which the Landlord's consent is required or desirable under this Lease. 16. Material Breach. In addition to any other remedies available at law or in equity, any party not in default hereunder may immediately terminate this Lease upon the breach of a material obligation under this Lease by the other party that is not cured within thirty (30) days after written notice of the breach, by providing written notice of intent to terminate to all other parties hereto. 17. Compliance with Law. Tenant shall comply with all federal, state, and local laws, orders, ordinances and other public requirements now or hereafter pertaining to Tenant's operation of the Business and its use of the Leased Premises. The Landlord shall comply with all federal, state, and local laws, orders, ordinances and other public requirements now or hereafter affecting the Leased Premises. 9 of 15 7
June 15, 2021, Item #2218. Mutual Representations. Each party hereby represents and warrants (i) he or she is an individual or it is a duly organized entity, validly existing and in good standing under the laws of California; (ii) that the party has the legal right and authority to enter into and perform its obligations under this Lease; and (iii) that the execution and performance of this Lease will not conflict with or violate any provision of any law having applicability to such party; and (iv) that this Lease, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms. 19. Waiver. No express waiver shall affect any default other than the default specified in the express waiver and any waiver shall be effective only for the time and to the extent therein stated. No waiver by the Landlord or Tenant shall be construed as a waiver of a subsequent breach of the same covenant, term or condition. 20. Assignment and Delegation. Except as expressly permitted by the terms and provisions herein, no party shall assign any of its rights or delegate any of its duties hereunder without the prior written consent of the other parties, provided that, notwithstanding the foregoing, each party may assign this Lease pursuant to a merger or a sale of all or substantially all of its assets or capital stock. Except as permitted by the foregoing, any attempted assignment or delegation shall be null, void and of no effect. 21. Notices. All notices required by or relating to this Lease shall be in writing and shall be sent via certified mail, postage prepaid, return receipt requested, to each and every party to this Lease and addressed as follows: To Tenant: To Landlord: North County Soccer Park Attn: David Brennan 14530 Espola Road Poway, CA 92064 Poway Housing Authority Attn: Executive Director 13325 Civic Center Drive Poway, CA 92064 22. Counterparts. This Lease may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 23. Headings. The article, section, and paragraph titles and headings contained in this Lease are inserted as a matter of convenience and for ease of reference only and shall be disregarded for all other purposes, including the construction or enforcement of this Lease or any of its prov1s10ns. 24. Definitions. Capitalized terms not defined herein shall have the meaning set forth in the Purchase Agreement. 25. Pronouns. Whenever used in this Lease, the singular shall include the plural, the plural shall include the singular, and the neuter gender shall include the male and female as well as a trust, firm, company, or corporation, all as the context and meaning of this Lease may require. 10 of 15 8
June 15, 2021, Item #2226. Amendments. This Lease may be altered, amended, or repealed only by a writing signed by all of the parties. 27. Additional Documents and Acts. The parties to this Lease shall promptly execute and deliver any and all additional documents, instruments, notices, and other assurances, and shall do any and all other acts and things, reasonably necessary in connection with the performance of their respective obligations under this Lease and to carry out the intent of the parties. 28. Severability. If any provision of this Lease is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable to any extent, that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability, be severed, and the remaining provisions of this Lease shall remain in effect. 29. Successors and Assigns. This Lease shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, and permitted successors and assigns. 30. Governing Law and Forum Selection. This Lease shall be governed by, and construed in accordance with, the laws of the State of California. The federal or state courts located in San Diego County, California shall have exclusive jurisdiction to hear any dispute arising under this Lease. Each party hereto consents to personal jurisdiction in San Diego County, California, and hereby authorizes and accepts service of process sufficient for personal jurisdiction by first class mail, registered or certified, postage prepaid, to its address for giving notice as set forth herein. Tenant hereby waives any right to remove any action from San Diego County as is otherwise permitted by California Code of Civil Procedure section 394. 31. Attorneys' Fees. In the event Landlord or Tenant commences any action or proceeding, including but not limited to the filing of a lawsuit, in connection with the enforcement of this Lease, then as between Landlord and Tenant, the prevailing party shall be entitled to recover from the losing party all of its costs and expenses, including court costs, arbitration costs, expert witness fees, and reasonable attorneys' fees incurred in connection with such action, and all fees, costs and expenses incurred on any appeal or in collection of any judgment. 32. Entire Agreement. This Lease constitutes the whole and entire agreement of the parties with respect to the subject matter of this Lease, and it shall not be modified or amended in any respect except by a written instrument executed by all the parties. This Lease replaces and supersedes all prior written and oral agreements by and among the parties or any of them. [Signatures on Following Page] 11 of 15 9
June 15, 2021, Item #22IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first above written. APPROVED AS TO FORM: Alan B. Fenstermacher, City Attorney 12 of 15 POWAY HOUSING AUTHORITY a public body, corporate and politic By: ___________ _ Chris Hazeltine, Executive Director NORTH COUNTY SOCCER PARK, INCORPORATED By: ___________ _ David Brennan, Owner
June 15, 2021, Item #22Exhibit A Legal Description of Leased Premises APN: 321-190-28 PARCEL 1 OF PARCEL MAP NO. 1396, IN THE CITY OF POWAY, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, MARCH 19, 1973. 13 of 15
June 15, 2021, Item #2214 of 15 Exhibit B 20' Clear map • 0 foot ac
June 15, 2021, Item #2215 of 15 ATTACHMENT B