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2010-2015 CVWD Lease Agreement Pioneer Dog Park Well SiteLEASE AGREEMENT THIS LEASE AGREEMENT ("Agreement") is made this A4(day of 2010 ("Effective Date") for identification purposes only, by and tween COACHELLA VALLEY WATER DISTRICT, a public agency ("CVWD") and the CITY OF LA QUINTA, a municipal corporation ("Lessee"). RECITALS: A. CVWD owns certain real property located in Riverside County, California, and described and/or depicted on Exhibit "A" attached hereto and by this reference incorporated herein ("Premises"). B. Lessee desires to obtain a limited non-exclusive right to use the Premises from CVWD and CVWD is willing to grant a limited non-exclusive right to Lessee to use the Premises upon the terms and conditions set forth herein. NOW, THEREFORE, IN CONSIDERATION OF THE MUTUAL PROMISES AND COVENANTS HEREIN, AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH ARE HEREBY ACKNOWLEDGED, THE PARTIES AGREE AS FOLLOWS: ARTICLE I TERM 1.01 Term. This Agreement shall commence on the Effective Date ("Commencement Date") and end at midnight five (5) years after the Commencement Date ("Expiration Date"), unless sooner terminated as provided in this Agreement. 1.02 Option to Renew. (a) Lessee is hereby granted and shall have, if not at the time in default under this Agreement, an option to renew this Agreement for one (1) additional five (5) year period after the Expiration Date ("Extension Period"). The extension shall be on the same terms, covenants and conditions contained herein. (b) The option must be exercised by Lessee delivering written notice to CVWD as provided in Section 8.01, at least three (3) months, but not more than six (6) months prior to the Expiration Date. 1.03 Termination of Agreement. This Agreement may be terminated without further liability on ninety (90) days prior written notice by either party to the other. -1- /e\ N[rdsa ►I PAYMENTS; TAXES; UTILITIES 2.01 Annual Payment. Lessee shall pay to CVWD an annual payment of One and No/100 Dollars ($1.00). The payment of the first year's rent shall be payable on the execution of this Agreement by Lessee. Rent thereafter, shall be paid in advance, annually, beginning one (1) year after the Commencement Date. 2.02 Taxes. The parties hereby agree that Lessee shall pay all property taxes, assessments or other charges of every description levied on or assessed against the Premises, improvements located on the Premises by Lessee, personal property located on or in the Premises by Lessee, the leasehold estate, or any subleasehold estate, to the full extent of the installments falling due during the term; although neither CVWD nor Lessee believe that any taxes should be due since both are public agencies. All tax payments shall be made directly to the charging authority by Lessee before delinquency and before any fine, interest, or penalty shall become due or be imposed by operation of law for their nonpayment. If, however, the law expressly permits the payment of all or any of the above taxes in installments (whether or not interest accrues on the unpaid balance), Lessee may utilize the permitted installment method, but shall pay each installment with any interest before delinquency. FAIV irriIan USE 3.01 Purposes. Lessee, its Residents (as defined herein) and invitees shall have the right to use the Premises during the term of the Agreement as a canine park and for no other purpose, without the express written consent of CVWD. The use of the Premises by Lessee, its Residents and Users shall be during normal park operations hours per the La Quinta Municipal Code 11.44.060, as it may be amended from time to time. Lessee hereby agrees that all persons who enter the Premises pursuant to this Agreement shall do so at their own risk, and shall at all times comply with any and all instructions and directions of CVWD or reasonable rules and regulations promulgated by CVWD. The term "Residents" shall mean any person residing within the City of La Quinta. The term "Users" shall mean any person who is using the premises. 3.02 Permits/Compliance with Regulations. Lessee shall, at its own cost and expense, apply for and obtain all necessary consents, approvals, zoning changes or variances, permits, authority, licenses, or entitlements, if any, from all appropriate governmental authorities to use the Premises for the purposes necessary to implement Section 3.01. Lessee shall comply with and conform to all laws and all requirements and orders of any municipal, state, or federal board or authority, present and future, in any way relating to the use of the Premises by Lessee throughout the entire term of this Agreement, including, without limitation, leash laws and control of domestic -2- canines and the creation of canine parks. 3.03 Reservation by CVWD. Lessee acknowledges and understands that CVWD is a public agency with a mandate to serve its constituency and its public function. CVWD would not have entered into this Agreement without Lessee's understanding and agreement that during the term of this Agreement, CVWD reserves the right to continue the use of the Premises in such manner as shall be determined by CVWD in its sole and absolute discretion. In addition to the foregoing, Lessee expressly acknowledges, understands and agrees that CVWD may construct facilities or improvements or place any personal property on the Premises that CVWD considers necessary, in its sole and absolute discretion. Lessee further acknowledges that the rights retained by CVWD may have an adverse impact on the use of the Premises by Lessee, its Residents and invitees and Lessee recognizes the paramount right of CVWD with respect to the Premises. Notwithstanding the adverse impact, Lessee waives any claim or defense it may have against CVWD and any right or offset against or deductions from annual payments pursuant to Section 2.01, or any other sum payable under this Agreement based upon interruption of or interference with the use of the Premises by Lessee, its Residents and invitees caused by CVWD's exercising its rights pursuant to this subsection 3.03. Further, no exercise by CVWD of any rights herein reserved shall entitle Lessee to any compensation by CVWD or reduction of annual payments pursuant to Section 2.01, or compensation paid by Lessee to CVWD for any inconvenience or for a loss of space due to the addition of CVWD's facilities to or use of the Premises. Lessee hereby agrees that the use of the Premises by Lessee, its Residents and invitees is subordinate and secondary to CVWD's use of the Premises. Lessee's, or its employees', agents' Residents' and invitees' use of the Premises shall not interfere (which determination shall be in CVWD's sole discretion) in any way with CVWD's operations. In the event use of the Premises by Lessee, its Residents and invitees interferes with CVWD's operations, Lessee shall immediately cease or cause its Residents and invitees to cease using the Premises upon receiving written notification to do so, and shall commence use of the Premises again only when said interference has been eliminated. 3.04 Building Restrictions. (a) Subject to the provisions of this subsection, Lessee shall have the right to construct walkways, shade structures, irrigation systems and to install trees and turf on the Premises. Prior to the construction or installation of the foregoing, Lessee shall submit to CVWD plans and specifications for such construction and installation ("Plans") for approval, which approval may be withheld in CVWD's reasonable discretion. In the event CVWD disapproves the Plans, Lessee shall cause the Plans to be modified in accordance with the reasons given for disapproval and shall resubmit the Plans to CVWD for approval or disapproval. The foregoing procedure shall be continued until the Plans have been approved by CVWD. The construction and installation shall be in strict compliance with the approved -3- Plans. Except for the improvements referred to herein, no other improvements shall be located on the Premises without the prior written consent of CVWD, which consent may be withheld in CVWD's sole and absolute discretion. In the event CVWD needs to use the Premises or upon the termination or expiration of this Agreement, Lessee shall remove the improvements located on the Premises by Lessee, at Lessee's sole cost and expense. (b) In the event CVWD consents to the construction of an improvement on the Premises, Lessee shall pay or cause to be paid, the total cost and expense of all works of improvement, as that phrase is defined in the Mechanic's Lien law in effect at the time the works of improvement begin. Lessee shall not suffer or permit to be enforced against the Premises, or any part of it, any mechanic's, materialmen's, contractor's, or subcontractor's lien arising from any work or improvement, however it may arise. 3.05 Condition of Premises. The use of the Premises shall be granted to Lessee "as is" and with all faults. Lessee hereby covenants and agrees: (1) there are no representations or warranties of any kind whatsoever, expressed or implied, made by CVWD, except as set forth in this Agreement, including, without limitation, the land, land use controls, building restrictions, the purposes for which the Premises are suited, access to public roads or the availability of requisite governmental permits and/or approval; (2) Lessee is entering into the Agreement relying entirely on its own investigations of the Premises; and (3) Lessee further acknowledges that at the beginning of the term of this Agreement, it shall be aware of all regulations, other governmental requirements, site and physical conditions, and other matters affecting the use and condition of the Premises, and Lessee agrees to accept the use of the Premises in the condition that it is in at the start of the Agreement. CVWD makes no covenants or warranties respecting the condition of the soil or subsoil or any condition of the Premises. Upon the execution of this Agreement by CVWD the Premises shall conclusively be deemed to be fit and proper for the purposes for which the same is hereby let. CVWD shall have no duty to inspect the Premises and shall have no duty to warn any person of any latent or patent defect, condition or risk that may exist in or around the Premises or that might be incurred in the exercise of the rights granted herein. In no way limiting the generality of the foregoing, Lessee waives any claim or action against CVWD in respect of the condition of the Premises, including any defects or adverse conditions not discovered or otherwise known by Lessee as of the date hereof. ARTICLE IV MAINTENANCE; REPAIRS; ALTERATIONS; RECONSTRUCTION 4.01 Maintenance of Premises. Lessee shall, at Lessee's sole cost and expense, keep the Premises, including any improvements or personal property located on the Premises in accordance with Section 3.04 and the interior ME landscaping in good order, repair and condition at all times and in accordance with the requirements of CVWD, as established from time to time, during the term of this Agreement. Lessee shall, at Lessee's sole cost and expense, promptly and adequately repair all damage to the Premises and replace or repair all damaged or broken improvements and landscaping located or to be located on the Premises. Lessee's maintenance obligation shall include the disposal of animal waste from the Premises on a daily basis. Lessee shall be responsible for any damage done to the Premises during the term of this Agreement by Lessee and its Representatives (as defined below) or its or their property or animals. Lessee and its Representatives shall clean and retrieve all waste produced by the canines. Throughout the term, Lessee shall, at Lessee's sole cost and expense, clean the Premises of waste and other material caused by the use of the Premises by Lessee and its Representatives. CVWD shall not be required to furnish any services or facilities or clean the Premises of waste and other material caused by the use of the Premises by Lessee and its Representatives. CVWD's election to perform any obligation of Lessee under this provision on Lessee's failure or refusal to do so shall not constitute a waiver of any right or remedy for Lessee's default, and Lessee shall promptly reimburse, defend, and indemnify CVWD against all liability, loss, cost and expense arising from it. ARTIC'I F V ASSIGNMENT AND SUBLETTING 5.01 Assignment. (a) Lessee shall have no right to assign, sublet, encumber or otherwise transfer this Agreement, either voluntarily or by operation of law, in whole or in part, nor to otherwise permit use of the Premises by any party other than Lessee, its Residents and invitees of all or any part of the Premises without the prior written consent of CVWD in each instance, which consent may be withheld in CVWD's sole and absolute discretion. (b) In the event CVWD shall consent, each transfer shall be evidenced by a written instrument in a form satisfactory to CVWD, executed by Lessee and the transferee, under which the transferee shall agree in writing for the benefit of CVWD to assume, to perform and to abide by all of the terms, covenants and conditions of this Agreement to be done, kept and performed by Lessee, including the payment of all amounts due or to become due under this Agreement directly to CVWD and the obligation to use the Premises only for the purpose specified herein. ARTICLE VI INSURANCE 6.01 Insurance. Lessee shall carry and maintain, at Lessee's sole cost and expense, at all times during the term of this Agreement, not less than the following coverage and limits of insurance which shall be maintained with insurers and under -5- forms of policies satisfactory to CVWD: (a) Worker's Compensation and Employer's Liability: (i) State Worker's Compensation - coverage as required by law; (ii) Employer's Liability with limits of at least $1,000,000 per occurrence. (b) Automobile Liability for Bodily Injury and Property Damage: $1,000,000 per person, $1,000,000 per occurrence. (c) Commercial General Liability for Bodily Injury and Property Damage: $1,000,000 per person, $1,000,000 per occurrence. The insurance required pursuant to subsections (b) and (c) shall include owned, nonowned and hired automobile (vehicle) liability, personal injury, blanket contractual, broad form property damage and products/completed operations liability coverage. These policies may contain an aggregate limit not less than the occurrence limit. The required limits may be satisfied by a combination of a primary policy and an excess or umbrella policy. 6.02 Additional Requirements. (a) All insurance required pursuant to the express provisions of this Agreement shall: (i) Provide that coverage shall not be revised, cancelled or reduced until at least thirty (30) days' written notice of such revision, cancellation or reduction shall have been given to CVWD. (ii) Be issued by insurance companies which are qualified to do business in the State of California and which have a current A.M. Best rating of A -IV or better. (iii) Be reasonably satisfactory to CVWD in all other reasonable respects. (b) The policies required pursuant to this Agreement or a certificate of the policies, together with evidence of payment of premiums, shall be provided to CVWD prior to the commencement of any term of this Agreement. (c) The comprehensive general liability and automobile liability insurance to be maintained by Lessee pursuant to this section above shall: (i) Name CVWD and its employees, directors, officers and agents as an additional insureds; go (ii) Apply severally to Lessee and CVWD with the provision that any other insurance carried by CVWD shall be noncontributory; (iii) Cover Lessee and CVWD as insureds in the same manner as if separate policies had been issued to each of them. (iv) Contain no provisions affecting the rights which either of them would have as claimants if not so named as insureds. (v) Be primary insurance with any other valid and collectible insurance available to the aforesaid additional insureds constituting excess insurance. (d) Lessee shall procure an appropriate clause in, or an endorsement on, each insurance policy required hereunder, pursuant to which the insurance companies waive all right of recovery by way of subrogation in connection with any damage covered by any policy or consent to a waiver of right of recovery against CVWD, and Lessee does hereby agree that it shall not make any claim against or seek to recover from CVWD any loss or damage to Lessee's property or the property of others, resulting from fire or any of the risks insured against under any policy required by this Agreement. (e) The insurance listed in this Article VI shall be subject to adjustment on the Extension Period. If, in the sole judgment of CVWD's Risk Manager, the amount of insurance coverage pursuant to Section 6.01 is not adequate, CVWD shall provide Lessee with written notice of the amount of insurance coverage, that CVWD deems adequate within sixty (60) days after receipt thereof, the insurance coverage shall be adjusted accordingly by Lessee Insurance Company until further revised in accordance with this paragraph. Lessee shall provide CVWD with the amended policy or a certificate of policy within ninety (90) days after receipt of the written notice. 6.03 Failure to Procure. If Lessee fails or refuses to procure or to maintain the insurance as required by this Agreement or fails or refuses to furnish CVWD with required proof that the insurance has been procured and is in force and paid for, CVWD shall have the right, at CVWD's election and upon twenty (20) days prior written notice to Lessee, to procure and maintain such insurance. The premiums paid by CVWD shall be treated as added consideration due from Lessee to CVWD with interest at the rate of ten percent (10%) (but in no event shall interest be charged in excess of the maximum rate permitted by California law), to be paid on the first day of the month following the date on which the premiums were paid. CVWD shall give prompt notice of the payment of such premiums, stating the amounts paid and the names of the insurer or insurers, and interest shall run from the date of the notice. 6.04 Indemnity. Lessee shall indemnify and hold harmless CVWD and its directors, officers, agents, employees, representatives, consultants and their respective successors and assigns (collectively, "CVWD Indemnitees") from and against any and all claims, proceedings, actions, causes of action, orders, liabilities, -7- costs (including attorneys' fees and court costs) or damages of whatever kind or nature (collectively, "Claims"), including, without limitation, Claims arising from or in connection with or under: (a) this Agreement; (b) the use or misuse of the Premises by Lessee or its Representatives; (c) any activity, work or thing done, permitted or suffered in and about the Premises or elsewhere by Lessee or its Representatives; (d) any breach or default in the performance of any obligation on Lessee's part to be performed under the terms of this Agreement; (e) performance of any work on the Premises by the Lessee or its Representatives; (f) any death, bodily injury, property or economic damage, accident or casualty on the Premises caused by the Lessee or its Representatives or its or their property or animals; (g) any violation or alleged violation by Lessee or its Representatives of any law or regulation now or hereafter enacted, and (h) any enforcement of CVWD of any provisions of this Agreement; provided, however, the foregoing indemnity shall not apply if any such claim is ultimately established by a court of competent jurisdiction to have been caused by the gross negligence or willful misconduct of the CVWD Indemnitees, or any of them. Except as set forth in the immediately preceding sentence, Lessee, as a material part of the consideration of this Agreement, waives all claims or demands against CVWD and the other CVWD Indemnitees for any such claims. Lessee, upon notice from CVWD, shall defend the same at Lessee's expense by counsel satisfactory to CVWD. The term "Representatives" shall mean employees, Residents, invitees, representatives, agents, contractors or subcontractors, or any other persons directly or indirectly employed by anyone of the foregoing or Lessee or under the control of Lessee or any one of the foregoing or for whose acts any of the foregoing may be liable. ARTICLE VII DEFAULT AND REMEDIES 7.01 Default. Lessee shall be deemed to be in default under the terms of this Agreement as follows: (a) If Lessee shall fail to pay any installment of consideration payable pursuant to Section 2.01 or other sum within fifteen (15) days of the due date; or (b) If Lessee shall fail to promptly perform or observe any covenant, condition or agreement to be performed by Lessee under this Agreement within thirty (30) days after written notice from CVWD. (c) If Lessee shall abandon the Premises and such vacation or abandonment shall continue for thirty (30) days after written notice. 7.02 Remedies. In the event of a default by Lessee, CVWD, without further notice to Lessee, shall have any remedy provided by law or equity. ARTICLE VIII ME of the other, will at requesting party's cost and expense, execute, acknowledge and deliver all such additional documents and instruments and all such further assurances, and will do or cause to be done all further acts and things, in each case, as may be proper or reasonably necessary to carry out the purposes hereof. 8.07 Governing Law. This Agreement and performance hereof shall be governed, interpreted, construed and regulated by the laws of the State of California. IN WITNESS WHEREOF, the parties have hereunto set their hands on the date first above written. CVWD: COACHELLA V Lt WATER DISTRICT, a public gene By Its: General Manager -Chief Engineer LESSEE: CITY OF LA QUINTA, a California Municipal Corporation By� Thomas P. Genovese Its: City Manager VERONICR(MONTECINO, Cr City CleFf, City of La Quinta APPROVED AS TO FORM: M. KATHERINY/JENSON City AttorneyVCity of La Quinta -10- EXHIBIT "A" TO LEASE AGREEMENT DESCRIPTION OF PREMISES THAT PORTION OF THE SOUTHEAST QUARTER OF SECTION 19, TOWNSHIP 5 SOUTH, RANGE 7 EAST, SAN BERNARDINO MERIDIAN, LOCATED IN THE CITY OF LA QUINTA, COUNTY OF RIVERSIDE, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS: THAT PROPERTY DESCRIBED IN GRANT DEED RECORDED NOVEMBER 2, 1999 AS DOCUMENT NO. 1999-482506, OFFICIAL RECORDS OF COUNTY OF RIVERSIDE. APN: 604-630-006 CONTAINS 0.52 ACRES (MORE OR LESS). THIS DESCRIPTION WAS PREPARED BY ME OR UNDER MY DIRECTION AT THE REQUEST OF THE COACHELLA VALLEY WATER DISTRICT IN APRIL, 2010. 4lrA to BRLkN BAD�.S.58777 DATE os►A• eq��f No. 5877 it E* k-a-m "'or CAUE��~�