HomeMy WebLinkAboutCC ORD 1981-1750 Assignment of lease of certain property (Special)ORDINANCE NO. 1750
AN ORDINANCE CONSENTING TO ASSIGNMENT OF
EXISTING LEASE WITH AMERICAN FOREST PRODUCTS
CORPORATION TO COLE INDUSTRIES, INC.
WHEREAS, The City of National City leased to
Tarter, Webster, and Johnson, a Division of American Forest
Products Corporation real property located at Tidelands and
19th Street for a term from 1970 to 1986, and
WHEREAS, American Forest Products has merged with
Cole Industries, and Cole seeks an assignment of said lease,
and
WHEREAS, the lease may only be assigned in whole
or part with. the consent of the City Council of the City of
National City under an ordinance duly adopted, and
WHEREAS, Cole understands it is assuming all the
rights, title, duties and obligations under the terms of
said lease.
NOW, THEREFORE, BE IT ORDAINED that the lease of
real property in the City of National City, County of San
Diego, State of California described as:
Beginning at Point No. 46 on the "Mean High Tide
Line" of the Bay of San Diego according to Miscellaneous
Map No. 219 filed in the office of the County Recorder
of said San Diego County, October 6, 1950; thence North
0°22'07" West along said "Mean High. Tide Line" 513.67
feet, to its intersection with. the Northerly line of
Nineteenth. Street, being the TRUE POINT OF BEGINNING;
thence continuing along said "Mean High. Tide Line"
North.00°22'07" West 246.59 feet to Point No. 45 in
said "Mean High Tide Line"; thence continuing along said
"Mean High Tide Line" North 4°52'36" West 303.60 feet
(Record North 4°51'03" West 303.65 feet) to Point No.44;
thence continuing along said "Mean High Tide Line" North
9 °38' 00" East (Record North 9 °39)01" East) 83.03 feet
to an angle point in th.e Southerly line of that parcel
of land conveyed to Alfred J. Fessman by deed recorded
in Book. 8063 at page 294 of Official Records of said
San Diego County, said point being South 9°38'00" West
192.50 feet from Point No. 43 on said "Mean High. Tide
Line"; thence leaving said "Mean High. Tide Line" South
67°53'45" East along th.e Northerly line of "Bay Avenue"
48.76 feet to an angle point therein (Record South. 65°
28'21" East 47.67 feet according to said deed); thence
South 4°00'05" West 45.02 feet to the beginning of a
tangent 2040.00 foot radius curve concave Easterly;
thence along the arc of said 2040.00 foot radius
curve through a central angle of 4°15'28" a distance
of 151.60 feet; thence tangent to said curve South
00°15'23" East 407.45 feet to the intersection with
the Northerly line of Nineteenth. Street extended
across said "Bay Avenue"; thence along said extension
South 71°44'34" West 27.07 feet to the TRUE POINT OF
BEGINNING.
Entered into between Th.e City of National City
and Tarter, Webster, and Johnson, a Division of American
Forest Products is assigned to Cole Industries, Incorporated
a California Corporation withoffices at 8950 Villa La Jolla
Drive, Suite 1200, La Jolla, California.
zi
PASSED AND ADOPTED this // day of August,
1981.
ATTEST:
CITY CLERK
2
C, 15 -a.
r),
LEASE
45525 T is lease, made and entered into this
day
It\ t-LI-tb of , 1970, between the CITY OF NATIONAL CITY, a
municipal corporation, hereinafter called "Lessor" and TARTER,
WEBSTER, AND JOHNSON, A DIVISION OF AMERICAN FOREST PRODUCTS
CORPORATION, a. corporation, hereinafter called "Lessee,"
WITNESSETH:
That the Lessor, for the consideration hereinafter
set forth, hereby leases to the Lessee for the term and upon
the conditions hereinafter set forth those certain lands in the
CITY OF NATIONAL CITY, County of San Diego, State of California,
more particularly described as follows:
Beginning at Point No. 46 on the "Mean High Tide
Line" of the Bay of San Diego according to Miscellaneous
Map No. 219 filed in the office of the County Recorder
of said. San Diego County, October 6, 1950; thence North
0°22'07° West along said "Mean High Tide Line" 513.67
feet, to its intersection with the Northerly line of
Nineteenth Street, being the TRUE POINT OF BEGINNING;
thence continuing along said "Mean High Tide Line"
North 00°22'07" West 246.59 feet to Point No. 45 in said
"Mean High Tide Line"; thence continuing along said "Mean
High Tide Line" North 4°52'36" West 303.60 feet (Record
North 4°51'03" West 303.65 feet) to Point No. 44; thence
continuingalongsaid*MeanHighTidelaneNorth 938'00"
East (Record North 9°39'01* East) 83.03 feet to an angle
point in the Southerly line of that parcel of land con-
veyed to Alfred J. Fessman by deed recorded in Book 8063
at page 294 of Official Records of said San Diego County,
said point being South 9°38'00" West 192.50 feet from
APoint No. 43 on said "Mean High Tide -Me"; thence leaving
said "Mean High Tide Line" South 67°53'45" East along the
Northerly line ofi"Bay Avenue" 48.76 feet to an angle point
therein (Record South 65°28'21" East 47.67 feet according
to said deed); thence continuing along said Northerly line
of "Bay Avenue" South 46°16'18" East a distance of 0.41
feet (Record South 47°17'32" East according to said deed);
thence South 4°00'05" West 45.02 feet to the beginning of
a tangent 2040.00 foot radius curve concave Easterly;
thence along the arc of said 2040.00 foot radius curve
through a central angle of 4°15'28" a distance of 151.60 feet;
thence tangent to said curve South 00°15'23" East 407.45
feet to the intersection with the Northerly line of Nineteenth
,Street extended across said "Bay Avenue"; thence along said
extension South 71°44'34" West 27.07 feet to the TRUE POINT
OF BEGINNING.
To have and to hold said leased premises, consisting of
a total square footage of 21,849,2G, for the term of thislease
and upon the conditions as follows:
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1. TERM: The term of this lease shall be for a period of
sixteen (16) years seven (7) months and sixteen (16) days,
commencing on the 30th Day of May, 1970, and ending on the
14th day of December 1986, unless sooner terminated as herein
provided.
2. RENTAL: As and for the rental and for and in consider-
ation of the leasing aforesaid, Lessee agrees to pay to
Lessor the following sums:
(a) For the period commencing September 1, 1970 through
14 December 1971, the sum of seven and one-half
cents (7.5O)-per square foot per year.
(b) For each of the successive five (5) year terms
of this lease, a sum to be agreed upon by Lessor
and Lessee sixty (60) days prior to the expiration
of each five (5) year period of said lease.
(c) All such sums due Lessor as contained in (a)
above shall be payable in advance on or before the
30th day of May of each year during the term of
this lease with the first annual payment due on
the signing of this lease by Lessee.
(d) In the event Lessee is delinquent in rendering
toLessor an accounting of rent due or in remitting
the -rent -due in accordance with the rental provis-
ions of this lease, then Lessee shall pay Lessor
the rent due, together with an additional five per-
cent (5%) of the rent due for any delinquency exist-
ing for the first fifteen -day period thereafter,
or any part of that first fifteen -day period; and
an•additional five percent (5%) for each fifteen -
day period thereafter, or any part of any fifteen -
day period, that any such delinquency exists. Pro-
vided, however, that the City of National City, as
Lessor, shall have the right to waive for good cause
any delinquency payment upon written application of
Lessee for any such delinquency period.
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It is agreed that within sixty (60) days before the
termination of any of the five (5) year rental review
periods that the parties shall commence negotiations
for the following five (5) year period, and if it
should become apparent that a mutual agreement as to
the monthly rental value cannot be reached, then the
parties shall commence the arbitration procedure
according to the terms of this lease not later than
thirty (3) days prior to the expiration of the cur-
rent review period.
One arbiter shall be selected by the Lessor and shall
be a recognized real estate appraiser and a member of
the American Institute of Real. Estate Appraisers; one
shall be selected by the Lessee and shall be a
recognized real estate appraiser and a member of the
American Institute of Real Estate Appraisers. Each
party shall give written notice of appointment of an
arbiter to the other party. Should either party
within five (5) days after receiving such notice
from the other party fail to appoint an aribiter and
give written notice thereof to the other party who
has appointed its arbiter, then upon application of
either party the presiding Judge of the Superior
Court of the State of California, in ana for the
County of San Diego, shall appoint an arbiter for
the party who failed to appoint one. The arbiter
so appointed shall have the same power and authority
as if he had been appointed by such party who failed
toappoint an arbiter. Within five (5) days after
said two arbiters have been appointed, such two
arbiters shall appoint a third arbiter.,-,
If such two arbiters within the period last above
mentioned shall be unable to agree upon the third
arbiter, then upon application of either or both
parties hereto, the presiding Judge of the Superior
Court of the State of California, in and for the
County of San Diego, shall appoint the third arbiter.
Within fifteen. (15) days after the appointment of
the third:arb=:ter, the arbiters shall render a written
decision signed by not less than two of such arbiters
in which decision.. shall be specified the monthly
rental to be padd by Lessee to Lessor for and during
the five (5) year periodin dispute.. It is agreed
that any award made pursuant to this arbitration may
in the instance of either party be made an order of the
Superior Court of the State of California, in and for
the County of San Diego, and that such award may be
enforced as though it were a judgment of that court,
providing standards set forth herein have been fairly
observed and complied with., by said arbitrators in
said: award.
Each party shall bear the expense of its own appointed
arbiter and shall share equally in the third arbiter's
fee and the incidental expenses of arbitration.
It is mutually agreed thatin establishing the rental
for land. as provided under Paragraph "3" of this lease,
said rental for such land shall be the fair and rea-
sonable rental rate for the use of the land basedon
the allowable usage of such land under Paragraph "4"
of this lease.
a if% LZ41, AT4
"3 CI
It is mutually agreed that a substantial portion of
the consideration for the granting of this lease is
the maintenance of the premises in a clean and pre-
sentable condition at all times, and the active use
of the premises by Lessee for the purposes herein
described, in that the physical conditions of the
premises and its continuous use enhances the value
of the tidelands and provides additional employment,'
taxes and other benefits to the general economy of
the area. Failure to observe the foregoing condi-
tions and requirements shall constitute cause for
cancellation of this lease by the Lessor.
3. USE: Lessee agrees that the leased premises shall be
used only and exclusively for the purpose of conducting
and maintaining thereon a wholesale and retail lumberyard
and for the purposes of storage, remanufacture, sales of
forest prbducts and allied materials, and for no other pur-
pose whatsoever without the consent of the Lessor, evi-
denced by resolution, first had and obtained.
4. The Lessee further agrees that kt'willat all times leave
the lessor free and harmless and indemnify it against all claims
for labor or materials furnished for or in connection with
any and all work, change or improvements in or upon the
leased premises.
5. It is mutually agreed that the lessee shall keep and main-
tain the leased premises and all improvements of any kind which
may be erected, installed, or made thereon by the Lessee, in
good and substantial repair and condition and shall make all
necessary repairs and alterations thereto, and that the Lessor
shall not at any time be required to make any improvements or
, repairs whatsoever. The Lessor shall at all times during
business hours have the right to enter upon and inspect the
said premises.
6. It is mutually agreed that any installations or improve-
ments of any kind now existing or placed upon the leased prem-
ises by Lessee shall be and remain the property of Lessee and
that upon the expiration of the term of this lease or the sooner
termination thereof, Lessee shall have the right to remove any
such installations or improvements, and that such removal
shall be made on or before the expiration of sixty (60) days
front the termination of this lease; provided, however, that if
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455 f:).
any such installations or improvements shall not be removed
on or before the expiration of said sixty (60) days from the
termination of this lease, the same shall thereupon become
the property of the Lessor.
7. The Lessee agrees to pay before before delinquency all
taxes and assessments assessed or levied upon the Lessee or the
leased premises by reason of any machine, appliances or other
improvements of any nature whatsoever erected, installed or
maintained by Lessee or by reason of the business or other ac-
-tivities of Lessee upon or in connection with the said leased
premises and to pay any fees imposed by law for licenses or
permits for any business or activities of the Lessee upon the
leased premises or under this lease, and to pay before delin-
quency any and all charges for utilities at or on the leased
premises.
The Lessee agrees not to assign the whole or any part of
this• lease or any interest therein, nor to sublease the whole
or any part of the leased premises, nor to permit the occupancy
of any part thereof by any other person, without the consent of
the City Council of the Lessor, under an ordinance of such -
Council duly adopted. Lessee further agrees that no assign-
ment, voluntary or involuntary, in whole or in part, of this
lease or of. any interest therein, and no sublease of the whole
or any part of the leased premises, and no permission to any
person to occupy the whole or any part of the leased
shall be valid or effective without the consent of the City
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Council of the Lessor first had and obtained under an.ordinance
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4of such Council duly adopted.
9,, It is mutually agreed that in the event that Lessee is
adjudicated bankrupt or insolvent or makes any assignment for
the benefit of creditors, or in the event of any judicial sale
of the Lessee's interest under this lease, this shall at the
option of the Lessor immediately terminate and all rights of
the- Lessee hereunder shall cease and terminate unless the
premises,
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cause of said bankruptcy, insolvency or assignment or judicial
sale be removed within thirty (30) days from the date thereof.
10. The Lessee agrees that the Lessor, its agents, officers
and employees shall not be nor be held liable for any damages
to the goods, properties or effects of the Lessee or any of the
Lessee's representatives, agents, employees, guests, licensees,
41 5 5 2, 5 invitees, or any other person whatsoever, nor for personal in-
juries to or deaths to them, or any of them whether caused by
or result from any act or ommission of any person or from any
defect in any part of the leased premises. The Lessee further
agrees to indemnify and save free and harmless the Lessor and
its authorized agents, officers and employees against any of
the foregoing liabilities and any costs and expenses incurred
by the Lessor on account of any claim or claims therefor.
11. The Lessee agrees to take out public liability insurance
with an insurance carrier satisfactory to Lessor and naming
Lessor and Lessee as co -insureds to protect against loss from
liability imposed by law for damages on account of bodily in-
jury, including death resulting therefrom, suffered or alleged
to be suffered by any person or persons whatsoever resulting
directly or indirectly from any act or activities of the Lessee
or any person acting for it or under its control or direction,
or any person authorized by it to use the leased premises, and
also to protect against loss from liability imposed by law for
dmamages to any property of any person caused directly or indir-
ectly by or from the acts or activities of the Lessee or any
person, or. -any persons, acting for it and under its control
or direction, or any person authorized by it to use the leased
premises.
Such public liability and property damage insurance shall
be maintained in full force and effect during the entire term
of this lease in amounts of not less than $150,000.00 for one
person injured in one accident, and not less than $300,000.00
for more than one person injured in one accident, and in the
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amount of not less than $50,000.00 with respect to any property
damage aforesaid. Lessee agrees to pay the entire premium for
maintaining such insurance in effect.
Certificates evidencing
23150txXif each of the foregoing policies shall be filed
with the Lessor and shall be satisfactory in form to the Lessor.
Said policies shall have a non -cancellation -without -notice
d r
t.; 3 clause and shall provide that copies of all cancellations notices
shall be sent to Lessor.
Provisions of this paragraph as to maintenance of insurance
shall not be construed as limiting in any way the extent to
which the Lessee may be held responsible for the payment of
damages to persons or property resulting from his activities
or the activities of any person or persons for which he is
otherwise responsible.
12. It is mutually understood and agreed that if any default
be made in the payment of the rental herein provided, or in
the performance of the covenants, conditions or agreements
hereof, and such default shall not be cured within ten (10)
• days after written notice thereof, the Lessor shall have the
option to immediately terminate this lease; and that in event
of such termination the Lessee shall have no further rights
hereunder and the Lessee shall thereupon forthwith remove from
said premises and shall have no further right or claim thereto,
and the said Lessor shall immediately thereupon without recourse
to the courts have the right to re-ehter and take the possession
of the leased premises.
13. The Lessee agrees that upon the termination of this lease
by the expiration thereof or the earlier termination as by the
terms of this lease provided, the Lessee will peaceably yield
up and surrender the leased premises and the whole thereof in
as good condtion, subject to normal and ordinary change and
alteration resulting from the use of such premises as herein
provided,• as the same may be at the time the Lessee takes
possession• thereof and to allow the Lessor to take peaceable
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possession thereof.
14. It is mutually agreed that if the Lessee shall hold over
after the expiration of this lease for any cause, such holding
over shall be deemed a tenancy from month to month only, at
the same rental per month and upon the same terms, conditions
45525
last renewal term provided for herein, unless other terms,
and provisions of this lease as may be in effect during the
conditions and provisions be agreed upon in writing by the
Lessor and the Lessee. Such holdover shall include any time
employed by the Lessee to remove machines, appliances and other
improvements during the sixty (60) day period hereinabove.men-
tioned for such removal.
15. It is mutually agreed that any waiver by the Lessor of any
breach of any one or more of the covenants, conditions or agree-
ments of this lease shall not be construed to be a waiver of
any subsequent or other breach or any other covenant, condition
or agreement of this lease, nor shall any failure on the part
of the Lessor to require or exact full and complete compliance
•
with any of the covenants, conditions or agreements of this
lease be construed as in any manner changing the terms hereof
or to stop the Lessor from enforcing the full provisions here-
of, nor shall the terms of this lease be changed or altered
in any manner whatsoever other than by written agreement of
the Lessor and the Lessee.
16. The Lessee agrees that in all activities on or in connec-
tion with the leased premises and in all uses thereof, includ-
ing the making of any alterations or changes and the installat-
ion of any machines and other improvements it will abide by and
conform to all rules, regulations and ordinances of said City
and any
the same
applicable -laws of the State of California as
may now exist or be hereafter promulgated or
17. It is mutually agreed that any notice or notices
any of
amended.
provided
for by this lease or by law to be given or served upon the
-Lessee may be given or served by registered letter addressed
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to the Lessee at the street address of the above described
premises deposited in the United States mail, or may be
served personally upon the said Lessee or any person hereafter
authorized by it in writing to receive such notice; and that
any notice or notices provided by this Lease or by law to be
served upon the Lessor may be given or served by registered
45525 letter addressed to the City Manager, National City, Calif-
ornia and that any notice or notices given or served as
provided herein shall be effeCtual and binding for all pur-
• poses upon the parties so served.
18. It is mutually agreed that time is of the essence of each
and all of the terms and provisions of this lease and that this
lease shall inure to the benefits of and be binding upon the
parties hereto and any successors of the lease as fully and
to the same extent as though specifically mentioned in each
instance, and that all covenants, stipulations and agreements
in this lease shall extend to and bind any assigns or sub-
leases of the lease.
19. It is further agreed that the rights and remedies herein
contained are cumulative, and are not intended and shall not
deprive Lessor of any other rights and remedies available to
it in law of equity.
20. It is agreed that the word "Lessor" and the word "Lessee"
as used in this lease shall include the plural as well as the
singular, and shall include not only the parties hereto, but
their representatives, heirs, legatees, devisees, successors
and. assigns. However, nothing contained in this paragraph
shal1 constitute a waiver by Lessor of the prohibition against
assignment and subletting contained in paragraph Eight (8.)herein-
above.
21. The• singular number and the masculine and neuter gender as
used herein shall include the plural number and the feminine
and neuter gender conversely.
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22. Lessor does hereby reserve
City of National City the right
to annul, change or modify this
any of the provisions hereof by
may seem proper.
to the City Council of the
and privilege, by ordinance,
lease upon the violation of
the Lessee as in its judgment
23. A11 improvement plans for this property shall be submit
ted to the Planning Commission for approval.
IN WITNESS WHEREOF, the City has executed the fore-
going lease by the Mayor of said City and the Lessee has caused
this lease to be executed the day and year first hereinabove
.written.
THE CITY OF NATIONAL CITY,
Lessor
TARTER, WEBSTER, AND JOHNSON,
A DIVISION OF AMERICAN FOREST
PRODUCTS CORPORATION,
Lessee
Passed and adopted by the Council of the City of National City, California,
on August 11, 1981 by the following vote, to -wit:
Ayes: Councilmen Camacho,
Nays: Councilmen None
Absent: Councilmen None
Abstain: Councilmen None
AUTHENTICATED BY:
Dalla, Van Deventer, Waters, Morgan
KILE MORGAN
Mayor of the City of National City, California
rk of the City of National City, California
By:
Deputy
I HEREBY CERTIFY that the foregoing ordinance was not finally adopted
until seven calendar days had elapsed between the days of its introduction
and the days of its final passage, to wit, on August 4, 1981
and on August 11, 1981
I FURTHER CERTIFY THAT said ordinance was read in full prior to its
final passage or that the reading of said ordinance in full was dispensed
with by a vote of not less than a majority of the members elected to the
Council and that there was available for the consideration of each mem-
ber of the Council and the public prior to the day of its passage a written
or printed copy of said ordinance.
I FURTHER CERTIFY that the above and foregoing is a full, true and cor-
rect copy of ORDINANCE NO. 1750 of the City of National City, passed
and adopted by the Council of said City on August 11, 1981
(Seal)
By:
City Clerk of the City of National City, California
Deputy