You are on page 1of 9

LEASE/RENTAL AGREEMENT BETWEEN

THE CITY OF CARMEL-BY-THE-SEA


AND
NATIONAL PARKING AND VALET

This Lease/Rental Agreement, executed at Carmel-by-the-Sea, California this


November
, 2014 by and between the City of Carmel-by-the-Sea
3rd
day of
(hereinafter referred to as "LESSOR/RENTOR") and NATIONAL PARKING AND VALET, a
division of Pacific Parking & Valet, LLC (hereinafter referred to as "LESSEE/RENTEE"),
supersedes all previous agreements between the parties with respect to Premises described
herein.
IT IS AGREED between the parties hereto as follows :
1.

Description of Premises.

1.1
LESSOR/RENTOR hereby leases to LESSEE/RENTEE, and LESSEE/RENTEE
hires from LESSOR/RENTOR, under the terms and conditions hereinafter set forth, those certain
improvements located on those certain parcels of land situated in the City of Carmel-by-the-Sea
and commonly described as the parking lot located on the north lot of Sunset Center, the tour
bus parking lot located at the corner of Ocean Avenue and Junipero Street, and Ocean Avenue
between Junipero Street and Monte Verde Street Carmel-by-the-Sea, Monterey County,
California (hereafter "Premises").
2.

Term.

2.1
The term of this Lease/Rental Agreement shall be for twelve (12) months,
commencing on 1 November, 2014 and ending on 1 October, 2015.
2.2 The LESSOR/RENTOR may terminate this contract by giving at least thirty (30) days
written notice to LESSEE/RENTEE if LESSOR/RENTOR determines, in LESSOR/ RENTOR's
sole discretion, that the premises are to be incorporated into a city-wide Parking Plan which will
either subject the Premises to significant construction/modification , or change the Premises use
classification in any way that precludes it from being used in a manner that is consistent with this
Agreement (e.g., free parking lot).
3.

Compensation.

3 .1
LESSEE/RENTEE shall pay to LESSOR/RENTOR seventy-five percent (75%) of
the Gross Revenue as defined hereinbelow. In addition LESSEE/RENTEE shall pay to
LESSOR/RENTOR the sum of $1 ,000 as set forth in 4.6 of this Agreement.
Gross Revenue as referred to above is defined to include, but not be limited to , total receipts
from parking collections prior to the payment of local taxes including any possessory use tax,
permit and licensing fees, and utilities. Gross Receipts shall exclude federal and state income
tax, and parking machine parts and maintenance.
LESSEE/RENTEE acknowledges that the late payment by LESSEE/RENTEE of
3.2
any rentals due hereunder will cause LESSOR/RENTOR to incur certain cost and expenses not
contemplated under this Lease, the exact amount of which will be extremely difficult or
impractical to ascertain. Such costs and expenses include, without limitation, administrative and
collection costs and processing and accounting expenses. Accordingly if any rental payment
hereunder is not received by LESSOR/ RENTOR from LESSEE/RENTEE within ten (1 0) days

from the date it becomes due, LESSEE/ RENTEE shall immediately pay to LESSOR/RENTOR,
without prior notice or demand, a late charge of five percent (5%) of the then-gross monthly
rental. LESSOR/RENTOR and LESSEE/RENTEE agree that this late charge represents a
reasonable estimate of such costs and expenses and is fair compensation to LESSOR/RENTOR
for its losses sustained by reason of LESSEE's /RENTEE's failure to make timely payment. In
no event shall this provision for the payment of a late charge be deemed to grant to
LESSEE/RENTEE a grace period or extension of time within which to pay any rental due
hereunder or prevent LESSOR/RENTOR from exercising any right or remedy available to
LESSOR/RENTOR upon LESSEE's/RENTEE's failure to pay such rental when due, including
the right to terminate this Lease.
If any rental remains delinquent for a period in excess of thirty (30) days, then , in
3.3
addition to the late charge provided hereinabove, LESSEE/RENTEE shall pay to
LESSOR/RENTOR interest on any rental that is not paid when due at the lesser of eighteen
percent (18%) per annum or the maximum interest rate permitted by law (the "Default Rate"),
from the thirtieth (30th) day following the date such amount became due, until paid.
4.

Use.

4.1
The Premises shall be used only for the commercial parking of motor vehicles,
and for purposes incidental thereto. Premises shall be operated between the hours (8:00a.m. to
7:00 p.m.), or as negotiated with LESSOR/RENTOR. At all other times LESSOR/RENTOR has
exclusive use of the Premises.
4.2
LESSEE/RENTEE may operate and make available special event parking,
overnight parking, tour bus and/or hostelry valet guest programs from time to time during the
term of this Lease and any extension or renewal thereof. LESSEE/RENTEE shall notify the
Carmel-by-the-Sea in advance of any said usages. All revenues generated from such overnight
pa rking programs shall be included in the monthly gross revenue referred to in Section 3.1
hereof.
4.3
LESSEE/RENTEE shall not use or permit the Premises or any part thereof to be
used for any purpose or purposes other than those for which the Premises are hereby leased.
4.4
From time to time, LESSEE/RENTEE may exercise the right to use Premises for
after-hours special events/hospitality purposes for its customers, conditioned upon such use not
conflicting with any of the terms of this Lease/Rental Agreement.
In the event of an act of God or a major emergency/disaster which renders
4.5
Premises not useable by LESSEE/RENTEE, or requires LESSOR/RENTOR to use Premises for
its emergency purposes, all of LESSEE 's/RENTEE's obligations hereunder shall cease during
LESSOR's/RENTOR's emergency use and the term of this Lease will be extended for the same
period of time LESSEE/RENTEE is unable to use Premises.
4.6
LESSEE/RENTEE shall be permitted to operate the back half of the Sunset
Center North Parking Lot from Thursday through Sunday of the AT&T National Pro AM Golf
Tournament for a private client. LESSEE/RENTEE will pay LESSOR/RENTOR $1 ,000 for usage
of lot during this time. The front half of the lot will remain open for the general public.
5.

Taxes.

LESSORIRENTOR shall pay all real estate and/or personal property taxes on the
5.1
Premises. LESSEE/RENTEE shall pay for perm its , fees and a City of Carmel-by-the-Sea
business license.

5.2
LESSEE/RENTEE shall pay the Monterey County Possessory Use Tax as
assessed by the County of Monterey.
6.

Repairs and Maintenance, Utilities.

LESSEE/RENTEE shall , during the term of this Lease and any renewal or
6.1
extension hereof, at its sole expense, maintain the Premises in a clean , orderly and good
condition, reasonable wear and tear excepted. LESSEE/RENTEE shall not commit or suffer to
be committed any waste or any nuisance upon the Premises. LESSEE/RENTEE shall not
knowingly commit or willingly permit to occur or be committed any act or thing contrary to the
laws and regulations prescribed from time to time by any federal , state or municipal authority.
LESSEE/RENTEE shall pay, or cause to be paid, all charges for water, sewer, gas, electricity,
light, heat, power, telephone and other utility service used or supplied upon or in connection with
the Premises, and all charges for licenses and permits necessary for use of the Premises for the
purposes authorized herein. LESSEE/RENTEE shall not permit the accumulation of any rubbish,
dirt or refuse on the Premises or on the streets, pathways, sidewalks, planters, curbs or alleys
(Mission Street, Eighth Avenue, San Carlos Street and Sunset Center ramp) adjoining the
Premises and shall promptly remove all such material.
LESSEE/RENTEE accepts the Premises as being in good and sanitary order, condition and
repair, and shall surrender unto LESSOR/RENTOR Premises in clean and good condition ,
reasonable use and wear thereof excepted, upon the termination of this Lease.
LESSEE/RENTEE shall provide and pay for ongoing maintenance of landscaping ensuring the
natural growth characteristic of same, including the continued watering and maintenance of
landscaping and planters for the term of this Lease. LESSOR/RENTOR shall be responsible for
maintenance and repair of light poles/lights, electricity and on or by the premises, asphalt
damage, and plumbing located on or related to use.
7.

Improvements.

7.1
LESSEE/RENTEE shall have the right, from time to time, to make such alterations
and improvements to the Premises as shall be reasonably necessary or appropriate in
LESSEE's/RENTEE's judgment for LESSEE's/RENTEE's use of the Premises as provided
herein, subject to LESSEE's/RENTEE's first obtaining LESSOR's/RENTOR's approval of plans
therefor, which consent and approval shall not be unreasonably withheld . All such alterations
and improvements shall be deemed to be part of Premises herein described and shall remain
upon Premises at the sole discretion of LESSOR/RENTOR, and become the property of
LESSOR/RENTOR upon the termination of this Lease or any extension or renewal thereof.
8.

Indemnity.

8 .1
LESSEE/RENTEE
hereby
agrees to
indemnify, defend
and
hold
LESSOR/RENTOR and its public officials, officers and employees, harmless from and against all
liabilities, losses, costs and expenses incurred by LESSOR/RENTOR and claims made against
LESSOR /RENTOR for injury or death to persons or damage to property of whatsoever kind or
nature (including, without limitation, attorney's fees and costs) which are in any way connected
with LESSEE's/RENTEE's use or occupancy of Premises or the streets, sidewalks and alleys
adjacent thereto.
9.

Compliance with the Law.

LESSEE/RENTEE shall, at its sole cost and expense, comply with all
9.1
requirements of municipal , state and federal authorities now, or which may hereafter be, in force
pertaining to LESSEE's/RENTEE's use or occupancy of the Premises, or LESSOR's/RENTOR's
ownership thereof. The judgment of any court of competent, jurisdiction or the admission of
LESSEE/RENTEE in any action or proceeding against LESSEE/RENTEE , whether

LESSOR/RENTOR be a party thereto or not, that LESSEE/RENTEE has violated any such
ordinance regulation or statute in its use or occupancy of the Premises and adjacent areas shall
be conclusive of that fact as between LESSOR/RENTOR and LESSEE/RENTEE.
10.

Insurance.

10.1 LESSOR/RENTOR shall maintain in effect throughout the term of this Agreement
a policy or policies of insurance with the following minimum limits of liability:
a.

Commercial general liability, including but not limited to premises, personal


injuries, death, products, and completed operations, with a combined single limit
of liability of $1 ,000,000 per occurrence, and

b.

LESSEE/RENTEE shall maintain workers compensation insurance in accordance


with the California Labor Code with a minimum of $1 ,000,000 per occurrence for
employer liability.

LESSEE/RENTEE shall provide and maintain at its own expense, during the term of this
Agreement, a comprehensive general liability policy, including but not limited to premises,
personal injuries, products, and completed operations, of insurance, satisfactory to
LESSOR/RENTOR, with a combined single limit of not less than ONE MILLION DOLLARS
($1 ,000,000) per occurrence for property damage and for bodily injury or death of persons.
All insurance required by this Agreement shall be with a company acceptable to
LESSOR/RENTOR and authorized by law to conduct insurance business in the State of
California. All such insurance shall be written on an occurrence basis, or, if the policy is not
written on an occurrence basis, such policy with the coverage required herein shall continue in
effect for a period of two (2) years.
Each insurance policy shall provide an endorsement naming CITY, its officers, agents,
employees and volunteers as Additional Insured and shall further provide that such insurance is
primary insurance to any insurance or self-insurance maintained by CITY and that the insurance
of the Additional Insured shall not be called upon to contribute to a loss covered by the insurance
CITY.
Each insurance policy shall provide that LESSOR/RENTOR shall be given notice in writing at
least thirty (30) days in advance of any change, cancellation or non-renewal thereof. Said policy
shall provide identical coverage for each subcontractor, if any, performing work under this
Agreement, or be accompanied by a certificate of insurance showing each subcontractor has
identical coverage.
As a condition precedent to LESSORIRENTOR performance pursuant to this Agreement,
LESSEE/RENTEE shall file with a certificate of insurance with the City Risk Management Officer,
on or before May 1, 2005, showing that they have in effect the insurance required by this
Agreement. LESSEE/ RENTEE shall file a new or amended certificate of insurance promptly
after any change is made to any insurance policy which would alter the information on the
certificate then on file.
10.2 For all times during the term of this Lease and any extension or renewal hereof,
LESSEE/RENTEE shall procure and maintain, at LESSEE's/RENTEE's sole expense, fire and
extended coverage, vandalism and malicious mischief and all-risk insurance coverage for its own
personal property and leasehold improvements.
LESSEE/RENTEE shall submit to
LESSOR/RENTOR certificates evincing the insurance required hereunder, which certificates

shall name LESSOR/RENTOR and its public officials, officers and employees as additional
insureds as its interests may appear and shall contain a written obligation on the part of the
insurance carrier (s) named therein requiring that carrier shall notify LESSOR/RENTOR in writing
thirty (30) days prior to any cancellation , modification, or nonrenewal thereof for any cause or
reason whatsoever.
11 . Default and Remedies.
11.1 The occurrence of any one or more of the following events shall constitute a
material default and breach of this Lease by LESSEE/RENTEE:
a.

The vacating or abandonment of Premises by LESSEE/RENTEE.

b.

The failure by LESSEE/RENTEE to make any payment of rent or any other


payment required to by made by LESSEE/RENTEE hereunder, as and
when due, where such failure shall continue for a period of three (3) days
LESSSOR/RENTOR
to
after
written
notice
thereof
from
In the event that LESSOR/RENTOR serves
LESSEE/RENTEE.
LESSEE/RENTEE with a Notice to Pay Rent or Quit pursuant to applicable
unlawful detainer statues, such Notice to Pay Rent or Quit shall also
constitute the notice required by this subparagraph.

c.

12.

The failure by LESSEE/RENTEE to observe or perform any of the


covenants, conditions or provisions of this Lease to be observed or
performed by LESSEE/RENTEE, other than described in subparagraph b.
above, where such failure shall continue for a period of thirty (30) days after
written notice thereof from LESSOR/RENTOR to LESSEE/RENTEE ;
provided, however, that if the nature of LESSEE's/RENTEE's default is
such that more than thirty (30) days is reasonably required for its cure , then
LESSEE/RENTEE shall not be deemed to be in default if
LESSEE/ RENTEE commences such cure within said thirty-(30)-day period
and thereafter diligently prosecutes such cure to completion.
No Waiver Implied.

12.1 The continuation by LESSOR/RENTOR of the tenancy of the LESSEE/RENTEE


following a breach of the terms hereof by LESSEE/RENTEE shall in no event be considered a
waiver by LESSOR/RENTOR of any subsequent breach by LESSEE/RENTEE or of the benefits
of any of the provisions thereof or in any way subject LESSOR/RENTOR to legal disability.
13.

Eminent Domain.

13.1
If any part of the premises shall be taken or condemned for a public or quasipublic use, and a part thereof remains which is susceptible of occupation hereunder,
LESSOR/RENTOR shall have the sole option to terminate this Lease as pertaining to the entire
Premises as of the date when title to the part so condemned vests in the condemnor, but this
Lease shall as to the parts so take , continue in full force and effect except that the rent payable
hereunder shall be adjusted so that LESSEE/RENTEE shall be required to pay for the remainder
of the term only such portion of such rent as the value of the part remaining after condemnation
bears to the value of the entire Premises at the date of condemnation . If the entire Premises is
taken or condemned , or if such part thereof be taken or condemned which renders , in the
reasonable judgment of both LESSORIRENTOR and LESSEE/RENTEE, that portion of the
Premises remaining unusable for the uses herein described, this Lease shall terminate upon
such taking or condemnation, if a part or all of the premises be taken or condemned, all
compensation to be awarded upon such condemnation or taking shall be paid to
LESSOR/RENTOR

14.

Audit.

14.1 On January 1 and July 1 of each year during the term of this Lease or any
renewal or extension hereof, a representative from LESSOR/RENTOR and a representative from
LESSEE/RENTEE shall meet for an audit and review of the parking operation at the request of
LESSOR/RENTOR. Any adjustments to the monthly rental shall be paid within thirty (30) days
from the completion of the audit.
14.2 In addition, within ten (10) days after the end of each Lease-year, commencing
with 1 October 2015 and ending with the tenth (10th) day of the month following the last month of
the Lease term , LESSEE/RENTEE shall furnish LESSOR/RENTOR with a statement to be
certified as correct by LESSEE/RENTEE or the employee of LESSEE/RENTEE/RENTEE's
authorized so to certify, which sets forth LESSEE 's gross parking revenue for the year just
concluded. With each annual statement, LESSEE/RENTEE shall pay to LESSOR/RENTOR the
amount of any additional percentage rent which is payable to LESSOR/RENTOR, considering
any installments of percentage rent paid by LESSEE/RENTEE to LESSOR/RENTOR during the
previous Lease-year or partial Lease-year, as appropriate. If the annual statement shows that
during the previous Lease-year, LESSEE/RENTEE paid more percentage rent than it was
obligated to pay under the terms of this Lease, the amount of such overpayment shall be applied
to the next installment or installments of minimum rent due or, if such overpayment was in the
last year of the Lease term , LESSORIRENTOR shall refund to LESSEE/RENTEE the full amount
of such overpayment within thirty (30) days of LESSOR's/RENTOR's receipt of the statement.
14.3

The acceptance by LESSOR/ RENTOR of any monies paid to


LESSOR/RENTOR by LESSEE/RENTEE as percentage rent for Premises
as shown by any annual statement furnished by LESSEE/RENTEE shall
not be an admission of the accuracy of such statement, or of the
sufficiency of the amount of percentage rent payments, but
LESSOR/RENTOR shall be entitled at any time within three (3) years from
the end of the Lease-year for which any such percentage rent payments
have been made to question the sufficiency of the amount paid and/or the
accuracy of the statement or statements furnished by LESSEE/RENTEE to
justify the amount. LESSEE/RENTEE shall, for each period of three (3)
years, including the three (3) years , following the end of the term of this
Lease, keep safe and intact all of the records, books, and accounts
relevant to the gross parking revenue generated on Premises and shall,
upon request, make such records available to LESSOR/RENTOR,
LESSOR's/LESSOR's auditor, representative or agent for examination at
any reasonable time during such period .

14.4 LESSEE/RENTEE shall keep full and detailed accounts and exercise such
controls as may be necessary for proper financial management under this Agreement; the
accounting and control systems shall be satisfactory to LESSOR/RENTOR. LESSOR/RENTOR
and LESSOR's/RENTOR's auditor shall be afforded access to LESSEE's/RENTEE's records,
books, correspondence and other data relating to this Agreement. LESSEE/RENTEE shall
preserve these records, books, correspondence and other data relating to this Agreement for a
period of three (3) years after final payment, or for such longer period as may be required by law.
In addition, LESSEE/RENTEE agrees to make said records, books, correspondence and other
data relating to this Agreement available to LESSOR/RENTOR as LESSOR's/RENTOR's
principal place of business upon 72 hours written notice.

15.

Rates, Distribution, Stall Count.

15.1 Specifications and rates, Sunset Center Parking Summary (all subject to review,
change and approval by Resolution of LESSOR's/RENTOR's City Council) :
Stall Count:
Standard (9 x 18)
Compact (8 x 16)

71

64
135

Distribution of Stalls:
Monthly Permits
Transient

Approx 70
Approx 65

Rates :
Monthly
$
60
I month
$
2
I hour
Transient
Sunset Center Special Events No charge after 5 p.m.
16.

LESSOR's/RENTOR's Access.

16.1 LESSOR/ RENTOR and LESSOR's/RENTOR's agents shall have the right to enter
Premises at reasonable times for the purpose of inspecting the same, showing the same to
prospective purchasers, lenders or lessees, and make such alterations, repairs, improvements or
additions to Premises as LESSOR/RENTOR may deem necessary or desirable. During the last
one hundred and twenty (120) days of the term of this Lease, LESSOR/RENTOR may, at any
time, place on or about Premises any ordinary "For Lease" signs, all without rebate of rent to
LESSEE/RENTEE or liability to LESSOR/ RENTOR.
17.

Assignment and Subletting.

17.1 In consideration for the favorable rental and lease terms and conditions , this
Lease is personal to LESSEE/RENTEE and as such LESSEE/RENTEE shall not sell, transfer,
assign, mortgage or hypothecate this Lease, or any interest in this Lease, nor permit the use of
Premises by any person or persons other than LESSEE/RENTEE, nor sublet Premises or any
part thereof. However, in the event that LESSEE/RENTEE desires to sell, transfer, assign,
sublet, mortgage or hypothecate this Lease or any interest therein, the parties hereto agree that
it shall be reasonable for LESSOR's/RENTOR's consent thereto , if any, to be predicated, in part,
upon the financial and professional qualifications of the proposed successor in interest as well as
the proposed successor's willingness to pay additional rent in an amount then designated by
LESSOR/ RENTOR to be the then-fair market rental for similar space in the vicinity of Premises
and it shall be reasonable that such consent shall be subject to a document preparation fee of
not less than one thousand dollars ($1 ,000). Consent to any of the aforementioned acts shall not
operate as a waiver of LESSOR's/RENTOR's right to terminate this Lease in the event of a sale,
transfer, assignment or sublease of Premises.
18.

Hold-Over Tenant.

18.1 It is covenanted that there shall be no renewal of this Lease, except upon
execution of a written agreement, and the fact that LESSEE/RENTEE may continue in
possession of Premises without the written consent of LESSOR/RENTOR, shall not operate to
renew this Lease. If LESSEE/RENTEE should hold over after the expiration of the term hereof
without the written consent of LESSOR/RENTOR, LESSEE/RENTEE shall be deemed to be a
tenant at sufferance. This provision for hold-over tenancy is not to be construed as limiting the
rights or remedies otherwise available to LESSOR/RENTOR to remove LESSEE/RENTEE , or to
limit the rights of LESSOR/RENTOR or LESSEE/RENTEE to resolve any dispute relating to

rental for any option period. In the event of a holdover, the rent will be the then-current base rent
plus five hundred dollars ($500) per month.
19.

Capital Improvements.

19.1 Cost and I or installation of any future capital improvements proposed by either
party shall be negotiated in good faith at the time of any renewal date of this Lease Agreement.
20.

Binding on Successor.

20.1 Subject to the provisions contained in this Lease, the covenants and conditions of
each party herein specified shall apply to and bind the heirs, executors, administrators and
successors of such party.
21 .

Notices.

21.1 All notices to be given to LESSEE/RENTEE or LESSOR/RENTOR shall be made


in writing and shall be deemed delivered upon receipt either personally or by registered or
certified mail addressed as follows:
LESSEE/RENTEE
Pacific Parking and Valet, LLC
dba National Parking and Valet
578 A Houston Street
Monterey, CA 93940
22.

LESSOR/RENTOR:
City of Carmel-by-the-Sea
Attn : City Administrator
Box CC
Carmel-by-the-Sea, CA 93921

Attorney's Fees.

22.1
If either party hereto should bring any suit against the other party hereto (formal
judicial proceeding, mediation or arbitration), for the breach of any term , covenant, condition or
obligation herein contained to be kept by such other party for the recovery of any sum due
hereunder, or to recover possession of Premises, or for any summary action for forfeiture of this
Lease or to prevent further violations of any of its terms , covenants, conditions, or obligations, or
for any other relief then , and in that event, the case shall be handled in Monterey County,
California, and the prevailing party in such suit or summary action shall be entitled to a
reasonable attorney's fee to be fixed by the judge, mediator or arbitrator hearing the case and
such fee shall be included in the judgment, together with all costs.
23.

Governing Law.

23.1

This Lease shall be governed by the laws of the State of California.

24.

Agreement Contains All Understandings; Amendment

24.1
This document represents the entire and integrated Agreement between
LESSOR/RENTOR and LESSEE/RENTEE supersedes all prior negotiations, representations,
and agreements, either written or oral.
24.2 LESSEE/RENTEE shall not bring onto, or install, or permit to be brought onto or
installed on the Premises any hazardous materials as defined in Article 25.1 above.
24.3 LESSEE/RENTEE agrees to indemnify, defend and hold LESSOR/RENTOR
harmless from and against all liabilities, claims, actions, damages, costs and expenses or loss
arising out of or resulting from the presence of any hazardous material brought or installed or
permitted to be brought or installed by LESSEE/RENTEE upon the demised premises.

IN WITNESS WHEREOF, the parties hereto have set their hands this _ _ day of

- - - - - -' 2014.

LESSOR/RENTOR:

LESSEE/RENTEE:

CITY OF CARMEL-BY-THE-SEA

NATIONAL PARKING & VALET, a division of


PACIFIC PARKING & VALET, LLC

Doug Sch 1tz


City Administrator

Steven E. Summers
Managing Operating Partner

ATTEST:

Lori Frontella, MMC


Interim City Clerk