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HomeMy WebLinkAbout07-12-2016 Lease Agreement - Noah Evens Whale RockLEASE AGREEMENT This Lease Agreement ( "Lease "), made and entered into this July 1, 2016, by and between the Whale Rock Commission, State of California, hereinafter referred to as " Lessor ", and Noah Evans an individual and employee of the City of San Luis Obispo, hereinafter referred to as "Tenant" and the City of San Luis Obispo, a charter city and municipal corporation ( "City ") hereinafter referred to as "Landlord "; WITNESSETH WHEREAS, Lessor is the owner of certain described real property located in the County of San Luis Obispo, State of California, as more fully described herein; and WHEREAS, the Lessor seeks to rent the certain described real property as a dam keeper's residence of mutual benefit; and WHEREAS, the Whale Rock Commission appointed the City of San Luis Obispo and the City has agreed to act as Landlord and Agent; and WHEREAS, Tenant is currently an employee of the City of San Luis Obispo; WHEREAS, Tenant is interested in leasing the certain described real property. NOW THEREFORE, FOR AND IN CONSIDERATION of the following covenants and conditions, it is hereby agreed as follows: PREMISES 1.1. LEASE OF PREMISES: Lessor hereby leases to Tenant, and Tenant hereby leases from Lessor the residence located at Whale Rock Reservoir and commonly known as the "Dam Keeper's Residence" and the yard area immediately adjacent thereto, in the County of San Luis Obispo, State of California, as depicted on Exhibit "A," attached and incorporated by this reference, (the "Premises ") upon the terms and conditions set forth in this Lease. 1.2. ACCEPTANCE OF CONDITION OF PREMISES: Tenant acknowledges, represents and warrants that Tenant has examined the Premises, and that they are at the time of this Lease in good order, repair, and in a safe, clean and tenantable condition. Tenant takes Premises in its AS- IS condition with no express or implied warranties or representations beyond those contained herein, or required by applicable California law. 2. TERMS OF LEASE AGREEMENT 2.1. TERM: The term shall be for one year, commencing on July 1, 2016 and unless earlier terminated as provided herein, terminating on June 30, 2017. Thereafter, the tenancy shall be construed as a month to month tenancy, unless terminated by either party on written notice. This agreement is solely a lease agreement and it shall not be construed as an employment contract between Lessor and Tenant. To comply with Civil Code section 1946.1, if the Tenant separates from employment with City of San Luis Obispo, this Agreement shall terminate sixty (60) days after Landlord delivers notice of termination of the Agreement to Tenant. 2.2. MONTH TO MONTH PROVISION: If Tenant remains in possession of all or any part of the Premises after the expiration of the term hereof, with the express or implied consent of Landlord, such tenancy shall be from month to month only and not a renewal hereof or an extension for any further term and, in such case, monthly rent shall be payable in the amount specified in this Agreement. Such month -to -month tenancy shall be subject to every other provision, covenant, and agreement contained herein. The foregoing provisions are in addition to and do not affect the right of re -entry or any rights of Landlord hereunder or as otherwise provided by law or in equity, and in no way shall affect any right which Landlord may otherwise have to recover damages from Tenant for loss or liability incurred by Landlord resulting from such failure by Tenant to surrender the Premises. Nothing contained in this section shall be construed as consent by Landlord to any holding over by Tenant and Landlord expressly reserves the right to require Tenant to surrender possession of the Premises to Lessor as provided in this Agreement upon the expiration or other termination of this Agreement. In the event Tenant holds over in possession of the premises after termination described above, Tenant shall be obligated to pay the fair market value of the Premises, namely, $1,100.00 per month plus any annual increases in rent. This lease may be renewed or terminated at the discretion of the Landlord. 3. RENT 3.1. MONTHLY RENT: Tenant shall pay the sum of $374.00 per month as rent beginning July 1, 2016 with payment due on the first calendar day of each month. After the expiration of the one -year term, Landlord reserves the right to reexamine the fair market value of the rent and to make any other increases it deems necessary, provided Landlord gives Tenant at least a sixty - day (60) notice of any such increase. Tenant hereby agrees that rent shall be collected as a payroll deduction by City twice a month. This Agreement constitutes the authorization for City to begin the deduction. 3.2 RENT REDUCTION FOR CARETAKER SERVICES: Landlord and Tenant acknowledge and agree that the fair market value rent of the Premises is $1,100. The rent has been reduced to $374.00 as a 66% reduction in rent for management employees and a 50% reduction in rent for non - management employees is agreed to in consideration of Tenant agreeing to perform certain caretaking and inspection services on the Premise as described in the Residence Occupancy Guidelines — Exhibit B. Tenant is not entitled to and shall not be paid additional compensation from Lessor for fulfilling the conditions of this Agreement. As a condition of this lease and in consideration of the reduction in fair market rent set forth herein, tenant hereby agrees to perform certain dam keeper activities and serve as emergency contact for the Whale Rock Reservoir. 3.3. TAX CONSEQUENCES: Tenant acknowledges, pursuant to IRS tax regulations, that the difference between the fair market value of the rent and the amount paid is a taxable fringe benefit that will be included on the employee's Form W -2. Tenant agrees to indemnify, defend (upon request by Landlord or Lessor), and hold Landlord and Lessor, its elected officials, agents, officers, and employees harmless from and against any and all losses, costs, expenses, claims, liabilities, actions, or damages arising out of any dispute over the tax treatment of the benefits received by Tenant as a result of this Agreement. The taxable fringe benefit amount is $726.00 per month. 4. MAINTENANCE, IMPROVEMENTS, AND REPAIRS: Tenant hereby accepts the Premises in its "as is" condition existing as of the execution date of this Agreement subject to all applicable zoning, municipal, county, state, and other governmental laws, ordinances, and regulations governing and regulating the use of the Premises, and any easements, covenants, restrictions, or other matters of record, and accepts this Agreement subject thereto and to all matters disclosed thereby. Lessor will make improvements and repairs to the Premises when considered necessary by Lessor, including but not limited to the repair of roof and exterior walls of the residence, heaters and water heaters, major repairs to the well pump, replacement of broken plumbing fixtures, and water service pipes to fixtures. Landlord will provide only such additional maintenance as is deemed necessary by Landlord and as required by Civil Code sections 1941 and 1941.1. In the event Tenant encounters a condition which, in his/her view, requires improvement, repair, or maintenance that is not Tenant's responsibility, he /she shall submit a written request to the Landlord to repair such condition. Landlord shall not be obligated to make such repairs unless it deems such repairs necessary to protect the Premises. Should Tenant make any improvements or repairs to the Premises that are the responsibility of Landlord without prior written approval from Landlord, any such improvement, repair, or replacement costs and expenses shall be borne solely by Tenant, and such improvements shall become the property of Lessor. Tenant is responsible for all minor repairs, including but not limited to clogged drains and toilets, minor well pump repairs, leaky faucets, and broken windows and for all repairs for damage created by Tenant or Tenant's family and guests. Tenant will properly use and operate all electrical, and plumbing fixtures and keep them as clean and as sanitary as their condition permits. Tenant is responsible to maintain the exterior of the house, including weed abatement and any vegetation clearance necessary for fire protection of the house, and the surrounding grounds in a reasonable manner. Outdoor storage or parking of anything more than two (2) operable vehicles and either one (1) boat, trailer, or recreational vehicle is prohibited. Trash receptacles shall be stored on the Premises outside of public view except on the day of pick -up. 5. UTILITIES: Tenant shall provide for and pay for all charges for electricity and reasonable quantities of well water used for domestic purposes on the Premise. Tenant shall also provide and pay any additional utilities, including but not limited to, propane, trash, septic tank pumping, telephone, cable or satellite television, and internet. 6. OCCUPANTS: Tenant shall not permit anyone other than Tenant and his/her immediate family, as designated on the Lease, to reside on the Premises for more than five (5) consecutive days without first obtaining written consent of Landlord. In any case, there shall not be more than five (5) occupants, including Tenant. 7. ASSIGNMENT: Tenant shall not assign, sublet, or otherwise transfer this Agreement or any portion thereof and any attempt to do so shall be void and of no effect for any purpose and shall furnish grounds for immediate termination of this Agreement. 8. USE OF PREMISES: Tenant agrees to occupy the Premises as Tenant's abode and principal residence and to utilize the portions thereof for living, sleeping, cooking, and dining purposes only and consistent with the purposes for which they were respectively designed or intended to be used for such occupancies: to keep the Premises in a neat, clean, sanitary, and orderly condition at all times during occupancy, and not to permit rubbish, recyclables, garbage, etc., to accumulate at any time; to not commit, suffer or permit any waste of the Premises, nor any acts to be done in violation of any laws or ordinances, nor to use or permit the use of the Premises for any commercial, illegal, or immoral purposes; and to comply with all County laws and local ordinances concerning the Premises and the use thereof. 9. DAMAGES: Tenant waives the right to claim damages from Lessor or Landlord for any damage resulting to the Premises in the event that it is damaged or destroyed by fire and any other cause. Tenant is hereby advised to obtain his/her own insurance policy to cover any personal losses. Lessor shall not be responsible for loss of any personal property on the Premises unless such damage or loss is due to Lessor's sole gross negligence. In the event of damage or destruction which renders the residence uninhabitable or requires repairs in excess of Two Thousand Dollars ($2,000), Landlord shall have the option to terminate this lease, in its sole discretion, without any liability or obligation of Landlord to rebuild or repair. 10. HOLD HARMLESS: Tenant shall indemnify, defend (upon request by Landlord or Lessor), and hold harmless the Landlord and the Lessor, its elected officials, agents, officers, and employees and each of them from and against any and all losses, costs, expenses, claims, liabilities, actions, or damages, including but not limited to liability for: injuries to Tenant or Tenant's family members, guests, invitees, or other person or persons, or damage to property of Tenant's family members or other persons, or damage to the Premises, arising out of or in any way connected with the use or occupancy of the Premises by Tenant or Tenant's family members, guests, and invitees. Tenant shall not be responsible for any damage to the Premises by reservoir visitors. Lessor will provide only insurance as is deemed necessary to protect Lessor's interest in the Premises. 11. ENTRY: Landlord or Lessor or their agents, officials, officers or employees may enter the Premises in the company of the Tenant at reasonable times and upon reasonable notice for the purpose of making necessary or convenient repairs or for inspection of the Premises. In the event of an emergency, Landlord shall have access to Premises at any time when necessary to protect Lessor property where advance notice to Tenant of such access is not practical. 12. BREACH: Noncompliance with provisions of this Agreement shall constitute a material breach thereof and, in addition to any other remedies provided by law or this Agreement in the event of such noncompliance, Landlord or Lessor shall have the right to terminate this Agreement and any interest created herein, upon written notice, without liability to Tenant. 13. POSSESSORY INTEREST TAX: Pursuant to sections 107 et seq. of the Revenue and Taxation Code, this Lease Agreement may subject Tenant to the payment of a possessory interest tax. If such a possessory interest tax is levied against Tenant, Tenant shall pay any such taxes. 14. GENERAL PROVISIONS: The failure of Landlord or Tenant to insist in any instance on the strict keeping, observance, or performance of any covenant or agreement contained in the Agreement, or the exercise of any election contained in the Agreement shall not be construed as a waiver or relinquishment for the future keeping, observance, or performance of such covenant or agreement, but the same shall continue and remain in full force and effect. If any provision or condition contained in this Agreement shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such provision or condition to persons or circumstances other than those with respect to which it is invalid or unenforceable, shall not be affected thereby, and each and every other provision and condition of this Agreement shall be valid and enforceable to the fullest extent possible permitted by law. This Agreement and the rights and obligations of the parties set forth herein shall be governed by, construed, and interpreted in accordance with the laws of the State of California. The prevailing party in any action filed arising out of the terms of this Agreement or any alleged violation thereof shall be entitled to recover that party's reasonable attorneys' fees and costs incurred in such an action. 15. ADDRESSES: All notices, requests, and letters must be sent to: City of San Luis Obispo Utilities Department Utilities Director 879 Morro Street San Luis Obispo, Ca. 93401 Names of persons residing on Premises: /4/0 �Uk Vay�S 16. ENTIRE AGREEMENT: This Agreement including Exhibits constitutes the sole and entire agreement between the parties with respect to the subject matter hereof. This Agreement correctly sets forth the obligations of the parties hereto to each other as of the date of this Agreement. All agreements or representations respecting the subject matter of this Agreement not expressly set forth or referred to in this Agreement are null and void. 17. CHANGE OF TERMS: The terms and conditions of this agreement are subject to future change by Landlord after the expiration of the Lease period upon 30 -day written notice setting forth such change and delivered to Tenant. Any changes are subject to laws in existence at the time of the Notice of Change Of Terms. 18. DISCLOSURES: 18.1 MEGAN'S LAW NOTICE: Pursuant to Section 290.46 of the Penal Code, information about specified registered sex offenders is made available to the public via an Internet Web site maintained by the Department of Justice at www.meganslaw.ca.gov. Depending on an offender's criminal history, this information will include either the address at which the offender resides or the community of residence and ZIP Code in which he or she resides. 18.2 LEAD HAZARD DISCLOSURE: Housing built before 1978 may contain lead -based paint. Lead from paint, paint chips, and dust can pose health hazards if not managed properly. Lead exposure is especially harmful to young children and pregnant women. Before renting pre - 1978 housing, lessors must disclose the presence of known lead -based paint and/or lead -based paint hazards in the dwelling. Lessees must also receive a federally approved pamphlet on lead poisoning prevention. Tenant acknowledges that Landlord has provided Tenant with Lead Based Paint Disclosure Fork and EPA Pamphlet entitled "Protect Your Family From Lead in Your Home." 19. ATTORNEY'S FEES: If any legal action or proceedings be brought by either party of this Lease, the prevailing party shall be reimbursed for all reasonable attorney's fees and costs in addition to other damages awarded. IN WITNESS WHEREOF, the parties hereto set their hands the day and year opposite their signatures. LANDLORD: By:- Jan Marx, /Onunission Chair ATTEST: City Clerk TENANT: By: AS TO FORM: -?—C-- ( Date 7 i1 /' �6 Date 6,- 0--16 Date � 30 to Dietrick, City Attorney Date Exhibit "A" Public Utilities 879 Morro Street, San Luis Obispo, CA 93401 -2710 805.781.7215 slucity org To: David Hix, Acting Utilities Director From: Noah Evans, Water Supply Supervisor Date: June 22, 2016 Subject: Authorization to Allow Evans Family Members to Share Bedrooms at Whale Rock Residence. Background The lease agreement for the Whale Rock residence was approved by the Whale Rock Commission on May 18"', 2016. The agreement outlines the guidelines for a tenant including submitting an application. This memo is intended to act as my application to enter into the lease agreement on July 1, 2016 as stated in the lease agreement. Discussion The lease agreement states that no more than five people may inhabit the residence which has three bedrooms, and that no more than one person may live in each bedroom. I accept the rental guidelines as approved, but request the Utilities Directors approval for my two daughters to share a bedroom. I also request the Utilities Directors approval for my wife and I to share a bedroom. Recommendation Approve request for the City and Noah Evans to enter into the approved lease agreement while allowing Noah's two daughters to share a bedroom and allowing Noah and his wife, Megan, to share a bedroom. Dzlvitf Hix Acting Utilities Director U Date Yo ` R. IS 0 Public Utilities 879 Morro Street. San Luis Obispo, CA 93401 -2710 805.781.7215 slocity ary To: Whale Rock Commission From: Aaron Floyd, Deputy Director Water Date: June 22, 2016 Subject: Lease Agreement for Whale Rock Dam Keeper Residence Background During the May 18th Whale Rock Commission meeting a lease agreement for the Whale Rock Dam Keeper residence was deliberated and approved. The agreement outlines which staff positions have the ability to apply for the lease with the Whale Rock Supervisor being given first consideration. Housing the Whale Rock Supervisor onsite will allow for faster response to the Whale Rock Commission members operational needs as well as any potential requirements to safety issues. Discussion Noah Evans, the Whale Rock Reservoir Supervisor, expressed his desire to apply for residency at the site and scheduled a meeting with Utilities leadership to discuss the lease. On June 22nd acting Utilities Director Dave Hix, and Deputy Director of Water, Aaron Floyd, interviewed Noah regarding the lease of the Whale Rock residence. During the interview for the potential lease Noah's ability to respond to unplanned situations was affirmed as was his commitment to providing service to the Whale Rock Commission as required to ensure public safety and the consistent delivery of water. During the interview Noah discussed his desire to allow his two daughters to share a bedroom which is allowed under the lease agreement with the approval of the Utilities Director. Acting Utilities Director, Dave Hix, approved the request to allow two girls to share a bedroom. The approval is documented in a separate memo. Recommendation Staff recommends finalizing the lease of the Whale Rock dam keeper residence to Noah Evans and his immediate family utilizing the agreement amended and approved by the Whale Rock Commission on May 18th, 2016. Minutes (DRAFT) .'r Whale Rock Commission CALL TO ORDER A regular meeting of the Whale Rock Commission was called to order on Wednesday, May 18, 2016, at 2:00pm in the Council Hearing Room at 990 Palm Street, San Luis Obispo, California, by Commission Chair Marx. ROLL CALL Commission Members Present: Commission Members Dennis Elliott, Kathryn McQuaid, Katie Lichtig, Derek Johnson, Dane Mathis Staff Present: Noah Evans, Whale Rock Supervisor, Aaron Floyd, Deputy Director of Water, Carrie Mattingly, Utilities Director, Brigitte Elke, Utilities Business Manager, Michelle Bulow, Recording Secretary PUBLIC COMMENT Lionel Johnston of One Cool Earth spoke of the group's past involvement with previous Whale Rock Supervisor Bob Hamilton, having planted trees at Old Creek Road and on the slopes above the reservoir, at different high schools, and Cal Poly. Mr. Johnston expressed his desire to continue working with Whale Rock staff in the future and other government agencies and outside groups to provide a variety of local trees, bushes and volunteers to get them planted. MINUTES CONSENT ITEMS WHALE ROCK COMMISSION MINUTES OF MAY 7, 2015 ACTION: MOTION BY COMMISSIONER ELLIOTT, SECOND BY COMMISSIONER MCQUAID, CARRIED 4 -0 -1, to approve the Whale Rock Commission meeting minutes of May 7, 2015 (Commissioner Johnson abstained). FY 2014 -15 AUDITED FINANCIAL STATEMENT ACTION: MOTION BY COMMISSIONER LICHTIG, SECOND BY COMMISSIONER JOHNSON, CARRIED 5 -0, to receive and file the FY 2014 -15 Audited Financial Statement. ELECTIONS ELECTION OF OFFICERS — ANNUAL ELECTION OF THE WHALE ROCK COMMISSION CHAIR, VICE CHAIR AND SECRETARY ACTION: MOTION BY CHAIR MARX, SECOND BY COMMISSIONER ELLIOTT, CARRIED 5 -0, that Kathryn McQuaid is appointed as Chair, Dennis Elliott is appointed as Vice - Chair, and Katie Lichtig is appointed as Secretary. PRESENTATIONS 1. Staff Introductions Introduction of Utilities Engineer Miguel Barcenas, Control Systems Administrator Jason Dornish, and Control Systems Technician Haley Parker. Whale Rock Supervisor Evans discussed the Control System team's role in the telemetry upgrade project that will go out to bid later this summer. 2. Capital Improvement Projects Update Whale Rock Supervisor Evans presented an update on completed and scheduled capital improvement projects. The 30" valve replacement was completed over the last year with pump replacement to begin in June. The microwave radio project was completed last fall and the dam keeper's residence remodel is on schedule to be completed this summer. Evans expressed gratitude to Chair McQuaid and the CMC team for providing asbestos abatement in the residence. 3. Fishery Management Whale Rock Supervisor Evans provided an overview of the project to better understand native and non - native fish species at the reservoir; a program coordinated between City Biologist Otte and the Watershed Steward Program to. Fish traps were deployed during two periods, trapping Blue Gill, Bullheads and Sacramento Suckers, which were illegally introduced in the 80s. City Biologist Otte and staff, working to understand native Steelhead life cycle and habitat, have been working with the University of WA staff on Steelhead populations. 4. Update to Urban Water Management Plan Deputy Director Floyd discussed the update to the Urban Water Management Plan, which is required (by the State ?) every 5 year. The plan speaks to water sources, the recycled water program, demand management measures and the Water Shortage Contingency Plan. The draft document has been made accessible to the public and various groups on the City website.. Staff will return to the Planning Commission with a final version on 5/25 and to City Council on 6/14. Comments on the draft plan are welcome. BUSINESS ITEMS 1. 2016 -17 Whale Rock Reservoir Budget Staff presented the fund analysis and the 2016 -17 FY Budget, providing an update on the current fiscal year, comparing approved budget and status per the current period. Expenditures are tracking low at 63% because of low pumping charges and less energy use. Commissioner Marx questioned if Dairy Creek paid CIVIC for water; Utilities Director Mattingly said the by -laws will be checked to see if each agency has authority to use allocation in any way they choose. The Commission will be updated on this with the next monthly report. ACTION: MOTION BY COMMISSIONER ELLIOT SECOND BY COMMISSIONER MARX, CARRIED 5 -0, to approve the 2016 -17 Whale Rock Budget. 2. Whale Rock Dam Keeper Residence Rental Agreement Staff asked the Commission to approve the rental agreement for the Whale Rock Dam Keeper residence that was renovated during 2015 -16. Clarification of rental formula and base rent determination was provided. ACTION: MOTION BY COMMISSIONER LICHTIG, SECOND BY COMMISSIONER MARX, CARRIED 5 -0, to approve the lease agreement for the Whale Rock Dam Keeper residence contingent on the following changes: A management employee as lessee will receive a 66% rental discount; a non - management employee as lessee will receive 50% rental discount; and the City of San Luis Obispo will act as agent and landlord on behalf of the Commission. Meeting adjourned at 3:15pm.