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HomeMy WebLinkAboutB & T Farms Ltd; 1991-12-04;5 . e a t I\ < CITY OF CARLSBAD Flat Rate Lease (Veterans Memorial Park) H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD (Veterans Memorial Park) Revised 7, t c e II, . LEASE OUTLINE SECTION PARAGRAPH p& Section 1 USES 1.01 Premises 1.02 Deletion of Portion of Leased Premises 1.03 Uses 1.04 Related Council Action 1.05 Quiet Possession 1.06 Easements and Reservations Section 2 TERM 2.01 Commencement 2.02 Holdover 2.03 Quitclaim and Surrender of LESSEE'S Interest 2.04 Termination of Lease Section 3 RENT 3.01 Time and Place of Payment 3.02 Rent 3.03 Delinquent Rent 3.04 Inspection of Records Section 4 ASSIGNMENT 4.01 Time is of the Essence: Provisions Binding 4.02 Assignment and Subletting 4.03 Encumbrance 4.04 Defaults and Remedies 4.05 Eminent Domain on Successors Section 5 INSURANCE RISKS/SECURITY 5.01 Indemnity 5.02 Insurance 5.03 Waste, Damage or Destruction Section 6 IMPROVEMENTS/ALTERATIONS/REPAIRS 6.01 Acceptance of Premises 6.02 Entry and Inspection and Channel Maintenance 6.03 Maintenance 6.04 Improvements/Alterations 6.05 Utilities 6.06 Liens 6.07 Taxes 6.08 Signs 6.09 Ownership of Improvements and Personal Property H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD (Veterans Memorial Park) Revised 7, 1 c 0 0 SECTION PARAGRAPH PAG Section 7 GENERAL PROVISIONS 7.01 Notices 2 7.02 Compliance with Law 2 7.03 CITY approval 2 7.04 Nondiscrimination 2 7.05 Partial Invalidity 2 7.06 Legal Fees 2 7.07 Number and Gender 2 7.08 Captions 2 7.09 Entire Understanding 2 7.10 Agricultural Provisions 2 7.11 Agricultural Operations 2 7.12 Noxious Weeds, Pests 1 c 7.13 Control of Livestock 7.14 Employee Housing Prohibited Section 8 WARRANTY 8.01 Warranty Section 9 SIGNATURES 9.01 Signature Page Section 10 EXHIBITS Exhibit A (Veterans Memorial Park) Revised 7, H:\LIBRARY\UM\UPDATA\AGG\AGG91009-AD t. 0 e i \ CITY OF CARLSBAD FLAT RATE LEASE THIS LEASE AGREEMENT is executed between THE CITY OF CARLSBAD, municipal corporation, hereinafter called tvCITYtt, and B & T Farms Co. Ltd. ,hereinafter called tvLESSEEtt. SECTION 1: USES 1.01 Premises. CITY hereby leases to LESSEE and LESS leases from CITY all of that certain real proper situated in the City of Carlsbad, County of S Diego, State of California, described in Exhik "Att attached hereto and by this reference made pe of this agreement. Said real property hereinafter called the ttpremisestv or ttleas premisestt. 1.02 Deletion of Portion of Leased Premises. In t event any portion of the leased premises is r used by LESSEE for its highest and best use, th CITY may, at CITY'S option, delete that portion the leased premises not used by LESSEE from Secti 1.01, Premises, hereof. Provided, however, Secti 3, RENT, hereof, shall be adjusted downward by t City Manager on an equitable basis. 1.03 Uses. It is expressly agreed that the premise consisting of approximately 90 acres, is leased LESSEE solely and exclusively for the purposes growing crops and for such other related incidental purposes as may be first approved writing by the City Manager and for no 0th purpose whatsoever. LESSEE covenants and agrees to use the premises f the above specified purposes and to diligent pursue said purposes throughout the term herec Failure to continuously use the premises for sa purposes, or the use thereof for purposes r expressly authorized herein, shall be grounds f termination by CITY. 1.04 Related Council Actions. By the granting of th lease, neither CITY nor the Council of CITY obligating itself to any other governmental ager board, commission, or agency with regard to a other discretionary action relating to developme H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 1 (Veterans Memorial Park) Revised 7/1: F e 0 or operation of the premises. Discretionary acti includes, but is not limited to rezoninc variances, environmental clearances or any otk governmental agency approvals which may be requir for the development and operation of the leas premises. 1.05 Quiet Possession. LESSEE, paying the rent z performing the covenants and agreements herei shall at all times during the term peaceably 2 quietly have, hold and enjoy the premises. If CI for any reason cannot deliver possession of t premises to LESSEE at the commencement of the ter or if during the lease term LESSEE is temporari dispossessed through action or claim of a tit superior to CITY'S, then and in either of SL events, this lease shall not be voidable nor shz CITY be liable to LESSEE for any loss or dame resulting therefrom, but there shall be determir and stated in writing by the City Manager of CIT'I proportionate reduction of the minimum or flat rz rent for the period or periods during which LESS is prevented from having the quiet possession all or a portion of the premises. 1.06 Easements and Reservations. a. CITY hereby reserves all rights, title 2 interest in any and all subsurface natur gas, oil, minerals and water on or within t premises. b. CITY reserves the right to grant and 1: easements or to establish and use rights-c way over, under, along and across the leas premises for utilities, thoroughfares, access as it deems advisable for the pub1 good. c. CITY has the right to enter the premises f the purpose of making repairs to or developi municipal resources and services. However, CITY shall not unreasonably substantially interfere with LESSEE'S use of t premises and will reimburse LESSEE for damages, any, to the permanent improvements, includi crops, located on the leased premises resulti from CITY exercising the rights reserved in tk section. Such reimbursement may include reduction in the rent proportionate to the amoL of damage as determined by CITY. CITY will pay t H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 2 (Veterans Memorial Park) Revised 7/1 r e 0 costs of maintenance and repair of all CI installations made pursuant to these reserv rights. SECTION 2: TERM 2.01 Commencement. Regardless of the date of executi by the City Manager, the term of this agreeme shall be three (3) years commencing on July 1, 19 and terminating June 30, 1994. 2.02 Holdover. Any holding over by LESSEE aft expiration or termination shall not be consider as a renewal or extension of this lease. 1 occupancy of the premises after the expiration termination of this agreement constitutes a mont to-month tenancy, and all other terms a conditions of this agreement shall continue in fL force and effect; provided, however, CITY sha have the right to apply a reasonable increase rent to bring the rent to fair market value and terminate the holdover tenancy at will. 2.03 Ouitclaim and Surrender of LESSEE'S Interest. termination of this lease for any reason, LESS shall execute, acknowledge and deliver to CIl within five (5) days after written CITY demand, valid and recordable quitclaim deed covering all the premises. The premises shall be delivered fr and clear of all liens and encumbrances, and in decent, safe and sanitary condition. At the expiration or earlier termination of tk lease, LESSEE shall surrender the premises to CI free and clear of all liens and encumbrance except those liens and encumbrances which exist on the date of execution hereof, and in a decer safe and sanitary condition. In the case termination of this lease by CITY prior to the e of the specified lease term, any liens a encumbrances must be approved in writing by t City Manager. If LESSEE fails or refuses to deliver the requir deed, the CITY may prepare and record a noti reciting LESSEE'S failure to execute this lea provision and the notice will be conclusi evidence of the termination of this lease and a LESSEE'S rights to the premises. 2.04 Termination of Lease. Either party may termina this lease at any time upon 120 days notice to t H:\LlBRARY\UM\WPDATA\AGG\AGG91009.AD 3 (Veterans Memorial Park) Revised 7/1 I 0 a other. If at expiration of the 120 day time peri LESSEE still has crops growing, LESSEE shall permitted to continue raising and tending the crc and shall be permitted to harvest the crops. 'I right to harvest the crops shall not extend t term of the lease except that the provisions this lease, other than the extension provisic shall apply. The right to raise, tend and harw shall apply only to crops planted before notice terminate has been given. SECTION 3: RENT 3.01 Time and Place of Payment. Rent is due quarter in advance on or before the first day of each r quarter. Checks should be made payable to the Ci of Carlsbad and mailed or delivered to t Financial Management Director, 1200 Carlsk Village Drive, Carlsbad, California 92008. The place and time of payment may be changed at E time by CITY upon thirty (30) days written noti to LESSEE. Mailed rental payments shall be deen paid upon the date such payment is postmarked the postal authorities, If postmarks a illegible, the payment shall be deemed paid ur actual receipt by the Financial Manageme Director. LESSEE assumes all risk of loss a responsibility for late payment charges if paymer are made by mail. 3.02 Rent. a. Rent Amount. The initial rent is $6,750 F quarter. Said rent is subject to adjustmer based on increases, if any, in the Consun Price Index (CPI) and in the fair market val of the leased premises as hereinaft provided. b. (1) CPI Index Adjustments. At the end of t first year following the effective da of the lease and at the end of every ye thereafter during the lease term, t rent shall be adjusted to refle increases in the Consumer Price Ind (CPI). The index used will be the CPI for "A Urban Consumers" for Los Angeles/Lc Beach/Anaheim, California. If this ind is no longer published, the index f H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 4 (Veterans Memorial Park) Revised 7/1; , 0 0 adjustment will be the U.S. Department Labor's "Comprehensive Official Inds most comparable to the aforesaid inde If a rental adjustment is calculat using an index from a different base YE than 1967, which equaled a base figure 100 for the CPI, the base figure us will first be converted under a formx supplied by the Bureau of Lak Statistics or its successor. If the Department of Labor indices are longer published, another index general recognized as authoritative will substituted by agreement of CITY E LESSEE. If the parties cannot agi within sixty (60) days after demand either party, a substitute index will selected by the Chief Officer of t Regional Office of the Bureau of La1 successc Statistics notwithstanding continued ref ere1 herein to IICPI1' in any event. Regardless of the index publicat: dates, the effective date of the rt adjustment is as specified in tl Subsection b. (1) CPI Index Adjustmenl Until the rent adjustment can reasonably determined by the in( method, LESSEE shall continue to m; payments at the existing rental raf When the adjustment is determined, 1 balance of rents due at the adjusted ri will be paid to CITY within thirty (: days. In no event shall the adjus. rent as established by the Consumer Pr Index be less than the rent in existel immediately prior to the adjustment da' (2) Index Adjustment Computation. The ri for each rental period following adjustment, until the next adjustment other rental determination as provi, herein, shall be determined prior to date of adjustment by multiplying rent which is effective immediately pr to said adjustment by the I'adjustm figure" established by the met outlined in the following paragrap provided, however, increases in the r shall not exceed six percent (6%) or its H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 5 (Veterans Memorial Park) Revised 7/ P e * year nonaccumulative. The I1adjustment figure" shall established by dividing the llcurrE index1! by the "base figure" , both defined herein: The "base figure" for the first SL adjustment shall be a three-month aver; of index figures published by said ( using the fourth, fifth and sixth fi months preceding the effective date this agreement. To illustrate, if the lease began in Mi the CPI figures for November (si1 month), December (fifth month) i January (fourth month) preceding 1 would be averaged to establish the bi figure (Example 1). The "current index1! shall be a thrt month average of index figures publisl by said CPI. The three months to be ut to establish said average shall be 1 fourth, fifth and sixth full monl preceding the adjustment date. The "base figure" for each success adjustment shall be the ltcurrent indc figure used in the last preced adjustment period (Example 2). Example 1 Current Index 114 = 1.04 (Adjustment Figu Base Figure 110 Effective Rent x 1.10 = Adjusted Rent Example 2 Current Index 120 Base Figure 114 Effective Rent x 1.05 = Adjusted Rent The adjustment figure is then multiplied by monthly rent from the preceding adjustment per to determine the new rent. Using the forego examples, if the rent is now $1,000 per mon after the first adjustment it will be $1,040 month ($1,000 x 1.04). In the second adjustment = 1.05 (Adjustment Figu H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 6 (Veterans Memorial Park) Revised 7/ 0 a will be $1,092 per month ($1,040 x 1.05). 3.03 Delinquent Rent. If LESSEE fails to pay the re when due, LESSEE will pay in addition to t unpaid rents, five percent (5%) of the delinquc rent. If the rent is still unpaid at the end fifteen (15) days, LESSEE shall pay an additior five percent (5%) [being a total of ten perm (lo%)] which is hereby mutually agreed by t parties to be appropriate to compensate CITY f loss resulting from rental delinquency, includi lost interest, opportunities, legal costs, and t cost of servicing the delinquent account. In the event that the CITY audit, if applicabl discloses that the rent for the audited period k: been underpaid in excess of five percent (5%) the total required rent, then LESSEE shall pay CI the cost of the audit plus ten percent (10%) -g year on the amount by which said rent was underpa in addition to the unpaid rents as shown to be d CITY as compensation to CITY for administrati costs and loss of interest as previously descrik herein. LESSEE agrees to pay such amount a further agrees that the specific late charg represent a fair and reasonable estimate of t costs that CITY will incur from LESSEE'S la payment. Acceptance of late charges and a portion of the late payment by CITY shall in event constitute a waiver of LESSEE default wi respect to late payment, nor prevent CITY fr exercising any of the other rights and remedi granted in this lease. 3.04 Inspection of Records. LESSEE agrees to make a and all records and accounts available to CITY f inspection at all reasonable times, so that CI can determine LESSEE'S compliance with this leas These records and accounts will be made availab by LESSEE at the leased premises and will complete and accurate showing all income a receipts from use of the premises. LESSEE failure to keep and maintain such records and ma them available for inspection by CITY is a brea of this lease and cause for termination. LESS shall maintain all such records and accounts for minimum period of five (5) years. SECTION 4: ASSIGNMENT 4.01 Time is of the Essence: Provisions Bindinq Successors. Time is of the essence for all of t (Veterans Memorial Park) Revised 7/12 H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 7 0 0 terms, covenants and conditions of this lease ar except as otherwise provided herein, all of t terms, covenants and conditions of this lease she appfy to, benefit and bind the successors E assigns of the respective parties, jointly E individually. 4.02 Assiqnment and Sublettinq. LESSEE shall not assj this lease, or any interest therein, and shall I sublet the premises or any part thereof, or E right or privilege appurtenant thereto, or sufj any other person, except employees, agents E guests of LESSEE, to use or occupy the premises any part thereof, without the prior written cons6 of the City Manager in each instance. Such cons( by the City Manager shall not be unreasonal withheld. A consent to assignment, subletti] occupation or use by any other person shall not deemed to be a consent to any subsequE assignment, subletting, occupation or use another person. Any such assignment or sublettj without such consent shall be void, and shall, the option of CITY, terminate this lease. Tl lease shall not, nor shall any interest therein, assignable, as to the interest of LESSEE, operation of law, without the written consent the City Manager. "Assignment", for the purposes of this clause shz include any transfer of any ownership interest this lease by LESSEE or by any partnei principals, or stockholders, as the case may I: from the original LESSEE, its general partners principals. Approval of any assignment or sublease shall conditioned upon the assignee or sublessee agree. in writing that it will assume the rights i obligations thereby assigned or subleased and tl it will keep and perform all covenants, conditic and provisions of this agreement which E applicable to the rights acquired. 4.03 Encumbrance. Subject to prior consent by CI1 which shall not be unreasonably withheld, LES! may encumber this lease, its leasehold estate i its improvements thereon by deed of tru: mortgage, chattel mortgage or other secur: instrument to assure the payment of a promissc note or notes of LESSEE, upon the express condit. that the net proceeds of such loan or loans devoted exclusively to the purpose of develop. H: \L I BRARY\UM\WPDATA\AGG\AGG91009 .AD 8 (Veterans Memorial Park) Revised 7/' 0 e and/or improving the leased premises. However, reasonable portion of the loan proceeds may disbursed for payment of incidental costs construction, including but not limited to t following: off-site improvements for service of t premises; on-site improvements; escrow charge premiums for hazard insurance, or other insurar or bonds required by CITY; title insurar premiums; reasonable loan costs such as discount interest and commissions; and architectura engineering and attorney's fees and such otk: normal expenses incidental to such construction. Any subsequent encumbrances on the premises or any permanent improvements thereon, must first he the approval in writing of City Manager. SL subsequent encumbrances shall also be for t exclusive purpose of development of the premisE Provided, however, after the premises are ful developed in accordance with said Development PI to the satisfaction of the City Manager, procec from refinancing or from such subsequE encumbrances may be used to reduce LESSEE'S equj so long as there is also substantial benefit to t CITY therefrom. LESSEE understands 2 specifically agrees that the City Manager shz have the sole and absolute discretion to approve disapprove any such proposed subsequent encumbrar including, but not limited to, amending the le; to provide then current rents and provisions. In the event any such approved deed of trust mortgage or other security-type instrument shoi at any time be in default and be foreclosed, transferred in lieu of foreclosure, the CITY w: accept the approved mortgagee or benef icii thereof as its new tenant under this lease with i the rights, privileges and duties granted i imposed in this lease. Any default, foreclosure or sale pursuant to si deed of trust, mortgage or other secur: instrument, shall be invalid with respect to tl lease without prior notice thereof to CITY. U] prior written approval by CITY, said mortgagee beneficiary may assign this lease to its nomint if nominee is a reputable, qualified i financially responsible person in the opinion CITY. Any deed of trust, mortgage or otl security instrument shall be subject to all of . terms, covenants and conditions of this lease i shall not be deemed to amend or alter any of . H:\LIBRARY\UM\UPDATA\AGG\AGG91009.AD 9 (Veterans Memorial Park) Revised 7/' 0 0 terms, covenants or condition hereof. 4.04 Defaults and Remedies. a. Default. In the event that: (1) LESSEE shall default in the performance of a covenant or condition required by this lea to be performed by LESSEE and shall fa to cure said default within thirty (30) da following written notice thereof from CITY; if any such default is not curable witk thirty (30) days, shall fail to commence cure the default (s) within said thirty-6 period and diligently pursue such cure completion; or (2) LESSEE shall voluntarily file or hz involuntarily filed against it any petitj under any bankruptcy or insolvency act or 12 or (3) LESSEE shall be adjudicated a bankrupt; or (4) LESSEE shall make a general assignment for t benefit of creditors; then CITY may, at its option, without furtl notice or demand upon LESSEE or upon any per5 claiming rights through LESSEE, immediate terminate this lease and all rights of LESSEE i of all persons claiming rights through LESSEE the premises or to possession thereof: and CITY I enter and take possession of the premisc Provided, however, in the event that any defai described in Section 4.04a.(l), Default 2 Remedies, hereof is not curable within thirty (: days after notice to LESSEE, CITY shall I terminate this lease pursuant to the default LESSEE immediately commences to cure the defai and diligently pursues such cure to completion. In the event that there is a deed of trust mortgage on the leasehold interest, CITY shall g. the mortgagee or beneficiary written notice of ' default (s) complained of, and the same mortgagee beneficiary shall have thirty (30) days from SI notice to cure the default(s) or, if any si default is not curable within thirty (30) days, commence to cure the default(s) and diligen. pursue such cure to completion. The thirty-c period may be extended during such time H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 10 (Veterans Memorial Park) Revised 7/ e mortgagee or beneficiary pursues said cure wi reasonable diligence. b. Remedies. If the mortgagee or beneficiary shall required to exercise its right to cure sa default (s) through litigation or throc foreclosure, then CITY shall have the option of t following courses of action in order that t default(s) may be expeditiously correction: (1) CITY may correct said default(s) and chav the costs thereof to the account of LESSE which charge shall be due and payable on t date that the rent is next due aft presentation by CITY to LESSEE and mortgac or beneficiary of a statement of said costs (2) CITY may correct said default(s) and pay t costs thereof from the proceeds of 2 insurance fund held by CITY, CITY and LESS or by CITY and mortgagee or beneficiary, CITY may use the funds of any faithi performance or cash bond on deposit with CI’I or CITY may call on the bonding agent correct the default(s) or to pay the costs correction performed by or at the direction CITY. CITY may terminate this lease as to the rig1 of LESSEE by assuming or causing t assumption of liability for any trust deed mortgage. LESSEE agrees to assume and pay E and all penalties or bonuses required by t beneficiaries, trustees or mortgagees as condition for early payoff of the relat obligations by CITY. CITY may, as alternative, substitute for the terminal LESSEE a new LESSEE reasonably satisfactory the mortgagee or beneficiary. Any reasonal: costs incurred by CITY in releasing to a I tenant shall be the responsibility of 1 terminated LESSEE and LESSEE hereby agrees reimburse CITY for any such costs. (3) Should the default(s) be noncurable by LESSEE, tl any lender holding a beneficial interest in 1 leasehold, whose qualifications as an assignee h? been approved by CITY, shall have the absoli right to substitute itself to the estate of LES: hereunder and to commence performance of tl lease. If such mortgagee or beneficiary shall g: notice in writing of its election to so substiti H : \L I BRARY \UM\WPDATA\AGG\AGG91009. AD 11 (Veterans Memorial Park) Revised 7/’ 0 0 itself within the thirty-day period after receivj written notice by CITY of the default, and t default, if curable, is cured by such mortgagee beneficiary, then this lease shall not termin; pursuant to the default. In that event, C1 expressly consents to the substitution E authorizes the mortgagee or beneficiary to perfc under this lease with all the rights, privilec and obligations of LESSEE, subject to cure of t default, if possible, by mortgagee or beneficial LESSEE expressly agrees to assign all its interc in and to its leasehold estate to mortgagee beneficiary in that event. c. Abandonment bv LESSEE. Even though LESSEE l breached the lease and abandoned the property, tl lease shall continue in effect for so long as C: does not terminate this lease, and CITY may enfoi all its rights and remedies hereunder, includ: but not limited to the right to recover the rent it becomes due, plus damages. d. Waiver. Any CITY waiver of a default is not waiver of any other default. Any waiver of default must be in writing and be executed by . City Manager in order to constitute a valid q binding waiver. CITY delay or failure to exerc a remedy or right is not a waiver of that or < other remedy or right under this lease. The use one remedy or right for any default does not wa the use of another remedy or right for the s< default or for another or later default. CIT' acceptance of any rents is not a waiver of , default preceding the rent payment. CITY LESSEE specifically agree that the prope constituting the premises is CITY-owned and held trust for the benefit of the citizens of the C of San Diego and that any failure by the C Manager or CITY staff to discover a default sh not result in an equitable estoppel, but CITY sh at all times, subject to the applicable statute limitations, have the legal right to require cure of any default when and as such defaults discovered or when as the City Council directs City Manager to take action or require the cure any default after such default is brought to attention of the City Council by the City Mana or by any concerned citizen. 4.05 Eminent Domain. If all or part of the premises taken through condemnation proceedings or un threat of condemnation by any public authority w H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 12 (Veterans Memorial Park) Revised 7/ 0 e the power of eminent domain, the interests of CI and LESSEE (or beneficiary or mortgagee) will be follows: a. In the event the entire premises are taken, tk lease shall terminate on the date of the transi of title or possession to the condemning authorit whichever first occurs. b. In the event of a partial taking, if, in t opinion of CITY, the remaining part of the premi: is unsuitable for the lease operation, this le; shall terminate on the date of the transfer title or possession to the condemning authorit whichever first occurs. c. In the event of a partial taking, if, in t opinion of CITY, the remainder of the premises suitable for continued lease operation, this lei shall terminate in regard to the portion taken the date of the transfer of title or possession the condemning authority, whichever first OCCUI but shall continue for the portion not taken. 7 minimum rent shall be equitably reduced to reflc the portion of the premises taken. d. Award. All monies awarded in any such taking shi belong to CITY, whether such taking results diminution in value of the leasehold or the fee both: provided, however, LESSEE shall be entit: to any award attributable to the taking of damages to LESSEE I s then remaining leasehc interest in installations or improvements LESSEE, including crops. CITY shall have liability to LESSEE for any award not provided the condemning authority. e. Transfer. CITY has the right to transfer CIT' interests n the premises in lieu of condemnation any authority entitled to exercise the power eminent domain. If a transfer occurs, LESSEE sh; retain whatever interest it may have in the fi market value of any improvements placed by it the premises in accordance with this lease so 1( as such rights do not unreasonably or substantia. interfere with LESSEE'S operations. f. No Inverse Condemnation. The exercise of any C' right under this lease shall not be interpreted an exercise of the power of eminent domain ( shall not impose any liability upon CITY inverse condemnation. H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 13 (Veterans Memorial Park) Revised 7/ * I) SECTION 5: INSURANCE RISKS/SECURITY 5.01 Indemnity. LESSEE shall at all times relie7 indemnify, protect, and save CITY and any and i of its boards, officers, agents and employc harmless from any and all claims and demanc actions, proceedings, losses, liens, cos' judgments, civil fines, and penalties of any nati whatsoever in regard to or resulting from the 1 of the premises, including but not limited expenses incurred in legal actions, death, inju: or damage that may be caused directly or indirec' by: a. any unsafe or defective condition in or on ' premises of any nature whatsoever which may ex by reason of any act, omission, neglect, or any 1 or occupation of the premises; b. any operation, use or occupation conducted on premises : c. any act, omission, or negligence on the part LESSEE, its employees, agents, sublesse invitees, licensees; or d. any failure by LESSEE to comply or sec compliance with any of the lease terms conditions. 5.02 Insurance. LESSEE shall take out and maintain all times during the term of this lease following insurance at its sole expense: a. Public liability - and Property Damaqe Insurance the amount of not less than ONE MILLION DOLL ($1,000,000) Combined Single Limit Liability w T an occurrence claims form, if available. policy shall cover all injury or damage, includ death, suffered by any party or parties from a or failures to act by CITY or LESSEE or authorized representatives of CITY or LESSEE on in connection with the use or operation of premises. b. Fire, Extended Coveraqe, and Vandalism Insura policy on all insurable property on the premises an amount to cover 100 percent of the replacer cost. Any proceeds from a loss shall be paya jointly to CITY and LESSEE. The proceeds shall placed in a trust fund to be reinvested rebuilding or repairing the damaged property. H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 14 (Veterans Memorial Park) Revised 71 0 0 there is a mortgage or trust deed on the leasehc in accordance with Section 4.03, Encumbrani hereof, the proceeds may be paid to the appro mortgagee or beneficiary so long as adequl provision reasonably satisfactory to CITY has bc made in each case for the use of all proceeds repair and restoration of damaged or destro: improvements on the premises. c. Condition. All insurance policies will name C as an additional insured, protect CITY against , legal costs in defending claims, and will terminate without sixty (60) days prior writ, notice to CITY. All insurance companies must satisfactory to CITY and licensed to do business California. All policies will be in effect on before the first day of the lease, except llcou of construction fire insurance" shall be in fo on commencement of all authorized construction the premises, and full applicable fire insura coverage shall be effective upon completion of e insurable improvement. A copy of the insura policy will remain on file with CITY during entire term of the lease. At least thirty ( days prior to the expiration of each policy, LES shall furnish a certificate(s) showing that a or extended policy has been obtained which me the terms of this lease. d. Modification. CITY, at its discretion, may requ the revision of amounts and coverages at any t during the term by giving LESSEE sixty (60) d prior written notice. CITY'S requirements shall designed to assure protection from and against kind and extent of risk existing on the premis LESSEE also agrees to obtain any additio insurance required by CITY for new improvements, order to meet the requirements of this lease. e. Accident Reports. LESSEE shall report to CITY accident causing more than TEN THOUSAND DOLL ($10,000) worth of property damage or any seri injury to persons on the premises. This rep shall contain the names and addresses of parties involved, a statement of the circumstanc the date and hour, the names and addresses of witnesses and other pertinent information. f. Failure to Comply. If LESSEE fails or refuses take out and maintain the required insurance, fails to provide the proof of coverage, CITY the right to obtain the insurance. LESSEE st H:\LIBRARY\UM\UPDATA\AGG\AGG91009.AD 15 (Veterans Memorial Park) Revised 7, 0 0 reimburse CITY for the premiums paid with intert at the maximum allowable legal rate then in effc in California. CITY shall give notice of 1 payment of premiums within thirty (30) days payment stating the amount paid, names of 1 reimbursement and interest shall be paid by LES! on the first (1st) day of the month following * notice of payment by CITY. Notwithstanding the preceding provisions of tl Subsection f., if LESSEE fails or refuses to t( out or maintain insurance as required in tl lease, or fails to provide the proof of insurant CITY has the right to declare this lease in defal without further notice to LESSEE and CITY shall entitled to exercise all legal remedies in ' event of such default. insurer(s) and rate of interest. Si 5.03 Waste, Damaqe or Destruction. LESSEE agrees give notice to CITY of any fire or other dam that may occur on the leased premises within (10) days of such fire or damage. LESSEE agr not to commit or suffer to be committed any wa or injury or any public or private nuisance, keep the premises clean and clear of refuse obstructions, and to dispose of all garbage, tra and rubbish in a manner satisfactory to CITY. the leased premises shall be damaged by any ca which puts the premises into a condition which not decent, safe, healthy and sanitary, LES agrees to make or cause to be made full repair said damage and to restore the premises to condition which existed prior to said damage; at CITY'S option, LESSEE agrees to clear and rem from the leased premises all debris resulting f said damage and rebuild the premises in accorda with plans and specifications previously submit to CITY and approved in writing in order to rep1 in kind and scope the operation which existed pr to such damage, using for either purpose insurance proceeds as set forth in Section 5. Insurance, hereof. LESSEE agrees that preliminary steps tow performing repairs, restoration, or replacement the premises shall be commenced by LESSEE wit thirty (30) days, and the required repai restoration, or replacement shall be comple within a reasonable time thereafter. CITY determine an equitable deduction in the mini annual rent requirement for such period or peri H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 16 (Veterans Memorial Park) Revised 71 0 0 ? that said premises are untenantable by reason such damage. SECTION 6: IMPROVEMENTS/ALTERATIONS/REPAIRS 6.01 Acceptance of Premises. By signing this lea: LESSEE represents and warrants that it 1 independently inspected the premises and made i tests, investigations, and observations necessi to satisfy itself of the condition of the premia LESSEE agrees it is relying solely on SI independent inspection, tests, investigations, i observations in making this lease. LESSEE furtl acknowledges that the premises are in the condit called for by this lease, that CITY has perfor: all work with respect to the premises, and t: LESSEE does not hold CITY responsible for defects in the premises. 6.02 Entry and Inspection and Channel Maintenance. C reserves and shall always have the right to en said premises for the purpose of viewing ascertaining the condition of the same, or protect its interests in the premises, or inspect the operations conducted thereon. In event that such entry or inspection by C discloses that said premises are not in a dece safe, healthy, and sanitary condition, CITY sh have the right, after ten (10) days written not to LESSEE, to have any necessary maintenance w done at the expense of LESSEE, and LESSEE her agrees to pay promptly any and all costs incur by CITY in having such necessary maintenance w done, in order to keep said premises in a dece safe, healthy, and sanitary condition. Further, at any time CITY determines that said premises not in a decent, safe, healthy, and sanit condition, CITY may its sole option, with additional notice, require LESSEE to file with C a faithful performance bond to assure pro correction of any condition which is not dece safe, healthy and sanitary. Said bond shall be an amount adequate in the opinion of the CITY correct the said unsatisfactory condition. LES shall pay the cost of said bond. The rig reserved in this section shall not create obligations on CITY or increase obligati elsewhere in this lease imposed on CITY. In addition to the above, CITY or any contractor subcontractor representing CITY shall have right to enter the premises for the purpose H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 17 (Veterans Memorial Park) Revised 71 0 0 r conducting maintenance operations in the Ac Hedionda Creek. Such maintenance operations, wh are for flood control purposes, involve . excavation of excess sand from the channe removing excess material from the premises, shap the channel banks and, if deemed necessary by CI' constructing sedimentation and/or catch basins the channels. All such maintenance work shall in accordance with plans and specificatit approved by CITY and shall be accomplished ir manner so as to minimize interference with LESSE operation of the leasehold. Proceeds from the s of any excess sand shall belong solely to CI' Anything to the contrary herein notwithstandi CITY shall not be obligated to provide any chan maintenance whatsoever and LESSEE agrees to h CITY harmless and indemnify CITY for any dama resulting from failure to maintain the channe Furthermore, LESSEE agrees that the CITY maintain the Agua Hedionda Creek channel up ti maximum width of 600 feet without any reduction rent payable by LESSEE to CITY. Provided, howev if productive farm land is taken in connection w channel maintenance, the rent shall be adjusted the City Manager to equitably reflect the value the property taken. 6.03 Maintenance. Except as hereinafter provid LESSEE agrees to assume full responsibility cost for the operation and maintenance of premises throughout the term. LESSEE will perf all such repairs and replacements necessary maintain and preserve the premises in a dece safe, healthy and sanitary condition satisfact to CITY and in compliance with all applicable la Appropriate codes and standards of CITY, state federal agencies shall be observed in maintenance, repairs and replacements on premises. 6.04 Improvements/Alterations. No improvemen structures, or installations shall be construc on the premises, and the premises may not altered by LESSEE without prior written approval. the City Manager. Further, LESSEE agrees t major structural or architectural des alterations to approved improvements, structur or installations may not be made on the premi without prior written approval by the City Mana and that such approval shall not be unreasona withheld. This provision shall not relieve LES of any obligation under this lease to maintain H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 18 (Veterans Memorial Park) Revised 7, 0 e e premises in a decent, safe, healthy, and sanitz condition, including structural repair i restoration of damaged or worn improvements. C: shall not be obligated by this lease to make assume any expense for any improvements alterations. 6.05 Utilities. LESSEE agrees to order, obtain, and ] for all utilities and service and installat charges in connection with the development l operation of the leased premises. 6.06 Liens. LESSEE shall at all times save CITY f and harmless and indemnify CITY against all cla for labor and materials in connection w operations, improvements, alterations, or repa on or to the premises and the costs of defend against such claims, including reasona attorney's fees. If improvements, alterations, or repairs are m to the premises by LESSEE or by any party ot than CITY, and a lien or notice of lien is fil LESSEE shall within five (5) days of such fil either: a. take all actions necessary to record a va release of lien, or b. file with CITY a bond, cash, or other secur acceptable to CITY sufficient to pay in f all claims of all persons seeking relief un the lien. 6.07 Taxes. LESSEE agrees to pay, before delinquen all taxes, assessments, and fees assessed or lev upon LESSEE or the premises, including the la any buildings, structures, machines, equipme appliances, or other improvements or property any nature whatsoever erected, installed maintained by LESSEE or levied by reason of business or other LESSEE activities related to leased premises, including any licenses or permi LESSEE recognizes and agrees that this lease create a possessory interest subject to prope taxation, and that LESSEE may be subject to payment of taxes levied on such interest, and t LESSEE shall pay all such possessory inter taxes. LESSEE further agrees that payment for s taxes, fees and assessments will not reduce rent due CITY. H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 19 (Veterans Memorial Park) Revised 71 * 0 t 6.08 Siqns. LESSEE agrees not to erect or display i banners, pennants, flags, posters, s igi decorations, marquees, awnings, or similar devic or advertising without the prior written consent CITY. If any such unauthorized item is found the premises, LESSEE agrees to remove the item its expense within 24 hours notice thereof by CI' or CITY may thereupon remove the item at LESSE: cost. 6.09 Ownership of Improvements and Personal Property a. Any and all improvements, trade fixtur structures and installations or additions the premises now existing or constructed the premises by LESSEE shall at le expiration or termination be deemed to be p of the premises and shall become, at CIT option, CITY'S property, free of all liens claims except as otherwise provided in t lease. b. If CITY elects not to assume ownership of or any improvements, trade fixtur structures and installations, CITY shall notify LESSEE thirty (30) days prior termination or one-hundred-eighty (180) d prior to expiration, and LESSEE shall rem all such improvements, structures installations as directed by CITY at LESSE sole cost on or before lease expiration termination. If LESSEE fails to remove improvements, structures, and installations directed, LESSEE agrees to pay CITY the f cost of any removal. c. LESSEE-owned machines, appliances, equipm (other than trade fixtures), and other it of personal property shall be removed Lessee by the date of the expiration termination of this lease. Any said it which LESSEE fails to remove will considered abandoned and become CI'I property free of all claims and liens, or C may, at its option, remove said items LESSEE'S expense. d. If any removal of such personal property LESSEE results in damage to the remain improvements on the premises, LESSEE agrees repair all such damage. H:\LIBRARY\UM\UPDATA\AGG\AGG91009.AD 20 (Veterans Memorial Park) Revised 71 * I) + e. Any necessary removal by either CITY or LESl which takes place beyond said expiration termination thereof shall require LESSEE pay rent to CITY at the rate in effi immediately prior to said expiration termination. f. Notwithstanding any of the foregoing, in event LESSEE desires to dispose of any of personal property used in the operation said premises upon expiration or terminat of this lease, then CITY shall have the fi right to acquire or purchase said perso property. SECTION 7: GENERAL PROVISIONS 7.01 Notices a. Any notice required or permitted to be gi hereunder shall be in writing and may served personally or by United States ma postage prepaid, addressed to LESSEE at leased premises or at such other addr designated in writing by LESSEE: and to C as follows: City Manager 1200 Carlsbad Village Drive Carlsbad, CA 92008 Copies to: Parks and Recreation Director 1200 Carlsbad Village Drive Carlsbad, CA 92008 Utilities and Maintenance Direct 2075 Las Palmas Drive Carlsbad, CA 92009 or to any mortgagee, trustee, or benefici as applicable, at such appropriate addr designated in writing by the respective par b. Any party entitled or required to rece notice under this lease may by like not designate a different address to which noti shall be sent. 7.02 Compliance with Law. LESSEE shall at all times the construction, maintenance, occupancy H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 21 (Veterans Memorial Park) Revised 71 e 0 t operation of the premises comply with i applicable laws, statutes, ordinances, 4 regulations of CITY, County, State and Fede: Governments at LESSEE'S sole cost and expense. addition, LESSEE shall comply with any and ( notices issued by the City Manager or 1 authorized representative under the authority any such law, statute, ordinance, or regulation 7.03 CITY Approval. The approval or consent of CI' wherever required in this lease, shall mean written approval or consent of the City Manat unless otherwise specified, without need further resolution by the City Council. 7.04 Nondiscrimination. LESSEE agrees not discriminate in any manner against any person persons on account of race, marital status, s religious creed, color, ancestry, national orig age or physical handicap in LESSEE'S use of premises, including, but not limited to providing of goods, services, faciliti privileges, advantages, and accommodations, and obtaining and holding of employment. 7.05 Partial Invalidity. If any term, covena condition or provision of this lease is fo invalid, void or unenforceable by a court competent jurisdiction, the remaining provisi will remain in full force and effect. 7.06 Lesal Fees. In the event of any litigat regarding this lease, the prevailing party shall entitled to an award of reasonable legal cos including court and attorney's fees. 7.07 Number and Gender. Words of any gender used this lease shall include any other gender, words in the singular number shall include plural, when the tense requires. 7.08 Captions. The Lease Outline, section headings, captions for various articles and paragraphs sh not be held to define, limit, augment, or descr the scope, content, or intent of any or all pa of this lease. The numbers of the paragraphs pages of this lease may not be consecutive. S lack of consecutive numbers is intentional shall have no effect on the enforceability of t lease. 7.09 Entire Understandinq. This lease contains H: \L IBRARY\UM\WPDATA\AGG\AGG91009.AD 22 (Veterans Memorial Park) Revised 71 0 0 + entire understanding of the parties. LESSEE, signing this agreement, agrees that there is other written or oral understanding between ' parties with respect to the leased premises. E< party has relied on its own examination of ' premises, advice from its own attorneys, and ' warranties, representations, and covenants of ' lease itself. Each of the parties in this le, agrees that no other party, agent, or attorney any other party has made any promi representation, or warranty whatsoever which is contained in this lease. The failure or refusal of any party to read lease or other documents, inspect the premises, obtain legal or other advice relevant to t transaction constitutes a waiver of any objecti contention, or claim that might have been based these actions. No modification, amendment, alteration of this lease will be valid unless it in writing and signed by all parties. 7.10 Asricultural Provisions. LESSEE shall use stand agricultural practices in growing, tending harvesting said crops and shall not use property in such a manner as to constitute nuisance to adjoining property owners or lesse follow LESSEE shall comply with the requirements: a. Only drip type irrigation shall be used. b. All plastic material and debris shall completely removed from the property at completion of the lease. c. No aerial application of pesticides fertilizers shall be permitted. d. A llResource Management Systern1I which i: detailed report on what crops will be gro how crops will be irrigated, what pestici will be used, what type of fertilizer will used and the application methods of pestici and fertilizers, shall be submitted approved by the Parks and Recreation Direc prior to commencement of agricultu operations of the land. e. No planting, grading, spraying, cultivatinc other disturbance whatsoever shall be allc in the wetlands area, riparian area, rare H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 23 (Veterans Memorial Park) Revised 71 0 0 .* r endangered plant species area , archaeological area as shown on Exhibit attached hereto and incorporated in t reference. f. Erosion shall be controlled and monitored the Universal Soil Loss Equation provided U.S. Soil Conservation Service. If eros exceeds three tons per acre CITY may termin this lease. g. No soil is to be left uncropped. h. No land with an average slope of 30 percent more shall be farmed. i. All pesticide application shall be appro and supervised by the county agricultu office, with all necessary permits obtai from county in advance. A complete record fertilization and pesticide application m be kept and made available upon request CITY. j. Access roads shall be limited to th approved by the Parks and Recreation Direc and shall not cause erosion problems. k. The Lagoon and Wetlands areas shall monitored by LESSEE for erosion and pestic and organic phosphate pollution. Inspecti of area may be conducted by California F and Game Department, U.S. Soil Conservat Service, University of California or CITY any time without prior notice to LESSEE. 7.11 Aqricultural Operations. LESSEE agrees to abide the conditions for agricultural operations forth herein. Failure of LESSEE to cease or c any unauthorized practice within 30 days af written notice to do so shall constitute at option of CITY, an immediate termination of lease. 7.12 Noxious Weeds, Pests. LESSEE shall take prc corrective action, to the satisfaction of CITY, prevent the infestation of noxious weeds and pes 7.13 Control of Livestock. The premises shall adequately fenced to control livestock without c to CITY and in a manner satisfactory to CI LESSEE shall be solely responsible for all darr H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 24 (Veterans Memorial Park) Revised 71 e 0 Y of any kind resulting from livestock leaving Si premises. 7.14 Employee Housinq Prohibited. LESSEE shall : provide housing for employees or any other persl on the property. LESSEE shall not permit LESSE employees or any other persons to reside upon property in any way. SECTION 8: WARRANTY 8.01 Warranty The CITY does not warrant that premises are suitable for the agricultural purpo for which they are leased. //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// //// SECTION 9: SIGNATURES 25 (Veterans Memorial Park) Revised 71 H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD e 0 t V 9.01 Siqnature Paqe IN WITNESS WHEREOF, this Lease Agreement is executed by CI' acting by and through its City Manager, and by LESSEE, acting and through its lawfully authorized officers. /%A, Ddte LESSEE : By: Title Printed Name Date By : > 131212415, Title \ 5~\ Y i CI~ I' P-O TSUTA~AWT 11- 6- 91 Printed Name Date APPROVED as to form and legal 1991. EXHIBIT A: Property Description 26 (Veterans Memorial Park) Revised 7, H: \LIBRARY\UM\WPDATA\AGG\AGG91009.AD . .- . .. _. - y: 3 __ - - - - ._ - - - - . - .- - . . . * e ! i ftd 9 EXHIE