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HomeMy WebLinkAboutPacific Elite; 1984-04-16;W c This Memorandum of Understanding is to acknowledge the extensic of the existing Macario Canyon Agricultural Lease for a period of one (1) year. This extension of the lease is outlined in Section I1 B of the original contract. The term of the lease extension shall be f May 8, 1986 to May 7, 1987. Mthy 25 W-Q Date ’ AM& Pacific Elite Representative -! hm /3/92 e 0 c 1200 ELM AVENUE 1 CARLSBAD, CA 92008-1989 (6 Office of the City Manager Citp of 4CarISbab April 16, 1984 Ron Abshire, Secretary/Treasurer Pacific Elite, Incorporated P. 0. Box 4119 Oceanside, CA 92054 AGRICULTURAL LEASE - MACARIO CANYON In accordance with the lease between Pacific Elite, Inc. and the City of Carlsbad dated May 18, 1983, the City Manager is required to approve any sublease. Permission is hereby granted to sublease the property to the Regents of the University of California for the term April 1, 1984 to April 1, 1985. 2d- FRANK ALESHIRE City Manager FA:cle cc : City Clerk Assistant Finance Director Parks Superintendent .. v W AGREEMENT WITH THE REGENTS OF THE UNIVERSITY OF CALIFORNIA AS LESSEE e - h d This agreement is entered into as of April 1, 1984, by and between Pacific Elitc Incorporated (Lessor) and The Regents of the University of California, a corporl (University). DESCRIPTION. Lessor hereby subleases to University the premises described as follows: cultural use as vegetable production land and agreed upon by principals. TERM. The term of this lease shall be for the period beginning April 1, 1 and ending April 1, 1985. RENT. ($26l/acre/year), payable on the following dates and in the following amob April 1, 1984 - $2088 (8 acres x $26l/acre/year = $2088). OPTION TO EXTEND. If agreeable to both parties the University is hereby granted the option to extend the term of this lease upon these same terms and conditions for the period: April 1, 1985, through April 1, 1986. University shall give Lessor written notice of the exercise of the option extend 60 days prior to expiration of this lease. UTILITIES AND SERVICES. Lessor shall pay for all utilities and services, the following exception(s): Lessee to pay monthly for water used, tractor work and other agreed upon services at Lessor's cost. Amount of water to determined by separate meter. If equipment not in area, a charge of $50 1: tractor move to be paid for moves needed to complete requested work. NOTICES. All changes to this agreement shall be effective only if made in writing and delivered by personal service, by registered mail , or as other may be required by law, as follows: To University at Farm Advisors Office, 5555 Overland Avenue, Building 4, : Diego, CA 92123, marked Attention Wayne Schrader. To Lessor at Post Office Box 4119, Oceanside, CA 92054, marked Attention Gary Astleford. By written notice to the other, either party may change its own mailing a( DELAY IN DELIVERY OF POSSESSION. If Lessor, for any reason whatever, cant deliver possession of the premises to University at the commencement of tt term of this lease, University may terminate this lease at any time prior delivery of possession by written notice to Lessor and shall in no case bt liable for rent prior to Lessor's delivery of the premises. HOLDING OVER. University's holding over with the consent of Lessor after expiration of the term shall create only a tenancy from month to month up( the terms and conditions specified in this agreement. that eight acre portion of Macario Canyon approved for agri- The total rent is two hundred sixty one dollars per acre per year 1 of 2 - * c 0 m U *r RENT PRORATION. Rent for any period of time other than the period specifif in this lease shall be determined by prorating the rent over the period of time in question. NONLIABILITY AND INDEMNIFICATION OF LESSOR. University agrees to indemnif. Lessor for liability or claim for damage for personal injury, death, or property damage resulting from University's own acts or omissions on the premises during the term of this lease. SURRENDER OF POSSESSION. surrender the premises in the same condition as received, except for reaso wear and except for damage by civil disorder, the elements, acts of God, o by any circumstances over which University has no control. Upon termination of this lease, University will The parties have executed this agreement on LESSOR: by bY The Regents of the University of California: by by cc: Doug Duncanson, City of Carlsbad (2) Pacific Elite, Incorporated (2) Gary Astleford B. Diane Wallace Wayne L. Schrader 2 of 2 e a 1200 ELM AVENUE Tt CARLSBAD, CA 92008-1989 (61 Gitg of 4CsrI$€Iab PARKS & RECREA TI0 N DE PAR TM EN T January 5, 1984 Ron Abshire Secretary/Treasurer Pacific Elite, Inc. F.O. Box 4119 Oceanside, CA 92054 Dear Mr. Abshire: I have recently reviewed the agricultural program Pacific Elite, Inc. is undertaking at the Nacario Canyon Park area. During this observation, it was brought to my attention that more than 75 acres are currently being farmed. This item was discussed with your agent, Mr. Gary Astleford. It was agreed upon that Pacific Elite, Inc. would pay the bid per acre price ($261) for the additional acreage farmed. The additional acreage was determined to be 15 acres. Please base all future lease payments ($5,872. on 90 acres of land. In addition, please address all quarterly payments to the attention of the Parks SI Recreation Department, attention Doug Duncanson, 1200 Elm Ave., Carlsbad, CA 92008. Thank you for your consideration in this matter. please call me at 438-5577. Sincerely , If you have any question &i&::ydw\ / Doug 3uncanson Park Superintendent DD: jm c: Parks & Recreation Director City Attorney City Clerk Gary Astleford >.Yy CITY OF CARLSBAD ROUTING SL <d &$ (&L ACTION TO BE TAKEN c3 FOR YOUR INFORMATION PREPARE REPLY OREVIEW AND COMMENT OSEE ME OADVlSE YOUR PERSONNEL CIRCULATE &&. &flJ @L gt5 &%7'&&J& J-3 /&,%?4+i A&- . 0 @ e. AGRICULTURAL LEASE (Macario Canyon) THIS LEASE AGREEMENT is executed by and between THE CITY 0 CARLSBAD, a municipal corporation, hereinafter called "Cit "LESSEE. I' I. PREMISES Pacific Elite, Inc. , hereinafter called CITY hereby leases to LESSEE and LESSEE leases from C real property situated in the City of Carlsbad, County of Dieqo, State of California, described in Exhibit "A", atta hereto, and incorporated by this reference. Said real pro is hereinafter called the "premises. 'I A, Permitted Use. The premises are leased to LESSEE for the purposes of conducting agricultural operations and no other purpose. B. Obligation to Diligently Use. LESSEE covenants t said premises for the above specified purposes and to dili pursue said purposes throughout the term hereof. C. Public Purpose Easements. CITY reserves the righ qrant road, utility, or other public purpose easements ove property. 11. TERMS OF AGREEMENT A. Term. The term of this lease is for three years !lay 3, , 19 83 , to midnight on rlav 2 I 19 unless extended or sooner terminated as provided for in th lease. This lease shall terminate without further notice expiration of the term. Any holding over by LESSEE after expiration shall not constitute any renewal or extension o LESSEE any rights in or to the property except that LESSEE be permitted to harvest any crops growing at the time of termination. B. Extension. LESSEE may, at LESSEE'S option, exten original term of this lease for additional periods of one at a time, subject to all the terms and conditions of this lease. The option to extend shall be exercised by qivinq notice to CITY not more than 60 nor less than 30 days before the last day of the term. At the time of exercisin option to renew, and on the last day of the term, LESSEE E not be in default of any provision of this lease. In lieu executing a new lease the option to renew may be noted on original lease, or a true copy of the original lease. If noted the note shall be dated and initialed by the CITY an LESSEE, Failure to exercise the option to extend for a PC shall extinquish all other options to extend and the lease terminate on the last day of the term. CITY may excuse ,' 0 0 failure to meet the time limits for exercising the option I extend without waiving any of the provisions of this paragi regarding extensions. C. Termination: Either party may terminate this lea5 any time upon 90 days notice to the other. If at the expi1 of the 90 day time period LESSEE still has crops growing, 1 shall be permitted to continue raising and tendinq the croi shall be permitted to harvest the crops. The right to harT the crops shall not extend the term of the lease except th; provisions of this lease, other than the extension provisic shall apply. The right to raise, tend and harvest shall a1 only to crops planted before notice to terminate has been 5 D. Surrender of Premises: At the expiration or earlier termination of this lease, LESSEE shall execute, acknowledge and deliver to CITY, within five days after wr: demand by CITY, a valid and recordable Quitclaim Deed cove1 all of the leasehold premises. The leasehold premises sha: delivered free and clear of all liens and encumbrances. 111. CONSIDERATION A. Rent: LESSEE shall pay to CITY an annual rent of $261.0O/acre payable in advance in four equal quarterly installments each on the first day of each quarter beginn: May 3 , 19 83 . The rent due at each quarter shall be determined by the actual acreage farmed times the rent per provided, however, the acreage farmed shall not be less thi 70 acres. The annual rent is subject to adjustment by CIT' extension of the term. R. Delinquent Rent: In the event LESSEE fails to pa] the applicable rents when due, then LESSEE shall pay CITY, addition to the delinquent rent, a sum of money equal to F PERCENT (5%) of said delinquent rent; provided, however, ii event said delinquent rent is still unpaid after fifteen di becoming delinquent, then LESSEE shall pay CITY, instead 0: FIVE PERCENT (5%), a sum of money equal to TEN PERCENT (10' said delinquent rent. It is the intent of this provision ' CITY shall be compensated for loss resulting from rental delinquency includinq costs to CITY of servicing the delinc account. The City Manager, at his option, may for good cai waive any such delinquency compensation required herein, u] advance written application of LESSEE. IV. COVENANTS AND CONDITIONS A. City Covenants 2. L. 0 0 1. Quiet Possession. LESSEE, paying the said re performing the covenants and agreements herein, shall and j all times during the said term peaceably and quitely have, and enjoy the said premises for the term hereof. If CITY reason whatsoever cannot deliver possession of the said prc to LESSEE at the commencement of said term as hereinbefore specified, or if LESSEE is dispossessed through action of title superior to CITY'S, then and in either of such event: this lease shall not be void or voidable nor shall CITY be liable to LESSEE for any loss or damage resulting therefroi there shall be determined and stated in writing by the Cit. Manager of CITY a proportionate reduction of the rent COVI the period or periods during which LESSEE is prevented fro1 having the quiet possession of all or a portion of the dem premises. 2. Right to Assiqn and Sublet. When in the opin the City Manager, and if it is deemed consistent with the interests of the CITY, LESSEE may assign this lease or any interest therein and may sublease any portion thereof to a assignee or sublessee who has, in the opinion of City Mana the financial capability and overall competence to success operate the assiqned or subleased premises. The consent o City Manager will not be unreasonably withheld. This lease and any interest herein shall not be assignable by operation of law without the written consent the City Manager. Any or all of the following actions are permitted activities under this contract and will be consi as contrary to the CITY'S best interests: a. Assignment or subleasing by LESSEE for a consideration in excess of a reasonable return on the actu value of the LESSEE'S installed improvements and/or servic rendered. b. Subleasing of the primary function of the or subleasing of a major portion of the leasehold. If CITY has been notified in writinq of the exist a trust deed or mortgage secured by the leasehold, CITY ag aive the trustee or beneficiary notice of any sublease or assignment prior to CITY'S approval thereon. Approval of assignment or sublease shall be conditions upon Assignee o Sublessee agreeing in writing that they will assume the ri and obligations thereby assigned or subleased and they will keep and perform all covenants, conditions and provis this agreement which are applicable to the rights acquired 3. .. 0 0 B. Lessee Covenants 1. Compliance with Law. LESSEE agrees, at its s cost and expense, to comply and secure compliance with all requirements now in force, of all municipal, county, state federal authorities, pertaining to the said premises, or t operations conducted thereon, and to faithfully observe an secure compliance with, in the use of the premises, all applicable county and municipal ordinances and state and f statutes now in force or which may hereafter be in force, pay before delinquency all taxes, assessments, and fees as or levied upon the lESSEE or the leased premises including land and any buildings, structures, machines, applicances ( other improvements of any nature whatsoever, erected, inst( or maintained by LESSEE or by reason of the business or otl activities of LESSEE upon or in connection with the leased premises. LESSEE recognizes and understands that this lea: create a possessory interest subject to property taxation q that the LESSEE may be subject to the payment of property i levied on such interest. LESSEE further agrees that such payment shall not reduce any rent due the CITY hereunder ai any such tax shall be paid by the LESSEE before becoming delinquent. The judgment or any court of competent jurisd or the admission of LESSEE or any sublessee or permittee ii action or proceeding against them, or any of them, whether be a party thereto or not, that LESSEE, sublessee or permi has violated any such ordinance or statute in the use of tl premises shall be conclusive of that fact as between CITY i LESSEE. 2. Construction/Alterations. LESSEE agrees not 1 construct or install any buildings or structures on said premises or otherwise improve or alter said premises in an: manner except in accordance with plans and specifications previously submitted to the City Manager and approved by h: writting. 3. - Use. LESSEE shall use the property solely foi growing, tending and harvesting of the following agricultui crops: LESSEE shall use standard agricultural practices : growing, tending and harvesting said crops and shall not ut property in such a manner as to constitute a nuisance to adjoining property owners or lessees. LESSEE shall comply the following requirements: a. Only drip type irrigation shall be used. b. All plastic material and debris shall be completely removed from the property at the completion of t lease. 4. .. 0 0 c. No aerial application of pesticides or fertilizers shall be permitted. d. A "Resource Management System" which is a detailed report on what crops will be grown, how crops wil irrigated, what pesticides will be used, what type of fert will be used and the application methods of pesticides and fertilizers, shall be submitted and approved by the Parks Recreation Director prior to commencement of agricultural operations of the land. e. No planting, grading, spraying, cultivati other disturbance whatsoever shall be allowed in the wetla area, riparian area, rare and endangered plant species are archaeological area as shown on Exhibit B attached hereto and incorporated by this reference. f. Erosion shall be controlled and monitored Universal Soil Loss Equation provided by U. S. Soil Conser Service. If erosion exceeds three tons per acre CITY may terminate this lease. g. No soil is to be left uncropped. h. No land with an average slope of 30 perce more shall be farmed. i. All pesticide application shall be approv supervised by the county agricultural office, with all nec permits obtained from county in advance. A complete recor fertilization and pesticide application must be kept and rn available upon request by CITY. j. Access roads shall be limited to those ap by the Parks and Recreation Director and shall not cause e problems , k. The Lagoon and Wetlands areas shall be mo by LESSEE for erosion and pesticide and organic phosphate pollution. Inspections of area may be conducted by Califo Fish and Game Department, U. S. Soil Conservation Service, University of California or CITY at any time without prior to LESSEE. 4. Agricultural Operations. LESSEE agrees to ab the conditions for agricultural operations set forth herei Failure of LESSEE to cease or cure any unauthorized practi within 30 days after written notice to do so shall constit the option of CITY, an immediate termination of the lease. 5. Warranty. The CITY does not warrant that the premises are suitable for the agricultural purposes for wh they are leased, 5. I. 0 0 6. Indemnity. LESSEE agrees that CITY, its aqen officers and employees, shall not be liable for any claims liabilities, penalties, fines or for any damage to the goo properties or effects of LESSEE, its sublessees or representatives, agents, employees, guests, licensees, invitees, patrons or clientele or of any other person whomsoever, nor for personal injuries to, or deaths of any persons, whether alleged to have been caused by or resulti from any acts or omission of LESSEE or its sublessees in o about the leased premises, or any act or omission of any p or from any defect in any part of the leased premises or f any other cause or reason whatsoever. LESSEE agrees to indemnify and save free and harmless CITY and its authorizl agents, officers, and employees against any of the foregoii alleged liabilities and any costs and expenses incurred by on account of any claim or claims therefor. 7. Insurance Coverage. During the entire term o agreement LESSEE agrees to procure and maintain public lial insurance which names CITY as an additional insured with ai insurance company satisfactory to CITY licensed to do busir in California to protect against loss from liability impost law for damages on account of bodily injury, including dea. therefrom, suffered or alleged to be suffered by any persoi persons whomsoever, resulting directly or indirectly from q act or activities of CITY or LESSEE, its sublessees or any person acting for CITY, or LESSEE or under its control or direction, and also to protect aginst loss from liability imposed by law for damages to any property of any person cz directly or indirectly by or from acts or activities of CI1 LESSEE, or its sublessees, or any person acting for CITY 01 LESSEE, or under its control or direction. Such property ( and public liability insurance shall also provide for and protect CITY against incurring any legal cost in defending claims for alleged loss. Such public liability and propert damage insurance shall be maintained in full force and effc during the entire term of this lease in the amount of not 1 than ONE MILLION DOLLARS COMBINED SINGLE LIMIT LIABILITY. agrees to submit a policy of said insurance to the CITY on before the effective date of this agreement indicating full coverage of the contractual liability imposed by this agrec and stipulating that the insurance company shall not termir cancel or limit written notice thereof to CITY. If the opc under this agreement results in an increased or decreased L he opinion of the City Manager, then LESSEE agrees that the minimum limits hereinabove desiqnated shall be changed accordingly upon request by the City Manager. LESSEE agree provisions of this paragraph as to maintenance of insurance not be construed as limiting in any way the extent to which LESSEE may be held responsible for the payment of damages t persons or property resulting from LESSEE'S activities of E person or persons for which LESSEE is otherwise responsible 6. .. 0 0 8. Legal Proceedings. LESSEE agrees that should become necessary for CITY to commence legal proceedings to collect rent, recover possession, or enforce any other pro of this lease, the prevailing party will be entitled to le costs in connection therewith, including reasonable attorn fees as determined by the court, The parties agree that t of the State of California shall be used in interpreting t lease agreement and will govern all disputes under this le agreement and will determine all rights and obligations hereunder. Personal service either within or without the of California shall be sufficient to give personal jurisdi to any court in which an action is filed for litigation of under this lease agreement. responsibility for the operation and maintenance of said p throughout the term hereof without expense to CITY unless otherwise specified herein, and to perform all repairs and replacements necessary to maintain and preserve said premi a decent, safe, healthy and sanitary condition in a manner satisfactory to CITY and in compliance with all applicable LESSEE agrees that CITY shall not be required to perform a maintenance, repairs or services, or to assume any expense specifically assumed herein in connection with said premisl 10. Utility Costs. LESSEE agrees to order, obtai pay for all utilities and service and installation charues connection therewith. All utilities installed by LESSEE s installed underground. 11. Waste,Damage or Destruction. LESSEE agrees tc notice to the CITY of any fire or other damage that may oc the leased premises within ten days of such fire or damage LESSEE agrees not to commit or suffer to be committed any 1 or injury or any public or private nuisance, to keep the p clean and clear of refuse and obstructions, and to dispose garbage, trash and rubbish in a manner satisfactory to the If the leased premises shall be damaged by any cause which the premises into a condition which is not decent, safe, hc and sanitary, LESSEE agrees to make or cause to be made fu repair of said damage and to restore the premises to the condition which existed prior to said damage, or LESSEE ag. clear and remove from the leased premises all debris resul. from said damage. 9, Maintenance. LESSEE agrees to assume full C, General Conditions 1. Administration and Notices. Control and administration of this lease is under the jurisdiction of City Manaqer of CITY as to CITY'S interest herein and any communication relative to the terms or conditions or any cl thereto or any notice or notices provided for by this least 7. I' a 0 a3 law to be given or served upon CITY may be given or served reqistered letter deposited in the United States mails, po prepaid, and addressed to the City Manager, 1200 Elm Avenu Carlsbad, California, 92008. Any notice or notices provid by this lease or by law to be given or served upon LESSEE, given or served by depositing in the United States mails, prepaid, a letter addressed to said LESSEE at the leased p or at such other address designated in writing by LESSEE, be personally served upon LESSEE or any person hereafter authorized by them to receive such notice. Any notice or given or served as provided herein shall be effectual and for all purposes upon the principals of the parties so ser upon personal service or forty-eight hours after mailing i manner required herein. 2. City Approval and Consent. The approval or co of the CITY, wherever required in this agreement, shall me approval or consent of the City Manager unless otherwise specified, without need for further resolution by the City Council. 3. Entry and Inspection. CITY reserves and shall always have the right to enter said premises for the purpo viewing and ascertaining the condition of the same, or to is interests in the premises or to inspect the operations conducted thereon. In the event that such entry or inspec CITY discloses that said premises are not in a decent, saf healthy and sanitary condition, CITY shall have the right, ten days written notice to LESSEE, to have any necessary maintenance work done for and at the expense of LESSEE and hereby agrees to pay promptly any and all costs incurred b in having such necessary maintenance work done in order to said premises in a decent, safe, healthy and sanitary cond Further, if at any time the CITY determines that said prem are not in a decent, safe, healthy and sanitary condition, may at its sole option, without additional notice, require to file with CITY a faithful performance bond to assure pr correction of any condition which is not decent, safe, hea and sanitary. Said bond shall be in an amount adequate in opinion of the CITY to correct the said unsatisfactory condition. LESSEE shall pay the cost of said bond. The r reserved in this section shall not create any obligations or increase obligations elsewhere in this lease imposed on 4. Merger. The voluntary or other surrender of lease by LESSEE, or a mutual cancellation thereof, shall n a merger and shall, at the option of CITY, terminate all o existing subleases or subtenancies or may, at the option o operate as an assignment to it of any or all such sublease subtenancies. 8. .* a 0 at 5. Oral Representation. It is specifically unde and agreed hereby that this lease contains the complete expression of the whole agreement between the parties here that there are no promises, representations, agreements, warranties or inducements, either expressed orally or imp1 the said parties, except as are fully set forth herein; an further, that this lease cannot be enlarged, modified or c in any respect except by written agreement duly executed b between the said parties. 6. Ownership of Improvements. All improvements, such fixtures as are hereinafter described on the attached addendum, which have been installed by LESSEE in accordancc the provisions of this agreement, shall at the option of C become the property of CITY upon expiration or sooner term of this agreement. LESSEE shall have the right to remove the demised premises only those fixtures described on the attached addendum at any time prior to the expiration or e termination of the agreement, provided that such removal w not, in the opinion of CITY, restrict the operation of the demised premises to the extent that the rent paid to CITY reduced as a direct result therefrom. LESSEE'S removal of said fixtures shall be at LESSEE'S own expense and shall bl conditioned upon LESSEE'S repairing any damage to the rema improvements and upon LESSEE leaving the demised premises order and condition. In the event LESSEE does not so remo' fixtures prior to the expiration of this agreement, CITY m remove, sell or destroy the same at the expense of LESSEE, the proceeds of the sale are not adequate, LESSEE shall prc pay to CITY its reasonable cost of any such removal, sale ( destruction together with the reasonable cost of repair of damages to CITY'S property resulting from such remova1,salt destruction. At the option of CITY, any such property, rei personal, not removed by LESSEE may be deemed abandoned anc be removed and sold by CITY and all income received by CLT' therefrom shall be the property of CITY exclusively. Said addendum may be changed from time to time upon approval of City Manager, without further resolution by the City Counc: 7. Remedies of City. a. Default by Lessee. In the event that: (1) LESSEE shall default in the perforr, or fulfillment of any covenant or condition herein required performed or fulfilled by LESSEE and shall fail to cure saj default within thirty days following the service on LESSEE written notice from CITY specifying the default complained or (2) LESSEE shall voluntarily file or hi involuntarily filed against him any petition under any ban1 or insolvency act or law; or 9. ** 0 0 ** (3) LESSEE shall be adjudicated a bank (4) LESSEE shall make a general assign Then CITY may, at its option, without f notice or demand upon LESSEE or upon any person claiming t LESSEE, immediately terminate this lease and all rights of and of all persons claiming rights through LESSEE in or to said premises or in or to further possesion thereof and CI thereupon enter and take possession of said premises and e LESSEE and all persons so claiming rights thereto. Providl however, in the event that any default described in Part a of this section is not curable within thirty (30) days aft1 service of a written notice upon LESSEE, CITY shall not te this lease pursuant to said default if LESSEE immediately commences to cure said default and diligently pursues such to completion. b. Abandonment by Lessee. Even though LESSE breached the lease and abandoned the property, this lease continue in effect for so long as CITY does not terminate LESSEE'S right to possession, and CITY may enforce all its rights and remedies under said lease, including, but not 1 to, the right to recover the rent as it becomes due under lease. For purposes of this section, the following do not constitute a termination of LESSEE'S right to possession: for the benefit of creditors; (1) Acts by CITY of maintenance, or preservation, or efforts to relet the property. initiative of CITY to protect the CITY'S interest under thl lease. (2) The appointment of a receiver upon c. Damages. Damages which CITY may recover event of default under this lease include the worth, at thc of award, of the amount by which the unpaid rent for the bl of the term after the date of award, or for any shorter pe time specified in this lease, exceeds the amount of such rc loss for the same period that the LESSEE proves could be reasonably avoided, The remedies provided by this section not exclusive and shall be cumulative to all other rights remedies possessed by CITY, and nothing contained herein SI be construed so as to defeat any other rights or remedies which CITY may be entitled. 8. Reservation of City Rights, CITY hereby rest all rights, title and interest in any and all gas, oil, mi and water beneath said lease premises. CITY shall have thc right to enter said leased premises for the purpose of mak repairs to or developing municipal services, CITY hereby reserves the right to grant and use such easements or estal and use such rights of way over, under, along and across s< 10, - N personally appeared XXXXXXXXXXXXXXXXXXXXX x-m 5 mxxxxxxxx~w Ronald M. Abshire g > a, ~~~PS~pn~D~~~~~~~~~~~~~~~ 7 0 instrument on FOR NOTARY SEAL OR STAMP NOTi'>:j r- - c LALlrJ*Ci Pt,i:ur +he, UfFttf '1~ SAY D ;SO COUNTY ion Expires Augcsst 6, 19% %~.U-*~~".'..~~.~~u~~ - .* . *f e e L v leased premises for utilities, thoroughfares, or access as may deem advisable for the public good. Provided, however shall not unreasonably interfere with LESSEE'S use of prem: and will reimburse LESSEE for physical damages, if any, to permanent improvements of LESSEE located on the leased prer resulting from CITY'S exercising the rights retained in th: paragraph. Such reimbursement shall include a reduction ir annual rent proportionate to the amount of said physical dz as determined by the City Manager. CITY shall pay the cos1 maintenance and repair of all CITY installations made purst to the rights reserved herein. 9. Time is of the Essence. Time is of the esset each and all of the terms and provisions of this lease and lease shall inure to the benefit of and be binding upon thc parties hereto and any successor of LESSEE as fully and to same extent as though specifically mentioned in each instar and all covenants, stipulations and agreements in this lea: shall extend to and bind any assigns or sublessees of LESSI 10. Waiver. The waiver by CITY of any breach of term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant or condition, any subsequent breach of the same or any other term, coven; condition herein contained. The subsequent acceptance of I hereunder by CITY shall not be deemed to be a waiver of an] preceding breach by LESSEE of any term, covenant or conditi this lease, regardless of CITY'S knowledge of such precedir breach at the time of acceptance of such rent. Failure on part of CITY to require or exact full and complete compliar with any of the covenants, conditions or agreements of this shall not be construed as in any manner changing the terms hereof and shall not prevent CITY from enforcing any proviz hereof. IN WITNESS WHEREOF, this Lease Agreement is executed by CI? acting by and through the City Manager, and by LESSEE, act] and through its lawfully authorized officers. THE CITY OF CARLSBAD 8 DATE &dl/ /g , /7P3 By : LESSEE: Pacific Elite, Inc. 6 By : d49wa Ronald M. Abshire By : APPROVED as to form this b' I P.O. Box 910 Burbank, Ga. 91503 Pacific Elite, Inc. P.O. Box 4119 Oceanside, Ca. 92054 COMPREHENSIVE FORM UNDERGROUND HAZARD PRODUCTSKOMPLETED CONTRACTUAL INSURANCE BROAD FORM PROPERTY INDEPENDENT CONTRACTORS PERSONAL INJURY OPERATIONS HAZARD BODILY INJdQY AND COMBINED COMPREHENSIVE FORM Carlsbad, Ca. 92008 WRITE ~~LDON~T SA s IT INTER-DEPARTMENT MEMORANDUh I 1 AM TO File DATE 4-7-83 19 P. M Original Lease for Macario Canyon given this date to Marsha Backlund and Doug Duncanson frm Parks and Recreation for transmittal and signature from Pacific Elite. K. REPLY ON THIS SHEET FROM WILMER SERVICE &NE STANDARD INTER DEPT. MEMO FORM I1 -24- 0 0 JI AGRICULTUML LEASE (Macaria Canyon) .D, a municipal corporation b hereinafter called "C? p hereinafter called THIS .,-'4SE AGREEMENT is executed by arid between THE CITY 'lLJ?s;;Z'z 11 Io PREMISES - CITY hereby leases to LESSEE and LESSEE leases from real property situated in the City of Carlsbad, County of Diega, State of California, described in Exhibit "A", att is reference, Said ~ng agricultural operations an no other purpose. said premises for the above specified purposes and to dil pursue said purposes throughout the term hexeo€, C. Public Purpose Easements, CITY reserves the rig grant road, utility, or other public purpose easezents ov property o Ir. TERMS OF AGREEMENT B. Obligation to Diligently Use. LESSEE covenants A. Term. The term of this lease is for three years P'f unless extended or sooner ternhated as provided €or in t lease. This lease shall terminate 97ithout further notice expiration of the term, Any holding over by LESSEE af'c:~?~ expiration shall not constitute any renewal ox extension . LESSEE any rights in or to the property except that LESSE be permitted to harvest any crops growing at the time of termination. I to midnight on - F l9 B, Extension. LESSEE may, at LESSEE'S option, exte original term of this lease for additional periods of one at a time, subject to all the terms and conditians of thi lease, he option to extend shall be exercised by qivinq notice to CITY not more khan 60 nor less than 30 days before the last day of the terx- At the time oE exercisi! optior! to renew, and on the last day of the term, LESSEE not be in default of any provision of this lease. In lie executing a new lease the Option to renew may be noted on original lease, or a true COPY of the original lease. If noted the note shall be dated and initialed by the CITY a LESSEE. Failure to exercise the option to extend for a p shall extinguish all other options to extend and the leas terztnate on the last day of t:?? term. CI'w may excilse 0 0 ,c L' failure to meet the time limits for exercising the option extend without waiving any of the provisions of this para Co Termination: Either party may terminate this le any time upon 90 days notice to the other,, If at the exF of7 the 90 day time period LESSEE still has crops growing, sha.1-l be permitted to continue raising and tending the cr s11al.l be permitted to harvest khe crops. The right to hc the crops shall not extend the tern of the lease except t provisions of this lease, other than the extension provis shall apply. The right to raise, tend and harvest shall only to crops planted before notice to terminate has beer regarding extensions 0 D, Surrender sf Premises: At the expiration or se, LESSEE shall e I within five days rdable Quftclaim Deed cm all of the leasehold premises, The leasehold premises st delivered free and clear of all liens and encumbrances, I11 m CONSIDEWTION A. Rent: LESSEE shall pay to CITY an annual rent of $ payable in advance in four equal quarter annual rent is subject to adjustsent by CITY upon extensi of the term as follows: installments of $ each 03 the of each quarter beqinning , 19 ' B, Delinquent Rent: In the event LESSEE fails to p the applicable rents when due, then LESSEE shall pay CIT'S addition to the delinquent rent, i! sum of money equal to PERCEPTT ( S% f of said delinquent rent ; provided, however , event said delinquent rent is still unpaid after fifteen becoming delinquent, then LESSEE shall pay CITY, instead FIVE PERCENT (5%), a sum of money equal to TEN PERCENT (' said delinquefit rent. It is the intent of this provisior CITY shall he compensated for loss resulting from rental delinquency including costs to CITY of servicinq the delj account. The City Manager, at his option, may for good < waive any such delinquency compensation- required hereinc advance written application of LESSEE, IV. COVENANTS AND CONDITIONS A. City Covenants 2. 0 0 .. Y 1, Quiet Possession, LESSEE, paying the said r performing the covenants and agreements herein, shall and all times during the said term peaceably and quitely have and enjoy the said prerrises for the term hereof, If CITY reascm whatsoever cannot deliver possession of the said p to IZSSEE at the commencement of said term as hereinbefor speci.Eied, Or if LESSEE is dispossessed through action of title superior to CITY’S, then and in either of such even t.hk lease shall not be voil! ox voidable nor shall CITY b liable to LESSEE for any loss or damage resulting therefr there shall be determined and stated in writing by the Ci Nanager of CITY a proportionate reduction of the rent co the period or periods during which LESSEE is prevented fr 11 or a portion o en in tent with the interests of the CITY, LESSEE may assign this lease or an interest therein and may sublease any portion thereof to assignee or sublessee who has, in the opinion of City Man the financial capability and overall competence to SUCC~S operate the assigned or subleased premises. City Manager will not be unreasonably withheld. The consent. This lea.se and any interest herein shall not be assignable by operation of law without t:?e written ccnsen the City Mariager, Any ox all of “the folloxiiq actions ar permitted activities under this contract and will be cons as contrary to the CITY’S best interests: ~ssignmene or subleasing by LESSEE for a consideration in excess of a reasonable return on the act value of the LESSEEeS installed improvements and/or servi rendered .) a. b, Subleasing of the primary function of th or subleasing of a major portion of the leasehold, If CITY has been notified in writing of the exis a trust deed or mortgage secured by the leasehold, CITY a give the trustee or beneficiary notice of any sublease or assignment prior to CITY’S approval thereon. Approval of assignment GT sublease shall be conditions upon Assignee Sublessee agreeing in writing that they will assume the z and obligations thereby assigned or subleased and they will keep and perform all covenants, conditions and provi this agreement which are appfieable to the riqhts acquire 3, 0 0 .I €3, Lessee Covenants 1, Compliance with Law, LESSEE agrees, at its cost and expense, to comply and secure compliance with a1 reqitirements now in force, of all municipal, county, stat fedex-a1 authorities, pertaining to the said premises, or opecations conducted thereon, and to faithfully observe t S~CL'K~ compl-iance with, in the use of the premises, all applicable county and municipal ordinances and state and sta'cates now in force or which may hereafter be in force, pay before delinquency a11 taxes, assessments, and fees I or levied upon the lESSEE or the leased premises includir land and any buildings, structures, machinesp applicances other improvements sf any nature whatsoever, erected, in; or maintained by LESSEE CPE' by reason oE the business or c activities sf LESSEE upon or in connection with the.feasc premises. LESSEE recognizes and understands that this 3.6 create a possesssry interest subject to property taxatior that the LESSEE may be subject ts the payment of propert] levied on such interest. LESSEE further agrees that sucl payment shall not reduce any rent due the CITY hereunder any such tax shall be paid by the LESSEE before becoming delinquent, TRe judgment or any court: of competent juri: or the admission of LESSEE or any sublessee or permittee action or proceeding against them, or any of them, whetht be a party thereto or not, that LESSEE, sublessee or per1 has violated any such ordinance or statilie in the use of premises shall be conclusive of thzt fact as between CIT' LESSEE c 2. Construction/Alterations. LESSEE agrees nor construct or install any buildings or structures on said premises or otherwise improve or alter said premises in < manner except in accordance with plans and specification! previously submitted to the City Manager and approved by writt ing * 3, Use, LESSEE shall use the property solely - growing, tending and harvesting of the following agricul crops: LESSEE shall use standard agricultural practice growing, tending and harvesting said crops and shall not property in such a manner as to constitute a nuisance to adjoining property owners or lessees. **LESSEE shall comp the following requirements: a, Only drip type irrigation shall be used b. All plastic material and debris shall b completely removed from the property at the completion o lea;?. 4. 0 a .. c. No aerial application of pesticides or fertilizers shall. be permitted, detailed report on what crops will be grown, how crops wi irrigated, what pesticides will be used, what type of fer will be used and the application methods of pesticides ar fert.ilizers, shall be submitted and approved by the Parks Recreation Director prior to commencement of agricultural operations of the land, do A "Resource Managernent Syste~t" which is e. No planting B grading p spraying , cultivat other disturbance whatsoever shall be allowed in the wet1 area, riparian area, rare and endangered plant species ar on Exhibit B attached hesetc erence e 11 be edrrtrofled provided by U, S, Soil Cons6 Service, If erosiofi exceeds three tons per acre CITY mal terminate this lease, gI No ssil is to be left uncropped, h. No land with an average slope of 30 per( more shall be farmed, i, All pesticide a2piication shall. be dppri supervised by the county agriculturaL office, with all nc permits obtained from county in advance. A complete recc fertilization and pesticide application must be kept and available upon request by CITY, j, Access roads shall be limited to those i by the Parks and Recreation Director and shall not cause problems e k. The Lagoon and Wetlands areas shall be I by LESSEE fox erosion and pesticide and organic phosphati pollution. Inspections of area may be conducted by Cali Fish and Game Department, U. S. Soil Conservation Servict University of California or CITY at any time without prii to LESSEE, 4, Agricu1turaP Operations. LESSEE agrees eo the conditions for agricultural operations set forth her! Failure of LESSEE to cease or cure any'unauthorized prac within 30 days after written notice to do so shall const the option of CITY, an immediate termination of the leas 5. Warranty. The CITY does not warrant that t premises are suitable for the agricultural purposes for they ace leased, 5. 0 0 .. i 6, Indemnity, LESSEE agrees that CITY, its age officers and employees, shall not be Piable for any cIaim liabilities, penalties, fines or for any damage to the go properties or ef€ects of LESSEE, its sublessees or representatives, agents, employees, guestsc licensees, invitees, patrons or clientele or of any other person whomsoever, nor for personal injuries to, or deaths of an per:;ons, whether alleged to have been caused. by or result from any acts or omission of LESSEE or its sublessees in ahot:t the leased premises, or any act or omission of any or from any defect in any part of the leased premises or any uther cause or reason whatsoever, LESSEE agrees ta indemnify and save free and harmless CITY and its authori agents, officers, and employees against any of the forego alleged liabilities and any costs and expens agreement LESSEE agrees to procure and maintain public li insurance which names CITY as an additional insured with insurance company satisfactory to CITY licensed to do bus in California to protect against Boss from liability impc law for damages on account sf bodily injury, including de therefrom, suffered or alleged to be suffered by any pers persons whomsoever, resulting directly or indirectly frorr act or activities of CITY or LESSEE, its sublessees or ar! person acting for CITY, or LESS32 or under its control OK direction, and also to protect agfnst loss frorr, liability imposed by law €or damages to any property of any person directly or indirectly by or from acts or activities of C LESSEE, or its sublessees, or any person acting for CITY LESSEE, or under its control or direction, Such prope~t) and public liability insurance shall also provide for and protect CITY a.gainst incurring any legal cost in defendir claims for alleged loss, Such public liability and prop6 damage insurance shall be maintained in full force and ef during the entire term of this lease in the amount of not than ONE MILLION DOLLARS COMBINED SINGLE LIMIT LIABILITY, agrees to submit a policy of said insurance to the CITY c before the effective date sf this agreement indicating ft coverage of the contractual liability imposed by this agi and stipulating that the insurance company shall not terr cancel or limit written notice thereof to CITY. If the c under this agreement results in an increased or decreasec he opinion sf the City Manager, then LESSEE agrees that t minimum limits hereinabove designated shall be changed accordingly upon request by the City Manager. LESSEE agi provisions of this paragraph as to maintenance of insurar not he construed as limiting in any way the extent to wh: LESSEE may be held responsible €or the payment of damages persons or property resulting from LESSEE'S activities oJ person or persons for which LESSEE is otherwise responsit 6, a 0 I* / 8, Legal Proceedings, LESSEE agrees that shoul becom necessary for CITY to commence legal proceedings t collect rent, recover possessiont or enforce any other pr of this Pease, %he prevailing party will be entitled to 1 costs in connection therewith F including reasonable attor fees as determined by khe court. The partEcs agree that of the State of California shall be used in interpreting lease aqreement and will govern all disputes tinder this 1 agreement and will deternine all rights and obligations hereunder. Personal service either within or without the of California shall be sufficient to give personal jurisd to ariy court in which an action is filed far litigation c under this lease agreement. 9, LESSEE agrees to assume full respons ibil it throughout the term hereof without expense to CITY unless otherwise specified herein, and to perfarm all repairs ar replacements necessary to maintain and preserve said pren a decent, safe, healthy and sanitary condition in a manm satisfactory to CITY and in compliance with all applieabl LESSEE agrees that CITY shall not be required to perform maintenance, repairs or services, or to assume any expens specifically assumed herein in connection with said prerni 10. Utility Costs, LESSEE agrees to orderp obti pay for all utilities and service and installation charge connection therewith - All utilities installed by LESSEE installed underground. ation and maintenance of said 11. Waste,Darnage or Destruction, LESSEE agrees notice to the CITY OE any fire or other darnage that may c the leased premises within ten days of such fire or damas LESSEE agrees not to commit or suffer to be committed an: or injury or any public or private nuisance, to keep the clean and clear of refuse and obstructions, and to dispo: garbage, trash and rubbish in a manner satisfactory to tE If the leased premises shall be damaged by any cause whic the premises into a condition which is not decent, safe, ' and sanitary, LESSEE agrees tQ make or cause to be made 1 repair of said damage and to restore the premises to the condition which existed prior to said damage, or LESSEE clear and renove from the leased premises all debris res1 from said damage, C. General Conditions 1. Administration and Notices. Control and administration of this lease is under the jurisdiction o City Manager of CITY as to CITY'S interest herein and an conrnunication relative to the terms or conditions or any thereto or any notice or notices provided for by this Le 7. 0 0 .. i law to be given or served upon CITY may be given or serve registered letter deposited i~ the United States mails, F prepaid, and addressed to the City Managerp 9200 Elm Aver Carlsbad, California, 92008, any notice or notices provi by this lease or by law to be given or served upon LESSEE given or served by depositing in the United States mails, prepaid, a letter addressed to said LESSEE at the leased or at such other address designated in writing by LESSEE, be personally served upon LESSEE or any person hereafter authorized by them to receive such notice. Any notice ox given or served as provided herein shall- be effectual and for all purposes upon the principals of the parties so SE upon personal service or forty-eight hours after mailing manner required herein, 2. City Approval and, Consent, The approval or c of the CITY, wherever required in this agreement, shall n approval or consent of the City Manager unless otherwise specified, without need for further resolution by the Cit Council e 3, Entry and Inspection. CITY reserves and shal always have the right to enter said premises for the purF viewing and ascertaining the condition of the same, or tc is interests in the premises or to inspect the operations conducted thereon. In the event that such entry or inspe CITY discloses that said premises itre not in a decent_, sa healthy and sanitary condition, CITY snal: have the right ten days written notice to LESSZZ, to ‘nave any necessary maintenance work done for and at the expense of LESSEE ar hereby agrees to pay promptly any and all costs incurred in having such necessary maintenance work done in order t said premises in a decent, safe, healthy and sanitary cor Further, if at any time the CITY determines that said ?re are not in a decent, safeg healthy and sanitary conditror may at its sole option, without. additional notice, requir to file with CITY a faithful performance bond to assure g correction of any condition which is not decent, safe, he and sanitary. Said bond shall be in an amount adequate i opinion of the CITY to correct the said unsatisfactory condition. LESSEE shall pay the cost of said bond. The reserved in this section shall not create any obligations or increase obligations elsewhere in this lease imposed c 4. Merger. The voluntary or other surrender of lease by LESSEE, or a mutual cancellatipn thereof, shall a merger and shall, at the option of CITY, terminate all existing subleases or subtenancies or may, at the option operate as an assignment to it of any or all such subleas subkenancies. 8, 0 0 *. 5, Oral Representation, It is specifically und and agreed hereby that this lease contains the complete expression of the whole agreement between the parties her that khere are no promises, representatbns, agreementsb warranties or inducements, either expressed orally or imt: the said parties, except as are fully set forth herein; z further, that this lease cannot be enlarged, modified or in ar~y respect except by written agreement duly executed betwaen the said parties. 6. Ownership of Improvements, wZE improvements such fixtures as are hereinafter described on the attache addendum, which have been installed by LESSEE in accordar the provisions of this agreement, shall. at the option of become the property of CITY upon expiration or sooner ter of this agreement, LESSE shall have the right to remove the demised premises only hose fixtures described on the attacked addendum at any time prior.'to the expiration or termination of the agreement, provided that such removal not, in the opinion of CITY, restrict the operation of tk demised premises to the extent that the rent paid to CIT'I reduced as a direct result therefrom, LESSEE'S removal c said fixtures shall be at LESSEE*S own expense and shall conditioned upon LESSEE'S repairing any damage to the ren improvements and upon LESSEE leaving the demised prerniseE order and condition. In the evezt LESSEE does not so rer fixtures prior to the expiration of this agreeneat, CITY remove, sell or destroy the same at the expnse of LESSEE the proceeds of the sale are not adequate, LESSEE shall 1 pay to CITY its reasonable cost of any such removal, sale destruction together with the reasonable cost of repair c damages to CITY'S property resulting from such removal,^; destruction. At the option of CITY, any such property, I personal, not removed by LESSEE may be deemed abandoned i be removed and sold by CITY and all income received by C: therefrom shall be the property of CITY exclusively, Sa: addendurn may be'ehanged from time to time upon approval ( City Managerc without further resolution by the City CQUI 7. Remedies of City, a, Default by Lessee. In the event that (1) LESSEE shall default in the perft or fulfillment of any covenant or condition herein requii performed OK fulfilled by LESSEE and shsll fail to cure I default within thirty days following the service on LESS1 written notice from CITY specifying the default complaint or (2) LESSEE shall voluntarily file or involuntarily filed against him any petition under any b( or insolvency act or law; or 9. a *. (3) LESSEE shall be adjudicated a ban (4) LESSEE shall mzke a general assig Then CITY mayB at its option, without notice or demand upon LESSEE or upon any person claiming LESSEE, immediately terminate this lease and all rights o arid of all persons claiming rights through LESSEE in or t sal4 premises or in or to further possesion thereof and C thereupon enter and. take possession of said prezises and LESSEE and all persons so claiming rights thereto. Provi however, in the event that any default described in. Part . of this section is not curable within thirty f30) days af service of a written notice upon LESSEE, CITY shall not t his lease pursuant ts said default if LESSEE immediately ommences to cur lt and diligently purs 0 completion. for the benefit sf creditors; b., Abandonment by Lessee, Even though LESS breached the lease and abandoned the property, this lease continue in effect for so long as CITY does not terminate LESSEE6S right to possessian, and CITY may enforce all it rights and remedies under said lease, including, but not to, the right to recover the rent as it becones due under lease. For purposes of this section, the following do nc constitute a termination of LESSEE'S right *Lo possession: (1) Acts by CITY 02 naintenance, or preservation, or efforts to relet the property, (2) The appointment of a receiver upon initiative of CITY to protect the CITY'S interest under t Pease. e* Damages, Damages which CITY may reeovez event of default lander this lease include the worth, at f of award, of the amount by which the unpaid rent for the of the term after the date of award, or for any shorter 1 time specified in this lease, exceeds the amount of such loss for the same period that the LESSEE proves could be reasor,ably avoided. The remedies provided by this sectic not exclusive and shall be cumulative to all other right: remedies possessed by CITY, and nothing contained herein be construed so as to defeat any other rights or remedies which CITY riiay be entitled. 8, Reservation of City Riqhts, CITY hereby r( all rights, title and interest in any and all gas, oil, 1 and water beneath said lease premises. CITY shall have right to enter said leased premises for the purpose of m repairs to or developing municipal services . CITY hereb, reserves the right to grant and use such easements or es and iise such rights of way over, under, along and across 10. (I) e *- leased premises Eor utilities, thoroughfares, or access a: may deem advisable for the public good, Provided, howeve. shall not unreasonably interfere with LESSEE8S use of prei and will reimburse LESSEE for physical. damages, if any, tc permanent improvements of LESSEE located on the leased prl resulting from CITY'S exercising the rights retained in tl paracjraph. anncal rent proportionate to the amount of said physical 1 as determined by the City Manager, CITY shall pay the co maintenance and repair of all CITY installations made pur to the rights reserved herein, 9, Time is sf the Essence, Time is of the ess each and all of the terms and provisions of this lease an .lease shall inure to the benefit sf and be binding upon t parties hereto and any SI%C@@SSQT a€ LESSEE as fully and t same extent as though specifically mentioned in each inst and all covenants, stipulations and *agreements in this le shall extend to and bind any assigns or sublessees of LES 10, Waiver. The waiver by CITY of any breach o term, covenantB or condition herein contained shall not b deemed to be a waiver of such term,. covenant ox condition any subsequent breach of the same or any other term, cove condition herein contained. The subsequent acceptance of hereunder by CITY shall not be deemed to be a waiver of a preceding breach by LESSEE of any termp covenant or condi this lease, regardless of CITY'S knowledge of such preced breach at the time of acceptance of such rent, Failure c part o€ CITY to require or exact full and complete compli with any of the covenants, conditions or agreements of tk shall not be construed as in any manner changing the tern hereof and shall not prevent CITY from enforcing any prot hereof D IN WITNESS WHEREOF, this Lease Agreement is executed by C acting by and through the City Manager, and by LESSEE, ac and through its lawfully authorized officers, Such reimbursement shall include a reduction THE CITY OF CARLSBAD DATE By : city Pdanager LESSEE By : By : APPROVED as to form this day of I 19- VINCENT F. BIONDO, JR,, Cit By t 11.