HomeMy WebLinkAbout1991-10-15; City Council; 11390; SOUTHWEST QUADRANT (ALTA MIRA PARK) AGRICULTURAL LEASE.I ’
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CITPF CARLSBAD - AGENDWILL .<E- -
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k 1 AB#- I TITLE: SOUTHWEST QUADRANT (ALTA DEPT. H
CITY AT MTG. ic - Is--$ I MIRA PARK) AGRICULTURAL
LEASE DEPT.!? + Q CITY M( I I I
RECOMMENDED ACTION:
City Council adopt Resolution No. ci \#’{ approving the lease agreement for 25 acres of
Alta Mira Park to Salvador Pinto for agricultural purposes.
ITEM EXPLANATION:
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With the acquisition of the 30-acre parcel located in the southwest quadrant immediately
adjacent to the existing 12-acre Alta Mira Park site, the City currently owns 42
contiguous acres of property. Prior to the City’s acquisition of the 30-acre parcel, the
land was being leased for agricultural purposes (primarily floral cultivation). The
property was being leased and farmed by Mr. Salvador Pinto several years prior to the
City acquisition. Mr. Pinto is presently desirous of continuing a lease for use of the
property for agricultural purposes.
Although the property was purchased by the City, for the development of a community
park, a span of time will exist at the site until the ground is actually broken for park
development. City staff believes a lease agreement with Mr. Pinto would be
advantageous to the City in terms of the generation of revenue from the future park site,
and if Council concurs, staff has prepared lease documents which have been reviewed
and approved as to form by the City Attorney’s office.
In essence, the term of the lease is for three (3) years with a 120-day cancellation clause
which may be initiated by either party. Staff believes this 120-day clause will be effective
and beneficial to both parties in terms of providing ample time in which to terminate
agricultural production while providing lead time prior to the actual commencement of
park development. It is estimated there are approximately 25-acres of land available for
agricultural use.
FISCAL IMPACT:
The price negotiated for this lease is based on $350 per acre per year resulting in an
annual lease revenue of $8,750 or $26,250 should the agreement reach fruition.
EXHIBITS:
~ 1. Resolution No. ‘1 i - 33 5
2. Lease Agreement
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RESOLUTION NO. 9 1 - 3 3 9
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING
AGRICULTURAL PURPOSES
THE LEASE OF PROPERTY AT ALTA MIRA PARK FOR
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6 WHEREAS, the City of Carlsbad recently acquired a thirty (30) acre parcel
7 property adjacent to the existing twelve (12) acre Alta Mira Park site for future p:
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development, and
WHEREAS, this property has been leased for agricultural purposes the last 21
years, and
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Carlsbad, and 13
WHEREAS, the current leasee has desired to continue a lease with the Ciq
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WHEREAS, the property is not scheduled for immediate development a
community park, and
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17 NOW, THEREFORE BE IT RESOLVED:
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1. That the above recitations are true and correct.
2. That the City Council of the City of Carlsbad has decided the negotia
20 lease price of $350 per acre, per year for the annual amount of $8,25(
21 be in the best interest of the City to accept for the lease of this propr
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23 I1 for agricultural use, until such time as park development commence2
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Council of the City of Carlsbad held on the 15th day of October, 1991, by the followi~
PASSED, APPROVED, AND ADOPTED at a regular meeting of the Ci
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4 NOES: None
AYES: Council Members Lewis, Larson and Stanton
5 ABSENT: Council Members Kulchin and Nygaard
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ATTEST: 9
lo Llki%L @ i?- 11 ALETHA L. RAUTENKRANZ, City Clerk\
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CITY OF CARLSBAD
Flat Rate Lease
(Alta Mira Park Property)
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SECTION
Section 1
1.01
1.02
1.03
1.04
1.05
1.06
Section 2
2.01
2.02
2.03
2.04
Section 3
3.01
3.02
3.03
3.04
Section 4
4.01
4.02
4.03
4.04
4-05.
Section 5
5.01
5.02
5.03
Section 6
6.01
6.02
6.03
6.04
6.05
6.06
6.07
6.08
6.09
LEASE OUTLINE
PARAGRAPH PAGE
USES Premises 1 Deletion of Portion of Leased Premises 1
Uses 1
Related Council Action 1 Quiet Possession 2
Easements and Reservations 2
TERM
Commencement 3 Holdover 3 Quitclaim and Surrender of LESSEE'S Interest 3 Termination of Lease 3
RENT Time and Place of Payment
Rent
Delinquent Rent Inspection of Records
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4
7
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ASSIGNMENT
Time is of the Essence: Provisions Binding
on Successors 7
Encumbrance 8
Defaults and Remedies 10 Eminent Domain 12
Assignment and Subletting 8
INSURANCE RISKS/SECURITY Indemnity Insurance
Waste, Damage or Destruction
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IMPROVEMENTS/ALTERATIONS/REPAIRS Acceptance of Premises 17 Entry and Inspection and Channel Maintenance 17
Maintenance 17
Improvements/Alterations 18 Utilities 18
Liens 18
Signs 19 Ownership of Improvements and Personal Property 19
Taxes 19
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SECTION
Section 7
7.01
7.02
7.03
7.04
7.05
7.06
7.07
7.08
7.09
7.10
7.11
7.12
7.13
7.14
Section 8
8.01
Section 9
9.01
PARAGRAPH
GENERAL PROVISIONS
Notices
Compliance with Law CITY approval
Nondiscrimination
Partial Invalidity
Legal Fees
Number and Gender
Captions
Entire Understanding
Agricultural Provisions
Agricultural Operations
Noxious Weeds, Pests
Control of Livestock
Employee Housing Prohibited
WARRANTY
Warranty
SIGNATURES
Signature Page
PAGE
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CITY OF CARLSBAD
FLAT RATE LEASE
THIS LEASE AGREEMENT is executed between THE CITY OF CARLSBAD, a
municipal corporation, hereinafter called glCITY1l, and Salvador
Pinto I hereinafter called "LESSEE".
SECTION 1 : USES
1.01 Premises. CITY hereby leases to LESSEE and LESSEE
leases from CITY all of that certain real property
situated in the City of Carlsbad, County of San
Diego, State of California, described in Exhibit "Aft attached hereto and by this reference made part
of this agreement. Said real property is
hereinafter called the lvpremises*l or "leased premises".
1.02 Deletion of Portion of Leased Premises. In the event any portion of the leased premises is not used by LESSEE for its highest and best use, then CITY may, at CITY'S option, delete that portion of the leased premises not used by LESSEE from Section
1.01, Premises, hereof. Provided, however, Section
3, RENT, hereof, shall be adjusted downward by the City Manager on an equitable basis.
1.03 Uses. It is expressly agreed that the premises, consisting of approximately 25 acres, is leased to
. LESSEE solely and exclusively for the purposes of
growing crops and for such other related or
incidental purposes as may be first approved in writing by the City Manager and for no other purpose whatsoever.
LESSEE covenants and agrees to use the premises for the ab0v.e specified purposes and to diligently
pursue said purposes throughout the term hereof.
Failure to continuously use the premises for said
purposes, or the use thereof for purposes not
expressly authorized herein, shall be grounds for
termination by CITY.
1.04 Related Council Actions. By the granting of this lease, neither CITY nor the Council of CITY is
obligating itself to any other governmental agent,
board, commission, or agency with regard to any
other discretionary action relating to development
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or operation of the premises. Discretionary action includes, but is not limited to rezonings, variances, environmental clearances or any other governmental agency approvals which may be required for the development and operation of the leased premises.
1.05 Duiet Possession. LESSEE, paying the rent and
performing the covenants and agreements herein,
shall at all times during the term peaceably and quietly have, hold and enjoy the premises. If CITY for any reason cannot deliver possession of the
premises to LESSEE at the commencement of the term,
or if during the lease term LESSEE is temporarily dispossessed through action or claim of a title
superior to CITY'S, then and in either of such
events, this lease shall not be voidable nor shall
CITY be liable to LESSEE for any loss or damage
resulting therefrom, but there shall be determined and stated in writing by the City Manager of CITY a proportionate reduction of the minimum or flat rate rent for the period or periods during which LESSEE is prevented from having the quiet possession of all or a portion of the premises.
1.06 Easements and Reservations.
a. CITY hereby reserves all rights, title and
gas, oil, minerals and water on or within the
premises.
interest in any and all subsurface natural
b. CITY reserves the right to grant and USE easements or to establish and use rights-of- way over, under, along and across the leased
premises for utilities, thoroughfares, 01: access as it deems advisable for the public
good.
c. CITY has the right to enter the premises fol the purpose of making repairs to or developin5
municipal resources and services.
However, CITY shall not unreasonably 01
substantially interfere with LESSEE'S use of tht
premises and will reimburse LESSEE for damages, ij
crops, located on the leased premises resultinc
from CITY exercising the rights reserved in thi:
section. Such reimbursement may include i
reduction in the rent proportionate to the amouni
of damage as determined by CITY. CITY will pay thc
I any, to the permanent improvements, includinc
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costs of maintenance and repair of all CITY
installations made pursuant to these reserved
rights.
SECTION 2 : TERM
2.01 Commencement. Regardless of the date of execution
by the City Manager, the term of this agreement
shall be three (3) years commencing on July 1, 1991
and terminating June 30, 1994.
2.02 Holdover. Any holding over by LESSEE after
expiration or termination shall not be cocsidered as a renewal or extension of this lease. The occupancy of the premises after the expiration or termination of this agreement constitutes a month- to-month tenancy, and all other terms and conditions of this agreement shall continue in full
force and effect: provided, however, CITY shall have the right to apply a reasonable increase in rent to bring the rent to fair market value and to
terminate the holdover tenancy at will.
2.03 Quitclaim and Surrender of LESSEE'S Interest. At
termination of this lease for any reason, LESSEE shall execute, acknowledge and deliver to CITY, within five (5) days after written CITY demand, a valid and recordable quitclaim deed covering all of the premises. The premises shall be delivered free and clear of all liens and encumbrances, and in a decent, safe and sanitary condition.
At the expiration or earlier termination of this lease, LESSEE shall surrender the premises to CITY free and clear of all liens and encumbrances, except those liens and encumbrances which existed on the date of execution hereof, and in a decent,
safe and sanitary condition. In the case of
termination of this lease by CITY prior to the end
of the specified lease term, any liens and
City Manager.
If LESSEE fails or refuses to deliver the required
deed, the CITY may prepare and record a notice
reciting LESSEE'S failure to execute this leas€
provision and the notice will be conclusivE evidence of the termination of this lease and all
LESSEE'S rights to the premises.
encumbrances must be approved in writing by the
2.04 Termination of Lease. Either party may terminat€
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this lease at any time upon 90 days notice to the other. If at expiration of the 90 day time perioc
LESSEE still has crops growing, LESSEE shall be permitted to continue raising and tending the crops
and shall be permitted to harvest the crops. Tht right to harvest the crops shall not extend tht term of the lease except that the provisions ol
this lease, other than the extension provision,
shall apply. The right to raise, tend and harvest shall apply only to crops planted before notice tc terminate has been given.
SECTION 3: RENT
3.01 Time and Place of Payment. Rent is due quarter11
in advance on or before the first day of each new
quarter. Checks should be made payable to the City of Carlsbad and mailed or delivered to the Financial Management Director, 1200 Carlsbad Village Drive, Carlsbad, California 92008.
The place and time of payment may be changed at any
time by CITY upon thirty (30) days written notice
to LESSEE. Mailed rental payments shall be deemed
paid upon the date such payment is postmarked by
the postal authorities. If postmarks are
illegible, the payment shall be deemed paid upon actual receipt by the Financial Management
Director. LESSEE assumes all risk of loss and
responsibility for late payment charges if payments
are made by mail.
3.02 Rent.
a. Rent Amount. The initial rent is $2,187 per quarter. Said rent is subject to adjustments based on increases, if any, in the Consumer
Price Index (CPI) and in the fair market value
of the leased premises as hereinafter
provided.
b. (1) CPI Index Adiustments. At the end of the first year following the effective date
of the lease and at the end of every year thereafter during the lease term, the rent shall be adjusted to reflect increases in the Consumer Price Index
(CPI) .
The index used will be the CPI for "All
Urban Consumersff for Los Angeles/Long
Beach/Anaheim, California. If this index
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100 for the CPI, the base figure usei
will first be converted under a formula
supplied by the Bureau of Labor Statistics or its successor.
If the Department of Labor indices are nc
longer published, another index generally recognized as authoritative will be substituted by agreement of CITY and
LESSEE. If the parties cannot agree within sixty (60) days after demand by either party, a substitute index will be selected by the Chief Officer of the Regional Off ice of the Bureau of Labor Statistics or its successor, notwithstanding continued reference herein to ltCPItl in any event.
Regardless of the index publication dates, the effective date of the rent adjustment is as specified in this Subsection b. (1) CPI Index Adiustments.
reasonably determined by the index method, LESSEE shall continue to make
payments at the existing rental rate.
When the adjustment is determined, the
balance of rents due at the adjusted rate
will be paid to CITY within thirty (30)
days. In no event shall the adjusted
rent as established by the Consumer Price
Index be less than the rent in existence
immediately prior to the adjustment date.
(2) Index Adjustment Comwtation. The rent for each rental period following the adjustment, until the next adjustment or
other rental determination as provided
herein, shall be determined prior to the
date of adjustment by multiplying the
to said adjustment by the lladjustment figure" established by the method outlined in the following paragraphs; provided, however, increases in the rent
Until the rent adjustment can be
rent which is effective immediately prior
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shall not exceed six percent (6%) per year nonaccumulative.
The lladjustment figure" shall be
index" by the "base figure", both as
defined herein:
The "base figure" for the first such adjustment shall be a three-month average
of index figures published by said CPI
using the fourth, fifth and sixth full
months preceding the effective date of this agreement.
To illustrate, if the lease began in May, the CPI figures for November (sixth month), December (fifth month) and
January (fourth month) preceding May
would be averaged to establish the base
figure (Example 1) .
established by dividing the "current
The "current indexf1 shall be a three-
month average of index figures published
by said CPI. The three months to be used
to establish said average shall be the
fourth, fifth and sixth full months preceding the adjustment date.
The "base figure" for each successive
adjustment shall be the "current index" figure used in the last preceding
adjustment period (Example 2).
Example 1
Current Index 114
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 thf monthly rent from the preceding adjustment perioc
to determine the new rent. Using the foregoin?
examples, if the rent is now $1,000 per month,
after the first adjustment it will be $1,040 pel
- = 1.04 (Adjustment Figure)
= 1.05 (Adjustment Figure)
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month ($1,000 X 1.04). In the second adjustment it Will be $1,092 per month ($1,040 x 1.05).
3.03 Delinquent Rent. If LESSEE fails to pay the rent when due, LESSEE will pay in addition to the unpaid rents, five percent (5%) of the delinquent rent. If the rent is still unpaid at the end of fifteen (15) days, LESSEE shall pay an additional five percent (5%) [being a total of ten percent
(10%) ] which is hereby mutually agreed by the parties to be appropriate to compensate CITY for
loss resulting from rental delinquency, including
lost interest, opportunities, legal costs, and the
cost of servicing the delinquent account,
discloses that the rent for the audited period has In the event that the CITY audit, if applicable,
been underpaid in excess of five percent (5%) of the total required rent, then LESSEE shall pay CITY the cost of the audit plus ten percent (10%) per year on the amount by which said rent was underpaid in addition to the unpaid rents as shown to be due CITY as compensation to CITY for administrative costs and loss of interest as previously described
herein. LESSEE agrees to pay such amount and further agrees that the specific late charges represent a fair and reasonable estimate of the costs that CITY will incur from LESSEE'S late payment. Acceptance of late charges and any portion of the late payment by CITY shall in no event constitute a waiver of LESSEE default with respect to late payment, nor prevent CITY from exercising any of the other rights and remedies granted in this lease.
3.04 Inspection of Records. LESSEE agrees to make any
and all records and accounts available to CITY for
inspection at all reasonable times, so that CITY
can determine LESSEE'S compliance with this lease.
These records and accounts will be made available by LESSEE at the leased premises and will be
complete and accurate showing all income and receipts from use of the premises. LESSEE t s
failure to keep and maintain- such records and make
them available for inspection by CITY is a breach of this lease and cause for termination. LESSEE
shall maintain all such records and accounts for a
minimum period of five (5) years.
SECTION 4: ASSIGNMENT
4.01 Time is of the Essence; Provisions Bindincr on
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Successors, Time is of the essence for all of the
terms, covenants and conditions of this lease and,
except as otherwise provided herein, all of the terms, covenants and conditions of this lease shall apply to, benefit and bind the successors and
assigns of the respective parties, jointly and individually.
4.02 Assisnment and Sublettinq. LESSEE shall not assign
this lease, or any interest therein, and shall not
sublet the premises or any part thereof, or any right or privilege appurtenant thereto, or suffer any other person, except employees, agents and guests of LESSEE, to use or occupy the premises or any part thereof, without the prior written consent
of the City Manager in each instance. Such consent by the City Manager shall not be unreasonably withheld. A consent to assignment, subletting, occupation or use by any other person shall not be
deemed to be a consent to any subsequent
assignment, subletting, occupation or use by another person. Any such assignment or subletting without such consent shall be void, and shall, at the option of CITY, terminate this lease. This lease shall not, nor shall any interest therein, be assignable, as to the interest of LESSEE, by operation of law, without the written consent of the City Manager.
llAssignmentll, for the purposes of this clause shall include any transfer of any ownership interest in this lease by LESSEE or by any partners, principals, or stockholders, as the case may be, from the original LESSEE, its general partners or
principals.
Approval of any assignment or sublease shall be
conditioned upon the assignee or sublessee agreeing
in writing that it will assume the rights and
obligations thereby assigned or subleased and that
it will keep and perform all covenants, conditions
and provisions of this agreement which are
applicable to the rights acquired.
4.03 Encumbrance. Subject to prior consent by CITY,
which shall not be unreasonably withheld, LESSEE
its improvements thereon by deed of trust, mortgage, chattel mortgage or other securitl instrument to assure the payment of a promissor! note or notes of LESSEE, upon the express conditio1
that the net proceeds of such loan or loans bt
may encumber this lease, its leasehold estate an[
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devoted exclusively to the purpose of developing and/or improving the leased premises. However, a reasonable portion of the loan proceeds may be disbursed for payment of incidental costs of construction, including but not limited to the
following! off-site improvements for service of the premises; on-site improvements; escrow charges; premiums for hazard insurance, or other insurance
or bonds required by CITY; title insurance
premiums; reasonable loan costs such as discounts, interest and commissions; and architectural, engineering and attorney's fees and such other
normal expenses incidental to such construction.
Any subsequent encumbrances on the premises or on
any permanent improvements thereon, must first have the approval in writing of City Manager. Such
subsequent encumbrances shall also be for the
exclusive purpose of development of the premises. Provided, however, after the premises are fully developed in accordance with said Development Plan to the satisfaction of the City Manager, proceeds from refinancing or from such subsequent
so long as there is also substantial benefit to the CITY therefrom. LESSEE understands and specifically agrees that the City Manager shall have the sole and absolute discretion to approve OK disapprove any such proposed subsequent encumbrance including, but not limited to, amending the lease to provide then current rents and provisions.
In the event any such approved deed of trust OL mortgage or other security-type instrument should at any time be in default and be foreclosed, or transferred in lieu of foreclosure, the CITY will accept the approved mortgagee or beneficiarq thereof as its new tenant under this lease with all
the rights, privileges and duties granted anc
imposed in this lease.
Any default, foreclosure or sale pursuant to saic deed of trust, mortgage or other securitj instrument, shall be invalid with respect to thi:
lease without prior notice thereof to CITY. Upor
prior written approval by CITY, said mortgagee 01 beneficiary may assign this lease to its nominee,
if nominee is a reputable, qualified anc
financially responsible person in the opinion oi CITY. Any deed of trust, +mortgage or othel security instrument shall be subject to all of thc terms, covenants and conditions of this lease anc
encumbrances may be used to reduce LESSEE'S equity
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shall not be deemed to amend or alter any of the terms, covenants or condition hereof.
4.04 Defaults and Remedies.
a. Default. In the event that:
(1) LESSEE shall default in the performance of any covenant or condition required by this lease to be performed by LESSEE and shall fail to cure said default within thirty (30) days following written notice thereof from CITY; or if any such default is not curable within thirty (30) days, shall fail to commence to cure the default (s) within said thirty-day period and diligently pursue such cure to completion: or
(2) LESSEE shall voluntarily file or have involuntarily filed against it any petition under any bankruptcy or insolvency act or law; or
(3) LESSEE shall be adjudicated a bankrupt: or
(4) LESSEE shall make a general assignment for the
benefit of creditors:
then CITY may, at its option, without further
notice or demand upon LESSEE or upon any persor
claiming rights through LESSEE, immediate11
terminate this lease and all rights of LESSEE anc
of all persons claiming rights through LESSEE tc
the premises or to possession thereof: and CITY ma) enter and take possession of the premises.
Provided, however, in the event that any default
described in Section 4.04a. (1) , Default anc Remedies, hereof is not curable within thirty (30)
days after notice to LESSEE, CITY shall no1
terminate this lease pursuant to the default il
LESSEE immediately commences to cure the defaull and diligently pursues such cure to completion.
In the event that there is a deed of trust 0: mortgage on the leasehold interest, CITY shall givl the mortgagee or beneficiary written notice of thi
default (s) complained of, and the same mortgagee o
beneficiary shall have thirty (30) days from suc:
notice to cure the default (s) or, if any suc
default is not curable within thirty (30) days, t
commence to cure the default(s) and diligent1 pursue such cure to completion. The thirty-da
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period may be extended during such time as mortgagee or beneficiary pursues said cure with
reasonable diligence.
b. Remedies. If the mortgagee or beneficiary shall be
required to exercise its right to cure said default (s) through litigation or through
foreclosure, then CITY shall have the option of the following courses of action in order that the default(s) may be expeditiously correction:
(1) CITY may correct said default (s) and charge
the costs thereof to the account of LESSEE, which charge shall be due and payable on the date that the rent is next due after presentation by CITY to LESSEE and mortgagee or beneficiary of a statement of said costs.
(2) CITY may correct said default(s) and pay the costs thereof from the proceeds of any insurance fund held by CITY, CITY and LESSEE or by CITY and mortgagee or beneficiary, or CITY may use the funds of any faithful performance or cash bond on deposit with CITY, or CITY may call on the bonding agent to correct the default(s) or to pay the costs of correction performed by or at the direction of CITY.
(3) CITY may terminate this lease as to the rights
of LESSEE by assuming or causing the
assumption of liability for any trust deed or
mortgage. LESSEE agrees to assume and pay any
and all penalties or bonuses required by the
beneficiaries, trustees or mortgagees as e
condition for early payoff of the related
obligations by CITY. CITY may, as ar alternative, substitute for the terminatec
LESSEE a new LESSEE reasonably satisfactory tc the mortgagee or beneficiary. Any reasonable costs incurred by CITY in releasing to a neb
tenant shall be the responsibility of the
terminated LESSEE and LESSEE hereby agrees tc
reimburse CITY for any such costs.
Should the default (s) be noncurable by LESSEE, ther
any lender holding a beneficial interest in thc leasehold, whose qualifications as an assignee haw been approved by CITY, shall have the absolutc right to substitute itself to the estate of LESSEI
hereunder and to commence performance of thir
lease. If such mortgagee or beneficiary shall givf
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notice in writing of its election to so substitute
itself within the thirty-day period after receiving
written notice by CITY of the default, and the
beneficiary, then this lease shall not terminate
pursuant to the default. In that event, CITY
expressly consents to the substitution and authorizes the mortgagee or beneficiary to perform
under this lease with all the rights, privileges and obligations of LESSEE, subject to cure of the default, if possible, by mortgagee or beneficiary. LESSEE expressly agrees to assign all its interest
in and to its leasehold estate to mortgagee or
beneficiary in that event.
default, if curable, is cured by such mortgagee or
c. Abandonment bv LESSEE. Even though LESSEE has
breached the lease and abandoned the property, this lease shall continue in effect for so long as CITY
does not terminate this lease, and CITY may enforce all its rights and remedies hereunder, including but not limited to the right to recover the rent as it becomes due, plus damages.
d. Waiver. Any CITY waiver of a default is not a
waiver of any other default. Any waiver of a
default must be in writing and be executed by the City Manager in order to constitute a valid and binding waiver. CITY delay or failure to exercise a remedy or right is not a waiver of that or an1 other remedy or right under this lease. The use of one remedy or right for any default does not waive the use of another remedy or right for the same default or for another or later default. CITY'S acceptance of any rents is not a waiver of an1 default preceding the rent payment. CITY anc
LESSEE specifically agree that the propert) constituting the premises is CITY-owned and held ir trust for the benefit of the citizens of the Cit)
of San Diego and that any failure by the Cit)
Manager or CITY staff to discover a default shall
not result in an equitable estoppel, but CITY shall at all times, subject to the applicable statute 01
limitations, have the legal right to require th< cure of any default when and as such defaults art discovered or when as the City Council directs thg City Manager to take action or require the cure 01
any default after such default is brought to thf
attention of the City Council by the City Manage]
or by any concerned citizen.
4.05 Eminent Domain. If all or part of the premises arc taken through condemnation proceedings or unde:
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threat of condemnation by any public authority with the power of eminent domain, the interests of CITY and LESSEE (or beneficiary or mortgagee) will be as follows:
a. In the event the entire premises are taken, this lease shall terminate on the date of the transfer
of title or possession to the condemning authority, whichever first occurs.
b. In the event of a partial taking, if, in the opinion of CITY, the remaining part of the premises is unsuitable for the lease operation, this lease shall terminate on the date of the transfer of
title or possession to the condemning authority, whichever first occurs.
c. In the event of a partial taking, if, in the opinion of CITY, the remainder of the premises is
suitable for continued lease operation, this lease shall terminate in regard to the portion taken on the date of the transfer of title or possession tc the condemning authority, whichever first occurs, but shall continue for the portion not taken. The minimum rent shall be equitably reduced to reflect the portion of the premises taken.
d. Award. All monies awarded in any such taking shall belong to CITY, whether such taking results ir diminution in value of the leasehold or the fee 01
both; provided, however, LESSEE shall be entitlec to any award attributable to the taking of 01
damages to LESSEE 1s then remaining leaseholc
interest in installations or improvements ol
LESSEE, including crops. CITY shall have nc liability to LESSEE for any award not provided b: the condemning authority.
e. Transfer. CITY has the right to transfer CITY '2 interests n the premises in lieu of condemnation tc any authority entitled to exercise the power 0: eminent domain. If a transfer occurs, LESSEE shal: retain whatever interest it may have in the fai: market value of any improvements placed by it 01
the premises in accordance with this lease so lonc
as such rights do not unreasonably or substantiall:
interfere with LESSEE'S operations.
f. No Inverse Condemnation. The exercise of any CIT right under this lease shall not be interpreted a
an exercise of the power of eminent domain an shall not impose any liability upon CITY fo
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SECTION 5: INSURANCE RISXS/SECURITY
5.01 Indemnity. LESSEE shall at all times relieve,
indemnify, protect, and save CITY and any and all
of its boards, officers, agents and employees harmless from any and all claims and demands, actions, proceedings, losses, liens, costs, judgments, civil fines, and penalties of any nature
whatsoever in regard to or resulting from the use
of the premises, including but not limited to
expenses incurred in legal actions, death, injury,
Or damage that may be caused directly or indirectly
by :
a. any unsafe or defective condition in or on the
premises of any nature whatsoever which may exist by reason of any act, omission, neglect, or any use
or occupation of the premises:
b. any operation, use or occupation conducted on the premises:
c. any act , omission, or negligence on the part of LESSEE, its employees, agents, sublessees, invitees, licensees: or
d. any failure by LESSEE to comply or secure
compliance with any of the lease terms or
conditions.
5.02 Insurance. LESSEE shall take out and maintain at
all times during the term of this lease the
following insurance at its sole expense:
a. Public liability and Property Damase Insurance in the amount of not less than ONE MILLION DOLLARS
($1,000,000) Combined Single Limit Liability with an occurrence claims form, if available. This policy shall cover all injury or damage, including
death, suffered by any party or parties from acts or failures to act by CITY or LESSEE or by authorized representatives of CITY or LESSEE on or in connection with the use or operation of the
premises.
b. Fire, Extended Coveraqe, and Vandalism Insurance
policy on all insurable property on the premises in
an amount to cover 100 percent of the replacement
cost. Any proceeds from a loss shall be payable jointly to CITY and LESSEE. The proceeds shall be
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c placed in a trust fund to be I rebuilding or repairin? the damaged
there is a mortgage or trust deed on
hereof, the proceeds may be paid to mortgagee or beneficiary SO long provision reasonably satisfactory to made in -each case for the use of all repair and restoration of damaged improvements on the premises.
in accordance with Section 4-02,
reinvested il
the leaseholc
Encumbrance the approve( as adequatt CITY has bee1 proceeds fol
or destroyec
property. I:
C. Condition. All insurance policies will name CIT'J as an additional insured, protect CITY against an] legal costs in defending claims, and will not terminate without sixty (60) days prior writter
notice to CITY. All insurance companies must bc satisfactory to CITY and licensed to do business ir California. All policies will be in effect on or
before the first day of the lease, except llcoursE of construction fire insurance" shall be in force
on commencement of all authorized construction or the premises, and full applicable fire insurance
coverage shall be effective upon completion of each
insurable improvement. A copy of the insurance policy will remain on file with CITY during the
entire term of the lease. At least thirty (30)
days prior to the expiration of each policy, LESSEE
shall furnish a certificate(s) showing that a new
or extended policy has been obtained which meets
the terms of this lease.
d. Modification. CITY, at its discretion, may require the revision of amounts and coverages at any time
during the term by giving LESSEE sixty (60) days
prior written notice. CITY'S requirements shall be
designed to assure protection from and against the
kind and extent of risk existing on the premises.
LESSEE also agrees to obtain any additional
insurance required by CITY for new improvements, in order to meet the requirements of this lease.
e. Accident Reports. LESSEE shall report to CITY any accident causing more than TEN THOUSAND DOLLARS
($10,000) worth of property damage or any serious
injury to persons on the premises. This report shall contain the names and addresses of the parties involved, a statement of the circumstances, the date and hour, the names and addresses of any witnesses and other pertinent information.
f. Failure to Comply. If LESSEE fails or refuses to
take out and maintain the required insurance, or
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\ fails to provide the proof of coverage, CITY ha the right to obtain the insurance. LESSEE shal reimburse CITY for the premiums paid with interes at the maximum allowable legal rate then in effec in California. CITY shall give notice of tht
payment of premiums within thirty (30) days 03
payment stating the amount paid, names of thc inSUrer(S) and rate of interest,
reimbursement and interest shall be paid by LESSE: on the first (1st) day of the month following thl notice of payment by CITY.
Notwithstanding the preceding provisions of this
Subsection f., if LESSEE fails or refuses to takc
out or maintain insurance as required in thi: lease, or fails to provide the proof of insurance, CITY has the right to declare this lease in defaull without further notice to LESSEE and CITY shall bc entitled to exercise all legal remedies in the event of such default.
saic
5.03 Waste, Damase or Destruction. LESSEE agrees tc give notice to CITY of any fire or other damage that may occur on the leased premises within ter
(10) days of such fire or damage. LESSEE agrees not to commit or suffer to be committed any waste or injury or any public or private nuisance, tc keep the premises clean and clear of refuse and obstructions, and to dispose of all garbage, trash,
and rubbish in a manner satisfactory to CITY. If
the leased premises shall be damaged by any cause
which puts the premises into a condition which is
not decent, safe, healthy and sanitary, LESSEE agrees to make or cause to be made full repair of said damage and to restore the premises to the
condition which existed prior to said damage; or, at CITY'S option, LESSEE agrees to clear and remove from the leased premises a11 debris resulting from said damage and rebuild the premises in accordance with plans and specifications previously submitted
to CITY and approved in writing in order to replace
in kind and scope the operation which existed prior
to such damage, using for either purpose the
insurance proceeds as set forth in Section 5.02,
Insurance, hereof.
LESSEE agrees that preliminary steps toward
performing repairs, restoration, or replacement of
the premises shall be commenced by LESSEE within
thirty (30) days, and the required repairs,
restoration, or replacement shall be completed within a reasonable time thereafter. CITY may
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determine an equitable deduction in the minimum annual rent requirement for such period or periods that said premises are untenantable by reason of such damage.
SECTION 6: IMPROVEMENTS/ALTERATIONS/REPAIRS
6.01 AcceDtance of Premises. By signing this lease,
LESSEE represents and warrants that it has
independently inspected the premises and made all
tests, investigations, and observations necessary
to satisfy itself of the condition of the premises.
LESSEE agrees it is relying solely on such
independent inspection, tests, investigations, and
observations in making this lease. LESSEE further acknowledges that the premises are in the condition called for by this lease, that CITY has performed all work with respect to the premises, and that LESSEE does not hold CITY responsible for any
defects in the premises.
6.02 Entry and InsDection. CITY reserves and shall
always have the right to enter said premises for the purpose of viewing and ascertaining the condition of the same, or to protect its interests
in the premises, or to inspect the operations
inspection by CITY discloses that said premises are
not in a decent, safe, healthy, and sanitary
condition, CITY shall have the right, after ten
(10) days written notice to LESSEE, to have any
necessary maintenance work done at the expense of LESSEE, and LESSEE hereby agrees to pay promptly any and all costs incurred by CITY in having such necessary maintenance work done, in order to keep
said premises in a decent, safe, healthy, and sanitary condition. Further, if at any time CITY
determines that said premises are not in a decent,
safe, healthy, and sanitary condition, CITY may its sole option, without additional notice, require LESSEE to file with CITY a faithful performance bond to assure prompt correction of any condition
which is not decent, safe, healthy and sanitary.
Said bond shall be in an amount adequate in the
Unsatisfactory condition. LESSEE shall pay the cost of said bond. The rights reserved in this section shall not create any obligations on CITY or
increase obligations elsewhere in this lease imposed on CITY.
conducted thereon, In the event that such entry or
opinion of the CITY to correct the said
6.03 Maintenance. Except as hereinafter provided,
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LESSEE agrees to assume full responsibility and
cost for the operation and maintenance of the premises throughout the term. LESSEE will perform
all such repairs and replacements necessary to
maintain and preserve the premises in a decent,
safe, healthy and sanitary condition satisfactory to CITY and in compliance with all applicable laws.
Appropriate codes and standards of CITY, state and
federal agencies shall be observed in all
maintenance, repairs and replacements on the premises.
6.04 Improvements/Alterations. No improvements, structures, or installations shall be constructed
on the premises, and the premises may not be
altered by LESSEE without prior written approval by
the City Manager. Further, LESSEE agrees that major structural or architectural design alterations to approved improvements, structures,
or installations may not be made on the premises
without prior written approval by the City Manager and that such approval shall not be unreasonably withheld. This provision shall not relieve LESSEE
of any obligation under this lease to maintain the
premises in a decent, safe, healthy, and sanitary condition, including structural repair and
restoration of damaged or worn improvements. CITY
shall not be obligated by this lease to make 01 assume any expense for any improvements or alterations.
6.05 Utilities. LESSEE agrees to order, obtain, and pal
for all utilities and service and installatior charges in connection with the development anc operation of the leased premises.
6.06 Liens. LESSEE shall at all times save CITY fie€ and harmless and indemnify CITY against all claim:
for labor and materials in connection wit1
operations, improvements, alterations, or repair: on or to the premises and the costs of defendin? against such claims, including reasonablc attorney's fees.
If improvements, alterations, or repairs are madt to the premises by LESSEE or by any party othe: than CITY, and a lien or notice of lien is filed
LESSEE shall within five (5) days of such filinc
either:
a. take all actions necessary to record a valil
release of lien, or
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b. file with CITY a bond, cash, or other security
all claims of all persons seeking relief under
the lien.
acceptable to CITY sufficient to pay in full
6.07 Taxes. LESSEE agrees to pay, before delinquency, all taxes, assessments, and fees assessed or levied
upon LESSEE or the premises, including the land, any buildings, structures, machines, equipment, appliances, or other improvements or property of any nature whatsoever erected, installed or maintained by LESSEE or levied by reason of the business or other LESSEE activities related to the
leased premises, including any licenses or permits. LESSEE recognizes and agrees that this lease may create a possessory interest subject to property taxation, and that LESSEE may be subject to the payment of taxes levied on such interest, and that
LESSEE shall pay all such possessory interest taxes. LESSEE further agrees that payment for such taxes, fees and assessments will not reduce any rent due CITY.
6.08 Siqns. LESSEE agrees not to erect or display any
banners, pennants, flags, posters, signs ,
decorations, marquees, awnings, or similar devices
or advertising without the prior written consent of CITY. If any such unauthorized item is found on the premises, LESSEE agrees to remove the item at its expense within 24 hours notice thereof by CITY, or CITY may thereupon remove the item at LESSEE'S
cost *
6.09 Ownership of Improvements and Personal Propertv.
a. Any and all improvements, trade fixtures,
structures and installations or additions tc
the premises now existing or constructed on
the premises by LESSEE shall at lease
expiration or termination be deemed to be part
of the premises and shall become, at CITY 'E
option, CITY'S property, free of all liens and
claims except as otherwise provided in this
lease.
b. If CITY elects not to assume ownership of all or any improvements, trade fixtures,
structures and installations, CITY shall sc
notify LESSEE thirty (30) days prior tc
prior to expiration, and LESSEE shall removc
all such improvements, structures an(
termination or one-hundred-eighty (180) days
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installations as directed by CITY at LESSEE'S
sole cost on or before lease expiration or
termination. If LESSEE fails to remove any
improvements, structures, and installations as
directed, LESSEE agrees to pay CITY the full cost of any removal.
c. LESSEE-owned machines, appliances, equipment
(other than trade fixtures) , and other items
of personal property shall be removed by Lessee by the date of the expiration or termination of this lease. Any said items which LESSEE fails to remove will be considered abandoned and become CITY'S
property Free of all claims and liens, or CITE
may, at its option, remove said items at
LESSEE'S expense.
d. If any removal of such personal property b) LESSEE results in damage to the remainin? improvements on the premises, LESSEE agrees tc repair all such damage.
e. Any necessary removal by either CITY or LESSEl
termination thereof shall require LESSEE tc
pay rent to CITY at the rate in effeci immediately prior to said expiration 01 termination.
which takes place beyond said expiration 01
f. Notwithstanding any of the foregoing, in tht event LESSEE desires to dispose of any of it: personal property used in the operation 0: said premises upon expiration or terminatioi of this lease, then CITY shall have the firs1 right to acquire or purchase said persona:
property.
SECTION 7: GENERAL PROVISIONS
7.01 Notices
a, Any notice required or permitted to be give
hereunder shall be in writing and may b served personally or by United States mail
postage prepaid, addressed to LESSEE at th leased premises or at such other addres designated in writing by LESSEE; and to CIT
as follows:
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f
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 Director
2075 Las Palmas Drive Carlsbad, CA 92009
or to any mortgagee, trustee, or beneficiary
as applicable, at such appropriate address
designated in writing by the respective party.
b. Any party entitled or required to receive
notice under this lease may by like notice
designate a different address to which notices
shall be sent.
7.02 Compliance with Law. LESSEE shall at all times in
the construction, maintenance, occupancy and operation of the premises comply with all applicable laws, statutes, ordinances, and regulations of CITY, County, State and Federal Governments at LESSEE'S sole cost and expense. In
addition, LESSEE shall comply with any and all notices issued by the City Manager or his
authorized representative under the authority of
any such law, statute, ordinance, or regulation.
7.03 CITY Approval. The approval or consent of CITY, wherever required in this lease, shall mean the
unless otherwise specified, without need fox
further resolution by the City Council.
written approval or consent of the City Manager
7.04 Nondiscrimination. LESSEE agrees not tc
discriminate in any manner against any person 01 persons on account of race, marital status, sex, religious creed, color, ancestry, national origin, age or physical handicap in LESSEE'S use of thc premises, including, but not limited to thc providing of goods , services, facilities, privileges, advantages, and accommodations, and tht obtaining and holding of employment.
7.05 Partial Invalidity. If any term, covenant condition or provision of this lease is fount
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invalid, void or unenforceable by a court of
competent jurisdiction, the remaining provisions will remain in full force and effect.
7.06 Leqal Fees. In the event of any litigation
regarding this lease, the prevailing party shall be
entitled to an award of reasonable legal costs, including court and attorney's fees.
7.07 Number and Gender. Words of any gender used in this lease shall include any other gender, and
words in the singular number shall include the
plural, when the tense requires.
7.08 Captions. The Lease Outline, section headings, and
captions for various articles and paragraphs shall not be held to define, limit, augment, or describe the scope, content, or intent of any or all parts of this lease. The numbers of the paragraphs and
pages of this lease may not be consecutive. Such lack of consecutive numbers is intentional and
shall have no effect on the enforceability of this lease.
7.09 Entire Understandinq. This lease contains the
entire understanding of the parties. LESSEE, bl
signing this agreement, agrees that there is nc other written or oral understanding between thc parties with respect to the leased premises. Eacl party has relied on its own examination of thc premises, advice from its own attorneys, and the
warranties, representations, and covenants of thc
lease itself. Each of the parties in this leas€ agrees that no other party, agent, or attorney oJ any other party has made any promise,
representation, or warranty whatsoever which is not
contained in this lease.
The failure or refusal of any party to read tht
lease or other documents, inspect the premises, an( obtain legal or other advice relevant to thi: transaction constitutes a waiver of any objection
contention, or claim that might have been based 01
these actions. No modification, amendment, 0:
alteration of this lease will be valid unless it i:
in writing and signed by all parties.
7.10 Aqricultural Provisions. LESSEE shall use standart
agricultural practices in growing, tending an1
property in such a manner as to constitute
nuisance to adjoining property owners or lessees
harvesting said crops and shall not use th
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LESSEE shall comply with 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 the lease.
c. No aerial application of pesticides or
fertilizers shall be permitted.
d. A lfResource Management System" which is a
detailed report on what crops will be grown, how crops will be irrigated, what pesticides
will be used, what type of fertilizer will be used and the application methods of pesticides
and fertilizers, shall be submitted and
approved by the Parks and Recreation Director
prior to commencement of agricultural
operations of the land.
e. Erosion shall be controlled and monitored by the Universal Soil Loss Equation provided by
U.S. soil Conservation Service. If erosion exceeds three tons per acre CITY may terminate this lease.
f. No soil is to be left uncropped.
g. No land with an average slope of 30 percent ox
more shall be farmed.
h. All pesticide application shall be approvec
and supervised by the county agricultural office, with all necessary permits obtainec
from county in advance. A complete record of
fertilization and pesticide application must be kept and made available upon request bl CITY.
i. Access roads shall be limited to thosc
approved by the Parks and Recreation Direct01
and shall not cause erosion problems.
j. The Lagoon and Wetlands areas shall bc
monitored by LESSEE for erosion and pesticidt and organic phosphate pollution. Inspection: of area may be conducted by California Fisl and Game Department, U.S. Soil Conservatiol
Service, University of California or CITY a1
any time without prior notice to LESSEE.
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7.11 Aqricultural Operations. LESSEE agrees to abide by
the conditions for agricultural operations set
forth herein. Failure of LESSEE to cease or cure any unauthorized practice within 30 days after
written notice to do so shall constitute at the option of CITY, an immediate termination of the
lease.
7.12 Noxious Weeds, Pests. LESSEE shall take proper corrective action, to the satisfaction of CITY, to prevent the infestation of noxious weeds and pests.
7.13 Control of Livestock. The premises shall be adequately fenced to control livestock without cost to CITY and in a manner satisfactory to CITY.
LESSEE shall be solely responsible for all damage
of any kind resulting from livestock leaving said premises.
7.14 Employee Housinq Prohibited. LESSEE shall not provide housing for employees or any other persons on the property. LESSEE shall not permit LESSEE'S employees or any other persons to reside upon the property in any way.
SECTION 8: WARRANTY
8.01 Warranty The CITY does not warrant that the premises are suitable for the agricultural purposes for which they are leased.
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SECTION 9: SIGNATURES
9.01 Sianature Pase
IN WITNESS WHEREOF, this Lease Agreement is executed by CITY,
acting by and through its City Manager, and by LESSEE, acting by
and through its lawfully authorized officers.
THE CITY OF CARLSBAD
BY City Manager Date
LESSEE:
By :
Title
Printed Name Date
By :
Title
Printed Name Date
APPROVED as to form and legality this day of ,
1991.
BY City Attorney
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