HomeMy WebLinkAbout1992-07-14; City Council; 11785; AGRICULTURAL LEASE ADJACENT TO LIBRARY..
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CITY AGRICULTURAL LEASE MTG. ?-/4- CiZ ADJACENT TO LIBRARY
DEPT. ?+Ret. PARKING LOT CITY
RECOMMENDED ACTION:
City Council adopt Resolution No. q2-Aa2 approving the lease agreement for 1.8 aci
of City property to Henry Yada for agricultural purposes.
ITEM EXPLANATION:
There is currently a 1.8 acre parcel located in the northwest quadrant immediate
adjacent to the existing City Library parking lot, which is vacant. The City receni
obtained this property for future City Hall expansion purposes. Mr. Henry Yada h
approached us with a proposal to lease the land for agricultural use.
Although the property was purchased by the City, for the expansion of City Hall, a sp4
of time will exist at the site until the ground is actually broken for development. C
staff believes a lease agreement with Mr. Yada would be advantageous to the City
terms of the generation of revenue. and if Council concurs, staff has prepared lea
documents which have been reviewed and approved as to form by the City Attorne:
office.
In essence, the term of the lease is for three (3) years with a 90-day cancellation clau
which may be initiated by either party. Staff believes this 90-day clause will be effecti
and beneficial to both parties in terms of providing ample time in which to termina
agricultural production while providing lead time prior to the actual commencement
development. It is estimated there are approximately 1.7-acres of land available f
agricultural use.
FISCAL IMPACT:
The price negotiated for this lease is based on $350 per acre per year resulting in :
annual lease revenue of $600.00 should the agreement reach fruition.
EXHIBITS:
I. Resolution NO. 92.-J&2.
2. Lease Agreement
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0 RESOLUTION NO. 92-222
A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING
THE LEASE OF THE LIBRARY PARKING EXPANSION
PROPERTY
WHEREAS, the City of Carlsbad recently acquired additional propel
identified as The Library Parking Lot Exp;..sion to be developed for potent
Municipal expansion purposes.
WHEREAS, this property has been vacant and
WHEREAS, Mr. Henry Yada has requested a lease with the City of Carlsb:
and
WHEREAS, the property is not scheduled for immediate development and
NOW, THEREFORE BE IT RESOLVED, that the City of Carlsbad CI
Council has decided the negotiated lease price of $350 per acre, per year for tl
annual amount of $600.00 to be in the best interest of the City to accept until su(
time as park development commences.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the Ci
ICouncil of the City of Carlsbad held on the 14th day of Julv, 1992, by the followiI
I I
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/vote, to wit:
AYES:
NOES:
ABSENT: Council Members Larson, and Ny rd
Council Members Lewis, Kulchin, and Stanton
kg& f
AUDE XLEWIS, MAYO
ATTEST:
-_ d / k7d-*/)
ALETHA L. RAUTENKRANZ, City
(SEAL)
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CITY OF CARLSBAD
Flat Rate Lease
(Library Parking Expansion Property)
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LEASE OUTLINE
PAG - SECTION PARAGRAPH
Section 1 USES
1.01 Premises
1.02 Deletion of Portion of Leased Premises
1.03 Uses
1.04 Related Council Action
1.05 Quiet Possession
1.06 Easements and Reservations
Section 2 TERM
2.01 Commencement
2.02 Holdover
2.03 Quitclaim and Surrender of LESSEE'S Interest
2.04 Termination of Lease
Section 3 RENT
3.01 Time and Place of Payment
3.03 Delinquent Rent
3.04 Inspection of Records
3.02 Rent
Section 4 ASSIGNMENT
4.01 Time is of the Essence: Provisions Binding
4.02 Assignment and Subletting
4.03 Encumbrance
4.04 Defaults and Remedies 1
4.05 Eminent Domain 1
5.01 Indemnity 1
5.02 Insurance 1
5.03 Waste, Damage or Destruction 1
6.01 Acceptance of Premises 1
on Successors
Section 5 INSURANCE RISKS/SECURITY
Section 6 IMPROVEMENTS/ALTERATIONS/REPAIRS
6.02 Entry and Inspection and Channel
Maintenance 1
6.03 Maintenance 1
6.04 Improvements/Alterations 1
6.05 Utilities 1
6.06 Liens 1
6.07 signs 1
6.08 Ownership of Improvements and Personal
Property 1
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SECTION PARAGRAPH PAGE
Section 7 GENEML PROVISIONS
7.01 Notices 2c
7.02 Compliance with Law 21
7.03 CITY approval 21
7.04 Nondiscrimination 21
7.05 Partial Invalidity 21
7.06 Legal Fees 2;
7.07 Number and Gender 2;
7.08 Captions 2;
7.09 Entire Understanding 22
7.10 Agricultural Provisions 22
7.11 Agricultural Operations 24
7.12 Noxious Weeds, Pests 24
7.13 Control of Livestock 24
7.14 Employee Housing Prohibited 24
Section 8 WARRANTY
8.01 Warranty 24
Section 9 SIGNATURES
9.01 Signature Page 2E
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CITY OF CARLSBAD
FLAT RATE LEASE
THIS LEASE AGREEMENT is executed between THE CITY OF CARLSBAD,
municipal corporation, hereinafter called "CITY", and HENRY
YADA , hereinafter called IILESSEEII.
SECTION 1: USES
1.01 Premises. CITY hereby leases to LESSEE and LESS leases from CITY all of that certain real proper
situated in the City of Carlsbad, County of 5
Diego, State of California, described in Exhit "A" attached hereto and by this reference made pc
of this agreement. Said real property
hereinafter called the "premises" or "leas
premises".
1.02 Deletion of Portion of Leased Premises. In t
event any portion of the leased premises is r
used by LESSEE for its highest and best use, tlr
CITY may, at CITY'S option, delete that portion
the leased premises not used by LESSEE from Secti
11 Ol,, Premises, hereof. Provided, however, Secti
3, RENT, hereof, shall be adjusted downward by t
City Manager on an equitable basis.
1.03 Uses. It is expressly agreed that the premise
consisting of approximately 1.7 acres, is leased
LESSEE solely and exclusively for the purposes
growing crops and for such other related
incidental purposes as may be first approved
writing by the City Manager and for no ott
purpose whatsoever.
LESSEE covenants and agrees to use the premises f
the above specified purposes and to diligent
pursue said purposes throughout the term herec
Failure to cdntinuously use the premises for SE
purposes, or the use thereof for purposes r
expressly authorized herein, shall be grounds f
termination by CITY.
1.04 Related Council Actions. By the granting of tlr
obliyatiny itself to any other governmental ayer
board, commission, or agency with regard to E
other discretionary action relating to developmc
lease, neither CITY nor the Council of CITY
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or operation of the premises. Discretionary actj
includes, but is not limited to rezoninc
variances, environmental clearances or any ott
governmental agency approvals which may be requii
for the development and operation of the lea:
premises.
1.05 Quiet Possession. LESSEE, paying the rent i performing the covenants and agreements here: shall at all times during the term peaceably i
quietly have, hold and enjoy the premises. If C:
for any reason cannot deliver possession of i
premises to LESSEE at the commencement of the tei
or if during the lease term LESSEE is temporar:
dispossessed through action or claim of a tit
superior to CITY'S, then and in either of SI
events, this lease shall not be voidable nor sh;
CITY be liable to LESSEE for any loss or dam; resulting therefrom, but there shall be determir
and stated in writing by the City Manager of CIT'
proportionate reduction of the minimum or flat r;
rent for the period or periods during which LES:
is prevented from having the quiet possession
all or a portion of the premises.
1.06 - Ewements and Reservations,
a. CITY hereby reserves all rights, title i
interest in any and all subsurface natui
gas, oil, minerals and water on or within 1
premises.
b. CITY reserves the right to grant and I
easements or to establish and use rights-c
way over, under, along and across the lea:
premises for utilities, thoroughfares,
access as it deems advisable for the pub:
good.
c. CITY has the right to enter the premises j
the purpose of making repairs to or develop.
municipal resources and services.
However, CITY shall not unreasonably
substantially interfere with LESSEE'S use of 1
premises and will reimburse LESSEE for damages, any, to the permanent improvements, includ:
crops, located on the leased premises result.
from CITY exercising the rights reserved in tlr
section. Such reimbursement may include
reduction in the rent proportionate to the amoi
of damage as determined by CITY. CITY will pay 1
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costs of maintenance and repair of all CI'I
installations made pursuant to these reserve
rights.
SECTION 2: TERM
2.01 Commencement. Regardless of the date of executic
by the City Manager, the term of this agreemer
shall be three (3) years commencing on July 1, 195
and terminating June 30, 1995.
2.02 Holdover. Any holding over by LESSEE aftc
expiration or termination shall not be consider6
as a renewal or extension of this lease. Tf
occupancy of the premises after the expiration c
termination of this agreement constitutes a montf
to-month tenancy, and all other terms ar
conditions of this agreement shall continue in ful
force and effect; provided, however, CITY shal have the riqht to apply a reasonable increase j rent to bring the rent to fair market value and t
terminate the holdover tenancy at will.
2.03 Quitclaim and Surrender of LESSEE'S Interest. I
termination of this lease for any reason, LESSI
shall execute, acknowledge and deliver to CITl
within five (5) days after written CITY demand,
valid and recordable quitclaim deed covering all c
the premises. The premises shall be delivered frc
and clear of all liens and encumbrances, and in decent, safe and sanitary condition.
At the expiration or earlier termination of thi
lease, LESSEE shall surrender the premises to CI5
free and clear of all liens and encumbrance:
except those liens and encumbrances which exist€
on the date of execution hereof, and in a decent
safe and sanitary condition. In the case c
termination of this lease by CITY prior to the er
of the specified lease term, any liens ar
encumbrances must be approved in writing by tk
City Manager.
If LESSEE fails or refuses to deliver the requirc
deed, the CITY may prepare and record a notic
reciting LESSEE'S failure to execute this lea:
provision and the notice will be conclusi\
evidence of the termination of this lease and a1
LESSEE'S rights to the premises.
2.04 Termination of Lease. Either party may terminal
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this lease at any time upon 90 days notice to tk
other. If at expiration of the 90 day time peric
LESSEE still has crops growing, LESSEE shall k
permitted to continue raising and tending the cror
and shall be permitted to harvest the crops. Tk
right to harvest the crops shall not extend tk
term of the lease except that the provisions c
this lease, other than the extension provisior
shall apply. The right to raise, tend and harve:
shall apply only to crops planted before notice t
terminate has been given.
SECTION 3: RENT
3.01 Time and Place of Payment. Rent is due quarter1
in advance on or before the first day of each nc
quarter. Checks should be made payable to the Cit of Carlsbad and mailed or delivered to the Par
Superintendent, 1200 Carlsbad Village Drive
Carlsbad, California 92008.
The place and time of payment may be changed at ar
time by CITY upon thirty (30) days written notic
to LESSEE. Mailed rental payments shall be deem€
paid upon the date such payment is postmarked k
the postal authorities. If postmarks ai illegible, the payment shall be deemed paid upc
actual receipt by the Financial Managemer
Director. LESSEE assumes all risk of loss ar
responsibility for late payment charges if payment
are made by mail.
3.02 Rent.
a. Rent Amount. The initial rent is $600.00 pf
year. Said rent is subject to adjustment
based on increases, if any, in the Consume
Price Index (CPI) and in the fair market valL
of the leased premises as hereinaftc
provided.
b. (1) CPI Index Adjustments. At the end of tk
first year following the effective dat
of the lease and at the end of every ye?
thereafter during the lease term, tk
rent shall be adjusted to reflec
increases in the Consumer Price Inde
(CPI) .
The index used will be the CPI for "AI
Urban Consumers" for Los Angeles/Lor
Beach/Anaheim, California. If this indc
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is no longer published, the index fc
adjustment will be the U.S. Department (
most comparable to the aforesaid inde.
If a rental adjustment is calculati
using an index from a different base ye,
than 1967, which equaled a base figure 1
100 for the CPI, the base figure us1
will first be converted under a formu
supplied by the Bureau of Lab1
Statistics or its successor.
If the Department of Labor indices are
recognized as authoritative will
substituted by agreement of CITY a
LESSEE. If the parties cannot agr
within sixty (60) days after demand
either party, a substitute index will
selected by the Chief Officer of t
Regional Office of the Bureau of Lab Statistics or its successo
notwithstanding continued referen
herein to IICPI" in any event.
Regardless of the index publicati
dates, the effective date of the re
adjustment is as specified in th
Subsection b. (1) CPI Index Adjustment
Until the rent adjustment can
reasonably determined by the ind
payments at the existing rental rat When the adjustment is determined, t
balance of rents due at the adjusted ra
will be paid to CITY within thirty (3
days. In no event shall the adjust
rent as established by the Consumer Pri
Index be less than the rent in existen
immediately prior to the adjustment dat
(2) Index Adjustment Computation. The re
for each rental period following t
adjustment, until the next adjustment
other rental determination as provid
herein, shall be determined prior to t
date of adjustment by multiplying t
rent which is effective immediately pri
to said adjustment by the "adjustme
outlined in the following paragraph
provided, however, increases in the re
Labor's "Comprehensive Official Inde:
longer published, another index general
method, LESSEE shall continue to ma
figure" established by the meth
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shall not exceed six percent (6%) p'
year nonaccumulative.
The Ifadjustment figure" shall :
established by dividing the "curre
index" by the "base figure", both <
defined herein:
The "base figure" for the first SUI adjustment shall be a three-month averac
of index figures published by said C using the fourth, fifth and sixth fu
months preceding the effective date I
this agreement.
To illustrate, if the lease began in Ma?
the CPI figures for November (six. month), December (fifth month) a,
January (fourth month) preceding Mq
would be averaged to establish the ba! figure (Example 1).
The I'current index" shall be a threc
month average of index figures publishc
by said CPI. The three months to be us(
to establish said average shall be tl
fourth, fifth and sixth full montl preceding the adjustment date.
The "base figure" for each successii
adjustment shall be the "current inde:
figure used in the last precedii
adjustment period (Example 2).
.Example 1
Current Index 114
= 1.04 (Adjustment Figurl
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 tl
monthly rent from the preceding adjustment peril
to determine the new rent. Using the foregoii
examples, if the rent is now $1,000 per montl
after the first adjustment it will be $1,040 PI
= 1.05 (Adjustment Figurt
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month ($1,000 x 1.04). In the second adjustment i
will be $1,092 per month ($1,040 x 1.05).
3.03 Delinquent Rent. If LESSEE fails to pay the ren
when due, LESSEE will pay in addition to th unpaid rents, five percent (5%) of the delinquen
rent. If the rent is still unpaid at the end o
fifteen (15) days, LESSEE shall pay an additions
five percent (5%) [being a total of ten percen
(lo%)] which is hereby mutually agreed by th
parties to be appropriate to compensate CITY fc
loss resulting from rental delinquency, includin
lost interest, opportunities, legal costs, and th
cost of servicing the delinquent account.
In the event that the CITY audit, if applicable
discloses that the rent for the audited period he
been underpaid in excess of five percent (5%) c
the total required rent, then LESSEE shall pay CI?
the cost of the audit plus ten percent (10%) PE
year on the amount by which said rent was underpai in addition to the unpaid rents as shown to be dL
CITY as compensation to CITY for administrati1
herein. LESSEE agrees to pay such amount ar
further agrees that the specific late chargc
represent a fair and reasonable estimate of tk costs that CITY will incur from LESSEE'S lat
payment. Acceptance of late charges and ar
portion of the late payment by CITY shall in r
event constitute a waiver of LESSEE default wit
respect to late payment, nor prevent CITY frc
exercising any of the other rights and remedic
granted in this lease.
costs and loss of interest as previously describc
3.04 Inspection of Records. LESSEE agrees to make ar
and all records and accounts available to CITY fc
inspection at all reasonable times, so that CI7
can determine LESSEE'S compliance with this leasc
These records and accounts will be made availabl
by LESSEE at the leased premises and will k
receipts from use of the premises. LESSEE '
failure to keep and maintain such records and mal
them available for inspection by CITY is a breac
of this lease and cause for termination. LESS1
shall maintain all such records and accounts for
minimum period of five (5) years.
complete and accurate showing all income ar
SECTION 4: ASSIGNMENT
4.01 Time is of the Essence; Provisions Bindinq (
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Successors. Time is of the essence for all of tl
terms, covenants and conditions of this lease an(
except as otherwise provided herein, all of tl terms, covenants and conditions of this lease sha
apply to, benefit and bind the successors ai
assigns of the respective parties, jointly a,
individually.
4.02 Assiqnment and Subletting. LESSEE shall not assic
this lease, or any interest therein, and shall n
sublet the premises or any part thereof, or a
right or privilege appurtenant thereto, or suff
any other person, except employees, agents a
guests of LESSEE, to use or occupy the premises
any part thereof, without the prior written conse of the City Manager in each instance. Such conse
by the City Manager shall not be unreasonab
withheld. A consent to assignment, sublettin
occupation or use by any other person shall not
deemed to be a consent to any subseque
assignment, subletting, occupation or use
another person. Any such assignment or subletti
without such consent shall be void, and shall,
the option of CITY, terminate this lease. Th
lease shall not, nor shall any interest therein,
assignable, as to the interest of LESSEE,
operation of law, without the written consent
the City Manager.
llAssignment", for the purposes of this clause sha
include any transfer of any ownership interest
this lease by LESSEE or by any partner
principals, or stockholders, as the case may b
from the original LESSEE, its general partners
principals.
Approval of any assignment or sublease shall
conditioned upon the assignee or sublessee agreei
in writing that it will assume the rights a
obligations thereby assigned or subleased and th
it will keep and perform all covenants, conditio
and provisions of this agreement which a
applicable to the rights acquired.
4.03 Encumbrance. Subject to prior consent by CI?
which shall not be unreasonably withheld, LESS
may encumber this lease, its leasehold estate a
its improvements thereon by deed of trus
mortgage, chattel mortgage or other securi
instrument to assure the payment of a promissc
note or notes of LESSEE, upon the express conditi
that the net proceeds of such loan or loans
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devoted exclusively to the purpose of developin and/or improving the leased premises. However,
reasonable portion of the loan proceeds may k
disbursed for payment of incidental costs c
construction, including but not limited to th
following: off-site improvements for service of th
premises; on-site improvements; escrow charges
premiums for hazard insurance, or other insuranc
or bonds required by CITY; title insuranc
premiums; reasonable loan costs such as discounts
interest and commissions; and architectural
engineering and attorney's fees and such othc
normal expenses incidental to such construction.
Any subsequent encumbrances on the premises or c
any permanent improvements thereon, must first ha\
subsequent encumbrances shall also be for tk
exclusive purpose of development of the premises
Provided, however, after the premises are full
developed in accordance with said Development P1z
to the satisfaction of the City Manager, proceec
from refinancing or from such subsequer
encumbrances may be used to reduce LESSEE'S equit
so long as there is also substantial benefit to tl
CITY therefrom. LESSEE understands ar
specifically agrees that the City Manager shal
have the sole and absolute discretion to approve (
disapprove any such proposed subsequent encumbranc
including, but not limited to, amending the leas
to provide then current rents and provisions.
In the event any such approved deed of trust (
mortgage or other security-type instrument shou:
at any time be in default and be foreclosed, (
transferred in lieu of foreclosure, the CITY wi:
accept the approved mortgagee or benef iciai
thereof as its new tenant under this lease with a.
the rights, privileges and duties granted ai
imposed in this lease.
Any default, foreclosure or sale pursuant to sa.
deed of trust, mortgage or other securil
instrument, shall be invalid with respect to th.
lease without prior notice thereof to CITY. Up(
prior written approval by CITY, said mortgagee (
beneficiary may assign this lease to its nominee
if nominee is a reputable, qualified ar financially responsible person in the opinion (
security instrument shall be subject to all of tl
terms, covenants and conditions of this lease ai
the approval in writing of City Manager. SUC
CITY. Any deed of trust, mortgage or othc
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shall not be deemed to amend or alter any of t
terms, covenants or condition hereof.
4.04 Defaults and Remedies,
a. Default. In the event that:
(1) LESSEE shall default in the performance of a
to be performed by LESSEE and shall fa
to cure said default within thirty (30) da
following written notice thereof from CITY:
if any such default is not curable with
thirty (30) days, shall fail to commence
cure the default (s) within said thirty-d
period and diligently pursue such cure
completion: or
covenant or condition required by this lea
(2) LESSEE shall voluntarily file or ha
involuntarily filed against it any petiti
under any bankruptcy or insolvency act or la
or
(3) LESSEE shall be adjudicated a bankrupt: or
(4) LESSEE shall make a general assignment for t benefit of creditors;
then CITY may, at its option, without furth
notice or demand upon LESSEE or upon any pers
claiming rights through LESSEE, immediate
terminate this lease and all rights of LESSEE a
of all persons claiming rights through LESSEE
the premises or to possession thereof; and CITY r[
enter and take possession of the premise
Provided, however, in the event that any defaL
described in Section 4.04a.(l), Default a
Remedies, hereof is not curable within thirty (3
days after notice to LESSEE, CITY shall r
terminate this lease pursuant to the default
LESSEE immediately commences to cure the defaL
and diligently pursues such cure to completion.
In the event that there is a deed of trust
the mortgagee or beneficiary written notice of t
default (s) complained of, and the same mortgagee
beneficiary shall have thirty (30) days from SL
notice to cure the default(s) or, if any SL
default is not curable within thirty (30) days,
commence to cure the default(s) and diligent
pursue such cure to completion. The thirty-c
mortqage on the leasehold interest, CITY shall gi
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period may be extended during such time a
mortgagee or beneficiary pursues said cure wit
reasonable diligence.
b. Remedies. If the mortgagee or beneficiary shall k
required to exercise its right to cure sa;
default (s) through litigation or throuc
foreclosure, then CITY shall have the option of tk
following courses of action in order that tk
default(s) may be expeditiously correction:
(1) CITY may correct said default(s) and char?
the costs thereof to the account of LESSEE
which charge shall be due and payable on tk
date that the rent is next due aftc
presentation by CITY to LESSEE and mortgagc
or beneficiary of a statement of said costs.
(2) CITY may correct said default(s) and pay tk
costs thereof from the proceeds of ar
insurance fund held by CITY, CITY and LESS1
or by CITY and mortgagee or beneficiary, c
CITY may use the funds of any faithfi
performance or cash bond on deposit with CITJ
or CITY may call on the bonding agent t
correct the default(s) or to pay the costs c
correction performed by or at the direction c
CITY.
(3) CITY may terminate this lease as to the righl
of LESSEE by assuming or causing tk
assumption of liability for any trust deed (
mortgage. LESSEE agrees to assume and pay ai
and all penalties or bonuses required by tk
beneficiaries, trustees or mortgagees as
condition for early payoff of the relatt
obligations by CITY. CITY may, as i
alternative, substitute for the terminat6
LESSEE a new LESSEE reasonably satisfactory 1
the mortgagee or beneficiary. Any reasonab:
costs incurred by CITY in releasing to a nt
terminated LESSEE and LESSEE hereby agrees I
reimburse CITY for any such costs.
tenant shall be the responsibility of tl
Shoulcd the default(s) be noncurable by LESSEE, tht
any lender holding a beneficial interest in tk
leasehold, whose qualifications as an assignee hay been approved by CITY, shall have the absolul
right to substitute itself to the estate of LESS1
hereunder and to commence performance of th.
lease. If such mortgagee or beneficiary shall gi7
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notice in writing of its election to so substitu
itself within the thirty-day period after receivi
written notice by CITY of the default, and t
default, if curable, is cured by such mortgagee
beneficiary, then this lease shall not termina
pursuant to the default. In that event, CI
expressly consents to the substitution a
authorizes the mortgagee or beneficiary to perfo
under this lease with all the rights, privileg
and obligations of LESSEE, subject to cure of t
default, if possible, by mortgagee or beneficiar
LESSEE expressly agrees to assign all its intere
in and to its leasehold estate to mortgagee
beneficiary in that event.
c. Abandonment by LESSEE. Even though LESSEE h
breached the lease and abandoned the property, th
lease shall continue in effect for so long as CI
does not terminate this lease, and CITY may enfor
all its rights and remedies hereunder, includi
but not limited to the right to recover the rent
it becomes due, plus damages.
d. Waiver. Any CITY waiver of a default is not
waiver of any other default. Any waiver of
default must be in writing and be executed by t
City Manager in order to constitute a valid a
binding waiver. CITY delay or failure to exerci
a remedy or right is not a waiver of that or a
other remedy or ri.ght under this lease. The use
one remedy or right for any default does not wai
the use of another remedy or right for the sa
default or for another or later default. CITY
acceptance of any rents is not a waiver of a
default preceding the rent payment. CITY a
LESSEE specifically agree that the proper constituting the premises is CITY-owned and held
trust for the benefit of the citizens of the Ci
of San Diego and that any failure by the Ci
Manager or CITY staff to discover a default sha
not result in an equitable estoppel, but CITY sha
at all times, subject to the applicable statute
limitations, have the legal right to require t
cure of any default when and as such defaults a
discovered or when as the City Council directs t
City Manager to take action or require the cure
any default after such default is brought to t
attention of the City Council by the City Manag
or by any concerned citizen.
4.05 Eminent Domain. If all or part of the premises a
taken through condemnation proceedings or und
(Library Parking Expansion) Revised 4/22 H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 12
e Q
threat of condemnation by any public authority wi
the power of eminent domain, the interests of CI
and LESSEE (or beneficiary or mortgagee) will be
follows :
a. In the event the entire premises are taken, th
lease shall terminate on the date of the transf
of title or possession to the condemning authorit
whichever first occurs.
b. In the event of a partial taking, if, in t
opinion of CITY, the remaining part of the premi:
is unsuitable for the lease operation, this le2
shall terminate on the date of the transfer
whichever first occurs.
title or possession to the condemning authorit
C. In the event of a partial taking, if, in t
opinion of CITY, the remainder of the premises
suitable for continued lease operation, this le?
shall terminate in regard to the portion taken
the date of the transfer of title or possession
the condemning authority, whichever first occui
but shall continue for the portion not taken. 'I
minimum rent shall be equitably reduced to reflc
the portion of the premises taken.
d. Award. All monies awarded in any such taking shz belong to CITY, whether such taking results
diminution in value of the leasehold or the fee
both; provided, however, LESSEE shall be entitl
to any award attributable to the taking of
interest in installations or improvements
LESSEE, including crops. CITY shall have
liability to LESSEE for any award not provided
the condemning authority.
damages to LESSEE I s then remaining leasehc
e. Transfer. CITY has the right to transfer CITl
interests n the premises in lieu of condemnation
any authority entitled to exercise the power
eminent domain. If a transfer occurs, LESSEE sh;
retain whatever interest it may have in the fi market value of any improvements placed by it
the premises in accordance with this lease so 1c
as such rights do not unreasonably or substantial
interfere with LESSEE'S operations.
f. No Inverse Condemnation. The exercise of any C:
right under this lease shall not be interpreted
shall not impose any liability upon CITY : an exercise of the power of eminent domain i
13 (Library Parking Expansion) Revised 4/; H:\LIBRARY\UM\UPDATA\AGG\AGG91009.AD
w
placed in a trust fund to be reinvested
rebuilding or repairing the damaged property.
there is a mortgage or trust deed on the leaseho
in accordance with Section 4.03, Encumbranc
hereof, the proceeds may be paid to the approv
mortgagee or beneficiary so long as adequa
provision reasonably satisfactory to CITY has be
made in each case for the use of all proceeds f
repair and restoration of damaged or destroy
improvements on the premises.
c. Condition. All insurance policies will name CI
as an additional insured, protect CITY against a
legal costs in defending claims, and will r
terminate without sixty (60) days prior writt
notice to CITY. All insurance companies must
satisfactory to CITY and licensed to do business
California. All policies will be in effect on
before the first day of the lease, except 'tcour
of construction fire insurancett shall be in for
on commencement of all authorized construction
the premises, and full applicable fire insurar
coverage shall be effective upon completion of ea
insurable improvement. A copy of the insurar
policy will remain on file with CITY during t
entire term of the lease. At least thirty (3
days prior to the expiration of each policy, LESS
or extended policy has been obtained which me€
the terms of this lease.
shall furnish a certificate(s) showing that a r
d. Modification. CITY, at its discretion, may requi
the revision of amounts and coverages at any ti
during the term by giving LESSEE sixty (GO) da
prior written notice. CITY'S requirements shall
designed to assure protection from and against t
kind and extent of risk existing on the premise
LESSEE also agrees to obtain any additior
insurance required by CITY for new improvements,
order to meet the requirements of this lease.
e. Accident Reports. LESSEE shall report to CITY a
accident causing more than TEN THOUSAND DOLLF
($10,000) worth of property damage or any seric
injury to persons on the premises. This repc shall contain the names and addresses of t
parties involved, a statement of the circumstance
the date and hour, the names and addresses of a
witnesses and other pertinent information.
f. Failure to Comply. If LESSEE fails or refuses
take out and maintain the required insurance,
H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 15 (Llbrary Parking Expansion) Revised 4/2
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inverse condemnation.
SECTION 5: INSURANCE RISKS/SECURITY
5.01 Indemnity. LESSEE shall at all times reliev indemnify, protect, and save CITY and any and a
of its boards, officers, agents and employe
harmless from any and all claims and demand
actions, proceedings, losses, liens, cost
whatsoever in regard to or resulting from the u
of the premises, including but not limited
expenses incurred in legal actions, death, injur
or damage that may be caused directly or indirect
by :
judgments, civil fines, and penalties of any natu
a. any unsafe or defective condition in or on t
premises of any nature whatsoever which may exi
by reason of any act, omission, neglect, or any u
or' occupation of the premises;
b. any operation, use or occupation conducted on t
c. any act, omission, or negligence on the part
premises ;
LESSEE, its employees, agents, sublessee
invitees, licensees; or
d. any failure by LESSEE to comply or secu
compliance with any of the lease terms
conditions.
5.02 Insurance. LESSEE shall take out and maintain
all times during the term of this lease t
following insurance at its sole expense:
a. Public liability and Property Damaqe Insurance
the amount of not less than ONE MILLION DOLLA
($1,000,000) Combined Single Limit Liability wi
policy shall cover all injury or damage, includi
death, suffered by any party or parties from ac
or failures to act by CITY or LESSEE or
authorized representatives of CITY or LESSEE on
in connection with the use or operation of t
premises.
an occurrence claims form, if available. Th
b. Fire, Extended Coveraqe, and Vandalism Insuran
policy on all insurable property on the premises
an anount to cover 100 percent of the replaceme
cost. Any proceeds from a loss shall be payab
jointly to CITY and LESSEE. The proceeds shall
H:\LIBRARV\UM\WPDATA\AGG\AGG91009.AD 14 (Library Parking Expansion) Revised 4/2;
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fails to provide the proof of coverage, CITY hi
the right to obtain the insurance. LESSEE sha:
reimburse CITY for the premiums paid with intere:
at the maximum allowable legal rate then in effec
in California. CITY shall give notice of tl
payment of premiums within thirty (30) days (
payment stating the amount paid, names of tl
insurer(s) and rate of interest. Sa reimbursement and interest shall be paid by LESS:
on the first (1st) day of the month following tl notice of payment by CITY.
Notwithstanding the preceding provisions of th
Subsection f., if LESSEE fails or refuses to ta:
out or maintain insurance as required in th
lease, or fails to provide the proof of insurance CITY has the right to declare this lease in defau without further notice to LESSEE and CITY shall
entitled to exercise all legal remedies in t
event of such default.
5.03 Waste, Damase or Destruction. LESSEE agrees give notice to CITY of any fire or other dama
that may occur on the leased premises within t
(10) days of such fire or damage. LESSEE agre not to commit or suffer to be committed any was
or injury or any public or private nuisance,
keep the premises clean and clear of refuse a
obstructions, and to dispose of all garbage, tras
and rubbish in a manner satisfactory to CITY.
the leased premises shall be damaged by any cau
which puts the premises into a condition which
not decent, safe, healthy and sanitary, LESS agrees to make or cause to be made full repair 1
said damage and to restore the premises to tl
condition which existed prior to said damage: o at CITY Is option, LESSEE agrees to clear and remo?
from the leased premises all debris resulting frl said damage and rebuild the premises in accordan
with plans and specifications previously submitt
to CITY and approved in writing in order to repla
in kind and scope the operation which existed pri
to such damage, using for either purpose t
insurance proceeds as set forth in Section 5.0
Insurance, hereof.
LESSEE agrees that preliminary steps towa
performing repairs, restoration, or replacement
the premises shall be commenced by LESSEE with
thirty (30) days, and the required repair
restoration, or replacement shall be complet
within a reasonable time thereafter. CITY m
(Library Parking Expansion) Revised 4/22 H:\LIBRARY\UM\UPDATA\AGG\AGG91009.AD 16
0 0
determine an equitable deduction in the minim1
annual rent requirement for such period or periol
that said premises are untenantable by reason
such damage.
SECTION 6: IMPROVEMENTS/ALTERATIONS/REPAIRS
6.01 Acceptance of Premises. By signing this leas
LESSEE represents and warrants that it h
independently inspected the premises and made a tests, investigations, and observations necessa
to satisfy itself of the condition of the premise LESSEE agrees it is relying solely on su
independent inspection, tests, investigations, a
observations in making this lease. LESSEE furth
acknowledges that the premises are in the conditi
called for by this lease, that CITY has perform
all work with respect to the premises, and th
LESSEE does not hold CITY responsible for a
defects in the premises.
6.02 Entry and Inspection. CITY reserves and sha
always have the right to enter said premises f
the purpose of viewing and ascertaining t
condition of the same, or to protect its interes
in the premises, or to inspect the operatio
conducted thereon. In the event that such entry
inspection by CITY discloses that said premises a not in a decent, safe, healthy, and sanita
condition, CITY shall have the right, after t
(10) days written notice to LESSEE, to have a
necessary maintenance work done at the expense
LESSEE, and LESSEE hereby agrees to pay prompt
any and all costs incurred by CITY in having su
necessary maintenance work done, in order to ke
said premises in a decent, safe, healthy, a
sanitary condition. Further, if at any time CI
determines that said premises are not in a decen
safe, healthy, and sanitary condition, CITY may i
sole option, without additional notice, requi
LESSEE to file with CITY a faithful performan
bond to assure prompt correction of any conditi
which is not decent, safe, healthy and sanitar
Said bond shall be in an amount adequate in t
opinion of the CITY to correct the sa
unsatisfactory condition. LESSEE shall pay t
cost of said bond. The rights reserved in th
section shall not create any obligations on CITY
increase obligations elsewhere in this lea
imposed on CITY.
6.03 Maintenance. Except as hereinafter provide
H:\LIBRARY\UM\WPDATA\AGG\AGG’91009.AD 17 (Library Parking Expansion) Revised 4/2;
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LESSEE agrees to assume full responsibility a cost for the operation and maintenance of t
premises throughout the term. LESSEE will perfo
all such repairs and replacements necessary
maintain and preserve the premises in a decen safe, healthy and sanitary condition satisfacto
to CITY and in compliance with all applicable law
Appropriate codes and standards of CITY, state a
federal agencies shall be observed in a
maintenance, repairs and replacements on t
premises.
6.04 ImProvements/Alterations. No improvement
structures, or installations shall be construct
on the premises, and the premises may not
altered by LESSEE without prior written approval
the City Manager. Further, LESSEE agrees th
major structural or architectural desi
alterations to approved improvements, structure
or installations may not be made on the premis
without prior written approval by the City Manag
and that such approval shall not be unreasonat
withheld. This provision shall not relieve LESS of any obligation under this lease to maintain t
premises in a decent, safe, healthy, and sanita
condition, including structural repair a
restoration of damaged or worn improvements. CI
shall not be obligated by this lease to make
assume any expense for any improvements
alterations.
6.05 Utilities. LESSEE agrees to order, obtain, and 1:
for all utilities and service and installati
charges in connection with the development E
operation of the leased premises.
6.06 Liens. LESSEE shall at all times save CITY fl
and harmless and indemnify CITY against all clai
for labor and materials in connection wj
operations, improvements, alterations, or repai
on or to the premises and the costs of defendi
attorney's fees.
If improvements, alterations, or repairs are m~
to the premises by LESSEE or by any party otk
than CITY, and a lien or notice of lien is filc
LESSEE shall within five (5) days of such fili
either:
a. take all actions necessary to record a val
against such claims, including reasonak
release of lien, or
H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 18 (Library Parking Expansion) Revised 4/2
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b. file with CITY a bond, cash, or other securi
all claims of all persons seeking relief und
the lien.
acceptable to CITY sufficient to pay in fu
6.07 Siqns. LESSEE agrees not to erect or display a
banners, pennants, flags, posters, sign
decorations, marquees, awnings, or similar devic
or advertising without the prior written consent
CITY. If any such unauthorized item is found
the premises, LESSEE agrees to remove the item
its expense within 24 hours notice thereof by CIT or CITY may thereupon remove the item at LESSEE
cost.
6.08 Ownership of Improvements and Personal Property.
a. Any and all improvements, trade fixture
the premises now existing or constructed
the premises by LESSEE shall at lea
expiration or termination be deemed to be pa
of the premises and shall become, at CITY
option, CITY'S property, free of all liens a
claims except as otherwise provided in th
lease.
structures and installations or additions
b. If CITY elects not to assume ownership of a
or any improvements , trade fixture structures and installations, CITY shall
' notify LESSEE thirty (30) days prior
termination or one-hundred-eighty (180) da
prior to expiration, and LESSEE shall remc
all such improvements, structures a
installations as directed by CITY at LESSEE
termination. If LESSEE fails to remove a
improvements, structures, and installations
directed, LESSEE agrees to pay CITY the fu cost of any removal.
sole cost on or before lease expiration
c. LESSEE-owned machines, appliances, equipme
(other than trade fixtures) , and other ite
of personal property shall be removed
Lessee by the date of the expiration
termination of this lease. Any said ite
which LESSEE fails to remove will
considered abandoned and become CITY
property free of all claims and liens, or CI
may, at its option, remove said items
LESSEE'S expense.
H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 19 (Library Parking Expansion) Revised 4/2
e e
d. If any removal of such personal property by LESSEE res1
in damage to the remaining improvements on the premis
LESSEE agrees to repair all such damage.
Any necessary removal by either CITY or LESSEE wh
takes place beyond said expiration or termination thereof SI
require LESSEE to pay rent to CITY at the rate in eff
immediately prior to said expiration or termination.
Notwithstanding any of the foregoing, in the event LESS
desires to dispose of any of its personal property used in
operation of said premises upon expiration or terminatior
this lease, then CITY shall have the first right to acquire
purchase said personal property.
e.
f.
SECTION 7: GENERAL PROVISIONS
7.01 Notices
a. Any notice required or permitted to be given hereunder SI
be in writing and may be served personally or by Uni
States mail, postage prepaid, addressed to LESSEE at
address set forth next to his signature or at such ot
address designated in writing by LESSEE; and to CITY
follows:
llll Ill1
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
such appropriate address designated in writing by
respective party,
H.\LIBRAR~UM\UPDATA\AGG\AGG91009 AD 20 (Library Parking Expansion) Revised 51;
0 0
b. Any party entitled or required to recei
notice under this lease may by like noti
designate a different address to which notic
shall be sent.
7.02 Compliance with Law. LESSEE shall at all times
the construction, maintenance, occupancy a operation of the premises comply with a
applicable laws, statutes, ordinances, a regulations of CITY, County, State and Feder
Governments at LESSEE'S sole cost and expense.
addition, LESSEE shall comply with any and a
notices issued by the City Manager or h
authorized representative under the authority
any such law, statute, ordinance, or regulation.
7.03 CITY Approval. The approval or consent of CIT
wherever required in this lease, shall mean t
written approval or consent of the City Manag
unless otherwise specified, without need f
further resolution by the City Council.
7.04 Nondiscrimination. LESSEE agrees not
discriminate in any manner against any person
persons on account of race, marital status, se
religious creed, color, ancestry, national origi
age or physical handicap in LESSEE'S use of t
premises, including, but not limited to t
providing of goods, services, facilitie privileges, advantages, and accommodations, and t
obtaining and holding of employment.
7.05 Partial Invalidity. If any term, covenan
condition or provision of this lease is fou
invalid, void or unenforceable by a court
competent jurisdiction, the remaining provisio will remain in full force and effect.
7.06 Leqal Fees. In the event of any litigati regarding this lease, the prevailing party shall
entitled to an award of reasonable legal cost
including court and attorney's fees.
7.07 Number and Gender. Words of any gender used
this lease shall include any other gender, a
words in the singular number shall include t
plural, when the tense requires.
7.08 Captions. The Lease Outline, section headings, a
captions for various articles and paragraphs sha
not be held to define, limit, augment, or descri
the scope, content, or intent of any or all par
H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 21 (Library Parking Expansion) Revised 4/2i
a 0
of this lease. The numbers of the paragraphs a
pages of this lease may not be consecutive. Su
lack of consecutive numbers is intentional a
shall have no effect on the enforceability of th lease.
7.09 Entire Understandinq. This lease contains t entire understanding of the parties. LESSEE,
signing this agreement, agrees that there is
other written or oral understanding between t
parties with respect to the leased premises. Ea
party has relied on its own examination of t
premises, advice from its own attorneys, and t
warranties, representations, and covenants of t
lease itself. Each of the parties in this lea
agrees that no other party, agent, or attorney
any other party has made any promis
representation, or warranty whatsoever which is n contained in this lease.
The failure or refusal of any party to read t
lease or other documents, inspect the premises, a
obtain legal or other advice relevant to th
transaction constitutes a waiver of any objectio
contention, or claim that might have been based
these actions. No modification, amendment,
alteration of this lease will be valid unless it
in writing and signed by all parties.
7.10 Aqricultural Provisions. LESSEE shall use standa
agricultural practices in growing, tending a
harvesting said crops and shall not use t
property in such a manner as to constitute
nuisance to adjoining property owners or lessee
LESSEE shall comply with the followi requirements:
a. Only drip typezirrigation shall be used.
b. All plastic material and debris shall
completely removed from the property at t
completion of the lease.
c. No aerial application of pesticides
fertilizers shall be permitted.
d. A "Resource Management System" which is
detailed report on what crops will be grow
how crops will be irrigated, what pesticid
will be used, what type of fertilizer will
used and the application methods of pesticid
and fertilizers, shall be submitted a
H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 22 (Library Parking Expansion) Revised 4/2;
e *
approved by the Parks and Recreation Direct
prior to commencement of agricultur
operations of the land.
e. Erosion shall be controlled and monitored the Universal Soil Loss Equation provided
U.S. Soil Conservation Service. If erosj
exceeds three tons per acre CITY may termin; this lease.
f. No soil is to be left uncropped.
g. No land with an average slope of 30 percent more shall be farmed.
h. All pesticide application shall be appro\
and supervised by the county agricultui
office, with all necessary permits obtair
from county in advance. A complete record
fertilization and pesticide application mi
be kept and made available upon request
CITY.
i. Access roads shall be limited to thc
approved by the Parks and Recreation Direct
and shall not cause erosion problems.
7.11 Asricultural Operations. LESSEE agrees to abide
the conditions for agricultural operations 5
forth herein. Failure of LESSEE to cease or CI
any unauthorized practice within 30 days aft
option of CITY, an immediate termination of 1
lease.
written notice to do so shall constitute at 1
7.12 Noxious Weeds, Pests. LESSEE shall take pro]
corrective action, to the satisfaction of CITY,
prevent the infestation of noxious weeds and pes1
7.13 Control of Livestock. The premises shall adequately fenced to control livestock without c(
to CITY and in a manner satisfactory to CI':
LESSEE shall be solely responsible for all dam?
of any kind resulting from livestock leaving si
premises.
7.14 Employee Housinq Prohibited. LESSEE shall r
provide housing for employees or any other persc
on the property. LESSEE shall not permit LESSEI
employees or any other persons to reside upon t
property in any way.
H:\LIBRARY\UM\UPDATA\AGG\AGG91009.AD 23 (Library Parking Expansion) Revised 4/2
vvHwlA I y e . ~LbIIUlV 0.
8.01 Warranty The CITY does not warrant that the premises are suita
for the agricultural purposes for which they are leased.
Ill/ Ill/ 1111
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//I/ Ill/ //I/ /Ill ///I
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Ill/ ///I
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SECTION 9: SIGNATURES
1111
9.01 Signature Paqe
IN WITNESS WHEREOF, this Lease Agreement is executed by CITY, acting by l
through its City Manager, and by LESSEE, acting by and through its lawfully authori
officers.
THE CITY OF CARLSBAD
July 23. 1992
Date
LESSEE: ' hl;J [\ ,+k
By: l&1hL\ 7 /& ,I<
il& %4,,2-;lfl,
I /'
( I.. I k) 35 l~*ALL \-),.A, LL-,11 ' ' Title Address
IdGdRY l//kDbk &, ( -I ,hL - I' i
Printed Name Date
H \LIBRARY\UM\UPDATA\AGG\AGGSl 01 0 AD 24 (Library Parking Expansion) Revised 51.
e r)
__- __ ------ __--___ - --A _. .__ ___
By:
MAYOR
Title
CLAUDE A. LEWIS July 22, 1992
Date Printed Name
APPROVED as to form and legality this
1991.
day of JULY 23rd
BY lczce e* L
City Attorney 7*/7*7e ’