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HomeMy WebLinkAbout1992-07-14; City Council; 11785; AGRICULTURAL LEASE ADJACENT TO LIBRARY.. a w z a 66 i5 Q.. z 0 F: 0 a A 0 z 3 0 0 b GAHLStlAU - AGEN AB # /I; '7 85 TITLE: DEPl 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 \W1'51LZGT,NDA f3LS'\LIBRARY I S 1 c I* -I 1 2 3 4 5 6 7 8 9 10 11 12 l3 14 15 16 17 18 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 19 20 21 22 23 24 25 26 27 28 /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) 1 0 0 CITY OF CARLSBAD Flat Rate Lease (Library Parking Expansion Property) H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD (Library Parking Expansion) Revised 4/22 0 0 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 (Library Parking Expansion) Revised 4/22 H:\LIEIRARY\UY\WPDATA\AGG\AGG91009.AD 0 0 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 H:\L IBRARY\UM\WPDATA\ACG\AGG9i009,AD (Library Parking Expansion) Revised 4/22/' 0 e 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 H:\LIBRARY\UM\WPDATA\AGG\AGG9lOO?.AD 1 (Library Parking Expansion) Revised 4/2 0 a 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 H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 2 (Library Parking Expansion) Revised L/; 0 0 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 H:\LIBRARY\UM\UPDATA\AGG\AGG91009.AD 3 (Library Parking Expansion) Revised 4/22, 0 a 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 H:\LIBRARY\UM\UPDATA\AGG\AGG91009.AD 4 (Library Parking Expansion) Revised 4/22) rn 0 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 H:\LIERARY\UM\WPDATA\AGG\AGG91009.AD 5 (Library Parking Expansion) Revised 4/2; e a 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 H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 6 (Library Parking Expansion) Revised 4/22 a 0 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 ( H:\LIBRARY\UM\WPDATA\AGG\AGG91009~AD 7 (Library Parking Expansion) Revised 4/22 0 0 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 H:\LIBRARY\UM\WPDATA\AGG\AGG91oO~.AD a' (Library Parking Expansion) Revised 4/2 0 0 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 H:\LIBRARY\UM\WPDATA\AGG\AGG91009 AD 9 (Library Parking Expansion) Revised 4/22, 0 W 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 ti:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 10 (Library Parking Expansion) Revised 4/2 0 e 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 H:\LIBRARY\UM\WPDATA\AGG\AGG91009.AD 11 (Library Parking Expansion) Revised 4/22 0 0 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 e W 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; 0 W 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; e 0 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 0 0 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 I/// /I// 1/11 Ill1 //I/ Ill/ //I/ /Ill ///I ///I ///I ///I /I// Ill/ ///I ///I ///I 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 ’