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HomeMy WebLinkAbout1998-11-03; City Council; 14921; CANNON LAKE PARKLAND AGRICULTURAL LEASEe 0 - ”. ~ - -~ . AGRICULTURAL LEASE RECOMMENDED ACTION : City Council Adopt Resolution No. C; 3 x3d L approving the lease agreement for 5.5 acres ( City property to Matteson Greenhouses for agricultural purposes. ITEM EXPLANATION : The City, in the location of Cannon Lake, has 6.87 acres of vacant land designated as a fut park site. This land was donated to the City by Mr. & Mrs. W.P. Cannon in 1976. The prop has been the responsibility of the Parks Division to provide weed abatement and occasiona cleanup. Matteson Greenhouses has approached us with a request to lease the useable la agricultural purposes. Although the property is designated for Park purposes, a span of time will exist (several ye; before any park development will occur. City staff believes a lease agreement with Mattes Greenhouses would be advantageous to the City. It would bring in additional revenue as v\ prevent illegal dumping in the area which staff must periodically clean up. The lease woulc eliminate the City’s weed abatement costs for this parcel. Thereiore, if Council concurs, st4 prepared lease documents which have been reviewed and approved as to form by the City Attorney’s office. In essence, the term of the lease is for three (3) years with a 120-day cancellation clause VI may be initiated by either party. Staff believes this 120-day clause will be effective and ber to both parties in terms of providing ample time in which to terminate agricultural productiot providing lead time prior to the actual commencement of park development. It is estimatec :: are approximately 5.5 acres of usable land for agricultural purposes. FISCAL IMPACT ; : i; The price negotiated for this lease is based on $350 per acre per year (consistent with otht agricultural leases). The resulting revenue for the annual lease would be $1,925 should th agreement reach fruition. . . 5 EXHIBITS 1. Resolution No. 98 - Jh 2, E F 2. Lease Agreement 0 a -I 0 z 3 0 0 - li e 0 I1 RESOLUTION NO. 98-362 I li 2 3 4 ;' 6 5 'I A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA, AUTHORIZING THE LEASE OF CANNON LAKE PARK WHEREAS, the City of Carlsbad has vacant unimproved property identifie Cannon Lake Park; and WHEREAS, this property has not been designated for development withir 7 WHEREAS, Matteson Greenhouses has requested a lease with the Ci 8 next 5 years; and 9 Carlsbad; and 10 WHEREAS, the negotiated lease rate of $350 per acre or $1,925.00 per y consistent with lease rates for other comparable leases for agricultural purposes; E NOW, THEREFORE, BE IT RESOLVED by the City Council of the C 11 12 13 14 I Carlsbad, California, the following: 15 2. The negotiated lease is in the best interest of the City and is the 16 1. That the above recitations are true and correct. I' I( approved. 18 I I Ill 19 I 20 11 Ill 21 11 Ill 22 jl flf 23 11 I// 24 /I Ill 25 li //I 26 Ill 27 I ' Ill 20 I! 11 0 0 1 i( Matteson Greenhouses Cal7n6n Lake Park" attached hereto as Exhibit 2, and 2 3. That the Mayor is hereby authorized to execute "Lease Agrel 3 i' record the attached lease agreement in the Office of the San Diego County Recor I execution the City Clerk of the City of Carlsbad is hereby authorized and direc PASSED, APPROVED, AND ADOPTED at a regular meeting of the City C 41 5 6 7 8 ~ following vote to wit: 1 of the City of Carlsbad, California, held on the 3rd day of November, 1998, 9 AYES: Council Members Lewis, Finnila, Nygaard, Kulchin and Hall 10 I 11 12 13 NOES: None ABSENT: None ()@/[' ,.;. / h I. . ,? /j' [//% CLAUDE A. LEWIS, Mayor l4 15 i ATTEST: 16 htw '3 ALETHA RAUTENKRANZ, City Clerk 17 18 19 I( 20 21 22 23 24 25 I 26 I 27 ,/ 28 If Recording Requested !Pmd I 0 When Recorded Return tc: City Clerk CITY OF CARLSBAD 1200 Carlsbad Village Drive Carlsbad, CA. 92008 4 Space above this line for Recorde Assessor’s Parcel No. 210-090-i7 LEASE AGREEMENT MATTESON GREENHOUSES CAMYONLAKEPARKLAND , 0 a CITY OF CARLSBAD AGRICULTURAL LEASE (Cannon Lake Park) 0 0 SECTION Section 1 1.01 1.02 1.03 1.04 1.05 1.06 gection 2 2.01 2.02 2.03 2.04 Section 3 3.01 3.02 3.03 3.04 Section 4 4.01 4.02 4.03 4.04 Section 5 5.01 5.02 5.03 Section 6 6.01 6.02 6.03 6.04 6.05 6.06 6.07 6.08 6.09 LEASE OUTLINE PARAGRAPH PAGE USES Premises Deletion of Portion of Leased Premises Uses Related Council Action Quiet Possession Easements and Reservations - 1 1 1 2 2 TERM Commencement 3 Holdover 3 Quitclaim and Surrender of LESSEE'S Interest 3 Termination of Lease 4 RENT Time and Place of Payment Rent Delinquent Rent Inspection of Records 4 4 5 5 ASSIGNMENT Time is of the Essence; Provisions Binding on Successors 6 Assignment and Subletting 6 Defaults and Remedies 7 Eminent Domain 8 INSURANCE RISKS/SECURITY Indemnity Insurance Waste, Damage or Destruction IMPROVEMENTS/ALTERATIONS/REPAIRS Acceptance of Premises Entry and Inspection and Channel Maintenance Maintenance Improvements/Alterations Utilities Liens Taxes Signs Ownership of Improvements and Personal Property 9 10 12 12 13 13 14 14 14 15 15 1: H:\IBPX?Y\~JM\WPDATA\AGG\AGG91009 .AD 0 0 SECTION Section 7 7.01 7.02 7.03 7.04 7.05 7.06 7.07 7.08 7.09 7.10 7.11 Section 8 8.01 Section 9 9.01 Section 10 PARAGIiAPH GENERAL PROVISIONS Notices Compliance with Law CITY approval Nondiscriminaticn Partial Invalidity Entire Understanding Agricultural Operations Noxious Weeds, Pests Control of Livestock Employee Housing Prohibited Agricultural Provisions WAIiRANTY Warranty SIGNATURES Signature Page EXHIBITS Exhibit A Exhibit B PAGE 16 17 17 17 17 18 18 19 19 20 20 20 21 22 23 H:\IBRARY\UM\WPDATA\AGG\AGG~~OO~.AD e 0 CITY OF CARLSBAD THIS LEASE AGREEMENT is executed between THE CITY OF CARLSBAD, a municipal corporation, hereinafter called "CITY" , and MATTESON GREENHOUSES , hereinafter called "LESSEE". SZCTION 1: USES 1.01 Premises. CITY hereby leases to LESSEE and LESSEE leases from CITY all of that certain real property situated in the City of Carlsbad, County of San Diego, State of California, described in Exhibit It 2 11 attached hereto and by this reference made part of this agreement. said real property is hereinafter called the "premises" or "leased premises". 1.02 lon of Leased Prernrses. In the event any portion of the leased premises is not used by LESSEE for its highest and best use, then CITY may, at CITY'S option, delete that portion of the leased premises not used by LESSEE from Section 1.01 , premi ses, hereof. Provided , however, Section 3, RENT, hereof, shall be adjusted downward by the City Manager on an equitable basis. 1.03 Uses. It is expressly agreed that the premises, consisting of approximately 5.5 acres, is leased to LESSEE solely and exclusively for the purposes of growing crops and for such other related or incidental purposes as may be first approved ir writing by the City Manager and for no othel purpose whatsoever. LESSEE covenants and agrees to use the premise:: for the above specified purposes and to diligent11 pursue said purposes throughout the term hereof. Failure to continuously use the premises for saic purposes, or the use thereof for purposes not expressly authorized herein, shall be grounds fo: termination by CITY. 1.04 Re] ated Councll Actlons. By the granting of thii lease, neither CITY nor the Council of CITY i8 obligating itself to any other governmental agent H:JL.IE~~Y\.UM\WPDATA\AGG\AGG~:OO~.AD 1 0 0 board, commission, or agency with regard to any other discretionary action relating to developv,ent or operation of the premises. DiscreEionary action includes, but is not limited to rezonir-gs, variances , environmental clearances or any other governmental agency approvals which may be required for the development and operation of the leased premises, 1.05 Ouiet Possession. LESSEE, paying the rent and performing the covenants and agreements herein, shall at all times during the term peaceably and CITY for any reason cannot deliver possession of the premises to LESSEE at the commencement of the term, or if during the lease term LESSEE is temporarily dispossessed through action or claim of a title superior to CITY'S, then and in either of such events, CITY shall not be liable to LESSEE for any loss or damage resulting therefrom, but there shall be determined and stated in writing by the City Manager of CITY a proportionate reduction of the minimum or flat rate rent for the period or periods during which LESSEE is prevented from having the quiet possession of all or a portion of the premises. quietly have, hold and enjoy the premises. If 1.06 Easements and ReservatJons. a. CITY hereby reserves all rights, title and interest in any and all subsurface natural gas, oil, minerals and water on or within the premises. b. CITY reserves the right to grant and USE easements or to establish and use rights-of- way over, under, along and across the leased premises for utilities, thoroughfares, 01 access as it deems advisable for the public good. c. CITY has the right to enter the premises fol the purpose of making repairs to 01 developing municipal resources and services. However, CITY shall not unreasonably 0: substantially interfere with LESSEE'S use of th( premises and will reimburse LESSEE for damages, i: any, to the improvements, including crops, locate( on the leased premises resulting from CI'r H:\LIBFwRY\uM\wPDATA\AGG\AGG~~OO~.AD 2 0 0 exercising the rights reserved in this section. Such reimbursement may include a reduction in the rent propcrtionate to the amount of damage as determined by CITY. CITY will pay the costs of maintenance and repair of all CITY installations made pursuant to these reserved rights. SECTION 2 : TERM 2.01 Commencement. Regardless of the date of execution by the City, the term of this agreement shall be three (3) years commencing on September 15, 1998 and terminating September 14, 2001. 2.02 Holdover. Any holding over by LESSEE after expiration or termination shall not be considered as a renewal or extension of this lease. The occupancy of the premises after the expiration or termination of this agreement constitutes a month- to-month tenancy, and all other terms and conditions of this agreement shall continue in full force and effect; provided, however, CITY shall be entitled to 120% of the monthly rent during any hold over period and to terminate the holdover tenancy at will. Quitclaim and Surrender of I~ESSFX'S Interest. At termination of this lease for any reason, LESSEE shall execute, acknowledge and deliver to CITY, within five (5) days after written CITY demand, E valid and recordable quitclaim deed covering all of the premises. The premises shall be deliverec free and clear of all liens and encumbrances, anc in a decent, safe and sanitary condition. At the expiration or earlier termination of thi! lease, LESSEE shall surrender the premises to CIT' free and clear of all liens and encumbrances except those liens and encumbrances which existec on the date of execution hereof, and in a decent, safe and sanitary condition. In the case ol termination of this lease by CITY prior to the en( of the specified lease term, any liens an( encumbrances must be approved in writing by thc City Manager. If LESSEE fails or refuses to deliver the require1 deed, the CITY may prepare and record a notic' reciting LESSEE'S failure to execute this leas provision and the notice will be conclusiv 2.03 H: \LIBRARY\U",WPDATA\AGG\AGG31009 .A2 3 e e evidence of the termination of this lease and all LESSEE'S rights to the premises. 2.04 Termination of Lease. Either party may terminate this lease at any time upon 120 days notice to the other. If at expiration of the 120 day time period LESSEE still has crops growing, LESSEE shall be permitted to continue raising and tending the crops and shall be permitted to harvest the crops. The right to harvest the crops shall not extend the term of the lease except that the provisions of this lease, other than the extension provision, shall apply. The right to raise, tend and harvest shall apply only to crops planted before notice to terminate has been given. SECTION 3: RENT 3.01 1. Rent is due annually. Checks should be made payable to the City of Carlsbad and mailed or delivered to the Financial Management Director, 1200 Carlsbad Village Drive, Carlsbad, California 92008. The place and time of payment may be changed at any time by CITY upon thirty (30) days written notice to LESSEE. Mailed rental payments shall be deemed paid upon the date such payment is postmarked by the postal authorities. If postmarks are illegible, the payment shall be deemed paid upon actual receipt by the Financial Management Director. LESSEE assumes all risk of if payments are made by mail. loss and responsibility for late payment charge: 3.02 Rent. a. Rent Amount;. The initial rent is $1925. b. (1) ual Adlustmentq. Commencing on the anniversary date of this lease agreement, i~ years 2 and 3 said annual rent shall increase a! follows: Year 2 $1,985 dollars per year Year 3 $2 , 045 dollars per year c. Upon termination pursuant to Section 2.04 o this lease the annual rent may be pro-rated a required. H:\LIBRARY\uM\wPDATA\AGG\AGG~~OO~.AD 4 0 0 3.03 Delinauent - Rent. If LESSEE fails to pay the rent when due, LESSEE will pay in addition to tne unpaid rents, five percent (5%) of the delinquent rent. If the rent is still unpaid at the end of fifteen (15) days, LESSEE shall pay an additionai five percent (5%) [being a total of ten percent (lo%)] which is hereby mutually agreed by Ehe parties to be appropriate to compensate CITY for loss resulting from rental delinquency, including lost interest, opportunities, legal costs, and the cost of servicing the delinquent. account. In the event that the CITY audit, if applicable, discloses that the rent for the audited period has been underpaid in excess of five percent (5%) of the total required rent, then LESSEE shall pay CITY the cost of the audit plus ten percent (10%) per year on the amount by which said rent was underpaid in addition to the unpaid rents as shown to be due CITY as compensation to CITY for administrative costs and loss of interest as previously described herein. LESSEE agrees to pay such amount and further agrees that the specific late charges represent a fair and reasonable estimate of the costs that CITY will incur fron LESSEE'S late payment. Acceptance of late charge: and any portion of the late payment by CITY shall in no event constitute a waiver of LESSEE default with respect to late payment, nor prevent CITJ from exercising any of the other rights anc remedies granted in this lease. 3.04 Dectlon of Recor&. LESSEE agrees to make an: and all records and accounts available to CITY fo: inspection at all reasonable times, so that CIT' can determine LESSEE'S compliance with this lease These records and accounts will be made availablt by LESSEE at the leased premises and will bl complete and accurate showing all income an1 failure to keep and maintain such records and rnak them available for inspection by CITY is a breac of this lease and cause for termination. receipts from use of the premises. LESSEE ' SECTION 4: ASSIGNMENT 4.01 terms, covenants and conditions of this lease and H.?LIBRA~Y\UM\WPDATA\AGG\AGG~~OO~.AE 5 0 e except as otherwise provided herein, all of the terms, covenants and conditions of this lease shall apply to, benefit and bind the successors and assigns of the respective parties, jointly and individually. 4.02 Assjanment and Sublettinq. LESSEE shall not assign this lease, or any interest therein, and shall not sublet the premises or any part thereof , or any right or privilege appurtenant thereto, or suffer any other person, except employees, agents and guests of LESSEE, to use or occupy the premises or any part thereof, without the prior written consent of the City Manager in each instance. Such consent by the City Manager shall not be unreasonably withheld. A consent to other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. Any such assignment or subletting without such consent shall be void, and shall, at the option of CITY, terminate this lease. This lease shall not, nor shall any interest therein, be assignable, as to the interest of LESSEE, by operation of law, without the written consent of the City Manager. "Assignment1', for the purposes of this clause shall include any transfer of any ownership interest in this lease by LESSEE or ,by any partners, principals, or stockholders, as the case may be, from the original LESSEE, its general partners or principals. assignment, subletting, occupation or use by any Approval of any assignment or sublease shall be conditioned upon the assignee or sublessee agreeing in writing that it will assume the rights and obligations thereby assigned or subleased and that it will keep and perform all covenants, conditions and provisions of this agreement whick: are applicable to the rights acquired. 4.03 Defadts and Rernedi.es. a. Default. In the event that: (1) LESSEE shall default in the performance of Ii:\LIaRARY\'JM\WPDATA\AGG\AGG91009 .AD 6 0 0 any covenant or condition required by this lease to be performed by LESSEE and shali fail to cure said default within thirty (30) days foilowing written notice tnereof from within thirty (30) days, shall fail to commence to cure the default (s) within said thirty-day period and diligently pursue such cure to completion; or CITY; or if any such default is not curable (2) LESSEE shall voluntarily file or have involuntarily filed against it any petition under any bankruptcy or insolvency act or law; or (3) LESSEE shall be adjudicated a bankrupt; or (4) LESSEE shall make a general assignment for the benefit of creditors; then CITY may, at its option, without further notice or demand upon LESSEE or upon any person claiming rights through LESSEE, immediately terminate this lease and all rights of LESSEE and of all persons claiming rights through LESSEE tc the premises or to possession thereof; and CITY may enter and take possession of the premises. Provided, however, in the event that any default described in Section 4.03a.(l), Default anc Remedies, hereof is not curable within thirty (30) days after notice to LESSEE, CITY shall not terminate this lease pursuant to the default if LESSEE immediately commences to cure the default and diligently pursues such cure to completion. b. w-. Even though LESSEE ha: breached the lease and abandoned the property this lease shall continue in effect for so long a: CITY does not terminate this lease, and CITY ma; enforce all its rights and remedies hereunder including but not limited to the right to recove' the rent as it becomes due, plus damages. c. gaiver. 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 th City Manager in order to constitute a valid an binding waiver. CITY delay or failure to exercis a remedy or right is not a waiver of that or an H:'\LIBRARY\I"\WPDATA\AGG\AGG91009.AD 7 0 e other remedy or right under this lease. The use of one remedy or right for any default does not waive the use of another remedy or right for the same default or for another or later default. CITY'S acceptance of any rents is not a waiver of any default preceding the rent payment. CITY and constituting the premises is CITY-owned and held in trust for the benefit of the citizens of the City of San Diego and that any failure by the City Manager or CITY staff to discover a default shall not result in an equitable estoppel, but CITY shall at all times, subject to the applicable statute of limitations, have the legal right to require the cure of any default when and as such Council directs the City Manager to take action or require the cure of any default after such default is brought to the attention of the City Council by the City Manager or by any concerned citizen. LESSEE specifically agree that the property defaults are discovered or when as the City 4.04 Eminent Doma. If all or part of the premises are taken through condemnation proceedings or under threat of condemnation by any public authority with the power of eminent domain, the interests of CITY and LESSEE (or beneficiary OL mortgagee) will be as follows: a. In the event the entire premises are taken, this lease shall terminate on the date of the transfer of title or possession to the condemninc authority, whichever first occurs. b. In the event of a partial taking, if, in the premises is unsuitable for the lease operation, this lease shall terminate on the date of thc transfer of title or possession to the condemninc authority, whichever first occurs. c. In the event of a partial taking, if, in tht opinion of CITY, the remainder of the premises i: suitable for continued lease operation, this leas shall terminate in regard to the portion taken 01 the date of the transfer of title or possession tc the condemning authority, whichever first occurs but shall continue for the portion not taken. Thi minimum rent shall be equitably reduced to reflec the portion of the premises taken. opinion of CITY, the remaining part of the d. Award. All monies awarded in any such takin H:\LIBRARY\UM\WPDATA\AGG\AGG91@09,AD a e 0 shall belong to CITY, whether such taking results in diminution in value of the leasehold or the fee or both; provided, however, LESSEE shall be entitled to any award attributable to the taking of or damages to LESSEE'S then remaining leasehold interest ir, installations or improvements of liability to LESSEE for any award not provided by the condemning authority. LESSEE, including crops. CITY snail have no e. Transfer. CITY has the right to transfer CITY'S interests n the premises in lieu of condemnation to any authority entitled to exercise the power of shall retain whatever interest it may have in the fair market value of any improvements placed by it on the premises in accordance with this lease so long as such rights do not unreasonably or substantially interfere with LESSEE'S operations. eminent domain. If a transfer occurs, LESSEE f. TJO Inverse Condemnatia. The exercise of any CITY right under this lease shall not be interpreted as an exercise of the power of eminent domain and shall not impose any liability upon CITY for inverse condemnation. SECTION 5: INSURANCE RISKS/SECURITY 5.01 1ty. LESSEE shall at all times relieve, indemnify, protect, and save CITY and any and all of its boards, officers, agents and employees harmless from any and all claims and demands, actions, proceedings, losses, liens, costs, judgments, civil fines, and penalties of any nature whatsoever in regard to or resulting fron the use of the premises, including but not limited to expenses incurred in legal actions, death, injury, or damage that may be caused directly or indirectly by: a. any unsafe or defective condition in or on the by reason of any act, omission, neglect, or an) use or occupation of the premises; premises of any nature whatsoever which may exist b. any operation, use or occupation conducted on thf premises ; C. any act, omission, or negligence on the part 0: LESSEE, its employees, agents, sublessees H:\LIERARY\UM\WPDATA\AGG\AGG91009.AD 9 0 0 invitees, licensees; or d. any failure by LESSEE to comply or SeclJre compliance with any of the lease terms or conditions. 5.02 Insurance. LESSEE shall take out and maintain at all times during the term of this lease the following insurance at its sole expense: a. lic liablJ1 tv and Pro~ert~ D~WE II"-ance In the amount of not less than ONE MILLION DOLLARS ($1,000,000) Combined Single Limit Liability with an occurrence claims form, if available. This policy shall cover all injury or damage, including death, suffered by any party or parties from acts or failures to act by CITY or LESSEE or by authorized representatives of CITY or LESSEE on or in connection with the use or operation of the premises. ., b. d Covera- Ism Ix"m.xance policy on all insurable property on the premises in an amount to cover 100 percent of the replacement cost. Any proceeds from a loss shall be payable jointly to CITY and LESSEE. The proceeds shall be placed in a trust fund to be reinvested in rebuilding or repairing the damagec property. If there is a mortgage or trust deed or the leasehold in accordance with Section 4.03, Encumbrance, hereof, the proceeds may be paid tc the approved mortgagee or beneficiary so long a: has been made in each case for the use of all proceeds for repair and restoration of damaged 03 destroyed improvements on the premises. as an additional insured, protect CITY against an: legal costs in defending claims, and will not terminate without sixty (60) days prior writtel notice to CITY. All insurance companies must bt satisfactory to CITY and licensed to do busines: in California. All policies will be in effect o! or before the first day of the lease, excep' "course of construction fire insurance" shall bl in force on commencement of all authorize1 construction on the premises, and full applicabll fire insurance coverage shall be effective up0 completion of each insurable improvement. A cop' of the insurance policy will remain on file wit adequate provision reasonably satisfactory to CITl C. lon. All insurance policies will name CITl H:?LIBRARY\UM\WPDATA\AGG\AGG91003.AD 10 0 0 CITY during the entire term of the lease. At least thirty (30) days prior to the expiration of each policy, LESSEE shall furnish a certificate(s1 showing that a new or extended policy has been obtained which meets the terms of this lease. d. Modification, CITY, at its discretion, may require the revisior, of amounts and coverages at any time during the term by giving LESSEE sixty (60) days prior written notice. CITY I s requirements shall be designed to assure protection from and against the kind and extent of risk existing on the premises. LESSEE also agrees to obtain any additional insurance required by CITY for new improvements, in order to meet the requirements of this lease. e. Accident Reports. LESSEE shall report to CITY any accident causing more than TEN THOUSAND DOLLARS ($10,000) worth of property damage or any serious injury to persons on the premises. This report shall contain the names and addresses of the parties involved, a statement of the circumstances, the date and hour, the names and addresses of any witnesses and other pertinent information. f. Failure to ComDly. - If LESSEE fails Or refuses tc take out and maintain the required insurance, 01 fails to provide the proof of coverage, CITY ha$ the right to obtain the insurance. LESSEE shall reimburse CITY for the premiums paid with interest at the maximum allowable legal rate then in effect in California. CITY shall give notice of thc payment of premiums within thirty (30) days oJ payment stating the amount paid, names of thc insurer(s) and rate of interest. Saic reimbursement and interest shall be paid by LESSEI on the first (1st) day of the month following thc notice of payment by CITY. Notwithstanding the preceding provisions of thi Subsection f. , if LESSEE fails or refuses to tak out or maintain insurance as required in thi lease, or fails to provide the proof of insurance CITY has the right to declare this lease i default without further notice to LESSEE and CIT shall be entitled to exercise all legal remedie in the event of such default. :~:\LIB~~ARY\,~M\WPDATA\AGG\AGG~~OO~.~ 11 0 a 5.c3 Waste, Damage sr Destruction. LESSEE agrees t3 give notice to CITY of any fire or other darnage that may occur on the leased premises within ten (10) days of such fire or damage. LESSEE agrees not to commit or suffer to be committed any waste or injury or any public or private nuisance, tc keep the premises clean and clear of refuse and obstructions, and to dispose of all garbage, trash, and rubbish in a manner satisfactory tc CITY. If the leased premises shall be damaged bl any cause which puts the premises into a conditior which is not decent, safe, healthy and sanitary, LESSEE agrees to make or cause to be made full repair of said damage and to restore the premise: to the condition which existed prior to saic damage; or, at CITY'S option, LESSEE agrees tc clear and remove from the leased premises all debris resulting from said damage and rebuild the premises In accordance with plans an( specifications previously submitted to CITY anc approved in writing in order to replace in kin( and scope the operation which existed prior tc such damage, using for either purpose tht insurance proceeds as set forth in Section 5.02 Insurance, hereof. LESSEE agrees that preliminary steps towarc performing repairs, restoration, or replacement o the premises shall be commenced by LESSEE withi: thirty (30) days, and the required repairs restoration, or replacement shall be complete1 within a reasonable time thereafter. CITY ma annual rent requirement for such period or period that said premises are untenantable by reason o such damage. determine an equitable deduction in the minimu SECTION 6: IMPROW3MENTS/ALTERATIONS/REPAIRS 6.01 Acce-ce of Premlses. By signing this lease LESSEE represents and warrants that it ha independently inspected the premises and made a1 tests, investigations, and observations necessar to satisfy itself of the condition of tk: premises. LESSEE agrees it is relying solely c H:\LIBRARY\U"\WPDATA\AGG\AGG91009.AD 12 0 0 such independent inspection, tests, investigations, and observations in making this lease. LESSEE further acknowledges that tne premises are in the condition called for by this lease, that CITY has performed all work with respect to the premises, and that LESSEE does not hold CITY responsible for any defects in the premises. 6.02 Entrv and Inmection and Channel Maintenance. CITY reserves and shall always have the right to enter said premises for the purpose of viewing and ascertaining the condition of the same, or to protect its interests in the premises, or to inspect the operations conducted thereon. In the event that such entry or inspection by CITY discloses that said premises are not in a decent, safe, healthy, and sanitary condition, CITY shall have the right, after ten (10) days written cotice to LESSEE, to have any necessary maintenance work done at the expense of LESSEE, and LESSEE hereby agrees to pay promptly any and all costs incurred by CITY in having such necessary maintenance work done, in order to keep said premises in a decent, safe, healthy, and sanitary condition. Further, if at any time CITY determines that said premises are not in a decent, safe, healthy, and sanitary condition, CITY may at its sole bption, without additional notice, require LESSEE to file with CITY a faithful performance bond to assure prompt correction of any condition which is not decent, safe, healthy and sanitary. Said bond shall be in an amount adequate in the opinion of the CITY tc correct the said unsatisfactory condition. LESSEE shall pay the cost of said bond. The rights reserved in this section shall not create an> obligations on CITY or increase obligations elsewhere in this lease imposed on CITY. 6.03 Maintenance. Except as hereinafter provided, LESSEE agrees to assume full responsibility anc cost for the operation and maintenance of the all such repairs and replacements necessary tc maintain and preserve the premises in a decent, safe, healthy and sanitary condition satisfactor) to CITY and in compliance with all applicable laws. Appropriate codes and standards of CITY, state and federal agencies shall be observed iI premises throughout the term. LESSEE will perforn H:'~,LI5F!ARY\UM\~W?DATA\AGG\AGG91009.RD 13 0 0 all maintenance, repairs and replacements on the premises. 6.04 Improvernents/Alterations. No improvements, structures, or installations shall be constructed on the premises, and the premises may not be altered by LESSEE without prior written approval by the City Manager. Further, LESSEE agrees that major structural or architectural design alterations to approved improvements, structures, without prior written approval by the City Manager and that such approval shall not be unreasonably withheld. This provision shall not relieve LESSEE of any obligation under this lease to maintain the condition, including structural repair and restoration of damaged or worn improvements. CITE shall not be obligated by this lease to make 01 assume any expense for any improvements 01 alterations. or installations may not be made on the pyernim premises in a decent, safe, healthy, and sanitaq 6.05 Utllltles . LESSEE agrees to order, obtain, anc pay for all utilities and service and installatior charges in connection with the development anc operation of the leased premises. ,I# 6.06 Liens. LESSEE shall at all times save CITY free and harmless and indemnify CITY against all claim: for labor and materials in connection wit1 operations, improvements, alterations, or repair: on or to the premises and the costs of defendin! against such claims , including reasonabl( attorney's fees. If improvements, alterations, or repairs are mad( to the premises by LESSEE or by any party othe: than CITY, and a lien or notice of lien is filed LESSEE shall within five (5) days of such filinl either: a. take all actions necessary to record a vali release of lien, or b. file with CITY a bond, cash, or othe security acceptable to CITY sufficient to pa in full all claims of all persons seekin relief under the lien. H:\,LIBRARY\UM\W?DATA\AGG\AGG91009.AD " 14 0 0 6.07 Taxes. LESSEE agrees to pay, before delinquency, all taxes, assessments, and fees assessed cr levied upon LESSEE or the premises, including the land , any buildings , structures, machines , equipment, appliances, or other improvements or property of any nature whatsoever erected, installed or maintained by LESSEE or levied by reason of the business or other LESSEE activities related to the leased premises, including any licenses or permits. LESSEE recognizes and agrees subject to property taxation, and that LESSEE may be subject to the payment of taxes levied on such interest, and that LESSEE shall pay all such possessory interest taxes. LESSEE further agrees that payment for such taxes, fees and assessments will not reduce any rent due CITY. that this lease may create a possessory interest 6.08 Sigm. LESSEE agrees not to erect or display any banners , pennants , flags , posters, signs, decorations, marquees, awnings, or similar devices or advertising without the prior written consent of CITY. If any such unauthorized item is found on the premises, LESSEE agrees to remove the item at its expense within 24 hours notice thereof by CITY, or CITY may thereupon remove the item at LESSEE'S cost. 6.09 Dwnership of Improvements and ~p.1 Propertv. a. Any and all improvements, trade fixtures, structures and installations or additions to the premises now existing or constructed on the premises by LESSEE shall at lease expiration or termination be deemed to be part of the premises and shall become, at CITY'S option, CITY'S property, free of all liens and claims except as otherwise provided in this lease. b. If CITY elects not to assume ownership of all or any improvements, trade fixtures , structures and installations, CITY shall so notify LESSEE in accordance with notification of termination or default and provisions of Sections 2.04 or section 4.03 of this lease or one hundred eighty (180) days prior to expiration and LESSEE shall remove all such improvements, structures and installations as directed by CITY at LESSEE'S sole cost on or :I::LIBRI~RY\UM\WPDATA\AGG\AGG~~OO~.AD 15 0 before lease expir'atian or termination. If LESSEE fails to remove any improvements, structures, and installations as directed, LESSEE agrees to pay CITY the full cost of any removal. c. LESSEE-owned machines, appliances, equipment (other than trade fixtures) , and other items - of personal property shall be removed by Lessee by the date of the expiration or termination of this lease. Any said items which LESSEE fails to remove will be considered abandoned and become CITY'S property free of all claims and liens, or CITY may, at its option, remove said items at LESSEE'S expense. d. If any removal of such personal property by LESSEE results in damage to the remaining improvements on the premises, LESSEE agrees to repair all such damage. e. Any necessary removal by either CITY or LESSEE which takes place beyond said expiration or termination thereof shall require LESSEE to pay rent to CITY at the rate in effect immediately prior to said expiration or termination. f. Notwithstanding any of the foregoing, in the event LESSEE desires to dispose of any of its personal property used in the operation of said premises upon expiration or termination of this lease, then CITY shall have the first right to acquire or purchase said personal property. SECTION 7: GENERAL PROVISIONS 7.01 Notices a. Any notice required or permitted to be given hereunder shall be in writing and may be served personally or by United States mail, postage prepaid, addressed to LESSEE at the leased premises or at such other address designated in writing by LESSEE; and to CITY as follows: H:\LIBRARY\UM\WPDATA\AGG\AGG~~~O~.AD 16 0 0 City Manager 1200 Carlsbad Village Drive Carlsbad, CA 92008 Copies to: City Engineer 1200 Carlsbad Village Drive Carlsbad, CA 92008 or LO any mortgagee, trustee, or beneficiary as applicable, at such appropriate address designated in writing by the respective party. b. Any party entitled or required to receive notice under this lease may by like notice designate a different address to which notices shall be sent. 7.02 ComDliance with Law. LESSEE shall at all times in the construction, maintenance, occupancy and operation of the premises comply with all applicable laws, statutes, ordinances, and regulations of CITY, County, State and Federal Governments at LESSEE'S sole cost and expense. In addition, LESSEE shall comply with any and all notices issued by the City Manager or his authorized representative under the authority of any such law, statute, ordinance, or regulation. 7.03 CITY Awroval. The approval or consent of CITY, wherever required in this lease, shall mean the written approval or consent of the City Manager unless otherwise specified, without need for further resolution by the City Council. 7.04 wcrl-tion. LESSEE agrees not to persons on account of race, marital status, sex, religious creed, color, ancestry, national origin, age or physical handicap in LESSEE'S use of the premises, including, but not limited to the providing of goods , services, facilities, privileges, advantages, and accommodations, and the obtaining and holding of employment. I. discriminate in any manner against any person or 7.05 Partial InVal-. If any term, covenant, condition or provision of this lease is found invalid, void or unenforceable by a court of I, H:\LIB!L%RY\UM\WPDATA\AGG\AGG9lCO9.AE 17 e 0 competent :urisdiction, the remaining provisiocs will remain ir, full force and effect. 7.06 Entire Understandinq. This lease contains the entire understanding of the parties. LESSEE, by signing this agreement, agrees that there is no other written or oral understanding between the parties with respect to the leased premises. Each party has reiied on its own examination of the premises, advice from its own attorneys, and the lease itself. Each of the parties in this lease agrees that no other party, agent, or attorney of any other party has made any promise, representation, or warranty whatsoever which is not contained in this lease. The failure or refusal of any party to read the lease or other documents, inspect the premises, and obtain legal or other advice relevant to this transaction constitutes a waiver of any objection, contention, or claim that might have been based on these actions. No modification, amendment, or alteration of this lease will be valid unless it is in writing and signed by all parties. Provlsm. 7.07 Acrricul tural LESSEE shall use standard agricultural practices in growing, tending and harvesting said crops and shall not use the property in such a manner as to constitute a nuisance to adjoining property owners or lessees. LESSEE shall comply with the following requirements: warranties, representations, and covenants of the .. a. Drip irri9ation shall be used whenever possible. b. All plastic material and debris shall be completely removed from the property at the completion of the lease. c. No aerial application of pesticides or fertilizers shall be permitted. d. A "Resource Management System'' which is a detailed report on what crops will be grown, how crops will be irrigated, what pesticides will be used, what type of fertilizer will be used and the application methods of pesticides and fertilizers, shall be X:;LIBRARY\~VM\WPDATA\AGG\AGG~~OO~.AD 18 0 e submitted and approved by the Pubiic Works Director or his designee prior tC commencement of agricultural operations of the land. e. No planting, grading, spraying, cultivating or other disturbance whatsoever shail be allowed in the wetlands area, riparian area, rare and endangered plant species area, or archaeological area. f. Erosion shall be controlled and monitored by the Universal Soil Loss Equation provided by U.S. Soil Conservation Service. If erosion exceeds three tons per acre CITY ray terminate this lease. g. No soil is to be left uncropped. h. No land with an average slope of 30 percent or more shall be farmed. i. All pesticide application shall be approved and supervised by the county agricultural office, with all necessary permits obtained from county in advance. A complete record of fertilization and pesticide application must be kept and made available upon request by CITY. j. Access roads shall be limited to those approved by the Public Works Director and shall not cause erosion problems. 7.08 Bgrj cu1t.u-1 ODerati - 0~ . LESSEE agrees to abide by the conditions for agricultural operations set forth herein. Failure of LESSEE to cease or cure any unauthorized practice within 30 days after written notice to do so shall be grounds for, at the option of CITY, an immediate termination of the lease. LESSEE shall not be entitled to additional time to cure the default as otherwise provided for in Section 4.03 of this lease. 7.09 Noxious Weeds, Pests. LESSEE shall take proper corrective action, to the satisfaction of CITY, to prevent the infestation of noxious weeds and pests. H:\LISRARY\UM\WPDATA\AGG\AGG91309.AC 19 0 e 7.10 Control of Livestoc k. The premises shall be adequately fenced to control livestock without cost to CITY and in a manner satisfactory to CITY. LESSEE shall be solely responsible for all damage of any kind resulting from livestock leaving said premises. Housincr ProhlDlted. 7.11 EmDloyee LESSEE shall not provide housing for employees or any other persons on the property. LESSEE shall not permit LESSEE'S employees or any other persons to reside upon the property in any way. .. I SECTION 8 : WARRANTY 8.01 Warranty The CITY does not warrant that the premises are suitable for the agricultural purposes for which they are leased. //// //// //// //// //// //// H:\LIBRARY\UM\WPDATA\AGG\A~~~~~~.AD 20 0 SECTION 9: SIGNATURES 9.01 Wture Paae 0 IN WITNESS HEREOF, this lease Agreement is executed by the city Of Carlsbad acting by and through its Mayor, and by Lessee, acting by and through its duly authorized officers. Date: LESSEE : MATTESON GREENHOUSES BY : +la25 lgnature) @&c.sm#*rq (P!hnt Name) P-2 (Tltlel ATTEST : BY: (Signature) AL b- (Prlnt Name) APPROVED AS TO FORM: RONALD R. BALL, City Attorn ('rltle) BY: L-ky *& orney /I- 4 -7 e* EXHIBIT A: Property Deacription EXHIBIT B: Parcel Map H:\LIBRARY\Un\WPDATA\AGG\RGG91a09 ,AD 21 -1 * a e ff ALlFORNlA ALL-PURPOSE ACKNOWLEDGMENT N) P 1 State of CN~ kV fi 11, . " -~ 1 County of rI On 10/2q,/:g " beforeme, ~/aq3 rni1Iy ~otaf~ P~G, E. TITLE OF OFFICER. E.G.. 'JANE OOE. FdTARY PUBLIC' personally appeared &fie &f W!< 4 e< s(J q 1 U NAME(S) OF SIGNER(S) " a - OR -@proved to me on the basis of satisfactory evidence to be the person(& whose name(#)@, subscribed to the within instrument and ac- knowledged to me th the same in capacity(*), and that by signature($ on t person(+ acted, executed the instrument. WITNESS my hand and official seal. pllblc-cdlknb or the entity upon behalf of which the SIGNATUR~ OF NOTARY OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER - DESCRIPTION OF ATTACHED DOCUMENT u INDIVIDUAL WCORPORATE OFFICER nus) 0 PARTNER(S) 0 LIMITED 0 ATTORNEY-IN-FACT 0 - TRUSTEE(S) 0 GENERAL n dl NUMBER OF PAGES u GUARDIAWCONSERVATOR OTHER: (106 1 SIGNER IS REPRESENTING. NAME OF PERSON(S) OR EMITY(IES) SIGNER(S) OTHER THAN NAMED ABOVE ~ ~~_~-~"~~~~~__~ ~ ~ -_~"~~-~~" ~ ~"_ ~ ~"~~"_ 01993 NATIONAL NOTARY ASSOCIATION 8236 Remmet Ave.. P.O. Box 7104 Canoga Park CA 91309-71 0 0 HII'WTZS OF SPECIAL MEETING OF THE BOARD 01 DIRECTORS .- af the Board of Dirmctor8 of n yam held at the princtpl offit8 o the COtpO?rtiOn OD the 27 d8y Of &'?&%d w lg'$ ues IK" at the hour of the Soctrtary o t e ofpotat ion. #!+ l in accordrrnce wit ue notice y Thr following birectorr were present, reprcmentfng all a.rb.ro of the Board: 6,N-d *ud m CoAljRflct fi# WQ G~p~~fi~~ 7$1c WAS ~pp~utd B~UN4m~ak voG 50 - DULY v8w rnfNW7 9s fibM pH iSJOU 1 fidT/tr/G LcCeeQ && IIW~~ bin8 b~ further burinmor to COO. kforo th8 meting, uPn -tfOa dolY Yda ad 8XOnd8d. the Chairman d~larod aa rn-tfna rdj~~d. . . .- S88 1 e 0 EXHIBIT A All that portion of Lot “H” of the Rancho Agua Hedionda, in the City of Carlsbad, County of San Diego, State of California, according to Partition Map thereof No. 823, filed in the Office of the County Recorder of said County, November 16, 1896 described as follows: Beginning at the most Northerly corner of Lot 163 of Terramar Unit No. 5, according to Map thereof No. 3371 filed in the Office of the County Recorder of said County; thence along the Easterly prolongation of the Northerly boundary of said Terramar Unit No. 5 North 59O21 ’IO” East 2.00 feet to the TRUE POINT OF BEGINNING; thence continuing along said Easterly prolongation of said Northerly boundary of Terramar Unit No. 5 North 59”21’10” East 226.92 feet to a point on the Westerly Right of Way of the Atchison, Topeka and Santa Fe Railway Company as said right of Way was established on September 22, 1948; thence along said Right of Way North 23°06’00” West 937.82 feet to a point; thence South 66°54’10” West 103.1 1 feet to the beginning of a tangent 3042 foot radius curve concave Northerly; thence Westerly along the arc of said curve through a central angle of 5O32’30” a distance of 294.22 feet, a radial from said point bears North 17°33’20” West; thence South 37O35’34” East 95.63 feet; thence South 30°38’50” East 535.00 feet; thence South 38O33’38” East 218.10 feet; thence South 30O38’50” East 150.00 feet to the TRUE POINT OF BEGINNING. 22 ATTACHMEN Li OY E.4 -' cr "5 EXHIBIT "B" 60 -dl2 0 0 - City of Carlsbad November 13,1998 County Recorder PO Box 1750 San Diego, CA 921 12-4147 Enclosed for recordation is the following described document: Lease Agreement Cannon Lake Park Land APN: 21 0-090-1 7; Matteson Greenhouses Also enclosed are instructions on how the City is to be billed for the recordation fees incurred. Thank YOU for your assistance with this matter. <- +a+.+ ka" ".sa " fq@4.7& - KATHLEEN D. SHOUP Sr. Office Specialist 1200 Carlsbad Village Drive - Carlsbad, CA 92008-1989 - (760) 434-2808