HomeMy WebLinkAbout2001-08-21; City Council; 16346; Amendment to Lease Agmt. with Adrian ChavezCITY OF CARLSBAD -AGENDA BILL
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AMENDMENT NO.1 TO AGRICULTURAL LEASE
WITH ADRIAN CHAVEZ CITY ATTY.
DEPT. ED CITY MGR$&
RECOMMENDED ACTION:
Approve Resolution No. b/.-a;)-authorizing the City Manager to execute Amendment
No. 1 of the Agricultural Lease Agreement with Adrian Chavez. for APN 156-164-20 and
156-I 90-62.
ITEM EXPLANATION:
In 1999, the City executed a five-year lease agreement with Adrian Chavez for a 1.8 acre
parcel, located immediately east of the Cole Library parking lot. The City had obtained the
land for future civic uses, but had no specific plans or schedule for development at the time
of the agreement. On January 19, 2001, the City purchased additional property located at
2923 Elmwood Street, again for future civic uses. The property consists of an 11,300
square foot parcel located north of the Arts Office, and immediately west of the property
currently leased by Mr. Chavez. Mr. Chavez has asked the City to consider amending his
lease agreement to include 2923 Elmwood Street for expansion of his agricultural business.
Although 2923 Elmwood was purchased for future civic uses, there are no immediate plans
to develop the site. City staff believes that an agricultural use of 2923 Elmwood Street, on
an interim basis, would be advantageous to the City. Staff is recommending that the
original lease agreement remain in full force and effect, with the exception of sections 1 .Ol
(Premises), 1.02 (Uses), 3.01 (Time and Place of Payment), and 3.02 (Rent), which shall
constitute Amendment No. 1 (Exhibit 2).
ENVIRONMENTAL:
Terms of the lease agreement provide for the Lessee to comply with and observe all
applicable laws’, and appropriate codes and standards of the City, the state, and all federal
agencies pertaining to the operation and maintenance of the premises. The Planning
Director has determined that the activity is not subject to CEQA review and is covered by
the general rule that “CEQA applies only to projects that have the potential for causing a
significant effect on the environment. Where it can be seen with certainty that there is no
possibility that the activity in question may have a significant effect on the environment, the
activity is not subject to CEQA.”
FISCAL IMPACT:
The term of the lease will remain five (5) years, ending in November 2004. The new rent
structure under Amendment No. 1, for years 3,4, and 5 has been adjusted upward to reflect
the additional 11,300 square feet of leased area. New annual rent amounts were calculated
by prorating the original negotiated lease price per square foot, and then applying that
amount to the additional square footage. The rent structure proposed for Amendment No. 1
is as follows:
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PAGE 2 OF AGENDA BILL NO. /6 3’47 I
Year Original Lease Annual Rent Amendment No.1 Rent
3 $650.00 $741.75
4 $675.00 $770.25
5 $700.00 $798.75
EXHIBITS:
1. Resolution No. %Q/--3;26> of the City of Carlsbad, California, authorizing the City
Manager to execute Amendment No. 1 to Agricultural Lease Agreement between the
City of Carlsbad and Adrian Chavez.
2. Amendment No. 1 to Agricultural Lease Agreement (Adrian Chavez).
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RESOLUTION NO. 2001-262
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CARLSBAD, CALIFORNIA, AUTHORIZING THE CITY
MANAGER TO EXECUTE AMENDMENT NO. 1 OF THE
AGRICULTURAL LEASE AGREEMENT WITH ADRIAN
CHAVEZ FOR APN 156-190-62 AND156-164 20
WHEREAS, the City Council of the City of Carlsbad has determined that it is in the best
interest of the City to amend the existing agricultural lease agreement with Adrian Chavez to
include APN 156- 164-20, and
WHEREAS, the City Council has further determined that it accepts the terms of
Amendment No. 1 of the Agricultural Lease Agreement with Adrian Chavez.
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of
Carlsbad, California as follows:
1. That the above recitations are true and correct.
2. That the City Manager is authorized to execute Amendment No.1 of the
Agricultural Lease Agreement between the City of Carlsbad and Adrian
Chavez.
PASSED, APPROVED, AND ADOPTED at a regular meeting of the City Council on the
21st day of Auqust 2001, by the following vote to wit:
AYES: Council Members Lewis, Kulchin, Nygaard, Finnila, and Hall.
NOES: None.
ABSENT: None.
Mayor
ATTEST:
M. WOOD
(SEAL)
RECORDING REQUESTED BY:
Carlsbad City Clerk’s Office
WHEN RECORDED MAIL TO:
City Clerk
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
SPACE ABOVE THIS LINE FOR RECORDER’S USE
AMENDMENT NO. 1 TO AGRICULTURAL LEASE AGREEMENT
AMENDMENT NO. 1 TO AGRICULTURAL LEASE AGREEMENT
(Adrian Chavez)
THIS FIRST AMENDMENT to the Agricultural Lease Agreement is made and
entered into this 24thday of August ,2001, by and between the CITY OF
CARLSBAD, a political subdivision of the State of California (“City”) and Mr. Adrian
Chavez (“lessee”), and is made with reference to the following facts:
RECITALS
A.
B.
C.
On November 16, 1999, the five year Agricultural Lease Agreement was
executed for use of City owned property, adjacent to the existing Cole
Library, for agricultural purposes only.
Lessee has requested that the existing Agricultural Lease be amended to
include approximately 11,300 square feet of additional City owned property
located at 2923 Elmwood Street.
City has determined use of the property located at 2923 Elmwood Street for
agricultural purposes only would be an acceptable interim use.
NOW THEREFORE, incorporating the above recitals and in consideration of the
covenants and obligations set forth herein, the parties hereto agree as follows:
1. Recitals. That the above Recitals are True and Correct.
2. Amendment. That Paragraph 1.01, 1.02, 3.01 and 3.02 of the
Agreement shall be amended, in its entirety to read as follows:
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 as APN 156-190-62 and APN 156-164-20 and shown in Exhibit “A”
attached hereto and by this reference made part of this agreement. Said real property
is hereinafter called the “premises” or “leased premises”.
1.02 USES
It is expressly agreed that the premises, consisting of approximately 2.09 acres, is
leased to LESSEE solely and exclusively for the purposes of growing crops and for
such other related or incidental purposes as may be first approved in writing by the
City Manager and for no other purpose whatsoever.
LESSEE covenants and agrees to use the premises for the above specified purposes
and to diligently pursue said purposes throughout the term hereof. Failure to
continuously use the premises for said purposes, or the use thereof for purposes not
expressly authorized herein, shall be grounds for termination by the CITY.
3.01 TIME AND PLACE OF PAYMENT
Rent is due annually. Checks should be made payable to the City of Carlsbad and
mailed or delivered to the Financial Management Director, 11635 Faraday Avenue,
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
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Management Director. LESSEE assumes all risk of loss and responsibility for late
payment charges if payments are made by mail.
3.02 RENT
a. Rent Amount. The initial rent is $600 annually.
b. Annual Adjustments. Commencing on the anniversary date of this agreement, in
years 2,3,4 and 5 said annual rent shall increase as follows ,and shown in Exhibit B:
Year 2 $625 dollars per year
Year 3 $742 dollars per year
Year 4 $770 dollars per year
Year 5 $799 dollars per year
c. Upon termination pursuant to Section 2.04 of this lease, the annual rent may be
prorated as required.
3. Severability. Each provision, term, condition, covenant, and/or restriction, in whole and
in part, in this First Amendment shall be considered severable. In the event any provision, term
condition, covenant, and/or restriction, in whole or in part, in this First Amendment is declared
invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed
from this First Amendment and shall not affect any other provision, term, condition, covenant,
and/or restriction, of this First Amendment and the remainder of this Lease shall continue in full
force and effect.
4. Effective Date. This First Amendment shall be effective upon the date and year first
above written.
5. Agreement Provisions. Notwithstanding this First Amendment, all other provisions of
the Agreement shall remain in full force an.d effect.
6. Insurance. All requisite insurance policies to be maintained by Lessee pursuant to the
Agreement will include coverage for this First Amendment.
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7. Authority. The individuals executing this First Amendment and the instruments
referenced in it on behalf of Lessee each represent and warrant that they have the
legal power, right and actual authority to bind Lessee to the terms and conditions of
this First Amendment.
Acknowledged and Accepted: CITY OF CARLSBAD, a municipal
LESSEE:
j@#&,&/ C.hw~~3.
(name of Lessee)
By:
(sign here)
&&/i?M ~~~~ z-
(print name/title)
DATE FHAryE/G
(print name/title)
Commiaion #
Pubrii - Califom!o
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(Proper notarial acknowledgment of execution by Contractor must be attached. Chai
president or vice-president and secretary, assistant secretary, CFO or assistant treasurer
sign for corporations. Otherwise, the corporation must attach a resolution certified b
secretary or assistant secretary under corporate seal empowering the officer(s) signing to bir
corporation.)
APPROVED AS TO FORM:
ALL, City Attorney
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iREGORY DR
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CITY OF CARLSBAD
Flat Rats Leaee
(Library Parking Expansion Property)
Section 1 USES 1.01 Premises 1.02 Uses 1.03 Deletion of Portion of Leased Premises 1.04 Related Council Action 1.05 Quiet Possession 1.06 Easements and Reservations
Section 2 2.01 2.02 2.03 2.04
Section 3 3.01 3.02 3.03
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
TERM Commencement Holdover Quitclaim and Surrender of LESSEE's Interest Termination of Lease
Time and Place of Payment Rent Delinquent Rent
ASSIGNMENT Time is of the Essence; Provisions Binding on Successors Assignment and Subletting Defaults and Remedies Eminent Domain
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
1 1 1 2 2 2
3 3 3 4
4 5 5
5 5 6 8
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SECTION,
Section 7 GENERAL PROVISIONS 7.01 Notices 7.02 Compliance with Law 7.03 CITY approval 7.04 Nondiscrimination 7.05 Partial Invalidity 7.06 Agricultural Provisions 7.07 Agricultural Operations 7.08 Noxious Weeds, Pests 7.09 Employee Housing Prohibited 7.10 Entire Understanding
Section 8 8.01
Section 9 9.01
Section 10
WARRANTY Warranty
SIGNATURES Signature,Page
EXHIBITS Exhibit A
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CITY OF CARLSBAD
FLAT RATE LEASE
THIS LEASE AGREEMENT is executed between THE CITY OF CARLSBAD, a
municipal corporation, hereinafter called ItCITY", and ADRIAN Chavez, hereinafter called ttLESSEE1l.
SECTION 1:USES
1.01 . 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 "A" attached hereto and by this reference made part of this agreement. Said real property is hereinafter called the llpremiseslf or "leased premises".
1.02 U&s. It is expressly agreed that the premises, consisting of approximately 1.7 acres, is leased to LESSEE solely and exclusively for the purposes of growing crops and for such other related or incidental purposes as may be first approved in writing by the City Manager and for no other purpose whatsoever.
LESSEE covenants and agrees to use the premises for the above specified purposes and to diligently pursue said purposes throughout the term hereof. Failure to continuously use the premises for said purposes, or the use thereof for purposes not expressly authorized herein, shall be grounds for termination by CITY.
1.03 d Pra In the event any portion of the leased premises is not used by LESSEE for agriculture use, then CITY may, at CITY's option, delete that portion of the leased premises not used by LESSEE from Section 1.01, RENT, hereof. Provided, however, Section 3, hereof, shall be adjusted downward by the City Manager on an equitable basis.
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. 1.04 ted Co- AC- . By the granting of this lease, neither CITY nor the Council of CITY is obligating itself to any other governmental agent, board, commission, or agency with regard to any other discretionary action relating to development or operation of the premises. Discretionary action includes, but is not limited to rezonings, variances, environmental clearances or any other governmental agency approvals which may be required for the development and operation of the leased premises.
1.05 . LESSEE, paying the rent and performing the covenants and agreements herein, shall at all times during the term peaceably and quietly have, hold and enjoy the premises. If CITY for any reason cannot deliver possession of the premises to LESSEE at the commencement of the term, or if during the lease term LESSEE is temporarily dispossessed through action or claim of a title superior to CITY'S, then and in either of such events, this lease shall not be voidable nor shall CITY be liable to LESSEE for any loss or damage resulting therefrom, but there shall be determined and stated in writing by the City Manager of CITY a proportionate reduction of the minimum or flat rate rent for the period or periods during which LESSEE is prevented from having the quiet possession of all or a portion of the premises.
1.06 .
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, or access as it deems advisable for the public good.
c. CITY has the right to enter the premises for the purpose of making repairs to or developing municipal resources and services.
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However, CITY shall not unreasonably or substantially interfere with LESSEE'S use of the premises and will reimburse LESSEE for damages, if any, to the permanent improvements, including crops, located on the leased premises resulting from CITY exercising the rights reserved in this section. Such reimbursement may include a reduction in the rent proportionate 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 m. Regardless of the date of execution by the City, the term of this agreement shall be five (5) years comsnencing on . 1999 and terminating , 2004.
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 have the right to apply a reasonable increase in rent to bring the rent to fair market value and to terminate the holdover tenancy at will.
2.03 . At termination of this lease for any reason, LESSEE shall execute, acknowledge and deliver to CITY, within five (5) days after written CITY demand, a valid and recordable quitclaim deed covering all of the premises. The premises shall be delivered free and clear of all liens and encumbrances, and in a decent, safe and sanitary condition.
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At the expiration or earlier termination of this lease, LESSEE shall surrender the premises to CITY free and clear of all liens and encumbrances, except those liens and encumbrances which existed on the date of execution hereof, and in a decent, safe and sanitary condition.
If LESSEE fails or refuses to deliver the required deed, the CITY may prepare and record a notice reciting LESSEE'S failure to execute this lease provision and the notice will be conclusive evidence of the termination of this lease and all LESSEE'S rights to the premises.
2.04 of Lea . 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 Time Place of m . 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 postmarked by the postal payment ii authorities. postmarks are illegible, the payment shall be deemed paid upon actual receipt by the Financial Management Director. LESSEE assumes all risk of loss and responsibility for late payment charges if payments are made by mail.
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3.02 Rent.
a. &&Amount The initial rent is $600 annually.
b. (1) . anniversary date of this years 2,3,4 and 5 said increase as follows:
Year 2 $625 Year 3 $650 Year 4 $675 Year 5 $700
c. Upon termination pursuant
Commencing on the lease agreement, in annual rent shall
dollars per year dollars per year dollars per year dollars per year
to Section 2.04 of this lease, the annual rent may be pro-rated as required.
If LESSEE fails to pay the rent will pay in addition to the unpaid rents, five percent (5%) of the delinquent rent. If the rent is still unpaid at the end of fifteen (15) days, LESSEE shall pay an additional five percent (5%) [being a total of ten percent (10%) 3 .
Acceptance of late charges and any portion of the late payment by CITY shall in no event constitute a waiver of LESSEE default with respect to late payment, nor prevent CITY from exercising any of the other rights and remedies granted in this lease.
SECTION 4: ASSIGNMENT
4.01 me iR of * Fwme. . * . * ProvxRl~Blndlna on .
Successors. Time is of the essence for all of the terms, covenants and conditions of this lease and, except as otherwise provided herein, all of the terms, covenants and conditions of this lease shall apply to, benefit and bind the successors and assigns of the respective parties, jointly and individually.
. 4.02 ettw . 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
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and guests of LESSEE, to use or occupy the premises or any part thereof, without the prior written consent of the City Manager in each instance. Such consent by the City Manager shall not be unreasonably withheld. A consent to assignment, subletting, occupation or use by any other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. my 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.
lNAssignment", 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 my be, from the original LESSEE, its general partners or principals.
Approval of any assignment or sublease shall be conditioned upon the assignee or sublessee agreeing in writing that it will assume the rights and obligations thereby assigned or subleased and that it will keep and perform all covenants, conditions and provisions of this agreement which are applicable to the rights acquired.
a. nefault. In the event that:
(1) LESSEE shall default in the performance of any covenant or condition required by this lease to be performed by LESSEE and shall fail to cure said default within thirty (30) days following written notice thereof from CITY; or if any such default is not curable within thirty (30) days, shall fail to commence to cure the default(s) within said thirty-day period and diligently pursue such cure to completion; or
(2) LESSEE shall voluntarily file or have involuntarily filed against it any petition under any bankruptcy or insolvency act or law; or
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(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 to 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 4.04a. (11, Default Remedies hereof is not curable within thirty (30) days af;er 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. ;. Even though LESSEE has breached the lease and abandoned the property, this lease shall continue in effect for so long as CITY does not terminate this lease, and CITY may
enforce all its rights and remedies hereunder, including but not limited to the right to recover the rent as it becomes due, plus damages.
C. Waiver. Any CITY waiver of a default is not a waiver of any other default. Any waiver of a default must be in writing and be executed by the City Manager in order to constitute a valid and binding waiver. CITY delay or failure to exercise a remedy or right is not a waiver of that or any 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 LESSEE specifically agree that the property constituting the premises is CITY-owned and held in trust for the benefit of the citizens of the City of Carlsbad 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
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defaults are discovered or when as the City defaults are discovered or when as the City Council directs the City Manager to take action or Council directs the City Manager to take action or require the cure of any default after such default require the cure of any default after such default is brought to the attention of the City Council by is brought to the attention of the City Council by the City Manager or by any concerned citizen. the City Manager or by any concerned citizen.
4.04 . 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 or mortgagee) will be as follows:
a. In the event the entire premises are taken, this lease shall terminate on the date of the transfer of title or possession to the condemning authority, whichever first occurs.
b. In the event of a partial taking, if, in the opinion of CITY, the remaining part of the premises is unsuitable for the lease operation, this lease shall terminate on the date of the transfer of title or possession to the condemning authority, whichever first occurs.
C. In the event of a partial taking, if, in the opinion of CITY, the remainder of the premises is suitable for continued lease operation, this lease shall terminate in regard to the portion taken on the date of the transfer of title or possession to the condemning authority, whichever first occurs, but shall continue for the portion not taken. The minimum rent shall be equitably reduced to reflect the portion of the premises taken.
d. Award. All monies awarded in any such taking shall belong to CITY, whether such taking results 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 in installations or improvements of LESSEE, including crops. CITY shall have no liability to LESSEE for any award not provided by the condemning authority.
e. Tranefer. 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 eminent domain. If a transfer occurs, LESSEE
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shall retain whatever interest it mav 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.
f. . 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
a.
b.
C.
d.
5.02
a.
. LESSEE shall at all times relieve, indemnify, protect, and save CITY and any and all of its boards, officers, agents and employees harmless from any and all claims and demands, actions, proceedings, losses, liens, costs, judgments, civil fines, and penalties of any nature whatsoever in regard to or resulting from the use of the premises, including but not limited to expenses incurred in legal actions, death, injury, or damage that may be caused directly or indirectly by:
any unsafe or defective condition in or on the premises of any nature whatsoever which may exist by reason of any act, omission, neglect, or any use or occupation of the premises;
any operation, use or occupation conducted on the premises;
any act, omission, or negligence on the part of LESSEE, its employees, agents, sublessees, invitees, licensees; or
any failure by LESSEE to comply or secure compliance with any of the lease terms or conditions.
z!F= LESSEE shall take out and maintain at
times during the term of this lease the following insurance at its sole expense:
ty n~cm Insurance in the amount of not less than ONE MILLION DOLLARS ($l,OOO,OOO) Combined Single Limit Liability with an occurrence claims form, if available. This
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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. * All insurance policies will name CITY as an additional insured, protect CITY against any legal costs in defending claims, and will not terminate without sixty (60) days prior written notice to CITY. All insurance companies must be satisfactory to CITY and licensed to do business in California. All policies will be in effect on or before the first day of the lease. A copy of the insurance policy will remain on file with CITY during the entire term of the lease. At least thirty (30) days prior to the expiration of each policy, LESSEE shall furnish a certificate(s) showing that a new or extended policy has been obtained which meets the terms of this lease.
C. . CITY, at its discretion, may require the revision of amounts and coverages at any time during the term by giving LESSEE sixty
(60) days prior written notice. CITY'S requirements shall be designed to assure protection from and against the kind and extent of risk existing on the premises. LESSEE also agrees to obtain any additional insurance required by CITY for new improvements, in order to meet the requirements of this lease.
d. Accident 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.
e. e to Corrpply . If LESSEE fails or refuses to take out and maintain the required insurance, or fails to provide the proof of coverage, CITY has 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 the
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payment of premiums within thirty (30) days of payment stating the amount paid, names of the insurer(s) and rate of interest. Said reimbursement and interest shall be paid by LESSEE on the first (1st) day of the month following the notice of payment by CITY.
Notwithstanding the preceding provisions of this Subsection f., if LESSEE fails or refuses to take out or maintain insurance as required in this lease, or fails to provide the proof of insurance, CITY has the right to declare this lease in default without further notice to LESSEE and CITY shall be entitled to exercise all legal remedies in the event of such default.
5.03 . LESSEE agrees to give notice to CITY of any damage that may occur on the leased premises within ten (10) days of such damage. LESSEE agrees not to commit' or suffer to be committed any waste or injury or any public or private nuisance, to keep the premises clean and clear of refuse and obstructions, and to dispose of all garbage, trash, and rubbish in a manner satisfactory to CITY. If the leased premises shall be damaged by any cause which puts the premises into a condition which is not decent, safe, healthy and sanitary, LESSEE agrees to make or cause to be made full repair of said damage and to restore the premises to the condition which existed prior to said damage; or, at CITY'S option, LESSEE agrees to clear and remove from the leased premises all debris resulting from said damage.
SECTION 6: IMPROVEMENTS/ALTERATIONS/REPAIRS
6.1 AcceDtance . By signing this lease, LESSEE represents and warrants that it has independently inspected the premises and made all tests, investigations, and observations necessary to satisfy itself of the condition of the premises. LESSEE agrees it is relying solely on such independent inspection, tests, investigations, and observations in making this lease. LESSEE further acknowledges that the premises are in the condition called for by this lease, that CITY has performed all work with respect to the premises, and that LESSEE does not hold CITY responsible for any defects in the premises.
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6.02 C 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 notice to LESSEE, to have any necessary maintenance work done at the expense of LESSEE, and LESSEE hereby agrees to pay promptly any and all costs incurred by CITY in having such necessary maintenance work done, in order to keep said premises in a decent, safe, healthy, and sanitary condition. Further, if at any time CITY determines that said premises are not in a decent, safe, healthy, and sanitary condition, CITY may its sole option, without additional notice, require LESSEE to file with CITY a faithful performance bond to assure prompt correction of any condition which is not decent, safe, healthy and sanitary. Said bond shall be in an amount adequate in the opinion of the CITY to correct the said unsatisfactory condition. LESSEE shall pay the cost of said bond. The rights reserved in this section shall not create any obligations on CITY or increase obligations elsewhere in this lease imposed on CITY.
6.03 Maintenance . Except as hereinafter provided, LESSEE agrees to assume full responsibility and cost for the operation and maintenance of the premises throughout the term. LESSEE will perform all such repairs and replacements necessary to maintain and preserve the premises in a decent, safe, healthy and sanitary condition satisfactory to CITY and in compliance with all applicable laws. Appropriate codes and standards of CITY, state and federal agencies shall be observed in all maintenance, repairs and replacements on the premises.
6.04 Imbrovements/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. This provision shall not relieve LESSEE of any obligation under this lease
12
to maintain the premises in a decent, safe, healthy, and sanitary condition, including structural repair and restoration of damaged or worn improvements. CITY shall not be obligated by this lease to make or assume any expense.for any improvements or alterations.
6.05 m. LESSEE agrees to order, obtain, and pay for all utilities and service and installation charges in connection with the development and operation of the leased premises.
6.06 w. LESSEE shall at all times save CITY free and harmless and indemnify CITY against all claims for labor and materials in connection with operations, improvements, alterations, or repairs on or to the premises and the costs of defending against such claims, including reasonable attorney's fees.
If improvements, alterations, or repairs are made to the premises by LESSEE or by any party other than CITY, and a lien or notice of lien is filed, LESSEE shall within five (5) days of such filing either:
a. take all actions necessary to record a valid release of lien, or
b. file with CITY a bond, cash, or other security acceptable to CITY sufficient to pay in full all claims of all persons seeking relief under the lien.
6.07 Taxes. LESSEE agrees to pay, before delinquency, all taxes, assessments, and fees assessed or levied upon LESSEE or the premises, including the land, any buildings, structures, machines, equipment, appliances, or other improvements or property of any nature whatsoever erected, installed or maintained by LESSEE or levied by reason of the business or other LESSEE activities related to the leased premises, including any licenses or permits. LESSEE recognizes and agrees that this lease may create a possessory interest subject to property taxation, and that LESSEE may be subject to the payment of taxes levied on such interest, and that LESSEE shall pay all such possessory interest taxes. LESSEE further agrees that payment for such taxes, fees and assessments
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will not reduce any rent due CITY.
6.08 m. 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 mof~m~rovems and Pm P~onertv,
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 thirty (30) days prior to termination 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 before lease expiration or termination. If LESSEE fails to remove any improvements, structures, and installations as directed, LESSEE agrees to pay CITY the full cost of any removal.
C. LESSEE-owned machines, appliances, equipment (other than trade fixtures), and other items of personal property shall be removed by Lessee by the date of the expiration or termination of this lease. Any said items which LESSEE fails to remove will be considered abandoned and become CITY's property free of all claims and liens, or CITY may, at its option, remove said items at LESSEE's expense.
14
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. hY 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 Noti-
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:
City Manager 1200 Carlsbad Village Drive Carlsbad, CA 92008
Copies to:
Public Works Manager 405 Oak Avenue Carlsbad, CA 92008
or to any mortgagee, trustee, or beneficiary as applicable, at such appropriate address designated in writing by the respective party.
b. Any party entitled or required to receive notice under this lease may by like notice designate a different address to which
15
notices shall be sent.
. 7.02 me with . LESSEE shall at all times in the construction, maintenance, occupancy and operation of the premises COrnplY 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 UTY ~ov& 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 Nondiscri ' *ipn. LESSEE agrees not to discriminate in any manner against any person or 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 acconanodations, and the obtaining and holding of employment.
. . 7.05 v . If any term, covenant, condition or provision of this lease is found invalid, void or unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect.
7.06 . * Agerm . 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:
a. Only drip type irrigation shall be used.
b. All plastic material and debris shall be completely removed from the property at the completion of the lease.
16
C. No aerial application of pesticides or fertilizers shall be permitted.
d. 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.
e. Access roads shall be limited to those approved by the Parks and Recreation Director and shall not cause erosion problems.
7.07 -al m LESSEE agrees to abide by the conditions for agricultural operations set forth herein. Failure of LESSEE to cease or cure any unauthorized practice within 30 days after written notice to do so shall constitute at the option of CITY, an immediate termination of the lease.
7.08 m/Weeds. . LESSEE shall take proper corrective action, to the satisfaction of CITY, to prevent the infestation of noxious weeds and pests.
7.09 &g&yee ma . , Prom . 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.
7.10 Entire . 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 relied on its own examination of the premises, advice from its own attorneys, and the warranties, representations, and covenants of 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.
17
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.
SECTION 8:WARRANTY
8.01 Warrantv The CITY does not warrant that the premises ire suitable for the agricultural purposes for which they are leased.
SECTION 9: SIGNATURES
9.01 Sianature- l
IN WITNESS WHEREOF, this Lease Agreement is executed by CITY, acting by and through its City Manager or his designee, and by LESSEE, acting by and through its lawfully authorized officers.
Date
LESSEE:
By:
Printed Name
co-21 --T4
Date
APPROVED as to form and legality this day of /!k&&% 22 199q
BY
18
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- Exhibit “A” -
19
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RECORDING REQUESTED BY:
Carlsbad City Clerk’s Office
WHEN RECORDED MAIL TO:
City Clerk
City of Carlsbad
1200 Carlsbad Village Drive
Carlsbad, CA 92008
OFFfCIAL EGURDS S&i DIE@ GWNTY l3lS.lRKR’S UFFICE GREBlRY 5. SMITHS CDWTY RESORDER FEES: 0.00
..,
2202
SPACE ABOVE THIS LINE FOR RECORDER’S USE
AMENDMENT NO. 1 TO AGRICULTURAL LEASE AGREEMENT
THE ORIGINAL LEASE, EXECUTED BY THE CITY OF CARLSBAD ON 11/22/99,
IS UNRECORDED.
/ ’ . . a ‘1 .: C.“,”
2203
AMENDMENT NO. 1 TO AGRICULTURAL LEASE AGREEMENT
(Adrian Chavez)
THIS FIRST AMENDMENT to the Agricultural Lease Agreement is made and
entered into this 24thday of August ,2001, by and between the CITY OF ,. s.
CARLSBAD, a political subdivision of the State of California (“City”) and Mr. Adrian
Chavez (“lessee”), and is made with reference to the following facts:
RECITALS
A. On November 16, 1999, the five year Agricultural Lease Agreement was
executed for use of City owned property, adjacent to the existing Cole
Library, for agricultural purposes only.
B. Lessee has requested that the existing Agricultural Lease be amended to
include approximately 11,300 square feet of additional City owned property
located at 2923 Elmwood Street.
C. City has determined use of the property located at 2923 Elmwood Street for
agricultural purposes only would be an acceptable interim use;
NOW THEREFORE, incorporating the above recitals and in consideration of the
covenants and obligations set forth herein, the parties hereto agree as follows:
1. Recitals. That the above Recitals are True and Correct.
2. Amendment. That Paragraph 1.01, 1.02, 3.01 and 3.02 of the
Agreement shall be amended, in its entirety to read as follows:
2204
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 as APN 156- 190-62 and APN 156-164-20 and shown in Exhibit “A”
attached hereto and by this reference made part of this a@eement. Said real property
is hereinafter called the “premises” or “leased premises’:.
1.02 USES
It is expressly agreed that the premises, consisting of approximately 2.09 acres, is
leased to LESSEE solely and exclusively for the purposes of growing crops and for
such other related or incidental purposes as may be first approved in writing by the
City Manager and for no other purpose whatsoever.
LESSEE covenants and agrees to use the premises for the above specified purposes
and to diligently pursue said purposes throughout the term hereof. Failure to
continuously use the premises for said purposes, or the use thereof for purposes not
expressly authorized herein, shall be grounds for termination by the CITY.
3.01 TIME AND PLACE OF PAYMENT
Rent is due annually. Checks should be made payable to the City of Carlsbad and
mailed or delivered to the Financial Management Director, a1635 Faraday Avenue,
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
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Management Director. LESSEE assumes all risk of loss and responsibility for late
payment charges if payments are made by mail.
3.02 RENT
a. Rent Amount. The initial rent is $600 annually. :
: b. Annual Adjustments. Commencing on the anniversary date of this agreement, in
years 2,3,4 and 5 said annual rent shall increase as followsand shown in Exhibit B:
‘Year 2
Year 3
Year 4 Year 5
$625 dollars per year
$742 dollars per year
$770 dollars per year $799 dollars per year
c. Upon termination pursuant to Section 2.04 of this lease, the annual rent may be’
prorated as required.
3. Severability. Each provision, term, condition, covenant, and/or restriction, in whole and
in part, in this First Amendment shall be considered severable. In the event any provision, term
condition, covenant, and/or restriction, in whole or in part, in this First Amendment is declared
invalid, unconstitutional, or void for any reason, such provision or part thereof shall be severed
from this First Amendment and shall not affect any other provision, term, condition, covenant,
and/or restriction, of this First Amendment and the remainder of this Lease shall continue in full
force and effect.
4. Effective Date. This First Amendment shall be effective upon the date and year first
above written.
5. Agreement Provisions. Notwithstanding this First Amendment, all other provisions of
the Agreement shall remain in full force and effect.
6. Insurance. All requisite insurance policies to be maintained by Lessee pursuant to the
Agreement will include coverage for this First Amendment.
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7. Authority. The individuals executing this First Amendment and the instruments
referenced in it on behalf of Lessee each represent and warrant that they have the
legal power, right and actual authority to bind Lessee to the terms and conditions of .C
this First Amendment.
Acknowledged and Accepted:
LESSEE:
(name of Lessee)
CITY OF CARLSBAD. a municinal .
DATE
(print name/title)
4
2207
(Proper notarial acknowledgment of execution by Contractor must be attached. Chairman
president or vice-president and secretary, assistant secretary, CFO or assistant treasurer must
sign for corporations. Otherwise, the corporation must attach a resolution certified by the
secretary or assistant secretary under corporate seal empowering the officer(s) signing to bind the
corporation.)
APPROVED AS TO FORM:
RONALD Rj,BALL, City Attorney ,
BY:
Depub City Attorney
5
2208
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California I
SLY\. 72 leqfi 1
ss.
County of
-
On at-W-O\ , before me, &p\lc6 %&?-I h Date Name and liie of Ofker (e.g., ‘Jane Doe, Notary’ Public”)
personally appeared PDRIlt~ a+AV~ 2- I Name(s) of Signer(s) ’
0 personally known to me
I&proved to me on the basis of satisfactory
evidence
to be the person(ej whose name(a) is/-
subscribed to the within instrument and
acknowledged to me that he/m executed
the same in hislb&+h&r authorized
capacity(ie4): and that by his/he&b&
signature@ on the instrument the person(e), or
the entity upon behalf of which the person@j
acted, executed the instrument.
Place Notary Seal Above
WITNESS my hand and official seal.
I OPTIONAL
Though the informat/on below is not required by law, it may prove valuable to persons relying on the document
and could prevent fraudulent removal and reattachment of this form to another document.
Description of Attached Document
Title or Type of Document: LeSG
Document Date: s-a+01 Number of Pages:
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer
Signer’s Name:
0 Individual
0 Corporate Officer - Title(s):
q Partner - 0 Limited 0 General
0 Attorney in Fact
0 Trustee
0 Guardian or Conservator
0 Other:
Signer Is Representing:
,
0 1999 National Notary Association m 9350 De Sot0 Ave.. PO. Box 2402 * Chatsworth, CA 91313-2402 m www nationalrotary.org Prod. No. 5907
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Exhibit “A“
19
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-. 2212
CITY OF CAmsBAD
Flat Rate Lesae
(Library Parking Expaxmion Property)
h
. , 2213
Section 1 USES 1.01 Premises 1.02 uses 1.03 Deletion of Portion of Leased Premises 1.04 Related Council Action 1.05 Quiet Possession 1.06 Easement8 and Reservations
Section 2 2.01 2.02 2.03 2.04
Section 3 3.01 3.02 3.03
Section 4 4.01
4.02 4.03 4.04
Section 5 INSURANCE RISKS/SECURITY 5.01 Indemnity 5.02 Insurance 5.03 Waste, Damage or Destruction
Section 6 6.01 6.02
6.03 6.04 6.05 6.06 6.07 6.08 6.09
.TERM .Commencement Holdover
Quitclaim and Surrender of ,LESSEE's Interest Termination of Lease
Time and Place of Payment Rent Delinquent Rent
ASSIGNMENT Time is of the Essence; Provisions Binding on Successors Assignment and Subletting Defaults and Remedies Eminent Domain
IMPROVBMEX9TS/ALTERATIONS/REPAIRS Acceptance of Premises Entry and Inspection and Channel Maintenance Maintenance Improvements/Alterations Utilities Liens Taxes Sign6 Ownership of Improvements and Personal Property
1 1
'2'
2' 2,
3 3 3 4
5 5 6 8.
9 9 11
11
12 12 12 13 13 13 14
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C
0
Section 7 GBNERAL PROVISIONS 7.01 Notices 7.02 Compliance with Law 7.03 CITY approval 7.04 Nondiscrimination 7.05 Partial Invalidity 7.06 Agricultural Provisions 7.07 Agricultural Operations 7.08 Noxious Weeds, Pests 7.09 Employee Housing Prohibited 7.10 Entire Understanding
Section 8 8.01
Section 9 9.01
Section 10
WARRANTY ,. : Warranty
SIGNATURBS Signature Page
EXHIBITS Bxhibit A
- 2214
.,
15 16 16 16 16 16 s' 17 17 17 17
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, CL ,
-. .
2215
THIS LEASE AGREEMENT is executed between THE CITY OF CARLSHAD, a
municipal corporation, hereinafter called IlCITY", and ADRIAN :* -,-hereinafter called "LESSEE#, '.
SECTION l:USES 9
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 "A" attached hereto and by this reference made part of this agreement. Said real property is hereinafter called the "premisesW or "leased premises".
1.02 Usee. It is expressly agreed that the premises, consisting of approximately 1.7 acres, is leased to LESSEE solely and exclusively for the purposes of growing crops and for such other related or incidental purposes as may be first approved in writing by the City Manager and for no other purpose whatsoever.
LESSEE covenants and agrees to use the premises for the above specified purposes and to diligently pursue said purposes throughout the term hereof. Failure to continuously use the premises for said purposes, or the use thereof for purposes not expressly authorized herein, shall be grounds for termination by CITY.
1.03 In the event any portion of the leased premises is not used by LESSEE for agriculture use, then CITY may, at CITY's option, delete that portion of the leased premises not used by LESSEE from Section 1.01, RENT, hereof. Provided, however, Section 3, hereof, shall be adjusted downward by the City Manager on an equitable basis.
1
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1.04 d Cow . AC- . By the granting of this lease, neither CITY nor the Council of CITY is obligating itself to any other governmental agent, board, commission, or agency with regard to any other discretionary action relating to development or .operation of the premises. Discretionary action includes, but is not limited to rezonings, variances, environmental clearances or any. other governmental agency approvals which' may be required for the development and operation of the leased premises.
1.05 QJ&t PQBaeaaipn . LESSEE, paying the rent and _ *': performing the covenants and agreements herein, shall at all times during the term peaceably and quietly have, hold and enjoy the premises. If CITY for any reason cannot deliver possession of the premises to LESSEE at the commencement of the term, or if during the lease term LESSEE is temporarily dispossessed through action or claim of a title superior to CITY'S, then and in either of such events, this lease shall not be voidable nor shall CITY be liable to LESSEE for any loss or damage resulting therefrom, but there shall be determined and stated in writing by the City Manager of CITY a proportionate reduction of the minimum or flat rate rent for the period or periods during which LESSEE is prevented from having the quiet possession of all or a portion of the premises.
1.06 .
a. CITY hereby reserves all rights, title and interest in any and all subsurface natural
gasI 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, or access as it deems advisable for the public good.
c. CITY has the right to enter the premises for the purpose of making repairs to or developing municipal resources and services.
2
2.2.17
I
,. . *
However, CITY shall not unreasonably or substantially interfere with LESSEE'S use of the premises and will reimburse LESSEE for damages, if
=Y' to the permanent improvements, including crops, located on the leased premises resulting from CITY exercising,the rights reserved in this section. Such reimbursement MY include a reduction in the rent proportionate 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 theee reserved rights.
. SECTION 2:TERM
2.01 Dment. Regardless of the date of execution by the City, thd term of this agreement shall be five (5) years commencing on < 1999 and terminating , 2004.
2.02 Holdover. Any holding over by LESSEE after expiration or termination shall not be coneidered as a renewal or extension of this lease. The occupancy of the premises after the expiration or termination of this agreement constitutes a month- to-month tenancy, and all other terms and conditions of this agreement shall continue in full force and effect; provided, however, CITY shall have the right to apply a reasonable increase in rent to bring the rent to fair market value and to terminate the holdover tenancy at will.
2.03 QQtclaim.and&afW'S fnterest . At termination of this lease for any reason, LRSSRE shall execute, acknowledge and deliver to CITY, within five (5) days after written CITY demand, a valid and recordable quitclaim deed covering all of the premises. The premises shall be delivered free and clear of all liens and encumbrances, and in a decent, safe and sanitary condition.
3
2218
.
At the expiration or earlier termination of this lease, LESSEE shall surrender the premises to CITY free and clear of all liens and encumbrances, except those liens and encumbrances which existed on the date of execution hereof, and in a decent, safe and sanitary condition.
If LESSEE fails or refuses to deliver the required deed, the CITY may prepare and Ire-cord a ,notlce. reciting LESSEE'S failure to execute this lease . provision and the notice will .be conclusive evidence of the termination of this lease and all . LESSEE'S rights to the premises.
2.04 . 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 r . Rent is due annually. Checks should be made payable to the City of Carlsbad and mailed or delivered to the Financial Management Director, 1200 Carl&ad Village Drive, Carlsbad, California 92008.
The place and time of payment may be changed at any time by CITY upon thirty (30) days written notice to LESSEE. Mailed rental payments shall be deemed paid upon the date such payment is postmarked by the postal authorities. If postmarks are illegible, the payment shall be deemed paid upon actual receipt by the Financial Management Director. LESSEE assumes all risk of loss and responsibility for late payment charges if payments are made by mail.
.
4
I 2219
3.02
.,.. < I :
_,_ IJ,
,
3.03
Rent.
a. fiEkg-* The initial rent is $600 .
b. (1) Adi . .- Commencing on the i' anniversary date of this lease agreement, in years 2,3,4 and 5 said annual rent shall I ,increaae as followe: , : '. ., 1
Year 2 Year 3 .p; ' " 2 . dollars per year dollars per year ~ Year 4 .$675 dollars per year Year 5 $700 dollars per year
c. Upon termination pursuant to Section 2.04 of - thia lease, the annual rent may be pro-rated as required.
If LESSEE fails to pay the rent will pay in addition to the unpaid rents, five percent (5%) of the delinquent rent. If the rent is still unpaid at the end of fifteen (15) days, LESSEE shall pay an additional five percent (5%) [being a total of ten percent
(10%) I l
Acceptance of late charges and any portion of the late payment by CITY shall in no event constitute a waiver of LESSEE default with respect to late payment I nor prevent CITY from exercising any of the other rights and remedies granted in this lease.
SECTION 4: ASSIGNMENT
4.01 era -. Time is of the essence for all of the terms, covenants and conditions of this lease and, except as otherwise provided herein, all of the terms, covenants and conditions of this lease shall apply to, benefit and bind the successors and assigns of the respective parties, jointly and individually.
, 4.02 and D . 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
5
2220
and guests of LESSEE, to use or occupy the premises or any part thereof, without the prior written consent of the City Manager in each instance. Such consent by the City Manager shall not be unreasonably withheld. A consent to assignment, subletting, occupation or use by any ~ other person shall not be deemed to be a consent to any subsequent assignment, subletting, occupation or use by another person. _ 'Any such, assignment or subletting without such consent shall be void, atid shall, at the option, of CITY, I. terminate this lease. This lease shall not, nor shall any interest therein, be .aesignable, as to the interest of LESSEE, by operation of law, without the written consent of the City Manager.
nAssignmentw, for the purposes of this clause shall include transfer of any thiyy lease by LESSEE ownership interest in or by any partners, principals, or stockholders, as the case WY be, from the original LESSEE, its general partners or principals.
Approval of any assignment or sublease shall be conditioned upon the assignee or sublessee agreeing in writing that it will assume the rights and obligations thereby assigned or subleased and that it will keep and perform all covenants, conditions and provisions of this agreement which are applicable to the rights acquired.
a. Default, In the event that:
(1) LESSEE shall default in the performance of any covenant or condition required by this lease to be performed by LESSEE and shall fail to cure said default within thirty (30) days following written notice thereof from CITY; or if any such default is not curable within thirty (30) days, shall fail to commence to cure the default(s) within said thirty-day period and diligently pursue such cure to completion; or
(21 LESSEE shall voluntarily file or have involuntarily filed against it any petition under any bankruptcy or insolvency act or law; or
6
2221
(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.,. ': irmnediately 'terminate this lease and all rights of LESSEE and of all persons claiming rights through bESSEE to 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 4.04a. (11, Default and . Remedlea hereof is not curable within thirty (30) days afier 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. ;. Even though LESSEE has breached the lease and abandoned the property, this lease shall continue in effect for so long as CITY does not terminate this lease, and CITY may enforce all its rights and remedies hereunder, including but not limited to the right to recover the rent as it becomes due, plus damages.
c. w. Any CITY waiver of a default is not a waiver of any other default. Any waiver of a default must be in writing and be executed by the City Manager in order to constitute a valid and binding waiver. CITY delay or failure to exercise a remedy or right is not a waiver of that or any 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. CITYBs acceptance of any rents is not a waiver of any default preceding the rent payment. CITY and LESSEE specifically agree that the property constituting the premises is CITY-owned and held in trust for the benefit of the citizens of the City of Carlabad 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 etatute of limitations, have the legal right to require the cure of any default when and as such
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I:' 4.04
,.
“.
a.
b.
C.
d.
e.
defaults are discovered or when as the City 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.
all 'or part of the premises I. .L - condemnation proceedings or '- :.:.-b
under threat of condemnation by any pub::; .:'-J:, :' authority with the power of. eminent domain, "
interests of CITY and LESSEE (or beneficiary or mortgagee) will be as follows:
In the event the entire premises' are taken, this lease shall terminate on the date of the transfer of title or possession to the condemning authority, whichever first occurs.
In the event of a partial taking, if, in the opinion of CITY, the remaining part of the premises is unsuitable for the lease operation, this lease shall terminate on the date of the transfer of title or possession to the condemning authority, whichever first occurs.
In the event of a partial taking, if, in the opinion of CITY, the remainder of the premises is suitable for continued lease operation, this lease shall terminate in regard to the portion taken on the date of the transfer of title or possession to the condemning authority, whichever first occurs, but shall continue for the portion not taken. The minimum rent shall be equitably reduced to reflect the portion of the premises taken.
Award- All monies awarded in any such taking 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 in installations or improvements of LESSEE, including crops. CITY shall have no liability to LESSEE for any award not provided by the condemning authority.
Tranefer. 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 eminent domain. If a transfer occurs, LESSEE
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. 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,8 operations.
f. . 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
a.
b.
C.
d.
5.02
a.
Indemnitv. LESSEE ahalL’ at all times relieve, ;. 1 indemnify, protect, and save CITY and any and all of its boards, officers, agents and employees harmless from any and all claims and demands, actions, proceedings, losses, liens, costs, judgments, civil fines, and penalties of any nature whatsoever in regard to or resulting from the use of the premises, including but not limited to expenses incurred in legal actions, death, injury, or damage that may be cawed directly or indirectly by:
any unsafe or defective condition in or on the premises of any nature whatsoever which may exist by reason of any act, omission, neglect, or any use or occupation of the premises;
any operation, use or occupation conducted on the premises;
any act, omission, or negligence on the part of LESSEE, its employees, agents, subleseeea, invitees, licensees; or
aY failure by LESSEE to comply or secure compliance with any of the lease terms or conditions.
Insurance. LESSEE shall take out and maintain at all times during the term of this lease the following insurance at its sole expense:
c WV and Prwtv Ducre Insurance the amount of not less than ONE MILLION DOLA ($l,OOO,OOO) Combined Single Limit Liability with an occurrence claims form, if available. This
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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 i in connection with the use or operation of the i premises.
,. ,. : :b.: j mt All insurance policies -will name CITY . .I as--an additional insured, protect CITY against any I.,.' '. , : I. legal costs in defending claims;-'-and will not " 1". terminate without sixty (60). days prior written . notice to CITY. All insurance companies. must be satisfactory to CITY and licensed to do business in California. All policies will be .in effect on or before the first day of the lease. A copy of ' the insurance policy will remain on file with.CIm during the entire term of the lease. At least thirty (30) days prior to the expiration of each policy, LESSEE shall furnish a certificate(s) showing that a new or extended policy has been obtained which meets the terms of this lease.
C. CITY, at its discretion, may require the 'revision of amounts and coverages at any time during the term by giving LESSEE sixty
(60) days prior written notice. CITY'S requirements shall be designed to assure protection from and against the kind and extent of risk existing on the premises. LESSEE also agrees to obtain any additional insurance required by CITY for new improvements, in order to meet the requirements of this lease.
d. Accident 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.
e. e to w . If LESSEE fails or refuses to take out and maintain the required insurance, or fails to provide the proof of coverage, CITY has 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 the
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payment of premiums within thirty (30) days of payment stating the amount paid, names of the insurer(s) and rate of interest. Said reimbursement and interest shall be paid by LESSEE on the first (1st) day of the month following the notice of payment by CITY.
.i . .: . ,: Notwithstanding the 'preceding provisions of this'- ' +' ,- f. !'. Subsection f., if LESSEE fails or refuses to take '1 G' '2 . out or maintain insurance as required in this '- : .!" ,, lease, or fails to provide the proof of ,insurance, .+( CITY has the right to declare this lease in default without further notice to LESSEE and CITY shall be entitled to exercise all legal remedies in the event of such default.
5.03 . LESSEE agrees to give notice to CITY of any damage that may occur on the leased premises within ten (10) days of such damage. LESSEE agrees not to commit or suffer to be committed any waste or injury or any public or private nuisance, to keep the premises clean and clear of refuse and obstructions, and to dispose of all garbage, trash, and rubbish in a manner satisfactory to CITY. If the leased premises shall be damaged by any cause which puts the premises into a condition which is not decent, safe, healthy and sanitary, LESSEE agrees to make or cause to be made full repair of said damage and to restore the premises to the condition which existed prior to said damage; or, at CITY'S option, LESSEE agrees to clear and remove from the leased premises all debris resulting from said damage.
SECTION 6: IMPROVBMENTS/ALTERATIONS/REPAIRS
* 6.1 Accebtance . By signing this lease, LESSEE represents and warrants that it has independently inspected the premises and made all tests, investigations, and observations necessary to satisfy itself of the condition of the premises. LESSEE agrees it is relying solely on such independent inspection, tests, investigations, and observations in making this lease. LESSEE further acknowledges that the premises are in the condition called for by this lease, that CITY has performed all work with respect to the premises, and that LESSEE does not hold CITY responsible for any defects in the premises.
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6.02 v 13 Ms 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 - eveat that such entry or inspection by CITY . discloses that said premises are not. in a decent, '_ safe, healthy, and sanitary condition, CITY shall have thi right, after ten (10) days written notice to LESSEE, 'to have any necessary maintensnce 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, L safe, healthy, and sanitary condition. Further, ., if at any time CITY determines that said premises are not in a decent, safe, healthy, and sanitary condition, CITY may its sole option, without additional notice, require LESSEE to file with CITY a faithful performance bond to assure prompt correction of any condition which is not decent, safe, healthy and sanitary. Said bond shall be in an amount adequate in the opinion of the CITY to correct the said unsatisfactory condition. LESSEE shall pay the cost of said bond. The rights reserved in this section shall not create any obligations on CITY or increase obligations elsewhere in this lease imposed on CITY.
6.03 s . Except as hereinafter provided, LESSEE agrees to assume full responsibility and cost for the operation and maintenance of the premises throughout the term. LESSEE will perform all such repairs and replacements necessary to maintain and preserve the premises in a decent, 8afe, healthy and sanitary condition satisfactory to CITY and in compliance with all applicable laws. Appropriate codes and standards of CITY, state and federal agencies shall be observed in all maintenance, repairs and replacements on the premises.
6.04 Imbrovements/Alteratians. 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. This provision shall not relieve LESSEE of any obligation under this lease
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: : . 6.05 ), "r ., .'.
6.06
6.07
to maintain the premises in a- decent, safe, healthy, and sanitary condition, including structural repair and restoration of damaged or worn improvements. CITY shallnot be obligated by this lease to make or assume any expense. for any improvements or alterations. r
LESSEE ,agree,s to order, obtain;:.and 1. '1' :; pay for ail utilities and service and installation . I"' charges in connection' with the development"and '_ .: operation of the leased premises.
Liens. LESSEE shall at all times~save CITY free and harmless and indemnify CITY against all claims for labor and materials in connection with operations, improvements, alterations, or- repairs on or to the premises and the costs of defending against such claims, including reasonable
attorney’s fees.
If improvements, alterations, or repairs are made to the premises by LESSEE or by any party other than CITY, and a lien or notice of lien is filed, LESSEE shall within five (5) days of such filing either:
a. take all actions necessary to record a valid release of lien, or
b. file with CITY a bond, cash, or other security acceptable to CITY sufficient to pay in full all claims of all persons seeking relief under the lien.
tw* LESSEE agrees to p;;d b;ft;e delinquency, taxes, aseessments, assessed or levied upon LESSEE or the premises, including the land, any buildings, structures, machines, equipment, appliancee, or other improvements or property of nature whatsoever erected, installed or z%tained by LESSEE or levied by reason of the business or other LESSEE activities related to the leased premises, including any licenses or permits. LESSEE recognizes and agrees that this lease may create a possessory interest subject to property taxation, and that LESSEE may be subject to the payment of taxes levied on such interest, and that LESSEE shall pay all such possessor-y interest taxes. LESSEE further agrees that payment for such taxes, fees and assesements
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will not reduce any rent due CITY.
6.08 sQ&a& 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 1 CITYi or CITY may thereupon remove.the- item at LESSEE's cost:
. 6.09 Qwnerehln of ) , .>,:
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 thirty (30) days prior to termination 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 before lease expiration or termination. If LESSEE fails to remove any improvements, structures, and installations as directed, LESSEE agrees to pay CITY the full cost of any removal.
C. LESSEE-owned machines, appliances, equipment (other than trade fixtures), and other items of personal property shall be removed by Lessee by the date of the expiration or termination of this lease. Any said items which LESSEE fails to remove will be considered abandoned and become CITY's property free of all claims and liens, or CITY may, at its option, remove said items at LESSEE's expense.
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d.
e.
f.
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.
WY necessary removal by either CITY ~01: LESSEE which takes place beyond. said 'expiration or termination thereof ditill require. 'LESSEE to pay rent to CITY at"the rate 'in effect immediately prior to said expiration or termination.
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 m
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:
City Manager 1200 Carlsbad Village Drive Carlsbad, CA 92008
Copies to:
Public Works Manager 405 Oak Avenue Carlsbad, CA 92008
or to any mortgagee, trustee, or beneficiary as applicable, at such appropriate address designated in writing by the respective party.
b. Any party entitled or required to receive notice under this lease may by like notice designate a. different address to which
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notices shall be sent.
. . 7.02 me with Tau . LESSEE shall at all times in the construction, maintenance, occupancy and operation of the premises COrnplY with all applicable laws; statutes, ordinances, and 'regulations of CITY, county, State and Federal _.' ,.,C$vernments at LESSEE's sole cost. and expense. In I '. ': addition, LESSEE shall comply ,with: any and all . _ n&ices issued by the .City Mapager or his ,. authorized representative under the authority of any such law, statute, ordinance, or rewlation.
. '-7.03 ImA . 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 Counail.
7.04 m. LESSEE agrees not to discriminate in any manner against any person or 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 7.05 w . If any term, covenant, condition or provision of this lease is found invalid, void or unenforceable by a court of competent jurisdiction, the remaining provisions will remain in full force and effect.
7.06 A-al . Prqyifllpna LESSEE *practices in shall use standard agricultural 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:
a. Only drip type irrigation shall be used.
b. All plastic material and debris shall be completely removed from the property at the completion of the lease.
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7.07
7.08
7.09
7.10
C.
d.
e.
NO aerial application of pesticides or fertilizers shall be permitted.
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 applicationmus.. .,::,-: be. kept and made available upon request by LVG .:', CITY. .1 ,, )
Access roads shall be limited. to those approved by the Parks and Recreation Director and shall not cause erosion problems.
LESSEE agrees to abide by the conditions for agricultural operations set forth herein. Failure of LESSEE to cease or cure any unauthorized practice within 30 days after written notice to do so shall' constitute at the option of CITY, an immediate termination of the lease.
Weeds. Pw . LESSEE shall take proper corrective action, to the satisfaction of CITY, to prevent the infestation of noxious weeds and pests.
provide housing for employees LESSEE shall not 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.
. 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 relied on its own examination of the premises, advice from its own attorneys, and the warranties, representations, and covenants of 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.
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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 i is in writing.and signed by all parties. II d ,.,: ARRANTY I,.,'. b. SRCTION 8:W
8.01 m The CITY does not warrant that"'the., premises are suitable for the agricultural purposes for which they are leased.
SECTION 9: .SIGNATuRES _.. .
9.oi &&n&up Pas *
IN WITNESS WHEREOF, this Lease Agreement- is executed by CITY, acting by and through its City Manager or his designee, and by LESSEE, acting by and through its lawfully authorized officers.
I\ I aa\ .Date
LESSEE- -Chavez
By:
ez m-2( -44 Printed Name Date
APPROVED aa to form and legality this day of /?k&& u% 199$
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