Loading...
HomeMy WebLinkAbout1983-04-05; City Council; Resolution 71821 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESOLUTION NO 7182 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD, CALIFORNIA APPROVING THE AGREEMENT BETWEEN THE CITY OF CARLSBAD AND PACIFIC ELITE, MATELY 75 ACRES OF LAND AT MACARIO CANYON PARK FOR AGRICULTURAL PURPOSES AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT INC., TO LEASE APPROXI- The City Council of the City of Carlsbad, does hereby resolve as follows: 1 That Pacific Elite, Inc, will lease approximately 75 acres of agricultural land at Macario Canyon Park at $261 per acre per year for a period of three years renewable on a year to year basis thereafter, a copy of which is attached and marked as Exhibit C and incorporated herein by reference is hereby approved. That the Mayor of the City of Carlsbad is hereby authorized and directed to execute said agreement for and on behalf of the City of Carlsbad, 2. PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council of the City of Carlsbad, California, held on the 5th of Wril AYES: NOES: None day - . , 1983 by the following vote, to wit: C”Al MnberS Caskr, Lswis, Kulchin, Chick and Prescott ABSENT: None MARY H. CdSLER, Mayor ATTEST: (SEAL) $ Exhibit A 0 Exhibit C AGRICULTURAL LEASE (Macario Canyon) THIS ;-:ZASE AGREEMENT is executed by and between THE CITY OF CARLS~~AD, a municipal corporation, hereinafter called '*City" and , hereinafter called "LESSEY. 'I I, PREMISES CITY hereby leases to LESSEE and LESSEE leases from CITY - real property situated in the City of Carlsbad, County of San Diego, State of California, described in Exhibit "A", attached hereto, and incorporated by this reference. Said real property is hereinafter called the "premises." A. Permitted Use he premises are leased to ESSEE only for the purposes of conducting agricultural operations and for no other purpose. B. Obligation to Diligently Use. LESSEE covenants to use said premkes for the above specified purposes and to diligently pursue said purposes throughout the term hereof. C. Public Purpose Easements. CITY reserves the right to grant road, utility, or other public purpose easenents over the property. 11, TERMS OF AGREEFENT A, Term. The term of this lease is for three years from I 19 , to midnight on I 19 r unless extended or sooner terminated as provided for in this lease, This lease shall terminate without further notice upon expiration of the term. Any holding over by LESSEE after expiration shall not constitute any renewal or extension or give . LESSEE any rights in or to the property except that LESSEE shall be permitted to harvest any crops growing at the time of termination, B. Extension. LESSEE may, at LESSEE'S option, extend the original term of this lease for additional periods of one year at a time, subject to all the terms and conditions of this lease. The option to extend shall be exercised by qiving written notice to CITY not more than 60 nor less than 30 days before the last day of the term. At the time of exercising the option to renew, and on the last day of the term, LESSEE shall not be in default of any provision of this lease. In lieu of executing a new lease the option to renew may be noted on the original lease, or a true copy of the original lease, If so noted the note shall be dated and initialed by the CITY and LESSEE. Failure to exercise the option to extend for a period shall extinquish all other options to extend and the lease! shall terminate on the last day of the term. CITY fiay excuse failure to meet the time limits for exercising the option to extend without waiving any of the provisions of this paragraph regarding extensions. C. Termination: Either party may terminate this lease at any time upon 90 days notice to the other. If at the expiration of the 90 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, D. Surrender of Premises: At the expiration or earlier termination of this lease, LESSEE shall execute, acknowledge and deliver to CITY, within five days after written demand by CITY, a valid and recordable Quitclaim Deed covering all of the leasehold premises. The leasehold premises shall be delivered free and clear of all liens and encumbrances. 111. CONSIDERATION A. Rent: LESSEE shall pay to CITY an annual rent of $ payable in advance in four equal quarterly installments of $ of each quarter beqinning , 19 " . The annual rent is subject to adjustment by CITY upon extension or' the term as follows: each on the day th ad e d B, Delinquent Rent: In the event LESSEE fails to pay applicable rents when due, then LESSEE shall pay CITY, in ition to the delinquent rent, a sum of money equal to FIVE PERCENT (5%) of said delinquent rent; provided, however, in the event said delinquent rent is still unpaid after fifteen days of becoming delinquent, then LESSEE shall pay CITY, instead of said FIVE PERCENT (5%), a sum of money equal to TEN PERCENT (10%) of said delinquent rent, It is the intent of this provision that CITY shall be compensated for loss resulting from rental delinquency including costs to CITY of servicing the delinquent account. The City Manager, at his option, may for good cause waive any such delinquency compensation required herein, upon advance written application of LESSEE. IV. COVENANTS AND CONDITIONS A. City Covenants 2. 1. Quiet Possession, LESSEE, paying the said rent and performing the covenants and agreements herein, shall and may at all times during the said term peaceably and quitely have, hold and enjoy the said premises for the term hereof, If CITY for any reason whatsoever cannot deliver possession of the said premises to LESSEE at the commencement of said term as hereinbefore specified, or if LESSEE is dispossessed through action of a title superior to CITY'S, then and in either of such events, this lease shall not be void or voidable nor shall CITY be liable to LESSEE for any loss or damage resulting therefrom, but there shall be determined and stated in writinq by the City Manager of CITY a proportionate reduction of the rent covering the period or periods during which LESSEE is prevented from having the quiet possession of all or a portion of the demised premises 2. Right to Assiqn and Sub.let. When in the opinion of the City Manaqer, and if it is deemed consistent with the best interests of khe-CITY, LESSEE may assign this lease or any interest therein and may sublease any portion thereof to an assignee or sublessee who has, in the opinion of City Manager, the financial capability and overall competence to successfully operate the assigned or subleased premises, The consent of the City Manager will not be unreasonably withheld, This lease and any interest herein shall not be assignable by operation of law without the written consent of the City Manager, Any or all of the following actions are not permitted activities under this contract and will be considered as contrary to the CITY'S best interests: consideration in excess of a reasonable return on the actual value of the LESSEE'S installed improvements and/or services rendered. a. Assignment or subleasing by LESSEE for a b. Subleasing of the primary function of the lease or subleasing of a major portion of the leasehold. If CITY has been notified in writing of the existence of a trust deed or mortgage secured by the leasehold, CITY agrees to give the trustee or beneficiary notice of any sublease or assignment prior to CITY'S approval thereon, Approval of any assignment or sublease shall be conditions upon Assignee or Sublessee agreeing in writing that they will assume the rights will keep and perform all covenants, conditions and provisions of this agreement which are applicable to the rights acquired. and obligations thereby assigned or subleased and they - 3. B. Lessee Covenants 1. Compliance with Law. LESSEE agrees, at its sole cost and expense, to comply and secure compliance with all the requirements now in force, of all municipal, county, state and federal authorities, pertaining to the said premises, or the operations conducted thereon, and to faithfully observe and secure compliance with, in the use of the premises, all applicable county and municipal ordinances and state and federal statutes now in force or which may hereafter be in force, and to pay before delinquency all taxes, assessments, and fees assessed or levied upon the lESSEE or the leased premises including the land and any buildings, structures, machines, applicances or other improvements of any nature whatsoever, erected, installed or maintained by LESSEE or by reason of the business or other activities of LESSEE upon or in connection with the leased premises. LESSEE recognizes and understands that this lease may create a possessory interest subject to property taxation and that the LESSEE may be subject to the payment of property taxes levied on such interest. LESSEE further agrees that such tax payment shall not reduce any rent due the CITY hereunder and that any such tax shall be paid by the LESSEE before becoming delinquent. The judgment or any court of competent jurisdiction, or the admission of LESSEE or any sublessee or permittee in any action or proceeding against them, or any of them, whether CITY be a party thereto or not, that LESSEE, sublessee or permittee has violated any such ordinance or statute in the use of the premises shall be conclusive of that fact as between CITY and LESSEE . 2. Construction/Alterations. LESSEE agrees not to construct or install any buildings or structures on said premises or otherwise improve or alter said premises in any manner except in accordance with plans and specifications previously submitted to the City Manager and approved by him in wr i tt ing . 3. Use. LESSEE shall use the property- solely for the - growing, tending and harvesting of the following agricultural crops : 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. 4. 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 submitted and approved by the Parks and Recreation Director prior to commencement of agricultural operations of the land. e. No planting, grading, spraying, cultivating or other disturbance whatsoever shall be allowed in the wetlands area, riparian areap rare and endangered plant species area, or archaeological area as shown on Exhibit B attached hereto and incorporated by this reference. Universal Soil Loss Equation provided by U, S. Soil Conservation Service. If erosion exceeds three tons per acre CITY may terminate this lease. f. Erosion shall be controlled and monitored by the 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 Parks and Recreation Director and shall not cause erosion problems . k. The Lagoon and Wetlands areas shall be monitored by LESSEE for erosion and pesticide and organic phosphate pollution. Inspections of area may be conducted by California Fish and Game Department, U. S, Soil Conservation Service, University of California or CITY at any time without prior notice to LESSEE. 4. Agricultural Operations. LESSEE agrees to abide by the conditions for asricultural oDerations set forth herein. Failure of LESSEE toacease or cur; 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. 5. Warranty. The CITY does not warrant that the premises are suitable for the agricultural purposes for which they are leased. 5. 6. Indemnity. LESSEE agrees that CITY, its agents, officers and employees, shall not be liable for any claims, liabilities, penalties, fines or for any damage to the goods, properties or effects of LESSEE, its sublessees or representatives, agents, employees, guests, licensees, invitees, patrons or clientele or of any other person whomsoever, nor for personal injuries to, or deaths of any perstxs, whether alleged to have been caused.by or resulting from any acts or omission of LESSEE or its sublessees in or ahouk the leased premises, or any act or omission of any person or from any defect in any part of the leased premises or from any other cause or reason whatsoever. LESSEE agrees to indemnify and save free and harmless CITY and its authorized agents, officers, and employees against any of the foregoing alleged liabilities and any costs and expenses incurred by CITY on account of any claim or claims therefor, 7. Insurance Coverage. During the entire term of this agreement LESSEE agrees to procure and maintain public liability insurance which names CITY as an additional insured with an insurance company satisfactory to CITY licensed to do business in California to protect against loss from liability imposed by law for damages on account of bodily injury, including death therefrom, suffered or alleged to be suffered by any person or persons whomsoever, resulting directly or indirectly from any act or activities of CITY or LESSEE, its sublessees or any person acting for CITY, or LESSEE or under its control or direction, and also to protect aginst loss from liability inposed by law for damages to any property of any person caused directly or indirectly by or from acts or activities of CITY, or LESSEE, or its sublessees, or any person acting for CITY or LESSEE, or under its control or direction. Such property damage and public liability insurance shall also provide for and protect CITY against incurring any legal cost in defending claims for alleged loss. Such public liability and property damage insurance shall be maintained in full force and effect during the entire term of this lease in the amount of not less than ONE MILLION DOLLARS COMBINED SINGLE LIMIT LIABILITY. LESSEE agrees to submit a policy of said insurance to the CITY on or before the effective date of this agreement indicating full coverage of the contractual liability imposed by this agreement and stipulating that the insurance company shall not terminate, cancel or limit written notice thereof to CITY. If the operation under this agreement results in an increased or decreased risk in he opinion of the City Manager, then LESSEE agrees that the minimum limits hereinabove designated shall be changed accordingly upon request by the City Manager. LESSEE agrees that provisions of this paragraph as to maintenance of insurance shall not be construed as limiting in any way the extent to which the LESSEE may be held responsible for the payment of damages to persons or property resulting from LESSEE'S activities of any person or persons for which LESSEE is otherwise responsible. 6. 8. Legal Proceedings, LESSEE agrees that should it become necessary for CITY to commence legal proceedings to collect rent, recover possession, or enforce any other provision of this lease, the prevailing party will be entitled to legal costs in connection therewith, including reasonable attorney's fees as determined by the court. The parties agree that the law of the State of California shall be used in interpreting this lease agreement and will govern all disputes under this lease agreement and will determine all rights and obligations hereunder. Personal service either within or without the State of California shall be sufficient to give personal jurisdiction to any court in which an action is filed for litigation of rights under this lease agreement e 9. Maintenance. L!3SSEE agrees to assume full responsibility for the operation and maintenance of said premises throughout the term hereof without expense to CITY unless otherwise specified herein, and to perform all repairs and replacements necessary to maintain and preserve said premises in a decent, safe, healthy and sanitary condition in a manner satisfactory to CITY and in compliance with all applicable laws, LESSEE agrees that CITY shall not be required to perform any maintenance, repairs or services, or to assume any expense not specifically assumed herein in connection with said premises, 10, Utility Costs. LESSEE agrees to order, obtain and pay for all utilities and service and installation charges in connection therewith, All utilities installed by LESSEE shall be installed underground. 11. Waste,Damage or Destruction. LESSEE agrees to give notice to the CITY of any fire or other damage that may occur on the leased premises within ten 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, 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 the 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 LESSEE agrees to clear and remove from the leased premises all debris resulting from said damage. C. General Conditions 1, Administration and Notices. Control and administration of this lease is under the jurisdiction of the City Manager of CITY as to CITY'S interest-herein and any communication relative to the terms or conditions or any changes thereto or any notice or notices provided for by this lease or by law to be given or served upon CITY may be given registered letter deposited in the United States prepaid, and addressed to the City Manager, 1200 or served by mails, postage Elm Avenue, Carisbad, California, 92008. Any-notice or notices provided for by this lease or by law to be given or served upon LESSEE, may be giver1 or served by depositing in the United States mails, postage prepaid, a letter addressed to said LESSEE at the leased premised or at such other address designated in writing by LESSEE, or may be personally served upon LESSEE or any person hereafter authorized by them to receive such notice. Any notice or notices given or served as provided herein shall be effectual and binding for all purposes upon the principals of the parties so served upon personal service or forty-eight hours after mailing in the manner required herein, 2, City Approval and Consent, The approval or consent of the CITY, wherever required in this agreement, shall mean the approval or consent of the City Manager unless otherwise specified, without need for further resolution by the City Council. 3. Entry and Inspection, 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 is 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 days written notice to LESSEE, to have any necessary maintenance work done for and 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 the CITY determines that said premises are not in a decent, safe, healthy and sanitary condition, CITY may at 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, 4. Merger. The voluntary or other surrender of this lease by LESSEE, or a mutual cancellatbn thereof, shall n_ot work a merger and shall, at the option of CITY, terminate all or any existing subleases or subtenancies or may, at the option of CITY, operate as an assignment to it of any or all such subleases or subtenancies. 8. 5. Oral Representation. It is specifically understood and agreed hereby that this lease contains the complete expression of the whole agreement between the parties hereto, and that there are no promises, representations, agreements, warranties or inducements, either expressed orally or implied by the said parties, except as are fully set forth herein; and further, that this lease cannot be enlarged, modified or changed in my respect except by written agreement duly executed by and between the said parties. 6, Ownership of Improvements, All improvements, except such fixtures as are hereinafter described on the attached addendum, which have been installed by LESSEE in accordance with the provisions of this agreement, shall at the option of CITY become the property of CITY upon expiration or sooner termination of this agreement. LESSEE shall have the right to remove from the demised premises only those fixtures described on the attached addendum at any time prior to the expiration or earlier termination of the agreement, provided that such removal would not, in the opinion of CITY, restrict the operation of the demised premises to the extent that the rent paid to CITY is reduced as a direct result therefrom. LESSEE'S removal of any of said fixtures shall be at LESSEE'S own expense and shall be conditioned upon LESSEE'S repairing any damage to the remaining improvements and upon LESSEE leaving the demised premises in good order and condition. In the evezt LESSEE does not so remove said fixtures prior to the expiration of this agreement, CITY may remove, sell or destroy the same at the expense of LESSEE, and if the proceeds of the sale are not adequate, LESSEE shall promptly pay to CITY its reasonable cost of any such removal, sale or destruction together with the reasonable cost of repair of damages to CITY'S property resulting from such remova1,sale or destruction. At the option of CITY, any such property, real or personal, not removed by LESSEE may be deemed abandoned and may be removed and sold by CITY and all income received by CITY therefrom shall be the property of CITY exclusively. Said addendum may be changed from time to time upon approval of the City Manager, without further resolution by the City Council. 7. Remedies of City. a. Default by Lessee. In the event that: (1) LESSEE shall default in the performance or fulfillment of any covenant or condition herein required to be performed or fulfilled by LESSEE and shgll fail to cure said default within thirty days following the service on LESSEE-of a written notice from CITY specifying the default complained of; or (2) LESSEE shall voluntarily file or have involuntarily filed against him any petition under any bankruptcy or insolvency act or law; or 9. (3) LESSEE shall be adjudicated a bankrupt; ox (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 through LESSEE, immediately terminate this lease and all rights of LESSEE arid of all persons claiming rights through LESSEE in or to the said premises or in or to further possesion thereof and CITY may thereupon enter and take possession of said premises and expel1 LESSEE and all persons so claiming rights thereto. Provided, however, in the event that any default described in Part a, (1) of this section is not curable within thirty (30) days after the service of a written notice upon LESSEE, CITY shall nut terminate this lease pursuant to said default if LESSEE immediately commences to cure said default and diligently pursues such cure to completion. b. Abandonment by Lessee, Even though LESSEE has breached the lease and abandoned the property, this lease shall continue in effect for so long as CITY does not terminate LESSEE'S right to possession, and CITY may enforce all its rights and remedies under said lease, including, but not limited to, the right to recover the rent as it becomes due under the lease. For purposes of this section, the following do not constitute a termination of LESSEE'S right to possession: (1) Acts by CITY of maintenance, or preservation, or efforts to relet the property. (2) The appointment of a receiver upon initiative of CITY to protect the CITY'S interest under the lease. c. Damages. Damages which CITY may recover in the event of default under this lease include the worth, at the time of award, of the amount by which the unpaid rent for the balance of the term after the date of award, or for any shorter period of time specified in this lease, exceeds the amount of such rental loss for the same period that the LESSEE proves could be reasonably avoided. The remedies provided by this section are not exclusive and shall be cumulative to all other rights and remedies possessed by CITY, and nothing contained herein shall be construed so as to defeat any other rights or remedies to which CITY may be entitled. - 8, Reservation of City Rights. CITY hereby reserves all rights, title and interest in any and all gas, oil, minerals and water beneath said lease premises. CITY shall have the right to enter said leased premises for the purpose of making repairs to or developing municipal services. CITY hereby reserves the right to grant and use such easements or establish and use such rights oE way over, under, along and across said 10. leased premises for utilities, thoroughfares, or access as it may deem advisable for the public good. Provided, however, city shall not unreasonably interfere with LESSEE'S use of premises and will reimburse LESSEE for physical. damages, if any, to the permanent improvements of LESSEE located on the leased premises resulting from CITY'S exercising the rights retained in this parayraph. Such reimbursement shall include a reduction in the annual rent proportionate to the amount of said physical damage as determined by the City Manager. CITY shall pay the costs of maintenance and repair of all CITY installations made pursuant to the rights reserved herein. 9. Time is of the Essence. Time is of the essence of each and all of the terms and provisions of this lease and this lease shall inure to the benefit of and be binding upon the parties hereto and any successor of LESSEE as fully and to the same extent as though specifically mentioned in each instance , and all covenants, stipulations and agreements in this lease shall extend to and bind any assigns or sublessees of LESSEE. 10. Waiver, The waiver by CITY of any breach of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant OK condition, or any subsequent breach of the same or any other term, covenant or condition herein contained, The subsequent acceptance of rent hereunder by CITY shall not be deemed to be a waiver of any preceding breach by LESSEE of ar,y term, covenant or condition of this lease, regardless of CITY'S knowledge of such preceding breach at the time of acceptance of such rent. Failure on the part of CITY to require or exact full and complete compliance with any of the covenants, conditions or agreements of this lease shall not be construed as in any manner changing the terms hereof and shall not prevent CITY from enforcing any provision hereof. IN WITNESS WHEREOF, this Lease Agreement is executed by CITY, acting by and through the City Manager, and by LESSEE, acting by and through its lawfully authorized officers. THE CITY OF CARLSBAD DATE By : City Manager LESSEE By : By : APPROVED as to form this day of ? 19 . VINCENT F. BIONDO, JR., City Attorney By : 11.