HomeMy WebLinkAbout2021-06-15; City Council; Resolution 2021-143RESOLUTION NO. 2021-143
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CARLSBAD,
CALIFORNIA, AUTHORIZING THE CITY MANAGER TO EXECUTE A ONE-YEAR
AGRICULTURAL LEASE AGREEMENT WITH REY RIVER FARMS, INC. FOR A
PORTION OF APN: 210-090-17, COMMONLY REFERRED TO AS THE CANNON
LAKE PARK
WHEREAS, on May 7, 2018, the city entered into a one-year lease agreement that included two
one-year extension options, with Rey River Farms, by Resolution No. 2018-055, that expired on May 6,
2021; and
WHEREAS, the City Council of the City of Carlsbad has determined that it is in the best interest.
of the city to enter into an Agricultural Lease Agreement with Rey River Farms Inc. for a portion of APN
210-090-17; and
WHEREAS, the City Council has further determined that it accepts the terms of the Agricultural
Lease Agreement with Rey River Farms Inc.; and
WHEREAS, the Lease Agreement will generate $2,500 in annual revenue for the city for a period
of one- year, with three one-year extension options at the same annual revenue.
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 hereby authorized to execute the Lease Agreement with Rey
River Farms, attached hereto as Attachment A, and to act on behalf of the City of
Carlsbad in all future decisions and actions necessary to implement the Lease
Agreement with Rey River Farms for use of city owned property located at the Cannon
Lake Park, including any extension options, and to do so in full compliance with the
terms and conditions expressed in the aforementioned Agreement and to the
satisfaction of the City Attorney.
June 15, 2021 Item #2 Page 4 of 26
NAYS: None.
ABSENT: None.
MATT HALL, Mayor
(SEAL)
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BARBARA E NG LESON, SECRETARY
PASSED, APPROVED AND ADOPTED at a Regular Meeting of the City Council of the City of
Carlsbad Meeting of the Carlsbad Municipal Water District of the City of Carlsbad on the 15th day of
June, 2021, by the following vote, to wit:
AYES: Hall, Blackburn, Acosta, Bhat-Patel, Schumacher.
June 15, 2021 Item #2 Page 5 of 26
Attachment A
AGRICULTURAL LEASE AGREEMENT
BY AND BETWEEN
THE CITY OF CARLSBAD
AND
REV RIVER FARMS, INC.
ON CITY OWNED REAL PROPERTY, LOCATED AT
CANNON LAKE PARK
DATED
%Ant) S1 7,0711
June 15, 2021 Item #2 Page 6 of 26
Lease Outline
SECTION PARAGRAPH PAGE
Section 1 USES
1.01 Premises 1
1.02 Uses 1
1.03 Deletion of Portion of Leased Premises 1
1.04 Related Council Action 1
1.05 Quiet Possession 2
1.06 Easements and Reservations 2
Section 2 TERM
2.01 Commencement 2
2.02 Holdover 2
2.03 Quitclaim and Surrender of LESSEE'S Interest 3
2.04 Termination of Lease 3
Section 3 RENT
3.01 Time and Place of Payment 4
3.02 Rent 4
3.03 Delinquent Rent 4
Section 4 ASSIGNMENT
4.01 Time is of the Essence; Provisions Binding
on Successors 4
4.02 Assignment and Subletting 4
4.03 Defaults and Remedies 5
4.04 Eminent Domain 6
Section 5 INSURANCE
5.01 Insurance 7
Section 6 IMPROVEMENTS/ALTERATIONS/REPAIRS
6.01 Acceptance of Premises 9
6.02 Entry and Inspection and Channel Maintenance 9
6.03 Maintenance 10
6.04 Improvements/Alterations 10
6.05 Utilities 10
6.06 Landscape and Landscape Irrigation 11
6.07 Liens 11
6.08 Taxes 11
6.09 Signs 11
6.10 Ownership of Improvements and Personal
Property 12
June 15, 2021 Item #2 Page 7 of 26
SECTION PARAGRAPH PAGE
Section 7 GENERAL PROVISIONS
7.01 Notices 13
7.02 Compliance with Law 13
7.03 CITY Approval 14
7.04 Agricultural Provisions 14
7.05 Agricultural Operations 14
7.06 Noxious Weeds, Pests 14
7.07 Employee Housing Prohibited 14
7.08 Nondiscrimination 15
7.09 Partial Invalidity 15
Section 8 WARRANTY
8.01 Warranty 15
Section 9 RELOCATION WAIVER
9.01 Relocation Waiver 15
Section 10 ENTIRE UNDERSTANDING 15
Section 11 SIGNATURES PAGE 16
Section 12 EXHIBITS
Exhibit A
Exhibit B
June 15, 2021 Item #2 Page 8 of 26
THIS LEASE AGREEMENT, dated Lithl 15th , 2021, hereinafter called "Lease,"
is executed between the CITY OF CARLSBAD, a municipal corporation, hereinafter called
"CITY", and REY RIVER FARMS INC., hereinafter called "LESSEE".
RECITALS
WHEREAS, CITY is the lawful owner of certain real property, consisting of approximately
3.01 acres, commonly known as Cannon Lake Park (the "Premises"); and
WHEREAS, LESSEE desires to lease the Premises for the purposes of growing crops and
for such other related or incidental purposes; and
WHEREAS. LESSEE has operated under an agricultural lease on the Premises continuously
since 2005, with renewals of said lease in 2010, 2013, 2016, and 2018 respectively; and
WHEREAS, CITY is willing to lease of the Premises to LESSEE for the term and upon the
covenants, conditions and provisions hereinafter set forth.
AGREEMENT
NOW THEREFORE, in consideration of the covenants, conditions and provisions contained
herein, the parties hereto do mutually agree as follows:
SECTION 1: USES
1.01 Premises. CITY hereby leases to LESSEE and LESSEE leases from CITY a
portion 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. The portion of said real property to
be leased by City to LESSEE is roughly delineated on Exhibit "B", attached
hereto and by this reference made a part of this agreement, and is hereinafter
called the "premises" or "leased premises".
1.02 Uses. It is expressly agreed that the premises, consisting of approximately 3.01
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 Deletion of Portion of Leased Premises. In the event any portion of the leased
premises is not used by LESSEE for agriculture use, then CITY may, at CITY'S
1
June 15, 2021 Item #2 Page 9 of 26
option, delete that portion of the leased premises not used by LESSEE from
Section 1.01, Premises, hereof. Provided, however, Section 3, RENT, hereof,
shall be adjusted downward by the City Manager on an equitable basis.
1.04 Related Council Actions. 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 rezoning, variances, environmental clearances or any other
governmental agency approvals, which may be required for the development
and operation of the leased premises.
1.05 Quiet Possession. 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. 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 shall be determined by the City Manager of City and proved to Lessee
in writing.
1.06 Easements and Reservations.
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.
However, CITY will reimburse LESSEE for damages, if any, to the
personal property of Lessee, trade fixtures, alterations or utility
installations, 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.
2 June 15, 2021 Item #2 Page 10 of 26
SECTION 2: TERM
2.01 Commencement. Regardless of the date of execution by the City, the term
of this agreement shall be One (1) Year commencing on
2021 and terminating Att, i , 2022.
a. Extension Option. Lessee shall have three (3) options to extend the
lease one (1) year each ("Extension Term"), commencing upon the
expiration of the Term or prior Extension Term, as applicable. Each
such option shall be exercisable only if LESSEE is not then in default
under this lease and no event has occurred which, with notice or the
passage of time or both, would constitute a default by LESSEE under
this lease. Each such option shall be exercisable by LESSEE's delivery
of written notice to CITY ("Lessee Extension Notice") at least ninety
(90) days prior to the commencement of the applicable Extension
Term, but not more than one hundred eighty (180) days prior to the
commencement of the applicable Extension Term. The City Manager,
or his designee, shall have the authority to approve or deny LESSEE's
Extension Term request.
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 upon thirty (30) days written notice to LESSEE.
If at expiration of the thirty (30) 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. TheY right to
raise, tend and harvest shall apply only to crops planted before notice to
terminate has been given.
2.03 Quitclaim and Surrender of LESSEE'S Interest. At termination of this
lease for any reason, LESSER 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 June 15, 2021 Item #2 Page 11 of 26
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 Termination of Lease. Either party may terminate this lease at any time
upon ninety (90) days notice to the other party. If at 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.
SECTION 3: RENT
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
Finance Depat intent, 1635 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 Finance Department. 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 rent is TWO THOUSAND FIVE HUNDRED
DOLLARDS AND 00/100 ($2,500.00) annually.
b.Upon termination pursuant to Section 2.04 of this lease, the annual
rent may be pro-rated as required.
3.03 Delinquent Rent. If LESSEE fails to pay the rent when due, LESSEE 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%)].
4 June 15, 2021 Item #2 Page 12 of 26
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 Time is of the Essence., Provisions Binding 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 tern-is, 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 Assignment and Subletting. LESSEE shall not assign this lease, or any
interest therein, and shall not sublet the premises or any part thereof, or
any right or privilege appurtenant thereto, or suffer any other person,
except employees, agents and guests of LESSEE, to use or occupy the
premises or any part thereof, without the prior written consent by 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, 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.
"Assignment", for the purposes of this clause shall include any transfer of
any ownership interest in this lease by LESSEE or by any partners,
principals, or stockholders, as the case may be, from the original LESSEE,
its general partners or principals.
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.
4.03 Defaults and Remedies.
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)
5 June 15, 2021 Item #2 Page 13 of 26
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
(3)LESSEE shall be adjudicated a bankrupt; or
(4)LESSEE shall make a general assignment for the benefit of
creditors;
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 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 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.
4.04 Eminent Domain. If all or part of the premises is 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:
June 15, 2021 Item #2 Page 14 of 26
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 condenming 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.Transfer. CITY has the right to transfer CITY'S interests in the
premises in lieu of condemnation to any authority entitled to
exercise the power of eminent domain. If a transfer occurs,
LESSEE shall retain whatever interest it may have in the fair
market value of any improvements placed by it on the premises in
accordance with this lease so long as such rights do not
unreasonably or substantially interfere with LESSEE'S operations.
f.No Inverse Condemnation. 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
5.01 Insurance. LESSEE shall obtain and maintain for the duration of this
lease agreement and any and all amendments, insurance against claims for
injuries to persons or damage to property which may arise out of or in
connection with use of the subject building and provision of services by
7 June 15, 2021 Item #2 Page 15 of 26
LESSEE. The insurance will be obtained from an insurance carrier
admitted and authorized to do business in the State of California. The
insurance carrier is required to have a current Best's Key Rating of not
less than "A-V". The policies for said insurance shall, as a minimum,
provide the following forms of coverage:
a.Comprehensive General Liability — (covering premises and
operations in the amount of not less than One Million Dollars
($1,000,000) combined single limit per occurrence for bodily
injury, personal injury and property damage. If the submitted
policies contain aggregate limits, general aggregate limits will
apply separately under this lease or the general aggregate will be
twice the required per occurrence limits. CITY shall be named as
an additional insured entitled to primary coverage.
b.Property Insurance — LESSEE shall obtain and maintain insurance
coverage on all of LESSEE'S personal property, trade fixtures,
alterations and utility installations. Such insurance shall be full
replacement cost coverage with a deductible of not to exceed
$5,000.00 per occurrence. The proceeds from any such insurance
shall be used by LESSEE for the replacement of personal property
and trade fixtures as well as alterations and utility installations.
c.Business Interruption — LESSEE shall obtain and maintain loss of
income and extra expense insurance in amounts as will reimburse
LESSEE for direct or indirect loss of earnings attributable to all
perils commonly insured against by prudent lessees in the business
of LESSEE or attributable to prevention of access to the premises
as a result of such perils.
d.Evidence of Insurance — Certificates and endorsements in a form
acceptable to CITY evidencing the existence of the necessary
insurance policies shall be kept on file with CITY during the entire
term of this lease. All insurance policies shall be primary
coverage, and will name CITY as an additional insured, protect
CITY against any legal costs in defending claims and will not
terminate without thirty (30) days written notice to CITY.
e.CITY shall retain the right at any time to review the coverage,
form, and amount of the insurance required hereby. If, in the
opinion of the CITY, the insurance provisions in this lease do not
provide adequate protection for CITY and/or for members of the
public using the leased premises, CITY may require LESSFF to
obtain insurance sufficient in coverage, form and amount to
provide adequate protection. CITY'S requirements shall be
reasonable but shall be designed to assure protection from and
June 15, 2021 Item #2 Page 16 of 26
against the kind and extent of risk, which exist at the time a change
in insurance is required.
f. CITY shall notify LESSEE in writing of changes in the
insurance requirements and, if LESSEE does not deposit
certificates/endorsements evidencing acceptable insurance policies
with CITY incorporating such changes within thirty (30) days of
receipt of such notice, this lease shall be in default without further
notice to LESSEE, and CITY shall be entitled to all legal remedies.
g.The procuring of such required policies of insurance shall not be
construed to limit LESSEE'S liability hereunder, nor to fulfill the
indemnification provisions and requirements of this lease.
Notwithstanding said policies of insurance, LESSEE shall be
obligated for the full and total amount of any damage, injury, or
loss caused by negligence or neglect connected with this lease or
with the use or occupancy of the leased premises.
h.LESSEE agrees not to use the premises in any manner, even if use
is for purposes stated herein, that will result in the cancellation of
any insurance CITY may have on the premises, or on adjacent
premises, or that will cause cancellation of any other insurance
coverage for the premises, or adjoining premises. LESSEE further
agrees not to keep on the premises or permit to be kept, used, or
sold thereon, anything prohibited by any fire or other insurance
policy covering the premises. LESSEE shall, at its sole cost and
expense, comply with any and all requirements, in regard to
premises, of any insurance organization necessary for maintaining
fire and other insurance coverage at reasonable cost.
SECTION 6: IMPROVEMENTS/ALTERATIONS/REPAIRS
6.01 Acceptance of Premises. 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.
6.02 Entry and Inspection and Channel Maintenance. CITY reserves and shall
always have the right to enter said premises for the purpose of viewing
and ascertaining the condition of the same, or to protect its interests in the
premises, or to inspect the operations conducted thereon. LESSEE shall
9 June 15, 2021 Item #2 Page 17 of 26
maintain the premises and remove all non-agricultural vegetation and
debris on a regular basis. In the event that such entry or inspection by
CITY discloses that said premises are not in a decent, safe, healthy,
visually appealing and sanitary condition, LESSEE agrees to perfonn
necessary maintenance work within seven (7) days written notice to
LESSEE. 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, visually appealing
and sanitary condition. Further, if at any time CITY determines that said
premises are not in a decent, safe, healthy, visually appealing, and sanitary
condition, CITY may its sole discretion, 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, visually
appealing and sanitary. Said bond shall be in an amount adequate in the
opinion of the CITY to correct the said unsatisfactory condition. 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, visually appealing, 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 improvements/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 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 Utilities. 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 Landscape and Landscape Irrigation. The City reserves the right to install
ornamental landscaping and landscape irrigation along a 10 foot perimeter
of the property boundary from the edge of the public right of way.
LESSEE agrees to pay for the water required to sufficiently irrigate the
landscaping along the perimeter. The water will be sourced from the
June 15, 2021 Item #2 Page 18 of 26
existing premises water meter and paid for as part of LESSEE'S existing
utilities. Ongoing maintenance of the landscaping will be provided by
LESSEE. LESSEE agrees to maintain ornamental landscaping, keep it free
of weeds and debris and pruning any dead growth from the landscaping on
a monthly basis. LESSEE shall not alter the landscaping irrigation without
prior written consent of the CITY.
6.07 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.
6.08 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 will not reduce any rent due
CITY.
6.09 Signs. 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.
6.10 Ownership of Improvements and Personal Property.
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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.
d.If any removal of such personal property by LESSEE results in
damage to the remaining improvements on the premises, LESSEE
agrees to repair all such damage.
e.Any necessary removal by either CITY or LESSEE which takes
place beyond said expiration or termination thereof shall require
LESSEE to pay rent to CITY at the rate in effect immediately prior
to said expiration or termination.
f.Notwithstanding any of the foregoing, in the event LESSEE
desires to dispose of any of its personal property used in the
operation of said premises upon expiration or termination of this
lease, then CITY shall have the first right to acquire or purchase
said personal property.
SECTION 7: GENERAL PROVISIONS
7.01 Notices.
a. Any notice required or permitted to be given hereunder shall be in
writing and may be served personally or by United States mail,
12 June 15, 2021 Item #2 Page 20 of 26
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:
Real Estate Manager
1200 Carlsbad Village Drive
Carlsbad CA 92008
Or to any mortgagee, trustee, or beneficiary as applicable, at such
appropriate address designated in writing by the respective party.
Contact for Lessee:
Donal Yasukochi
P. 0. Box 189
San Luis Rey, CA 92068
760-801-6627
yasukochifamilyfarms@gmail.com
b. Any party entitled or required to receive notice under this lease
may by like notice designate a different address to which notices
shall be sent.
7.02 Compliance with Law. LESSEE shall at all times in the construction,
maintenance, occupancy and operation of the premises comply with all
regulations of CITY, County, State and Federal Governments at
LESSEE'S sole cost and expense. In addition, LESSEE shall comply with
any and all notices issued by the City Manager or his authorized
representative under the authority of any such law, statute, ordinance, or
regulation.
7.03 CITY Approval. The approval or consent of CITY, wherever required in
this lease, shall mean the written approval or consent of the City Manager
unless resolution by the City Council is required in the City Manager's
discretion.
7.04 Agricultural Provisions. 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:
June 15, 2021 Item #2 Page 21 of 26
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.
c.No aerial application of pesticides or fertilizers shall be permitted.
d.All pesticide applications 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 Municipal
Property Manager and shall not cause erosion problems.
7.05 Agricultural Operations. LESSEE agrees to abide by the conditions for
agricultural operations set forth herein. Failure of LESSEE to cease or
cure any unauthorized practice within thirty (30) days after written notice
to do so shall constitute at the option of CITY, an immediate termination
of the lease.
7.06 Noxious Weeds, Pests. LESSEE shall take proper corrective action, to the
satisfaction of CITY, to prevent the infestation of noxious weeds and
pests.
7.07 Employee Housing Prohibited. 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.
7.08 Nondiscrimination. 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.
7.09 Partial Invalidity. 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.
SECTION 8: WARRANTY
8.01 Warranty. The CITY does not warrant that the premises are suitable for
the agricultural purposes for which they are leased.
SECTION 9: RELOCATION WAIVER
14 June 15, 2021 Item #2 Page 22 of 26
9.01 Waiver of Relocation Benefits. LESSEE understands this lease agreement
is entered into for a specified period of time in order to provide interim use
of the property. LESSEE therefore agrees to waive any and all relocation
benefits defined in the California Relocation Assistance Law (Government
Code, Section 7260, et, seq.) after having the opportunity to consult with
legal counsel about potential entitlements.
SECTION 10: ENTIRE UNDERSTANDING
10.01 Entire Understanding. This lease contains the entire understanding of the
parties. LESSEE, by signing this agreement, aggress 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.
The failure or refusal of any party to 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.
[Signatures on Next Page]
15 June 15, 2021 Item #2 Page 23 of 26
LESSEE:
By:
et. / ../A7c-411 /
Printed Name
Date
SECTION II: SIGNATURES
IN WITNESS WHEREOF, this Lease Agreement is executed by CITY, acting by and
thrugh its City Manager or his designee, and by LESSEE, acting by and through its lawfully
authorized officers.
THE MI OF; CARLSBAD
/
By
City Manage (or designee/title) Date
APPROVED as to form this N11.1 day of -SAL , 2021.
By
16 June 15, 2021 Item #2 Page 24 of 26
EXHIBIT "A"
LEGAL DESCRIPTION
All that portion of Lot "H" of the Rancho Agua Hedionda, in the City of Carlsbad, County of
San Diego, State of California, according to Partition Map thereof No. 823, filed in the office
of the County Recorder of said County, November 16, 1896 described as follows:
Beginning at the most Northerly comer of Lot 163 of Terramar Unit No. 5, according to Map
thereof No. 3371 filed in the Office of the County Recorder of said County; thence along the
Easterly prolongation of the Northerly boundary of said Terramar Unit No. 5 North 59°21'10"
East 2.00 feet to the TRUE POINT OF BEGINNING; thence continuing along said Easterly
prolongation of said Northerly boundary of Terramar Unit No. 5 North 59°21'10” East 226.92
feet to a point on the Westerly Right of Way of the Atchison Topeka and Santa Fe Railway
Company as said Right Of Way was established on September 22, 1948; thence along said
Right of Way North 23°06'00" West 937.82 feet to a point; thence South 66°54'10" West
103.11 feet to the beginning of a tangent 3042 foot radius curve concave Northerly; thence
Westerly along the arc of said curve through a central angle of 5°32'30” a distance of
294.22 feet, a radial from said point bears North 17°33'20" West; thence South 37°35'34"
East 95.63 feet; thence South 30°38'50" East 535.00 feet; thence South 38°33'38" East
218.10 feet; thence South 30°38'50" East 150.00 feet to the TRUE POINT OF BEGINNING.
June 15, 2021 Item #2 Page 25 of 26
EXHIBIT “B”
B
June 15, 2021 Item #2 Page 26 of 26