HomeMy Public PortalAboutResolution - 79-15- 19790314 - Approve Xmas Tree Farm MRESOLUTION NO. 79-15
RESOLUTION OF THE BOARD OF DIRECTORS OF THE
MIDPENINSULA REGIONAL OPEN SPACE DISTRICT
APPROVING LEASE AGREEMENT FOR CHRISTMAS TREE
FARMING (MONTE BELLO OPEN SPACE PRESERVE/PHILA-
DELPHIA INVESTMENT PROPERTY)
The Board of Directors of the Midpeninsula Regional Open
Space District does resolve as follows:
Section One. Pursuant to the option agreement approved
by Resolution 79-3 on January 24, 1979, the Board of Directors
of the Midpeninsula Regional Open Space District does hereby
approve the lease agreement between The Investment Corporation
of Philadelphia, a Delaware Corporation, and Allen & Company,
a Partnership, and the Midpeninsula Regional Open Space District,
a copy of which agreement is attached hereto and by reference
made a part hereof, and does hereby authorize the President and
appropriate officers to execute the lease on behalf of the
District.
Section Two. The District may, under the provisions of
Section 5540 of the Public Resources Code, •lease such property
owned by the District for a period of up to twenty-five (25)
years, and its Board of Directors finds that the premises to
be leased for Christmas tree farming is temporarily unnecessary
for park or open space purposes and considers that a lease
of such premises for agricultural (Christmas tree farming) purposes
is in the public interest, on the terms hereinafter set forth.
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
RESOLUTION NO.
79-15
PASSED AND ADOPTED by the Board of Directors of the Midpeninsula
Regional Open Space District on
March 14
regular meeting thereof, by the following vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
ATTEST:
, 19 79 at a
K. Duffy, B. Green, N. Hanko, E. Shelley, H. Turner and R. Bishop
None
None
D. Wendin
Secretary, Board of Di ectrs
APPROVED:
#4,6,-evrC
President,
Board of Directors
I, the District Clerk of the Midpeninsula Regional Open Space
District, hereby certify that the above is a true and correct copy
of a resolution duly adopted by the Board of Directors of the
Midpeninsula Regional Open Space District by the above vote at a
meeting thereof duly held and called on the above date.
AGRICULTURAL LEASE --CHRISTMAS TREES
THIS AGRICULTURAL LEASE is made on this
day of
1979 by and between the MIDPENINSULA REGIONAL OPEN SPACE DISTRICT, a
public district (DISTRICT or LESSOR) and THE INVESTMENT CORPORATION OF
PHILADELPHIA, a Delaware Corporation and ALLEN & COMPANY, a Partnership
(LESSEE).
1. PREMISES.
(a) DISTRICT does hereby lease to LESSEE, and LESSEE hereby
hires from DISTRICT, on terms and conditions hereinafter set forth,
that certain unimproved real property delineated on Exhibit "A",
attached hereto and made a part hereof by this reference, being
commonly known as a portion of the Monte Bello Open Space Preserve.
(b) DISTRICT makes no warranties and/or representations to
LESSEE concerning the suitability of the premises for Christmas
tree farming or other agricultural purposes.
(c) LESSEE'S possession of the premises is subject to
all existing easements, servitudes', licenses, and rights -of
way, whether recorded or not.
2. INITIAL . !ERM, EXTENSION, POSSESSION.
(a) The term of this lease shall be for a period of fifteen
(15) years commencing on June 1, 1979 and terminating on May 31,
1994. In the event DISTRICT acquires title to the premises prior
to June 1, 1979, the term of this lease shall commence on such
date and terminate on May 31, 1994, and the rental as provided below
for such partial year shall be prorated.
(b) LESSEE has the right to terminate this lease upon one
year's written notice to DISTRICT, and shall return the leased
premises to DISTRICT in accordance with the terms and conditions
hereinafter set forth.
3. .RENTAL.
As rental for the premises, LESSEE hereby agrees to pay to
DISTRICT without deduction, set-off, prior notice, or demand,
the sum of Six Thousand Dollars ($6,000.00) per year, payable.
in semi-annual installments of $3,000 each on June 1 and January
1 of each year, beginning June 1, 1979. It is agreed between
DISTRICT and LESSEE that the said annual rental fee shall be
adjusted in May of each year to correspond with the U.S.
Department of Labor Consumer Price Index for All Urban Consumers
(CPI -U)` based upon March to March CPI data, said adjustment
shall be effective each June 1, commencing. June 1, 1980.
DISTRICT shall notify LESSEE in writing of any adjustments to
the semi-annual installments so made during the term of this
lease.
4. USE.
(a) The premises are hereby leased to LESSEE upon the ex-
press condition that LESSEE shall use said premises for culti-
vating, harvesting and selling Christmas trees, and for no other
purposes.
(b) LESSEE shall cultivate, irrigate, fertilize, spray,
prune, and otherwise farm the premises in accordance with approved
practices of good husbandry and in accordance with the standard
farming practices of the vicinity, and keep any buildings,
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fences, irrigation or other farming facilities on the premises
in good repair. Neither party is aware of any practice on the
premises which is not in accordance with the above standards, and
to that extent it is agreed that the existing operation complies
with said practices and standards.
(c) LESSEE shall not cut, nor permit others to cut any trees
on the premises other than those trees specifically grown for Christ-
mas tree cultivation, harvest and sale, unless the prior written
consent of DISTRICT is obtained.
(d) LESSEE agrees that it will not carry on or permit upon
said premises any nuisance, or anything against public policy, or
for any illegal or immoral purposes, and that LESSEE shall not
commit, or suffer to be committed, any waste upon the premises.
LESSEE further agrees to comply with all applicable State laws,
local ordinances or other governmental regulations in connection
with pest control, land use, and the like.
5. ACCEPTANCE AND SURRENDER OF PREMISES.
By entry under this lease, LESSEE accepts the premises in their
present condition and agrees, on the last day of the term or on
sooner termination of the lease, to surrender the premises and the
appurtenances to DISTRICT in good condition, reasonable use, wear,
and damage by fire, act of God, or the elements excepted, and to
remove all of LESSEE'S personal property from the premises. LESSEE,
upon cessation of tree harvesting or at the end of the lease term,
whichever is sooner, shall surrender the area now planted with
Christmas trees in its then cultivated condition or, at the option
of DISTRICT, in a condition of restoration to a naturalized grass-
land. A decision by DISTRICT to reclaim the land to a grassland
condition shall be conveyed in writing to LESSEE as soon as
practicable and at least 90 days prior to the expiration of this
lease. Such reclamation, if selected by DISTRICT, shall be
done at LESSEE'S expense and according to accepted revegetation
practices and LESSEE shall solicit, but not be obligated to
comply with recommendations provided by the local soil conserva-
tion agency, and shall be completed upon termination of this
lease or at the cessation of Christmas tree farming, whichever
occurs first.
6. MAINTENANCE OF IMPROVEMENTS.
(a) LESSEE shall maintain, repair, and replace, if neces-
sary, in good order and condition throughout the term hereof, all
buildings, structures and/or other improvements related to
LESSEE'S use on the premises ("improvements"), including
without limitation, all fences, corrals, wells, pumps, and
pressure systems, ditches, water troughs and roadways, ordinary
wear and tear excepted. It is specifically agreed and understood
that LESSEE shall not call on DISTRICT to make any improvements
or repairs on said property of any nature whatsoever, but LESSEE
hereby specifically covenants and agrees to keep the same good
order and condition at its own cost and expense.
(b) In the event LESSEE shall fail to perform its obli-
gations hereunder, DISTRICT in addition to all other remedies
available hereunder or by law, and without waiving any said
alternative remedies, may perform same and LESSEE agrees to
repay DISTRICT the cost thereof as part of the rental payable
as such on the next day upon which rent becomes due, and failure
to pay same shall carry with it the same consequences as failure
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to pay any installment of rental. LESSEE waives all rights to
make repairs at the expense of DISTRICT as provided for by any
statute or law in effect at the time of execution of this lease
or any amendment thereof or any other statute or law which may
be hereafter enacted during the term of this lease.
7. ALTERATIONS, LIENS.
(a) LESSEE agrees not to make any alterations of, changes
in, or additions to the premises including, but not limited to
signs, fences, sheds, roads, pathways, and any other temporary
or permanent improvements, without the prior written consent
of DISTRICT. LESSEE agrees that should DISTRICT give said
written consent, all alterations, additions, and improvements,
including fixtures, made in, to, or on the premises, except
unattached, movable business fixtures, shall be the property
of DISTRICT and shall remain upon and be surrendered with the
premises.
(b) LESSEE agrees that if any such alterations, changes, or
additions are to be made, same shall not be commenced until two
days after receipt of the written consent of DISTRICT required by
this paragraph, in order that DISTRICT may post appropriate notices
to avoid any liability on account thereof. LESSEE agrees to in-
demnify and save harmless DISTRICT from all liens, claims, or
demands arising out of any work performed, materials furnished,
or obligations incurred by or for LESSEE upon said premises
during said term, and agrees not to suffer any such lien, claim.
or demand to be created.
8. UTILITIES.
LESSEE agrees to pay for all the water, fuel, gas, oil, heat,
electricity, power, materials, and services which may be furnished
to or used in or about said premises related to LESSEE'S use during
the term of this lease. LESSEE shall have the right to the use
of any natural springs on the property for all purposes pertinent
to their activities on the premises, provided, however, that
DISTRICT does not represent or ensure that any specific amount
or quality of water shall be available therefrom.
9. ENTRY AND INSPECTION.
(a) LESSEE agrees that DISTRICT and its agents may make any
changes or alterations or repairs to the premises which DISTRICT
shall consider necessary for the protection, improvement, or
preservation thereof, or to post any notice provided for by law,
or otherwise to protect any and all rights of DISTRICT; and LESSEE
shall not be entitled to any abatement of rental by reason of the
exercise by DISTRICT of any such rights herein reserved. Nothing
herein contained shall be construed to obligate DISTRICT to make any
changes, alterations, or repairs. In no event shall such changes,
alterations, or repairs or the making thereof, interfere with the
cultivating, harvesting or selling of Christmas trees on the premises.
(b) DISTRICT and its agents shall have the right to enter in
and on the premises at all times to overlook the same, or for any
other;purpose which does not materially interfere with the reasonable
and orderly use and occupancy thereof by LESSEE.
(c) During the term hereof, DISTRICT andits assignees shall
have the right of free and unobstructed access by way of the existing
road(s) to the cabin and the easterly 80 acres being acquired from
LESSEE.
(d) DISTRICT shall have the right to construct and maintain
a non -motorized, public recreational trail 20 feet in width; said
trail shall be located on the subject property at a place mutually
agreeable to the parties, with the objective of minimum harm or
disturbance to LESSEE'S operation, or if the parties fail to agree,
as fixed by the Santa Clara County Court having jurisdiction.
10. ASSIGNMENT AND SUBLETTING.
(a) LESSEE shall not mortgage this lease or any right here-
under or interest herein, and(except for the existing lease for the
premises leased herein by and between LESSEE and Julius Ducca), LESSEE
shall not sublet the premises in whole or in part or suffer any other
person (the agents and servants of LESSEE excepted) to occupy or use
the said premises, or any portion thereof, without prior written consent
of DISTRICT. Any such mortgage or subletting without such consent
shall be void and shall, at the option of DISTRICT, be deemed a breach
of this lease. No consent to any mortgage of this lease or any sub-
letting of said premises, constitutes a waiver or discharge of the
provisions of this paragraph except as to the specific instance
covered thereby.
(b) LESSEE agrees that neither this lease nor any interest
herein shall be assignable or transferable by operation of law, and
it is agreed that in the event any proceeding under the Bankruptcy
Act, or any amendment thereto, be commenced by or against LESSEE
(or should there be more than one, then any LESSEE) or in the event
LESSEE (or should there be more than one, then any IESSEE) be adjudged
insolvent, or makes an assignment for the benefit of creditors, or
if a writ of attachment or execution be levied on the leasehold estate
created hereby and be not released or satisfied within ten (10) days
thereafter, or if a receiver be appointed in any proceeding or action
to which LESSEE is a party, with authority to take possession or
control of the demised premises or the business conducted therein
by LESSEE, this lease at the option of DISTRICT shall immediately
end and terminate and shall in no way be treated as an asset of
LESSEE after the exercise of the aforesaid option, and LESSEE shall
have no further rights hereunder; and DISTRICT shall have the right,
after the exercise of said option, to forthwith re --enter and repossess
itself of said premises as of its original estate.
11. HOLD HARMLESS.
This lease is made upon the express condition that LESSEE
agrees to keep, save and hold DISTRICT, its officers, agents, and
employees free from all liability, penalties, losses, damages,
costs (including without limitation attorneys' fees), expenses,
causes of action, claims and/or judgments arising by reason of
any injury or damage to any person or persons, including without
limitation, LESSEE, its servants, agents and employees, or pro-
perty of any kind whatsoever and to whomsoever belonging, including
without limitations, LESSEE, its servants, agents, and employees,
arising out of LESSEE'S activities or occupancy under this
agreement.
12. INSURANCE.
qa) LESSEE further agrees to take out and keep in force
during the term hereof at LESSEE'S expense, public liability and
other insurance with a reputable company or companies to protect
against any liability to the public, whether to persons or
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property, incident to the use of or resulting from an occurrence
in or about said premises in the amount of $250,000 to indemnify
against the claim of one person and $500,000 against the claims
of two or more persons in any one occurrence, and property
damage insurance in an amount of not less than $50,000 per
occurrence, which insurance shall be primary to any insurance
carried by DISTRICT.
(b) LESSEE agrees that every insurer shall agree by en-
dorsement upon the policy or policies issued by it, or by in-
dependent instrument furnished to DISTRICT, that it will give
DISTRICT ten (10) days written notice at the address where rental
is paid, before the policies in question shall be altered or can-
celled. Either the originals or certified copies of said policies
or a certificate of insurance shall be placed with or furnished
DISTRICT.
(c) DISTRICT shall not be required to keep said property
insured against fire or any other insurable risk, and in any
event LESSEE shall make no claim of any nature against DISTRICT
by reason of any damage to said property in the event same is
damaged or destroyed by fire or by any other cause.
13. DEFAULT.
This lease is made upon the express condition and LESSEE
hereby agrees that:
(a) Should LESSEE fail to pay the rental herein reserved,
or any part thereof, or any other sum required by LESSEE to be paid
to DISTRICT at the times or in the manner herein provided, or
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(b) If LESSEE shall abandon or vacate said premises or vio-
late the provisions of paragraph 12(b) above, or
(c) If default should be made in any of the other covenants
or conditions on LESSEE's part herein contained, and not be cured
within sixty (60) days after written notice by DISTRICT or DISTRICT'S
agent to LESSEE of such default, such default, breach, or act
snail give DISTRICT, or DISTRICT'S agents and representatives, with
or without terminating this lease, the right to re-enter the pre-
mises or any part thereof, either with or without process of law,
and expel, remove and put out LESSEE or any person or persons
occupying said premises and remove all personal property and live-
stock therefrom, using such force as may be necessary to again
repossess and enjoy said premises as before this demise, without
prejudice to any remedy which might otherwise be used for arrears
of rent,or proceeding breach for covenant or condition, and without
liability to any person- for damages sustained by reason of such
removal. No such re-entry or taking possession of said premises
by DISTRICT shall be construed as election on its part to termin-
ate this lease unless a written notice of such intention be given
LESSEE, said notice being given as provided herein. DISTRICT may
likewise, at DISTRICT'S option, but at the cost of LESSEE and in
addition to any other remedies which DISTRICT may have upon such
default or failure or neglect and without notice to. LESSEE, peti-
tion the Superior Court of the State of California for and be
entitled as a matter of right to the appointment of a Receiver •
and said Court may appoint such Receiver and vest in him such
powers and authority as may be necessary or proper to fully pro-
tect all the rights herein granted or reserved to DISTRICT.
DISTRICT may likewise, at DISTRICT'S option and in addition
to any other remedies which DISTRICT may have upon such default,
failure, or neglect, let and relet said premises in whole or in
part, at such rental and upon such terms and for such length of
time, whether less or greater than the expired portion of the term
of this lease, as DISTRICT may see fit.
14. LESSEE AS INDEPENDENT CONTRACTOR.
LESSEE enters into this lease as an independent contractor
and not as an agent or employee of DISTRICT, as the term ("employee"
is defined in the Workers Compensation Act of the State of Cali-
fornia.
15. CONFLICT OF INTEREST.
LESSEE hereby warrants and represents to DISTRICT that no
officer and/or employee of DISTRICT nor any member of. DISTRICT'S
Board of Directors has or will have, directly or indirectly, any
interest whatsoever in this lease.
16. COSTS OF SUIT.
If legal action shall be brought by either of the parties
hereto for unlawful detainer of the premises, or for the recovery
of any rent due under the provisions of this lease, or because of
the breach of any term, covenant or provisions hereof, the party
prevailing in said action (DISTRICT or LESSEE as the case may be)
shall be entitled to recover from the party not prevailing costs
of suit and a reasonable attorney's fee which shall be fixed by
the judge of the court.
17. NOTICES.
Wherever this lease provides for notices between the parties,
or wherever the law requires or gives the right of serving a
notice, the same shall be served by registered or certified mail,
addressed to DISTRICT as follows:
Midpeninsula Regional Open Space District
375 Distel Circle, Suite D--1
Los Altos, CA 94022
and addressed to LESSEE as follows:
Investment Corporation of Philadelphia Allen & Company
P. O. Box 363 711 - 5th Avenue
Rhinebeck, NY 12507 New York, NY 1002
Attn: Bernard Hock
provided, however, that DISTRICT and LESSEE may at any time change
the place of receiving notice by written notice of such change of
address to the other.
18. SURRENDER OF LEASE.
No act or conduct of DISTRICT shall be deemed to be or con-
stitute an acceptance of the surrender of the premises by LESSEE
prior to the expiration of the term hereof, and such acceptance
by DISTRICT of surrender by LESSEE shall only flow from and must
be evidenced by a written acknowledgement of acceptance of surren-
der by DISTRICT. The voluntary or other surrender of this lease
by LESSEE, or mutual cancellation thereof, shall not work a merger,
and shall, -at the option of DISTRICT, terminate all or any existing
subleases or subtenancies, or concessions, or may at the option of
DISTRICT, operate as an assignment to it of any or all such sub-
leases or subtenancies or concessions.
19. CUMULATIVE REMEDIES, NON -WAIVER.
The receipt, by DISTRICT of any rent or payment with or without
knowledge of the breach of any covenant hereof shall not be deemed
a waiver of any such breach and no waiver by DISTRICT of any sum
due hereunder or any provision hereof shall be deemed to have been
made unless expressed in writing and signed by DISTRICT. No delay
or omission in the exercise of any right of remedy accuring to
DISTRICT upon any breach by LESSEE under this lease shall impair
such right or remedy or be construed as a waiver of any such breach
of any term, covenant, or condition herein contained shall not be
deemed to be a waiver of any subsequent breach of the same or any
other term, covenant, or condition herein contained. All rights,
powers, options, or remedies afforded to DISTRICT either hereunder
or by law shall be cumulative and not alternative and the exercise
of one right, power, option, or remedy shall not. bar other rights,
powers, options, or remedies allowed herein or by law.
20. TAXES.
LESSEE agrees to be responsible for all taxes that arise by
virtue of the imposition of a possessory interest tax and such
other taxes as arise from the Christmas tree farming operation.
21. RELOCATION ASSISTANCE.
'It is agreed by and between the parties hereto that this tenancy
is of a temporary nature, and no relocation -payment or advisory
assistance will be sought or provided in any form as consequence
of this tenancy.
22. MISCELLANEOUS.
(a) It is agreed by and between the parties hereto that all
the agreements herein contained upon the part of LESSEE, whether
technically covenants or conditions, shall be deemed conditions
for the purpose hereof, conferring upon DISTRICT, in the event
of breach of any said agreements, the right to terminate this lease.
(b) In case there is more than one LESSEE the obligation of
LESSEES executing this lease shall be joint and several. The
words "DISTRICT" and "LESSEE" as used herein shall include the
plural as well as the singular. The covenants and agreements con-
tained herein shall Be binding upon and be enforceable by the
parties hereto and their respective heirs, executors, adminis-
trators, successors, and assigns, subject to the restrictions herein
imposed on assignment by LESSEE.
(c) Time is of the essence of this lease and of each and
every couenant,,condition, and provision herein contained.
(d) The paragraph headings of this lease are inserted
only as a matter of convenience and for reference and in no way .
define, limit, or describe the scope or intent of this agreement
or any provision thereof or in any way affect this agreement.
IN WITNESS WHEREOF, the parties hereto have subscribed their
names the day and year first hereinabove written.
LESSOR: LESSEE:
MIDPENINSULA REGIONAL OPEN THE INVESTMENT CORPORATION OF
SPACE DISTRICT PHILADELPHIA
By:
ATTEST:
District Clerk
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By:
ALLEN & COMPANY
By:
LANDS OF THE INVESTMENT CORPORATION
OF PHILADELPHIA AND ALLEN & COMPANY
LOT 1 = eighty (80) acres, more or less
remainder area, has log cabin.
LOT 2 = twenty (20) acres, more or less
contains tree farm operation
$7Evenis C,fiEEK••..••.,.
i
CouNTY LINE...
Extent of leasehold premises
based on aerial photos. Fran
Air -Photo Co. Reorder Data
Date Flown: 3/21/77
Negative No. SC57
Crop Number 12988
RcAD ---- CABIN W-
REP/A/WING So Ac.RES
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