AIRPORT LEASE
(Agricultural Use)
THIS LEASE is made and entered into this _ day of!
2022, by and between the CITY OF MERCED, a California charter municipal corporation, hereinafter called "Lessor," and FAGUNDES DAIRY, a California General Partnership, hereinafter called "Lessee," subject to the following terms and conditions:
1. LEASED PREMISES. For and in consideration of the payments, terms, conditions and covenants as hereinafter set forth, Lessor leases to Lessee and Lessee takes and hires from Lessor approximately thirty-five (35) acres in and around the Merced Airport Industrial Park, more particularly described in Exhibit "A" attached hereto and incorporated herein by reference, hereinafter the "Premises."
2. TERM. The term of this Lease shall commence on the 1st day of August 2022 and shall continue for a period of three (3) years to and including July 31,2025.
3. RENT. Lessee agrees to pay to Lessor the sums listed below as rent for the three (3) year term for the privilege of leasing the Premises. The rent shall be due and payable on or before August 1st of each year.
August 1, 2022 - July 31, 2023 $5,355.00
August 1, 2023 - July 31, 2024 $5,462.10
August 1, 2024 - July 31, 2025 $5,571.34
4. PURPOSE. Lessee may use said Premises for agricultural purposes only, including, but not limited to, permanent pasture. Such use shall not interfere in any way with any airport activities. Whenever any activities of Lessor conflict with the activities of Lessee, Lessor shall have the right to use said Premises, subject only to reasonable notice being given to Lessee. Lessor shall have the right to enter on said Premises at all reasonable times for the purpose of inspection.
5. CARE AND MAINTENANCE. Lessee agrees to conduct his
agricultural operation in a good and farmerlike manner, and to care for and maintain said Premises in a neat and clean condition at all times and will not commit or permit any waste upon said Premises and shall return the same at the end of the term, or sooner termination thereof, in the same condition as originally X: \Agreements\Airport\2022\Fagundes Farms Ag Lease.docx received, reasonable wear and tear excepted. Lessee also agrees to cut and remove all weeds on said Premises each season and to take steps to control all pests and rodents as necessary. Lessee agrees to comply with the new water quality regulations as outlined in Exhibit "B" attached hereto and incorporated herein by reference.
6. ASSIGNMENT AND SUBLETTING. Lessee is prohibited from assigning or subletting his interest in said Premises.
7. LIABILITY. Lessee agrees that it will hold Lessor harmless from and indemnify and defend Lessor against any and all claims, causes of action, or any other liability whatsoever because of personal injury to any person or property damage because of the use or occupancy of the Premises by Lessee and, in this regard, Lessee, at his own cost and expense, shall provide and keep in full force and effect a policy or policies of public liability insurance in the amount of One Million Dollars ($1,000,000.00) naming the "City of Merced and its officers, and employees" as additional insured parties. Lessee shall provide Lessor with a endorsement providing the above and which shall also include a thirty (30) day notice of cancellation to Lessor.
8. CANCELLATION. Lessor may terminate this Lease for any reason by giving Lessee thirty (30) days written notice of Lessor's intent to so terminate.
9. DEFAULT.
(a) In the event Lessee shall default in the payment of any sums when due hereunder, or shall default in the performance of any other covenant required to be kept by Lessee hereunder, and such default shall continue for a period of thirty (30) days after notice thereof from Lessor to Lessee, or if Lessee shall make an assignment for the benefit of creditors or be adjudged bankrupt, Lessor shall have the right to immediately terminate this Lease, and in the event of such termination, Lessee shall have no further rights hereunder and shall have no further claims thereto.
(b) In the event of termination for default or unsatisfactory performance by the Lessee, the Lessor shall have the right (unless otherwise specified in the termination notice), at once and without further notice to the Lessee, or surety, to enter and take possession of the Premises without being liable for prosecution or to any claim for damages therefor. Upon such termination by the Lessor, all rights, powers and privileges of the Lessee shall cease, and the X: Agreements\Airport\2022\Fagundes Farms Ag Lease.docx 2 Lessee shall immediately vacate any and all space occupied by him under this Lease, and shall make no claims of any kind whatsoever against the Lessor, its agents or representatives, by reason of such termination, or any act evident thereto. (c) In the event of abandonment by Lessee of the Premises, or any portion thereof, or discontinuance of the Lessee's business operations or required services, or any portion thereof, Lessor shall not be responsible for the custodial protection of merchandise, fixtures, or equipment abandoned, even though it is necessary for Lessor to remove same from the Premises for storage or disposal. (d) In the event of breach of this Lease by Lessee, Lessor shall be entitled to all rights and remedies provided by law in addition to the specific remedies pertinent herein.
10. IMPROVEMENTS OR ALTERATIONS. Any improvements or
alterations of any kind whatsoever which Lessee desires to make shall not be made without first obtaining written permission of Lessor. Any such improvement or alteration shall become the property of Lessor upon termination of this Lease.
11. TAXES. 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 to pay, without the right to deduct from rental fees provided herein, any and all property taxes, if any, assessed during the term of this Lease against Lessee's possessory interest in the Premises.
Lessee further agrees to pay, without right to deduct from rental fees provided herein, any and all personal property taxes assessed against his property on said Premises, and such portion of any real property taxes as may be levied against improvements by Lessee and erected upon said Premises.
12. UTILITIES. Lessee agrees to provide at his sole cost and expense any utilities he uses on said Premises.
13. NOTICES. Any notice or communication to the Lessor or Lessee shall be deemed validly served upon deposit in the United States mail, registered and proper postage prepaid, addressed to the respective party at the address either party may designate to the other by notice in accordance with the provisions hereof.
X:lAgreements\Airport\2022\Fagundes Farms Ag Lease.docx 3 14. MODIFICATION. This Lease shall not be modified except by a writing signed by all parties.
15. WAIVERS. Any waiver of any breach of covenants or conditions herein contained to be kept and pertormed by either party shall be effective only if in writing and shall not operate to bar or prevent the other party from declaring a forteiture or exercising its rights for any succeeding breach of either the same or other condition or covenant.
16. ATTORNEY'S FEES. In the event of any litigation between the parties to enforce, protect or establish any right or remedy under this Lease, the prevailing party shall be entitled to recover reasonable attorney's fees.
17. FEDERALLY MANDATED PROVISIONS.
a. The Lessee, for himself, his heirs, personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that in the event facilities are constructed, maintained, or otherwise operated on the said Premises described in this Lease for a purpose for which a Department of Transportation (DOT) program or activity is extended or for another purpose involving the provision of similar services or benefits, the Lessee shall maintain and operate such facilities and services in compliance with all other requirements imposed pursuant to Title 49, Code of Federal Regulations, DOT, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally-Assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended.
b. The Lessee, for himself, his personal representatives, successors in interest, and assigns, as a part of the consideration hereof, does hereby covenant and agree as a covenant running with the land that: (1) no person on the grounds of race, color, national origin, ancestry, disability, sex, or religion shall be excluded from participation in, denied the benefits of, or be otherwise subjected to discrimination in the use of said facilities; (2) that in the construction of any improvements on, over, or under such land and the furnishing of services thereon, no person on the grounds of race, color, national origin, ancestry, disability, sex, or religion shall be excluded from participation in, denied the benefits of, or otherwise be subject to discrimination; (3) that the Lessee shall use the Premises in compliance with all other requirements imposed by or pursuant to Title 49, Code of Federal Regulations, Department of Transportation, Subtitle A, Office of the X: \Agreements\Airport12022\Fagundes Farms Ag Lease.doex 4 Secretary, Part 21, Nondiscrimination in Federally-Assisted Programs of the Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as said Regulations may be amended.
c. That in the event of breach of any of the above
nondiscrimination covenants, Lessor shall have the right to terminate the Lease and to re-enter and repossess said land and the facilities thereon, and hold the same as it said Lease had never been made or issued. This provision does not become effective until the procedures of 49 CFR Part 21 are followed and completed including expiration of appeal rights.
d. Lessee shall furnish its accommodations and/or services on a fair, equal and not unjustly discriminatory basis to all users thereof and it shall charge fair, reasonable and not unjustly discriminatory prices for each unit of service; PROVIDED, THAT the Lessee may be allowed to make reasonable and nondiscriminatory discounts, rebates or other similar type of price reductions to volume purchasers.
e. Non-compliance with Provision d above shall constitute a material breach thereof and in the event of such non-compliance the Lessor shall have the right to terminate this Lease and the estate hereby created without liability therefore or at the election of the Lessor or the United States either or both said Governments shall have the right to judicially enforce Provisions. f. Reserved.
g. The Lessee assures that it will undertake an affirmative action program as required by 14 CFR Part 152, Subpart E, to insure that no person shall on the grounds of race, creed, color, national origin, ancestry, disability, sex, or religion be excluded from participating in any employment activities covered in 14 CFR Part 152, Subpart E. The Lessee assures that no person shall be excluded on these grounds from participating in or receiving the services or benefits of any program or activity covered by this subpart. The Lessee assures that it will require that its covered suborganizations provide assurances to the Lessee that they similarly will undertake affirmative action programs and that they will require assurances from their suborganizations, as required by 14 CFR, Subpart E, to the same effect.
h. The Lessor reserves the right to further develop or improve the landing area of the airport as it sees fit, regardless of the desires or view of the Lessee and without interference or hindrance.
X: \Agreements/Airport2022\Fagundes Farms Ag Lease.docx 5 i. The Lessor reserves the right, but shall not be obligated to the Lessee to maintain and keep in repair the landing area of the airport and all publicly-owned facilities of the airport, together with the right to direct and control all activities of the Lessee in this regard.
J. This Lease shall be subordinate to the provisions and requirements of any existing or future agreement between the Lessor and the United States, relative to the development, operation, or maintenance of the airport. k. There is hereby reserved to the Lessor, its successors and assigns, for the use and benefit of the public, a right of flight for the passage of aircraft in the airspace above the surface of the Premises herein Leased. This public right of flight shall include the right to cause in said airspace any noise inherent in the operation of any aircraft used for navigation or flight through the said airspace or landing at, taking off from or operation on the Merced Regional Airport.
1. Lessee agrees to comply with the notification and review requirements covered in Part 77 of the Federal Aviation Regulations in the event future construction of a building is planned for the Premises, or in the event of any planned modification or alteration of any present or future building or structure situated on the Premises.
m. The Lessee, by accepting this expressly agrees for itself, its successors and assigns that it will not erect nor permit the erection of any structure or object, nor permit the growth of any tree on the land leased hereunder. In the event the aforesaid covenants are breached, the Lessor reserves the right to enter upon the land leased hereunder and to remove the offending structure or object and cut the offending tree, all of which shall be at the expense of the Lessee. n. The Lessee, by accepting this Lease agrees for itself, its successors and assigns that it will not make use of the Premises in any manner which might interfere with the landing and taking off of aircraft from Merced Regional Airport or otherwise constitute a hazard. In the event the aforesaid covenant is breached, the Lessor reserves the right to enter upon the Premises hereby leased and cause the abatement of such interference at the expense of the Lessee.
It is understood and agreed that nothing herein contained shall be construed to grant or authorize the granting of an exclusive right within the meaning of Section 308a of the Federal Aviation Act of 1958 (49 U.S.C. 1349a).
X: \Agreements\Airport2022\Fagundes Farms Ag Lease.docx 6 whatever right the United States Goverment no has or of the tusubac have ot acquire, attecting the control, operation, regulation and taking over of said airport or the exclusive or non-exclusive use of the airport by the United States during the time of war or national emergency.
IN WITNESS WHEREOF, the parties hereto have caused this lease to be duly executed on the day and year first above written.
LESSOR:
CITY OF MERCED
A California Charter Municipal
Corporation
By:_
City Manager
ATTEST:
STEPHANIE R. DIETZ, CITY CLERK
BY:
Assistant/Deputy City Clerk
APPROVED AS TO FORM:
Bx: Th 6/22/22
City Attorney Date
ACCOUNT DATA:
BY:
Verified by Finance Officer
X: Agreements/Airport12022\Fagundes Farms Ag Lease.docx 7 LESSEE:
FAGUNDES DAIRY,
A California General Partership
Ired to
BY:
Fred Jagundes, Partner
Zarden
Lloyd Fagundes, Partner
Kable in taqunds
BY:
Ralph M. Fagundes
Trustee of the Family Trust
Agreement dated May 9, 2000,
Partner
B: Vickid Jagundes
Vicki L. Fagundes
Trustee of the Family Trust
Agreement dated May 9, 2000,
Partner
Taxpayer I.D. No. 77-0303810
ADDRESS: P.O. Box 2717
Merced, CA 95344
1978 Business Parkway
Merced, CA 95348
TELEPHONE: (209) 383-6046
FAX: (209) 383-6042
E-MAIL:
[email protected]
X: Agreements\Airport12022\Fagundes Farms Ag Lease.docx 8 T.TS., R./3E., M.D. B. & M. Tax Rate Area 5-01 59-
- NOTE -
or Assassment purposes only.
construed on portraying 89-05
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toning or subtition tom 89-13
EXHIBIT A
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Assessor's Mop 8k. 59 - Pg./5
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Enurn G. Bonas Ji
Water Boards PUBLIC WORKS
Centrai Valley Regional Water Quality Control Board
187
JAN 3 1 2013
30 January 2013 INTAL
SVCS 411.
City Of Merced MA
678 W 18Th St SEC
Merced CA 95340 ML
New Water Quality Regulations Require You to Act Now
Nuevas Regulaciones de Calidad de Aqua-Requieren que usted Responde Immediamente
(Para obtener más información en español (formularios u otra información), por favor contáctenos al telefono (916) 464-4611 o via email a: [email protected].) • You are receiving this letter because based on information available to us, you own one or more parcels with irrigated cropland subject to the new regulations. (Central Valley Water Board or board), approved the Waste Discharge Requirements General On 7 December 2012, the Regional Water Quality Control Board, Central Valley Region Order (Order R5-2012-0116 or General Order) for Growers within the Eastern San Joaquin River Watershed that are Members of the Third-Party Group. All commercial irrigated lands the SnaRe Watershed are now required to get regulatory coverag hrough one of the options described below. The General Order addresses the discharge o waste from irrigated lands to groundwater and surface water. Wastes discharged from irrigated lands include pesticides, fertilizers, pathogens, and sediment.
Based on information available to us, you own one or more parcels with irrigated cropland within the Eastern San Joaquin River Watershed. The parcel number(s) for your property that prompted this letter is attached as a reference. Pursuant to California Water Code section 13260, you must obtain regulatory coverage for that irrigated cropland. Failure to obtain the regulatory coverage outlined above may result in penalties of up to $1,000 per day pursuant to What Do Landowners or their Tenant Farmers Need to Do?
If you are the owner of commercial irrigated lands and you are NOT currently a member of the East San Joaquin Water Quality Coalition (Coalition), you have three options.
1. Join the Coalition by 13 May 2013. The Central Valley Water Board worked closely with agricultural and other interests to develop a cost effective program for complying with the State's water quality law. Under the General Order, the landowner, or your tenant, may enroll your irrigated agricultural parcels) directly with the Coalition (see next page). To 13 May 2013. After that date, landowners must apply to the Central Valley Water Board to ion a Coltion. Additional fees will apply to applications after 15 May 2013 and the board KARe E. LOnGLEY SED, P.E., CRAIN | PaMELA C. CACENO: P.E.. BOCE, ERECUTUR OFFICEA
EXHIBIT B
Eastern San Joaquin Watershed
Growers - 2-
30 January 2013
Obtain Coverage Under the General Waste Discharge Requirements for Individual Growers. The Central Valley Water Board is currently considering the adoption of general Waste Discharge Requirements for landowners who chose not to join a Coalition group
3. Obtain an Individual Permit*". You can apply to have your own individual Waste Discharge Requirements (a permit). Depending on the specific site conditions growers with monitoring wells, and submit technical reports regarding their actions to comply with their their own individual WORs are often required to monitor runoff from their property, install Waste Discharge Requirements. Costs would include State administrative fees (for example, annual fees for farm sizes from 10-100 acres are currently $750 + $5/acre); cost to prepare a report of waste discharge; and monitoring and reporting costs.
You do NOT need regulatory coverage under this Order if:
• Your commercial irrigated lands are covered by the General Order for Existing Milk Cow Dairies (R5-2007-0035) or NPDES Dairy General Permit CAG015001 (Dairy General coverage so you do not receive further inquiries from the board regarding regulatory Orders). Please notify board staff of your parcels that have Dairy General Order coverage of those parcels (contact info provided below). • If your agricultural-zoned property is not used for commercial irrigated agriculture, please notify board staff so you do not receive further inquiries from the board regarding regulatory coverage under this Order.
Who Do / Contact to Join the Coalition or Get More Information? information about this new requirement, call (209) 522-7278 and ask to speak with Wayne Contact the Coalition - To join the East San Joaquin Water Quality Coalition, or to get more informational meetings for new Members and those thinking of joining the Coalition scheduled Zipser or Candy Hill or go to www.esicoalition.org. Also, check the website for dates on for March 2013.
To leam more about the Irrigated Lands Regulatory Program, you can visit our website at: ttp://www.waterboards.ca.gov/centraivalley/water_issues/iniqated lands/. If you have (916) 464-4611 or e-mail board staff at [email protected]. uestions regarding the Irrigated Lands Regulatory Program, you can call our phone line a Gamela (Cream
PAMELA CREEDON
Executive Officer
11' The form for completing the Application (referred to as a For 200 - Report of Waste Discharge) can be found inline at htto://www.waterboards.ca.gov/publications_forms/forms/docs/form200.pdf. You may be requested by th xecutive Officer to submit additional information to supplement the data provided in Form 20 •
• ..
Eastern San Joaquin Watershed - 3- 30 January 2013
Growers
City Of Merced
678 W 18Th St
Merced CA 95340
The Irrigated Lands Regulatory Program has identified the following parcels that may require regulatory coverage.
County:
Merced
Parcel Number(s):
59150027
59150026
59150028
65080079