HomeMy WebLinkAboutAGENDA REPORT 2015 0701 CCSA REG ITEM 10K ITEM 10.K.
CITY OF MOORPARK,CALIFORNIA
City Council Meeting
of 7—/',,0/5
ACTION:
MOORPARK CITY COUNCIL 'i'«"'ss r—
AGENDA REPORT
BY: L1}, £ o--
TO: Honorable City Council
From: Jessica Sandifer, Senior Management Analy
Date: June 23, 2015 (City Council Meeting of 07/01/15)
Subject: Consider Renewal of Lease Agreement between the City of Moorpark
and Boething Treeland Farms for City-owned Property on Tierra
Rejada Road (a Portion of APN's 504-0-030-265 &-275)
BACKGROUND/DISCUSSION
Boething Treeland Farms ("Boething") nursery operations have occupied 9 acres on
APN's 504-0-030-265 &-375 since before the City was incorporated. The property that
Boething leases was deeded by the developer to the County of Ventura to satisfy
parkland requirements for Tracts 2817 and 3032 (Buttercreek Homes). For various
reasons, the park was never developed and Boething has continued to rent the
property. In May 1984, the City inherited the lease from the County of Ventura upon the
transfer of the property to the City. In addition, in consideration for a lower lease rate,
Boething provides trees to the City. In 2011, in response to resident concerns regarding
nursery operations adjacent to the houses, the City decreased the leased acreage to
6.45 acres to move the nursery operations away from the houses. The latest Lease
Agreement expired in January 2015 and provided 200 trees to the City per year.
Boething desires to continue the lease of the property. Staff has negotiated a 4%
increase in their current lease rate and a 5% increase in the number of trees they
provide to the City. The annual rental rate will increase from $13,158 to $13,684 and
trees will increase from 200 to 210. The lease agreement also contains an annual rent
escalation tied to the Consumer's Price Index (CPI). The term of the proposed lease is
one year with a one year extension, if approved by the City Manager.
FISCAL IMPACT
The lease will generate at least $13,684 each year of the potential two year term and
provide the City $13,650 in trees each year. The City spends approximately $2,100 per
year to perform weed abatement on the portion of the property adjacent to the homes
that is not rented by Boething. The rental revenue offsets this cost.
546
Honorable City Council
July 1, 2015
Page 2
STAFF RECOMMENDATION
Approve lease agreement between the City of Moorpark and Boething Treeland Farms
and authorize the City Manager to sign the lease, subject to final language approval of
the City Manager.
Attachment : Lease Agreement
547
LEASE AGREEMENT
THIS LEASE AGREEMENT, (hereinafter "Lease") is made and entered into as of
this day of , 2015 by and between, the CITY OF
MOORPARK, (hereinafter "City") and BOETHING TREELAND FARMS, INC., a
California Corporation, (hereinafter"Tenant" or "Lessee").
THE PARTIES AGREE THAT:
Section 1. PROPERTY LEASE
City, in consideration of the rents herein agreed to be paid and of the
indemnifications, covenants, and agreements agreed to herein, hereby leases to
Tenant, and Tenant hereby leases from City, those certain parcels of real property
described as Exhibit "B" attached hereto and by this reference incorporated herein,
together with any and all improvements thereon (all of which are hereinafter referred to
as the "Premises").
Section 2. TERM
The term of this Lease shall be for one (1) year, commencing on July 1, 2015,
and ending on June 30, 2016 (the "Ending Date"); provided, however, that Tenant may
extend the term of this, with approval of the City Manager, Lease for one (1) additional
one (1) year period (the "Extended Term") upon the giving to the City of written notice of
extension (the "Extension Notice"), which Extension Notice, must be accompanied by
Tenant's payment of the Rent for the Extension Term as provided below. To be
effective, Tenant's Extension Notice must be given to the City thirty (30) days prior to
the Ending Date. Any such Extended Term shall be on the same terms and conditions
as set forth in this Lease, including, without limitation, an annual rent in an amount
equal to the Rent specified in Section 5. Notwithstanding the foregoing to the contrary,
Tenant may not give an Extension Notice if Tenant is in default at the time the
Extension Notice is given, and the term of this Lease shall not be extended (even if an
Extension Notice has been properly given) if Tenant is in default on the date the
Extended Term would commence. City's obligations hereunder shall be contingent
upon Tenant's payment and performance in full of all rent, additional rent and other
obligations as set forth in this Lease. As used in this Lease, the "term" of this Lease
refers to the original term and any Extended Term, unless otherwise specified. At the
end of the Term, Extended Term, or any holdover period (as described herein) or in the
event of termination of this Lease, Tenant agrees to and hereby does waive any and all
rights to and claims for relocation assistance, or compensation for relocation, loss of
goodwill, increased rent, severance damages or additional compensation arising out of
the termination or end of this lease or Tenant's vacation of the Premises.
548
Section 3. TERMINATION OF EXTENDED TERM
During the Extended Term, Tenant shall have the right to terminate this Lease
upon the giving to City of written notice of termination (the "Termination Notice"). The
Termination Notice shall specify a termination date, which date shall not be less than
thirty (30) days following the date of the Termination Notice. Within ten (10) business
days following any such termination date, City will reimburse to Tenant a pro rata
portion of the Rent paid for the Extended Term in an amount equal to the amount of
such Rent multiplied by a fraction the numerator of which is the number of days
remaining in the Extended Term as of such termination date and the denominator of
which is three hundred sixty-five (365).
Section 4. HOLDING OVER; SURRENDER OF PREMISES
It is further agreed that if Tenant shall retain possession of the Premises beyond
the expiration of the original term of this Lease or the Extended Term, without the
express written consent of the City, Tenant shall automatically become a Tenant from
month-to-month during such holdover period, such tenancy being terminable by City at
any time upon the giving of not less than thirty (30) days prior written notice. Tenant
shall be subject to all of the terms, covenants and conditions of this Lease, including the
obligation to pay Rent and Additional Rent on a pro rata basis during any such holdover
period, at the prevailing rate specified in Section 5 and Section 6, hereof.
Upon the expiration or sooner termination of the term of this Lease, Tenant shall
surrender the Premises to City with all of Tenant's personal property removed and in the
condition in which Tenant is required to maintain the Premises under the terms of this
Lease, ordinary wear and tear alone excepted. "Ordinary wear and tear" does not
include any damage or deterioration that would have been prevented by good
maintenance practice or by Tenant performing all of its obligations under this Lease.
Section 5. RENT
Tenant further agrees to pay the City prior to the execution of Lease Agreement
an annual rent in the amount of Thirteen Thousand Six Hundred Eighty-four dollars and
Sixty-four cents ($13,684.64). Starting on July 1, 2016 the annual rental payment shall
be indexed as described in Section 7.
Section 6. ADDITIONAL RENT
In consideration of City's rental of the Premises, and as additional rent therefor
(the "Additional Rent"), Tenant will provide City with two hundred ten (210) fifteen (15)
gallon container trees, or an equivalent number of trees and shrubs based on: 1) four
(4) 15 gallon trees to one 24" box tree, 2) five (5) gallon shrubs to one 15 gallon tree,
and 3) twenty (20) 1 gallon shrubs to one 15 gallon tree, in varieties to be determined by
the mutual consent of the parties each calendar year through the term of the
Boething Treeland Farms 2 549
Agreement. There shall be no administrative charge for consideration of the Additional
Rent.
Section 7. ADJUSTMENTS OF RENTS
Beginning July 1, 2016, and as long as the Lease Agreement is in effect, or the
Tenant is in Hold Over Status consistent with Section 4, the Rent shall be adjusted on
each July 1 by any increase in the Consumer Price Index (CPI). The CPI increase shall
be determined by using the information provided by the U.S. Department of Labor,
Bureau of Labor Statistics, for all urban consumers within the Los
Angeles/Anaheim/Riverside metropolitan area during the prior year. The calculation
shall be made using the month of March over the prior month of March. In the event
there is a decrease in the CPI for any annual indexing, the Rent shall remain at its then
current amount until such time as the next subsequent annual indexing which results in
an increase. Any such increase shall also be in effect for the year in which notice of
termination is given pursuant to Section 3 herein.
Section 8. FLOODING
Tenant understands that Premises are subject to flooding, and that a portion of
the Premises is encumbered by an easement for flowage purposes held by the Ventura
County Watershed District. Nonetheless, Tenant accepts the Premises subject to the
terms of this Agreement.
Section 9. USE
The Premises shall be used for the following specified purpose only and shall not
be used for any other purpose without the prior written consent of the City Manager: the
growing of trees and shrubs in containers for wholesale distribution only, storage
thereof, and activities directly related thereto. Tenant shall use the Premises in
compliance with all applicable laws, rules and regulations of all applicable governmental
authorities, and shall not use nor permit the use of the Premises in any manner which
creates a nuisance or which causes waste. Any and all retail activity of any nature on
the Premises is hereby strictly prohibited.
Section 10. SIGNS
Tenant agrees not to allow the construction or placement of any sign, signboard
or other form of outdoor advertising on the Premises without the prior written consent of
City. In the event of a violation of this provision by Tenant or anyone claiming under
Tenant, and in addition to any other rights or remedies available to City, Tenant hereby
authorizes City as Tenant's Agent, to enter the Premises and dispose of any such sign,
signboard or other advertising, and to charge the cost and expense of any such removal
and disposal to Tenant who agrees to pay the same on demand.
Boething Treeland Farms 3 550
Section 11. LIABILITY INSURANCE
Tenant shall maintain prior to the beginning of and for the duration of this
Agreement, insurance coverage as specified in Exhibit B attached hereto and
incorporated herein by this reference as though set forth in full.
Section 12. CASUALTY INSURANCE
The parties each specifically acknowledge that City shall not be obligated to keep
the Premises insured against fire, or any other insurable risk. Tenant hereby and forever
waives all right to claim or recover damages from City in any amount as the result of
any damage to the Premises by fire, earthquake, flooding, storm or any other cause.
Section 13. TAXES, ASSESSMENTS AND LIENS
Tenant shall pay when due all taxes and assessments of every kind levied or
assessed against the Premises, City's ownership thereof, this Lease and all rentals
payable hereunder as specified in Section 5 and Section 6, as well as any fees, charges
or other amounts levied or assessed in substitution for any of the foregoing. Tenant
shall also pay when due all taxes and assessments of every kind levied or assessed
against Tenant's personal property located on the Premises. Concurrently with
Tenant's payment of such taxes and assessments, Tenant shall deliver to City written
evidence of such payment satisfactory to City. Tenant agrees to keep the Premises
free from all liens, including but not limited to mechanics' liens, claims and other
encumbrances arising by reason of the use or occupancy of the Premises by Tenantor
any person claiming under or through Tenant. It is agreed that, in addition to any other
rights or remedies available to City (a) if Tenant shall fail to pay and discharge the
above-mentioned taxes and assessments when due, City shall have the right to pay the
same and charge the amount thereof to Tenant, who agrees to pay the same on
demand, together with interest thereon at the maximum rate allowed by law, and (b) if
the Premises become the subject of any of the above-mentioned liens, claims or
encumbrances, City shall have the right to pay and secure the release thereof and
charge the amount thereof to Tenant, who agrees to pay the same on demand, together
with interest thereon at the maximum rate allowed by law.
Section 14. TENANT'S IMPROVEMENTS
Tenant shall not make any alterations, additions, or improvements in excess of
Five Thousand Dollars ($5,000) upon the Premises without the prior written consent of
City. All alterations, additions and improvements shall be done in a good and
workmanlike manner and diligently prosecuted to completion, and shall be performed
and maintained in strict accord with all Federal, State, County, and local laws,
ordinances, codes and standards relating thereto. Unless otherwise expressly agreed
to, in writing, by the City, any alterations, additions and improvements shall remain on
and be surrendered with the Premises upon the expiration or termination of this Lease.
Tenant shall timely pay all costs associated with any and all improvements, and shall
Boething Treeland Farms 4 551
keep the Premises free and clear of all mechanics and other liens relating thereto.
Without limiting Tenant's other obligations of indemnity under this Lease, Tenant agrees
to and shall indemnify, defend and save City free and harmless from and against all
claims, liabilities, losses, damages, actions, judgments, fines, penalties, costs and
expenses (including, without limitation, legal counsels' fees and costs) of any nature
arising out of or resulting from any Tenant alterations, additions or improvements to the
Premises. The foregoing agreement of indemnity shall survive the expiration or sooner
termination of this Lease.
Section 15. FLAMMABLE, WASTE AND NUISANCES
Tenant agrees that it shall not place or store any flammable materials on the
Premises, that it shall not commit any waste or damage, nor suffer any to be done.
Tenant also specifically agrees that it shall not allow others to take such actions on the
Premises. Tenant further agrees that it shall keep the Premises clean, free from weeds,
(including all slope areas) rubbish and debris and in a condition satisfactory to City.
Tenant shall also provide adequate controls for dust, odors and noise or other
nuisance disturbances which may emanate from the Premises or from Tenant's
activities on adjacent property and take appropriate steps necessary to prevent dust
contamination of City's facilities located on, near or adjacent to the Premises. Tenant
also agrees to take preventive action to eliminate such dust, odor, noise or any other
nuisance which may disturb the adjacent or nearby community and agrees to be
responsible for and to assume all liability for such dust, odor, noise or other nuisance
disturbances.
Section 16. PESTICIDES AND HERBICIDES
Tenant agrees that any pesticide or herbicide applications on the Premises, or
the use of any Hazardous Materials on the Premises, shall be made or used in
accordance with all Federal, State, County and local laws. Tenant further agrees to
dispose of any pesticides, herbicides and Hazardous Materials in such a manner as
prescribed by all applicable governmental laws, rules and regulations. This shall
include, but shall not be limited to, contaminated containers, clothing, equipment or any
other contaminated material.
Section 17. UNDERGROUND TANKS
Notwithstanding anything to the contrary set forth in this Lease, Tenant shall not
have the right to install underground or above-ground storage tanks (including, without
limitation, as defined by any and all applicable laws or regulations) without the prior
written consent of the City.
Boething Treeland Farms 5 552
Section 18. HAZARDOUS MATERIALS INDEMNITY
Without limiting Tenant's other obligations of indemnity under this Lease, Tenant
hereby agrees to indemnify and hold harmless City, and its respective officers,
employees and agents, from and against any and all claims, actions, losses, liabilities,
costs and expenses: (a) including, without limitation, all foreseeable and all
unforeseeable consequential damages, directly or indirectly arising out of the use,
generation, storage or disposal of Hazardous Material on the Premises, or arising out of
the presence or use of underground fuel tanks presently located on the Premises; and,
(b) including, without limitation, the cost of any required or necessary repair, cleanup, or
detoxification and the preparation of any closure or other required plans, to the full
extent that such action is attributable, directly or indirectly, to the presence, or use,
generation, storage, release, threatened release, or disposal of Hazardous Materials on
the Premises. As used in this Section, Hazardous Materials means any flammable
explosives, radioactive materials, asbestos, PCBs, hazardous waste, toxic substances
of related materials, including, without limitation, substances defined as "hazardous
substances", "hazardous materials", or "toxic substance" in the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended, 42
USC, Section 9601, et seq.; the Hazardous Materials Transportation Act, 49 USC,
Section 1801, et seq.; the Resource Conservation and Recovery Act, 42 USC, Section
6901, et seq.; the Toxic Substances Control Act, 15 USC, Section 2601, et seq.; any
other Federal, State or local law applicable to the Premises; and in the rules and
regulations adopted or promulgated under or pursuant to any of said laws. The
provisions of this Section shall survive the expiration or earlier termination of this Lease.
Section 19. IRRIGATION EQUIPMENT
Tenant agrees that any and all irrigation pipelines, well pumping equipment, and
other structures, buildings and fixtures appurtenant thereto (hereinafter collectively
referred to as "Irrigation Equipment") located on the Premises at the commencement of
Tenant's occupancy thereof, shall remain upon and be surrendered with the Premises
upon the termination of this Lease or any renewal or extension thereof. Without limiting
the terms of Section 24 of this Lease, in consideration of the privilege of using the
same, Tenant agrees to operate, and to maintain in good condition and repair (including
the making of necessary replacements), at Tenant's sole cost and expense, the
Irrigation Equipment during the continuance of this Lease. Any Irrigation Equipment
placed on the Premises by Tenant, the installation of which is made with the consent of
City, and all irrigation equipment installed by Tenant to replace such equipment located
on said Premises, shall thereupon be and become the property of City and shall remain
upon and be surrendered with the Premises upon the expiration or sooner termination
of the term of this Lease. City makes no representation or warranty of any kind
respecting any Irrigation Equipment located on the Premises.
Boething Treeland Farms 6 553
Section 20. FENCING
Tenant may install fencing on the Premises provided Tenant obtains the prior
written approval of City of the fencing type, height, and location before installation. All
fencing shall be consistent with single-family residential fencing requirements of the
City. No use of barbed wire, razor wire, concertina wire, or similar materials is allowed.
Additionally, Tenant shall not install, operate, or maintain, or cause or permit to be
installed, operated, or maintained any electrically charged fence on the Premises. All
fencing on the Premises is required to be maintained in good condition so as to not
create a public nuisance or dangerous condition of property. Any holes, cut fencing,
protruding wires, or other potentially unsafe conditions are to be repaired as soon as
they are discovered and only using proper fence repair techniques. When the City
notifies the Tenant about a maintenance issue with the fencing, Tenant will be required
to immediately secure the area with proper barricades to ensure worker and public
safety until the repair can be completed. The required fence repair shall be completed
within five (5) days from receipt of the written notice from the City ordering the fence
repair.
Section 21. INDEMNIFICATION AND HOLD HARMLESS
To the fullest extent permitted by law, Tenant shall, at Tenant's sole expense and
with counsel reasonably acceptable to Agency, defend, indemnify, and hold harmless
Agency and Agency's officers, employees, and agents and the City of Moorpark (City)
and City's officers, employees, and agents from and against all claims (including
demands, losses, actions, causes of action, damages, liabilities, expenses, charges,
assessments, fines or penalties of any kind, and costs including consultant and expert
fees, court costs, and attorneys' fees) from any cause, arising out of or relating (directly
or indirectly) to this Lease, the tenancy created under this Lease, or the Premises,
including without limitation:
1. The use of occupancy, or manner of use or occupancy, of the Premises or
Building by the Tenant;
2. Any act, error, omission, or negligence of Tenant or of any subtenant,
invitee, guest, contractor, or licensee of Tenant or any subtenant in, on, or
about the Real Property;
3. Tenant's conducting of its business;
4. Any alterations, activities, work, or things done, omitted, permitted,
allowed, or suffered by Tenant in, at, or about the Premises or Building,
including the violation of or failure to comply with any applicable laws,
statutes, ordinances, standards, rules, regulations, orders, decrees, or
judgments in existence on the Lease Commencement Date or enacted,
promulgated, or issued after the date of this Lease;
5. Any breach or default in performance of any obligation on Tenant's part to
be performed under this Lease, whether before or during the Lease Term
or after its expiration or earlier termination
6. This indemnification extends to and includes, without limitation, claims for:
Boething Treeland Farms 7 554
a. Injury to any persons (including death at any time resulting from
that injury);
b. Loss of, injury or damage to, or destruction of property (including
loss of use at any time resulting from that loss, injury, damage, or
destruction); and
c. All economic losses and consequential or resulting damage or any
kind.
Tenant's indemnification obligation hereunder shall survive the expiration or
earlier termination of this Lease until all claims against Agency involving any of the
indemnified matters are fully, finally, and absolutely barred by the applicable statutes of
limitation. Agency does not and shall not waive any rights that it may have against
Tenant by this Section, because of the acceptance by Agency, or deposit with Agency,
of any insurance policy or certificate required pursuant to this Lease.
Section 22. UTILITIES
Tenant agrees to pay when due all charges and assessments for or in
connection with electric current, gas, water, waste removal and all other utilities which
may be furnished to or used upon the Premises by Tenant during this Lease. It is further
agreed that, in addition to any other rights or remedies available to City, if Tenant shall
fail to pay the above mentioned charges and assessments when due, City shall have
the right to pay the same and charge the amount thereof to Tenant, who agrees to pay
the same on demand, together with interest thereon at the maximum rate allowed by
law.
Section 23. AS-IS LEASE; NO WARRANTIES BY CITY
Tenant has inspected the Premises and is completely satisfied with them, and
Tenant agrees that it has accepted the Premises in their "AS-IS" and "WITH ALL
FAULTS" condition. Tenant agrees that City has made no representation or warranty
whatever respecting (a) the physical or environmental condition of the Premises or any
equipment or property located thereon (including, without limitation, the presence or
absence of Hazardous Materials thereon or therein), (b) the suitability or fitness of the
Premises or any equipment or property located thereon for Tenant's intended use, (c)
the zoning of the Premises or the compliance of the Premises or any equipment or
property located thereon with any applicable laws, rules or regulations of any
governmental authority, and (d) any other matter whatever respecting the Premises or
any equipment or property located thereon whether or not of public record.
Section 24. MAINTENANCE
Throughout the term of this Lease, Tenant shall, at Tenant's sole cost and
expense, keep and maintain the Premises and every part thereof in good order,
condition and repair. Tenant's obligation shall include, without limitation, the making of
all necessary repairs and_ replacements (including, without limitation, repairs and
Boething Treeland Farms 8 555
replacements required by any applicable governmental law, rule or regulation), and
whether ordinary or extraordinary or structural or nonstructural. City shall not be
obligated to repair, replace or maintain the Premises in any manner throughout the term
of this Lease and shall have no obligation to comply with any governmental law, rule or
regulation applicable to the Premises. Neither shall City be obligated to perform any
precautionary or preventative measures with respect to the Premises, including, but not
limited to, drainage and flood control measures. Should City perform any of the
foregoing, such services shall be at the sole discretion of City, and the performance of
such services shall not be construed as an obligation or warranty by City of the future or
ongoing performance of such services.
Section 25. ENTRY BY CITY
City may enter upon the Premises at all reasonable times to examine the
condition thereof, and for the purpose of providing maintenance and making such
repairs as City desires to make.
Section 26. GOVERNING LAW
The existence, validity, construction, operation and effect of this Lease and all of
its terms and provisions shall be determined in accordance with the laws of the State of
California.
Section 27. DISCRIMINATION
Tenant shall not discriminate in employment of persons because of race,
religious creed, color, national origin, ancestry, physical handicap, medical condition,
marital status or gender of such person, except as provided in Section 12940 of the
Government Code. The Tenant shall have responsibility for compliance with this
Section [Labor Code Sec. 1735].
Section 28. ASSIGNMENT AND SUBLETTING
Tenant 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 (the agents and servants of Tenant excepted) to occupy or use the
Premises, or any portion thereof, without the prior written consent of City. A consent to
one assignment, subletting, occupation, or use by another person shall not be deemed
to be a consent to any subsequent assignment, subletting, occupation, or use by
another person. This Lease shall not, or shall any interest therein, be assignable, as to
the interest of Tenant, by operation of law, without the written consent of City. Any
assignment or subletting without City's written consent shall be void, and shall, at the
option of the City, terminate this Lease. No assignment or subletting shall release
Tenant from its obligations under this Lease, as to all of which Tenant shall remain
primarily liable.
Boething Treeland Farms 9 556
Section 29. INSOLVENCY OR BANKRUPTCY
If Tenant shall be adjudged bankrupt or insolvent, this Lease shall thereupon
immediately terminate and the same shall not be assignable by any process of law, or
be treated as an asset of the Tenant under such adjudication, nor shall it pass under the
control of any trustee or assignee by virtue of any process in bankruptcy or insolvency,
or by execution or assignment for the benefit of creditors. If any such event occurs, this
Lease shall immediately become null and void and of no effect, and City may thereupon
repossess said Premises and all rights of the Tenant thereupon shall cease and
terminate.
Section 30. TENANT'S DEFAULT
The following shall constitute a default by Tenant: (a) the failure to pay Rent or
any other monetary sum when due under this Lease where such failure continues for
five (5) days following the giving by City to Tenant of written notice of such failure; (b)
the failure to maintain any of the insurance required to be maintained by Tenant under
this Lease; and (c) the failure to perform any obligation under this Lease (other than as
provided in clauses (a) and (b) above) where such failure continues for a period of thirty
(30) days following the giving by City to Tenant of written notice of such failure,
provided, that if the nature of such failure is such that more than thirty (30) days are
reasonably required for its cure, Tenant shall not be in default if Tenant commences to
cure such failure within such thirty (30) day period and thereafter fully cures such failure
within sixty (60) days following the giving by City to Tenant of written notice of such
failure. If Tenant is in default under this Lease, in addition to any remedies set forth in
this Lease, City shall have all rights and remedies available to it at law and in equity,
including, without limitation, the right forthwith to remove Tenant's personal property
from the Premises at the sole cost, expense and risk of Tenant, which cost and expense
Tenant agrees to pay to City upon demand, together with interest thereon at the
maximum rate allowed by law from the date of expenditure by City. Any such
termination shall not be considered a waiver of damages or other remedies available to
City because of such default. Each term and condition of this Lease to be observed and
performed by Tenant shall be deemed to be both a covenant and a condition.
Section 31. INTERPRETATION OF LEASE
Should interpretation of this Lease, or any portion thereof, be necessary, it is
deemed that this Lease was prepared by the parties jointly and equally, and shall not be
interpreted against either party on the ground that the party prepared the Lease or
caused it to be prepared.
Section 32. WAIVER
A waiver by either party of any default or breach by the other party in the
performance of any of the covenants, terms or conditions of this Lease shall not
constitute or be deemed a waiver of any subsequent or other default or breach.
Boething Treeland Farms 10 557
Section 33. ACQUIESCENCE
No acquiescence, failure or neglect of any party hereto to insist on strict
performance of any or all of the terms hereof in one instance shall be considered or
constitute a waiver of the rights to insist upon strict performance of the terms hereof in
any subsequent instance.
Section 34. PARTIES BOUND AND BENEFITTED
Subject to the terms of Section 28, the covenants and conditions herein
contained shall apply to and bind the heirs, successors, executors, administrators, and
assigns of all the parties hereto. If Tenant consists of more than one person or entity
the liabilities of Tenant shall be joint and several.
Section 35. CONDEMNATION
If the whole of the Premises should be taken by a public authority under the
power of eminent domain, then the term of this Lease shall cease on the day of
possession by the public authority. If a part only of the Premises should be taken under
eminent domain, Tenant shall have the right to either terminate this Lease or to continue
in possession of the remainder of the Premises. If Tenant remains in possession, all of
the terms hereof shall continue in effect, the rental payable being reduced
proportionately for the balance of the Lease term. If a taking under the power of eminent
domain occurs, City shall be entitled to the entire award with respect thereto, except
that Tenant shall be entitled to seek a separate award on account of its personal
property and relocation expenses.
Section 36. REMEDIES
All remedies available to City under this Lease and at law and in equity are
cumulative.
Section 37. ATTORNEYS' FEES
If any action is brought for the interpretation or enforcement of this Lease, the
prevailing party in such action shall be entitled to recover its attorneys' fees and costs of
suit from the losing party, all as determined by the court.
Section 38. RECORDING
City shall record this Lease through the County Recorders Office in accordance
with Government Code 37393.
Boething Treeland Farms 11 558
Section 39. NOTICES AND PAYMENTS
All notices required or permitted under this Lease, including change of address,
must be in writing and addressed to the parties at their respective notice addresses set
forth below; provided, that notices to Tenant may also be effectively given in writing and
addressed to Tenant at the Premises address. Notices must be given by personal
delivery (including by commercial delivery service) or by first-class mail, postage
prepaid. Notices will be deemed effectively given, in the case of personal delivery, upon
receipt (or if receipt is refused, upon attempted delivery), and in the case of mailing,
three (3) business days following deposit into the custody of the United States Postal
Service. The notice addresses for the parties are as follows:
A. All payments and notices to Tenant shall be given or mailed to:
Boething Treeland Farms, Inc.
B.E. Pherson, Jr.
23475 Long Valley Road
Woodland Hills, California 91367
Emergency:
Contact Person: R. A. Ogilvie, Controller
Phone Number: (818) 883-1222
B. All payments and notices to City shall be given or mailed to:
City of Moorpark
City Manager
799 Moorpark Avenue
Moorpark, California 93021
Section 40. PARTIAL INVALIDITY
If any term, covenant, condition or provision of this Lease is found by a court of
competent jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions hereof shall remain in full force and effect and shall in no way be affected,
impaired or invalidated thereby.
Section 41. GENDER AND NUMBER
For the purpose of this Lease, wherever the masculine or neuter form is used,
the same shall include the masculine or feminine, and the singular number shall include
the plural and the plural number shall include the singular, wherever the context so
requires.
Boething Treeland Farms 12 559
Section 42. PARAGRAPH HEADINGS
Paragraph headings in this Lease are for convenience only and are not intended
to be used in interpreting or construing the terms, covenants and conditions of this
Lease.
Section 43. MODIFICATION
No term or provision of this Lease may be amended, modified or waived orally or
by a course of conduct, but only by a writing signed by City and Tenant. Any such
amendment, modification or waiver may be executed by the City Manager on behalf of
City.
Section 44. ENTIRE AGREEMENT
This Lease constitutes the entire agreement between the parties, and
supersedes all previous negotiations and understandings between the parties. There
are no representations, warranties or commitments, oral or written, other than those
expressly set forth herein.
IN WITNESS WHEREOF, the parties have caused this Lease Agreement to be
executed by their duly authorized representative as of the date first written above.
CITY OF MOORPARK BOETHING TREELAND FARMS, INC.
By: By:
Steven Kueny, City Manager B.E. Pherson, Jr.
President and General Counsel
ATTEST:
By:
Maureen Benson, City Clerk
Boething Treeland Farms 13 560
EXHIBIT A
Insurance Requirements
Tenant will maintain insurance in conformance with the requirements set forth below.
Tenant will use existing coverage to comply with these requirements. If that existing
coverage does not meet the requirements set forth here, Tenant agrees to amend,
supplement or endorse the existing coverage to do so. Tenant acknowledges that the
insurance coverage and policy limits set forth in this section constitute the minimum
amount of coverage required. Any insurance proceeds available to CITY in excess of
the limits and coverage required in this agreement and which is applicable to a given
loss, will be available to City.
Tenant shall provide the following types and amounts of insurance:
Commercial General Liability Insurance using Insurance Services Office "Commercial
General Liability" policy form CG 00 01 or the exact equivalent. Defense costs must be
paid in addition to limits. There shall be no cross liability exclusion for claims or suits by
one insured against another. Limits are subject to review but in no event less than
$1,000,000 per occurrence and $2,000,000 in aggregate.
Business Auto Coverage on ISO Business Auto Coverage form CA 00 01 including
symbol 1 (Any Auto) or the exact equivalent. Limits are subject to review, but in no
event to be less than $1,000,000 per accident and $2,000,000 in aggregate. If Tenant
owns no vehicles, this requirement may be satisfied by a non-owned auto endorsement
to the general liability policy described above. If Tenant or Tenant's employees will use
personal autos in any way on this project, Tenant shall provide evidence of personal
auto liability coverage for each such person.
Worker's Compensation on a state-approved policy form providing statutory benefits as
required by law with employer's liability limits no less than $1,000,000 per accident or
disease.
Insurance procured pursuant to these requirements shall be written by insurers that are
admitted carriers in the State of California and with an A.M. Bests rating of A- or better
and a minimum financial size VII.
General conditions pertaining to provision of insurance coverage by Tenant. Tenant and
CITY agree to the following with respect to insurance provided by Tenant:
1. Tenant agrees to have its insurer endorse the third party general liability
coverage required herein to include as additional insureds CITY, its officials,
employees, servants, agents, and independent consultants ("CITY indemnities"),
using standard ISO endorsement No. CG 2011 with an edition prior to 1996.
Tenant also agrees to require all contractors and subcontractors working on the
Premise to do likewise.
Boething Treeland Farms 14 561
2. No liability insurance coverage provided to comply with this Agreement shall
prohibit Tenant, or Tenants agents, from waiving the right of subrogation prior to
a loss. Tenant agrees to waive subrogation rights against CITY regardless of the
applicability of any insurance proceeds, and to require all contractors and
subcontractors to do likewise.
3. All insurance coverage and limits provided by Tenant and available or applicable
to this agreement are intended to apply to the full extent of the policies. Nothing
contained in this Agreement or any other agreement relating to the CITY or its
operations limits the application of such insurance coverage.
4. None of the coverages required herein will be in compliance with these
requirements if they include any limiting endorsement of any kind that has not
been first submitted to CITY and approved of in writing.
5. No liability policy shall contain any provision or definition that would serve to
eliminate so-called "third party action over" claims, including any exclusion for
bodily injury to an employee of the insured or any contractor or subcontractor.
6. All coverage types and limits required are subject to approval, modification, and
additional requirements by the CITY, as the need arises. Tenant shall not make
any reductions in scope of coverage (e.g. elimination of contractual liability or
reduction of discovery period) that may affect CITY'S protection without CITY'S
prior written consent.
7. Proof of compliance with these insurance requirements, consisting of certificates
of insurance evidencing all of the coverages required and an additional insured
endorsement to Tenant's general liability policy, shall be delivered to CITY at or
prior to the execution of this Agreement. In the event such proof of any insurance
is not delivered as required, or in the event such insurance is canceled at any
time and no replacement coverage is provided, CITY has the right, but not the
duty, to obtain any insurance it deems necessary to protect its interests under
this or any other agreement and to pay the premium. Any premium so paid by
CITY shall be charged to and promptly paid by Tenant or deducted from sums
due Tenant, at CITY's option.
8. Certificates are to reflect that the insurer will provide 30 day notice to CITY of any
cancellation of coverage. Tenant agrees to require its insurer to modify such
certificates to delete any exculpatory wording stating that failure of the insurer to
mail written notice of cancellation imposes no obligation, or that any party will
"endeavor" (as opposed to being required) to comply with the requirements of the
certificate.
9. It is acknowledged by the parties of this agreement that all insurance coverage
required to be provided by Tenant, is intended to apply first and on a primary,
Boething Treeland Farms 15 562
non-contributing basis in relation to any other insurance or self-insurance
available to CITY.
10. Tenant agrees to ensure that subcontractors, and any other party entering onto
the Premises, provide the same minimum insurance coverage required of
Tenant. Tenant agrees to monitor and review all such coverage and assumes all
responsibility for ensuring that such coverage is provided in conformity with the
requirements of this section. Tenant agrees that upon request, all agreements
with subcontractors and other parties entering onto the Premises will be
submitted to CITY for review.
11. Tenant agrees not to self-insure or to use any self-insured retention or
deductibles on any portion of the insurance required herein and further agrees
that it will not allow any contractor, subcontractor, or other entity or person
entering onto the Premises to self-insure its obligations to CITY. If Tenant's
existing coverage includes a deductible or self-insured retention, the deductible
or self-insured retention must be declared to the CITY. At that time the CITY shall
review options with the Tenant, which may include reduction or elimination of the
deductible of self-insured retention, substitution of other coverage, or other
solutions.
12. For purposes of applying insurance coverage, only, this Agreement will be
deemed to have been executed immediately upon any party hereto taking any
steps that can be deemed to be in furtherance of or towards performance of this
Agreement.
13. Tenant acknowledges and agrees that any actual or alleged failure on the part of
the CITY to inform Tenant of non-compliance with any insurance requirement in
no way imposes any additional obligations on CITY nor does it waive any rights
hereunder in this or any other regard.
14. Tenant will renew the required coverage annually as long as CITY, or its
employees or agents face an exposure from operations of any type pursuant to
this Agreement. This obligation applies whether or not the Agreement is canceled
or terminated for any reason. Termination of this obligation is not effective until
CITY executes a written statement to that effect.
15. Tenant shall provide proof that policies of insurance required herein expiring
during the term of this Agreement have been renewed or replaced with other
policies providing at least the same coverage. Proof that such coverage has
been ordered shall be submitted prior to expiration. A coverage binder or letter
from Tenant's insurance agent to this effect is acceptable. A certificate of
insurance and/or additional insured endorsement is required in these
specifications applicable to the renewing or new coverage must be provided to
CITY within five days of the expiration of the coverages.
Boething Treeland Farms 16 563
16. The provisions of any workers' compensation or similar act will not limit the
obligations of Tenant under this agreement. Tenant expressly agrees not to use
any statutory immunity defenses under such laws with respect to CITY, its
employees, officials, and agents.
17. Requirements of specific coverage features or limits contained in this section are
not intended as limitations on coverage, limits or other requirements nor as a
waiver of any coverage normally provided by any given policy. Specific reference
to a give coverage feature is for purposes of clarification only as it pertains to a
given issue, and is not intended by any party of insured to be limiting or all-
inclusive.
18. These insurance requirements are intended to be separate and distinct from any
other provision in this agreement and are intended by the parties here to be
interpreted as such.
19. The requirements in this Section supersede all other sections and provisions of
this Agreement to the extent that any other section or provision conflicts with or
impairs the provisions of this Section.
20. Tenant agrees to be responsible for ensuring that no contract used by any party
involved in any way with the project reserves the right to charge CITY or Tenant
for the cost of additional insurance coverage required by this Agreement. Any
such provisions are to be deleted with reference to the CITY. It is not the intent of
CITY to reimburse any third party for the cost of complying with these
requirements. There shall be no recourse against CITY for payment of premiums
or other amounts with respect thereto.
21. Tenant agrees to provide immediate notice to CITY of any claim or loss against
Tenant arising out of the lease of the Premises. CITY assumes no obligation or
liability by such notice, but has the right (but not the duty) to monitor the handling
of any such claim or claims if they are likely to involve CITY.
Boething Treeland Farms 17 564
EXHIBIT B
1 ,• It. jell-, ,, • ,. .• , _ ,,• 1
„e%
o _...*I .... •2
411011LA • ' • ,.. . 1111141 I
. mini
Sk...,‘7.- -''''' 1 iL.___.--- .. .or: ,- -..
1 0.-- • • te. 2 ' — . - .
•
.�1 a it 9111.1 - l -. L `J r . ` rte N.' f ~ - . 'i: I&
T"n
d -- , 11. l
I
r 1 �/�
•
. 41-; -...,. ,N-
VI'
S I y .. i ,,. 4.. Y v
4. tr-.. ' '/.11$3: a. 1 - .. . .,
I -41- .". I\ —
Z i 7" •moi!. V
{
•
A. r �'•
ty \� `.�
i- . '•,
i __._.-. -
..,:. ' ' 40,,‘,04, . ifiro., #,,
,...i., 1'6. -
. ..0 __,__
_.--„„-4r_.__.,______._______:..__,.-- 4...?"4!'. . .,.. . - .'•14‘. 01111 .4,- '1r-,' .71.
?If * ....-:- '1, ''''':iitt Vippre1111111.1111.1 ' e . sv .
Copynght4D1011,Digital Map Products.Microsoft.CountyAppraiser,Tel eAtlas.Customer data • ",,
565