HomeMy WebLinkAboutMonroe Pacific Wholesale Nursery - 2006-06-19I]
Council/Agency Meeting Held: 6411
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Deferred/Continued to:
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Approved ❑ Conditionally Approved ❑ De ied
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Council Meeting Date: 6/19/2006
Departme Number: ED 05-07
CITY OF HUNTINGTON BEACH
REQUEST FOR CITY COUNCIL ACTION
SUBMITTED TO: HONORABLE MAYOR CITY COUNC MEMBERS
SUBMITTED BY: PEN E C BRETH-GRA �,D4PA, CITY ADMINISTRATOR
PREPARED BY: STANLEY SMALEWITZ, DIRECTOR OF ECONOMIC DEVELOPMENT
SUBJECT: APPROVE LEASE AGREEMENT FOR MONROE PACIFIC
WHOLESALE NURSERY
Statement of Issue, Funding Source, Recommended Action, Alternative Action(s), Analysis, Environmental Status, Attachment(s)
Statement of Issue: Should City Council approve a Lease Agreement between Rex and
Larry Gilmore, DBA Monroe Pacific Wholesale Nursery, a California partnership and the
City?
Funding Source: Not applicable.
Recommended Action: Motion to:
1. Approve the Lease between the City of Huntington Beach and Rex & Larry Gilmore,
DBA Monroe Pacific Wholesale Nursery and authorize the Mayor and the City Clerk to
execute the lease.
Alternative Action(s):
1. Do not approve the lease with Rex & Larry Gilmore, DBA Monroe Pacific Wholesale
Nursery; or
2. Approve the lease with Rex & Larry Gilmore, DBA Monroe Pacific Wholesale Nursery
using different terms.
Analysis: The subject site is located off Adams Avenue at the Santa Ana River and has
been under lease to Rex & Larry Gilmore, DBA Monroe Pacific Wholesale Nursery, or their
predecessors, since September 1991 and is operated per the conditions of the conditional
use permit #85-23 dated June 19, 1985, for the 2.9-acre site. Upon expiration of the prior
lease, the City and the Gilmore's reached agreement as to the renewal terms.
The new lease was prepared by the City Attorney, approved as to form, and subsequently
executed by Rex & Larry Gilmore in June 2005.
REQUEST FOR ACTION
MEETING DATE: 6/19/2006 DEPARTMENT ID NUMBER:ED 05-07
Prior to having the new lease approved by the City Council in 2003, issues arose over
compliance with new water quality requirements and the providing of the necessary
insurance per Risk Management policies. It was determined that City Council approval
should be deferred until these issues were addressed; however, the tenant has been
operating under the new lease terms since that time, including paying the new rent.
Water quality requirements as recommended are incorporated into the new lease and the
Planning Department recently completed a review of the current use and find that there have
been no substantial changes to the operation or lease area of the existing nursery and no
further CEQA review is necessary.
The lease provides for a fixed term from October 1, 2002, to September 30, 2007, with two,
five-year extension options. The initial base rent is established at $1,600 per month with an
annual escalation clause.
Environmental Status: Not Applicable
Attachment(s):
G:\Mike\Projects\Monroe Pacific Nursery\Monroe Pacific Wholesale Nursery RCA Lease Approval.doc -2-
6/2/2006 12:11 PM
ATTACHMENT #1 .1
SECTION
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LEASE BETWEEN
THE CITY OF HUNTINGTON BEACH
AND REX GILMORE AND LARRY GILMORE, dba
MONROE PACIFIC WHOLESALE NURSERY
Table of Contents
PAGE
Supersedingof Prior Lease...................................................................................... I
Timeof Essence.......................................................................................................1
Conditionof Property ..............................................................................................1
Reservations, Encumbrances and Rights-of-Way....................................................2
Term.........................................................................................................................3
Rent..........................................................................................................................3
RentEscalator..........................................................................................................3
Additions, Alterations and Removal........................................................................4
City's Contract Administrator....................................................................................4
LateCharge and Penalty..........................................................................................5
Extension..................................................................................................................
5
Termination..........................................................:..................................................5
Removal of Facilities Upon Termination................................................................6
Indemnification, Defense and Hold Harmless Agreement......................................6
Workers' Compensation and Employers' Liability Insurance..................................7
General Public Liability Insurance..........................................................................7
Property Insurance...................................................................................................8
Increase in Amount of General Public Liability and Property Insurance ................9
Certificates of Insurance; Additional Insured Endorsements..................................10
InsuranceHazards....................................................................................................10
Release.....................................................................................................................11
Waste........................................................................................................................11
Maintenance of Property ..........................................................................................11
Controlof Equipment..............................................................................................12
Taxes........................................................................................................................12
Paymentsof Obligations..........................................................................................12
Utilities and Services...............................................................................................13
BusinessLease.........................................................................................................13
Signs, Advertising and Approval of Name..............................................................13
No Assigning, Subleasing or Encumbering.............................................................14
Terms Binding on Successors..................................................................................16
Default......................................................................................................................16
Remedies..................................................................................................................18
CumulativeRemedies..............................................................................................22
Waiverof Default....................................................................................................22
City's Defaults/Lessee's Remedy.............................................................................22
HazardousSubstances..............................................................................................23
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NPDESRequirement...............................................................................................24
Maintenance of Drainage Ditch...............................................................................25
Fences......................................................................................................................25
Consent....................................................................................................................26
Holdover..................................................................................................................26
Waiverof Claims.....................................................................................................26
Inspectionof Property..............................................................................................26
Photography.............................................................................................................27
Nondiscrimination....................................................................................................27
Sale of Alcoholic Beverages and Entertainment Prohibited....................................29
Liens.........................................................................................................................29
Destruction...............................................................................................................29
No Abatement of Rent During Repair Work...........................................................31
EminentDomain......................................................................................................31
Irrigation Systems and Appurtenances....................................................................32
Restoration and Surrender of Property/Title to Improvements................................32
Force Majeure - Unavoidable Delays.......................................................................34
City's Option to Close the Property.........................................................................34
Deliveries of Supplies..............................................................................................35
EmployeeParking....................................................................................................35
Conflictof Interest...................................................................................................35
Notice.......................................................................................................................3
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Compliancewith Laws............................................................................................36
Interpretation of this Lease......................................................................................37
Survival....................................................................................................................37
Modification.............................................................................................................37
SectionHeadings.....................................................................................................37
Brokers.....................................................................................................................38
Independent Contractor............................................................................................38
Attorney's Fees.........................................................................................................38
Legal Services Subcontracting Prohibited...............................................................38
GoverningLaw........................................................................................................39
DuplicateOriginal....................................................................................................39
Entirety.....................................................................................................................39
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LEASE BETWEEN
THE CITY OF HUNTINGTON BEACH
AND REX GILMORE AND LARRY GILMORE, dba
MONROE PACIFIC WHOLESALE NURSERY
THIS Lease (the "Lease") is made and entered into by and between the CITY OF
HUNTINGTON BEACH, a municipal corporation of the State of California ("City") and REX
GILMORE AND LARRY GILMORE, dba MONROE PACIFIC WHOLESALE NURSERY,
("Lessee")
WHEREAS, City wishes to lease certain real property (the "Property"), consisting of
approximately 2.9 acres located at 10449 East Adams Avenue, as depicted in Exhibit A, attached
hereto and incorporated herein by this reference;
Lessee desires to operate the Monroe Pacific Wholesale Nursery ("Nursery) on the
Property; lease the Property in the manner set forth below.
NOW, THEREFORE, the parties covenant and agree as follows:
SECTION 1. SUPERSEDING OF PRIOR LEASE
This Lease shall supersede and replace any existing lease agreement(s) for the Property
currently entered into by and between the parties and all supplemental agreement(s) entered into
by and between the parties regarding the existing lease agreement(s).
SECTION 2. TIME OF ESSENCE
Time shall be of the essence of this Lease and each and all of its terms, covenants or
conditions in which performance is a factor.
SECTION 3. CONDITION OF PROPERTY
The taking of possession of the Property by Lessee shall, in itself, constitute
acknowledgement that the Property, and any facilities, structures, improvements or buildings
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presently located on the Property, (hereinafter collectively referred to as the "Facilities") are in
good and tentantable condition. Upon taking possession of the Property, Lessee agrees to accept
the Property and Facilities, "as is", and agrees that the City shall not be obligated to make any
alterations, additions or betterments thereto.
SECTION 4. RESERVATIONS, ENCUMBRANCES AND RIGHTS -OF -WAY
(a) City expressly reserves all natural resources in, on, or under the Property,
including, without limitation, oil, coal, natural gas and other hydrocarbons,
minerals, aggregates, timber and other geothermal resources, as well as the right
to grant leases or other contractual arrangements in and over the Property for the
extraction of such natural resources. However, such leasing or other arrangement
shall be neither inconsistent nor incompatible with the rights or privileges of
Lessee under this Lease.
(b) City expressly reserves a right to enter upon the Property with as much advance
written, verbal or electronic notice as possible to Lessee for any reason associated
with public health, safety or welfare, or for the protection of life, limb or property.
In all other cases unless otherwise specifically set forth herein, City reserves the
right for such entry but City shall give Lessee at least twenty-four (24) hours
advance written, verbal or electronic notice. City shall have a right of reasonable
access to the Property across Lessee owned, controlled or occupied lands adjacent
to the Property, if any, for any purpose associated with this Lease.
(c) City expressly reserves the right to lease, convey, or encumber the Property, in
whole or in part, for any purpose not inconsistent or incompatible with the rights
or privileges of Lessee under this Lease. In addition, Lessee agrees to subordinate
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the Lease to any existing or future City financing regarding the Property or any
portion thereof. Lessee also agrees to cooperate and provide any documentation
necessary for City to obtain any such financing.
(d) This Lease is subject to pre-existing contracts, leases, licenses, easements,
encumbrances and claims affecting the Property and it is made without warranty
by City of title, condition or fitness of the land for the stated or intended use.
SECTION 5. TERM
The term of this Lease is five (5) years, commencing on October 1, 2002, and shall end at
11:59 p.m. on September 30, 2007, unless extended, or sooner terminated, as provided for
herein.
SECTION 6. RENT
Lessee agrees to pay to City as rent ("Rent") for the use and occupancy of the Property
$1,600.00 per month payable in advance on or before the 1st of each month during the Lease
Term. Lessee shall pay rent to the City at the City Treasurer's office, P. O. Box 711, Huntington
Beach, California 92648 or at such other place or places as City may from time to time designate
by written notice delivered to Lessee in the manner set forth in the "Notices" Section of this
Lease Agreement.
SECTION 7. RENT ESCALATOR
Rent shall be subject to an annual escalator beginning on October 1, 2003 such that each
year of the Lease term and any authorized extensions in accordance with Section 11 authorized
by the "Term" Section above such that the Rent will be increased by the percentage increase
which occurred in the Consumer Price Index as published by the United States Department of
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Labor Statistics for all consumers for the Los Angeles, Anaheim, Riverside Metropolitan
Statistical Area during the preceding twelve (12) month period, or 5 % whichever is greater.
SECTION 8. ADDITIONS. ALTERATIONS AND REMOVAL
(a) No modifications, alterations or additions to the Property, including, without
limitation, construction of Improvements or changes to structural design,
landscape design, or interior or exterior furnishings, shall be constructed or made
by Lessee without Lessee first obtaining the prior written approval of City, which
will not be unreasonably withheld.
(b) Except as provided under this Lease, no alteration or removal of existing
Facilities on or natural features of the Property shall be undertaken without Lessee
first obtaining the prior written approval of City.
(c) Lessee's obligation to obtain City's prior written approval is separate and
independent of Lessee's obligation to obtain any permits from City, such as,
without limitation, a building permit.
SECTION 9. CITY'S CONTRACT ADMINISTRATOR
City's Director of Economic Development, or his or her designee, shall be City's
Contract Administrator for this Lease with the authority to act on behalf of City for the purposes
of this Lease, and all City approvals and notices required to be given herein to City shall be so
directed and addressed.
SECTION 10. LATE CHARGE AND PENALTY
If the Rent is not received by the City Treasurer by the loth of each month for which the
Rent is being paid, or the next business day if the 1 Oth day falls on a weekend or holiday, Lessee
shall pay the following late charge and penalty: (1) a late charge of ten percent (10%) shall be
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applied to any outstanding balance after any payment hereunder is due but unpaid; and (2) one
and a half percent (1 '/z%) penalty per month shall be added for each month the Rent is due but
unpaid. With respect to any other payments required by Lessee, a one and a half percent (1 '/2%)
penalty per month shall be added for each month such payment hereunder is due but unpaid.
SECTION 11. EXTENSION
This Lease Agreement may be extended for up to two separate successive terms of five
(5) years each, with each five (5) year term commencing on the expiration of the prior term.
Written notice of Lessee's request to extend each term must be provided to the Director of
Economic Development of City for approval no fewer than six (6) months prior to the expiration
of the then current Lease term, or extension thereof. The Director of Economic Development
will decide whether Lessee's request for each extension will be granted or denied, and will notify
Lessee of his decision no later than 45 days after receiving the request for extension. If the
request for an extension is denied, this Lease will automatically terminate at the end of its current
term. If the request for an extension is granted, this Lease will automatically be extended for an
additional five year period.
SECTION 12. TERMINATION
This Lease Agreement may be terminated by either parry without cause on ninety (90)
days written notice delivered to the other party to this Lease Agreement in the manner set forth
in the "Notices" Section of this Lease Agreement.
SECTION 13. REMOVAL OF FACILITIES UPON TERMINATION
Except as otherwise set forth in Section 53 herein, upon termination of this Lease, Lessee
will remove all Facilities on the Property and restore the Property to its natural condition to the
satisfaction of, and at no cost to, the City.
06agree/monroelease-06 5
SECTION 14. INDEMNIFICATION, DEFENSE AND HOLD HARMLESS Agreement
Lessee hereby agrees to protect, defend, indemnify and hold harmless City, its officers,
elected or appointed officials, employees, agents and volunteers from and against any and all
claims, damages, losses, expenses, judgments, demands and defense costs (including, without
limitation, costs and fees of litigation (including arbitration) of every nature or liability of any
kind or nature) arising out of or in connection with (1) the use or occupancy of the Property or
Facilities by Lessee, its officers, employees or agents, or (2) the death or injury of any person or
the damage to property caused by a condition of the Property, (3) operation of the Nursery; or (4)
the death or injury of any person or the damage to property caused by any act or omission of
Lessee, its officers, employees or agents, or (5) any failure by Lessee to keep the Property in a
safe condition, or (6) Lessee's (or Lessee's agents and/or sublessees, if any) performance of this
Lease or its failure to comply with any of its obligations contained in this Lease by Lessee, its
officers, agents or employees except such loss or damage which was caused by the sole
negligence or willful misconduct of City. Lessee shall hold all personal property or trade
inventory on the Property at the sole risk of Lessee and save City harmless from any loss or
damage thereto by any cause whatsoever, except such loss or damage which was caused by the
sole negligence or willful misconduct of City. City shall be reimbursed by Lessee for all costs
and attorney's fees incurred by City in enforcing Lessee's obligations set forth in this Section.
Lessee will conduct all defense at its sole cost and expense and City shall approve selection of
Lessee's counsel. This indemnity shall apply to all claims and liability regardless of whether any
insurance policies are applicable. The policy limits do not act as limitation upon the amount of
indemnification to be provided by Lessee.
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SECTION 15. WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY
INSURANCE
Lessee acknowledges awareness of Section 3700 et seq. of the California Labor Code,
which requires every employer to be insured against liability for workers' compensation. Lessee
covenants that it shall comply with such provisions prior to the commencement of this Lease.
Lessee shall obtain and furnish to City workers' compensation and employers' liability insurance
in amounts not less than the State statutory limits. Lessee shall require all contractors to provide
such workers' compensation and employers' liability insurance for all of the sublessees' and
contractors' employees. Lessee shall furnish to City a certificate of waiver of subrogation under
the terms of the workers' compensation and employers' liability insurance and Lessee shall
similarly require all contractors to waive subrogation.
SECTION 16. GENERAL PUBLIC LIABILITY INSURANCE
In addition to the workers' compensation and employers' liability insurance and Lessee's
covenant to defend, hold harmless and indemnify City, Lessee shall obtain and furnish to City, a
policy of general public liability insurance, including motor vehicle coverage against any and all
claims arising out of or in connection with the Property or Facilities. This policy shall indemnify
Lessee, its officers, employees and agents, while acting within the scope of their duties, against
any and all claims arising out of or in connection with the Property or Faculties, and shall
provide coverage in not less than the following amount: combined single limit bodily injury and
property damage, including products/completed operations liability and blanket contractual
liability, of One Million Dollars ($1,000,000.00) per occurrence. If coverage is provided under a
form which includes a designated general aggregate limit, the aggregate limit must be no less
than One Million Dollars ($1,000,000.00) for the Property. This policy shall name City, its
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officers, elected or appointed officials, employees, agents, and volunteers as Additional Insureds,
and shall specifically provide that any other insurance coverage which may be applicable to the
Lease shall be deemed excess coverage and that Lessee's insurance shall be primary.
Under no circumstances shall said above -mentioned insurance contain a self -insured
retention, or a "deductible" or any other similar form of limitation on the required coverage.
SECTION 17. PROPERTY INSURANCE
Lessee shall provide before commencement of this Lease and shall obtain and furnish to
City, at Lessee's sole cost and expense, property and fire insurance with extended coverage
endorsements thereon, by a company acceptable to City authorized to conduct insurance business
in California, in an amount insuring for the full insurable value of all Improvements, personal
property whether or not owned or leased by Lessee, and all trade inventory in or on the Property
against damage or destruction by fire, theft or the elements. This policy shall contain a full
replacement cost endorsement naming Lessee as the insured and shall not contain a coinsurance
penalty provision. The policy shall also contain an endorsement naming City as an Additional
Insured. The policy shall contain a special endorsement that such proceeds shall be used to
repair, rebuild or replace any such Improvements, personal property whether or not owned or
leased by Lessee, and all trade inventory so damaged or destroyed; and if not so used, such
proceeds (excluding any insurance proceeds for personal property whether or not owned or
leased by Lessee, and trade inventory, but only to the extent the insurance proceeds specifically
cover those items) shall be paid to City. The policy shall also contain a special endorsement that
if the Property is so destroyed triggering the parties' ability to terminate as set forth herein, and
either party elects to terminate the Lease, the entire amount of any insurance proceeds (excluding
such proceeds for personal property whether or not owned or leased by Lessee and trade
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inventory, but only to the extent the insurance proceeds specifically cover those items) shall be
paid to City. The proceeds of any such insurance payable to City may be used, in the sole
discretion of City, for rebuilding or repair as necessary to restore the Property or for any such
other purpose(s) as City sees fit.
This policy shall also contain the following endorsements:
(a) The insurer shall not cancel or reduce the insured's coverage without (30)
days prior written notice to City;
(b) City shall not be responsible for premiums or assessments on the policy.
A complete and signed certificate of insurance with all endorsements required by this
Section shall be filed with City prior to the execution of this Lease. At least thirty (30) days
prior to the expiration or termination of any such policy, a signed and complete certificate of
insurance showing that coverage has been renewed shall be filed with City.
SECTION 18. INCREASE IN AMOUNT OF GENERAL PUBLIC LIABILITY
AND PROPERTY INSURANCE
Not more frequently than once every two (2) years, if, in the sole opinion of City, the
amount and/or scope of general public liability insurance and/or property insurance coverage in
the "General Public Liability Insurance" and "Property Insurance" Sections hereof, at that time is
not adequate, Lessee shall increase the insurance coverage as reasonably required by City.
SECTION 19. CERTIFICATES OF INSURANCE; ADDITIONAL INSURED
ENDORSEMENTS
Prior to commencement of this Lease, Lessee shall furnish to City certificates of
insurance subject to approval of the City Attorney evidencing the foregoing insurance coverages
as required by this Lease; these certificates shall:
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(a) provide the name and policy number of each carrier and policy;
(b) shall state that the policy is currently in force; and
(c) shall promise to provide that such policies shall not be canceled or modified
without thirty (30) days' prior written notice of City; however ten (10) days' prior
written notice in the event of cancellation for nonpayment of premium, which 10-
day notice provision shall not apply to property insurance in "Property Insurance"
Section hereof.
Lessee shall maintain the foregoing insurance coverages in force during the entire term of
the Lease or any renewals or extensions thereof or during any holdover period.
The requirement for carrying the foregoing insurance coverages shall not derogate from
Lessee's defense, hold harmless and indemnification obligations as set forth in this Lease. City
or its representatives shall at all times have the right to demand the original or a copy of any or
all the policies of insurance. Lessee shall pay, in a prompt and timely manner, the premiums on
all insurance hereinabove required.
SECTION 20. INSURANCE HAZARDS
Lessee shall not commit or permit the commission of any acts on the Property nor use or
permit the use of the Property in any manner that will increase the existing rates for, or cause the
cancellation of any liability, property, or other insurance policy for the Property or required by
this Lease. Lessee shall, at its sole cost and expense, comply with all requirements of any
insurance carrier providing any insurance policy for the Property or required by this Lease
necessary for the continued maintenance of these policies at reasonable rates.
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SECTION 21. RELEASE
Lessee hereby releases and forever discharges City of and from any and all claims,
demands, actions or causes of action whatsoever which Lessee may have, or may hereafter have,
against the City specifically arising out of the matter of the entry of Lessee onto the Property or
the operation of the Facilities. This is a complete and final release and shall be binding upon
Lessee and the heirs, executors, administrators, successors and assigns of Lessee's use of the
Property and Facilities under this Lease Agreement. Lessee hereby expressly waives any rights
under or benefit of any law of any jurisdiction whatsoever providing to the contrary. Neither the
acceptance of this Release nor any payment made hereunder shall constitute any admission of
any liability of City.
SECTION 22. WASTE
Lessee shall not alter, damage or commit any kind of waste upon the Property of
Facilities or any improvement, equipment or personal property thereon and shall not interfere in
any manner with the operations or activities of City. Lessee shall not cause any workmen's or
materialmen's liens to be placed upon the Property or Facilities and agrees to indemnify and hold
City harmless against any such liens including but not limited to the payment of attorneys' fees.
SECTION 23. MAINTENANCE OF PROPERTY
Lessee agrees to care for and maintain the Property, at Lessee's sole cost and expense,
during the entire term of this Lease Agreement or any extension thereof, in good and satisfactory
condition as acceptable to the City. In the event Lessee does not maintain the Property in a
satisfactory manner, Lessee authorizes City to perform such maintenance on Lessee's behalf.
All costs incurred performing said maintenance shall be assessed to and billed directly to the
Lessee. Lessee agrees to pay such costs within ten (10) days of billing.
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SECTION 24. CONTROL OF EQUIPMENT
Lessee shall keep any equipment used or brought onto the Property for the purposes of
operating the nursery or maintaining the Facilities under its absolute and complete control at all
times and said equipment shall be used on the Property at the sole risk of Lessee.
SECTION 25. TAXES
This Lease may create a possessory interest in property, which is subject to taxation. In
the event that such possessory interest is created, Lessee agrees to be subject to the payment of
and to pay taxes levied on such interest, at its sole cost and expense. Lessee also agrees to pay,
at its sole cost and expense, before they become delinquent all other lawful taxes, assessments or
charges, which at any time may be levied by any governmental agency including, without
limitation, the State, County, City or any tax or assessment levying body upon any interest in this
Lease, or any possessory right which Lessee may have in or to the Property, by reason of
Lessee's use or occupancy thereof or otherwise, as well as all taxes, assessments, and charges on
personal property and trade inventory in, on, or about the Property. Upon request, Lessee shall
promptly furnish to City satisfactory evidence establishing such payment. Lessee shall comply
with all laws, regulations and ordinances regarding the collection of taxes due a government
agency.
SECTION 26. PAYMENT OF OBLIGATIONS
Lessee shall promptly pay, at its sole cost and expense, before they become delinquent,
any and all bills, debts, liabilities and obligations incurred by Lessee in connection with Lessee's
occupation and use of the Property and/or operation of the Facilities. Upon request, Lessee shall
promptly furnish to City satisfactory evidence establishing such payment.
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SECTION 27. UTILITIES AND SERVICES
Excluding any attached public restrooms, if they exist, Lessee shall be responsible for the
payment of all utility charges, including, without limitation, gas, electricity, water, telephone
service, cable TV service, and the furnishing of all necessary refuse and garbage containers and
the removal and disposal of all rubbish, refuse and garbage resulting from the operation of the
Property and/or the Facilities. All such rubbish, refuse and garbage removed shall be disposed of
in accordance with applicable laws and local ordinances. All trash containers and/or trash bins
shall be adequately screened and located to the satisfaction of City. For the purposes of this
Section, sewage disposal shall be construed as a utility. All such charges shall be paid by Lessee
directly to the provider of the service and shall be paid as they become due and payable. Upon
request, Lessee shall promptly furnish to City satisfactory evidence establishing such payment.
SECTION 28. BUSINESS LICENSE
Lessee shall maintain a business license from City during the entire term of this Lease or
any renewals or extensions thereof or during any holdover period.
SECTION 29. SIGNS, ADVERTISING AND APPROVAL OF NAME
City shall have the right to approve in its sole discretion and at any time require Lessee to
change or remove signs, names, placards, decorations or advertising placed on, or inscribed,
painted or affixed upon the Property. Should City approve of any sign, name, placard,
decoration or advertising, Lessee shall maintain the same at all times during the entire term of
this Lease or any renewals or extensions thereof or during any holdover period in good
appearance and repair. All signs, names, placards, decorations or advertising must comply with
all requirements of any governmental authority with jurisdiction.
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SECTION 30. NO ASSIGNING, SUBLEASING OR ENCUMBERING
(a) Prohibition of Assignment. The parties acknowledge that City is entering into
the Lease in reliance upon the experience and abilities of Lessee and its
principals. Consequently, Lessee shall not voluntarily assign, encumber or
otherwise transfer its interest in the Lease or in the Property, or sublease all or any
part of the Property, or allow any other person or entity (except Lessee's
authorized representatives) to occupy or use all or any part of the Property
without the prior written consent of the Director of Economic Development,
which consent may be conditioned on renegotiation of the terms and conditions of
this Agreement in the sole and absolute discretion of the City. However, that
City's consent shall not relieve Lessee from any and all of its obligations,
liabilities, duties or responsibilities under this Lease. Any assignment,
encumbrance, occupation or use, sublease or other transfer without such consent
shall be voidable and, at City's sole discretion, shall constitute a Default of this
Lease.
(b) Consent to Transfer. City's consent to any assignment, encumbrance, occupation
or use, sublease or other transfer is subject to Lessee providing City with evidence
satisfactory to City that the proposed, assignee, encumbrancer, occupier or user,
sublessee or other transferee has suitable financial strength, experience and
character for operation and control of the Property and the Facilities and that the
use of the Property by the proposed assignee, encumbrancer, occupier or user,
sublessee or other transferee is consistent with that specified herein, and is
commercially reasonable. Any proposed assignee, encumbrancer, occupier or
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user, sublessee or other transferee shall agree to abide by the terms and conditions
of the Lease including, without limitation, all the obligations, liabilities, duties
and responsibilities of Lessee, and other conditions imposed upon it pursuant to
law. An approval by City to one assignment, encumbrance, occupation or use,
sublease or other transfer shall not be deemed to be an approval to any other
assignment, encumbrance, occupation or use, sublease or other transfer.
(c) Voluntary assignment defined. Except as otherwise expressly provided herein,
any dissolution, merger, consolidation or reorganization of Lessee, or the sale or
other transfer resulting in a transfer of a controlling percentage of the capital stock
of Lessee (other than a transfer by will, devise, bequest, intestate succession, a
transfer to or between the family members of Lessee, or a transfer to or between
one or more trusts for the benefit of Lessee and/or Lessee's family members,
where applicable) shall be deemed a voluntary assignment.
(d) Exceptions. Notwithstanding the foregoing paragraphs or anything to the
contrary contained herein, City's consent shall not be required for an assignment
or subleasing to an Affiliate, Subsidiary or Successor of Lessee (for purposes
hereof, an "Affiliate," a "Subsidiary" and a "Successor" of Lessee are defined as
follows: (a) an "Affiliate" is any corporation which directly or indirectly controls
or is controlled or is under common control with Lessee (for this purpose,
"control" shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of such corporation,
whether through the ownership of voting securities or by contract or otherwise),
(b) a "Subsidiary" shall mean any corporation or partnership not less than twenty-
06agree/monroe lease-06 15
five percent (25%) of whose outstanding stock shall, at the time, be owned
directly or indirectly by Lessee and which is at least as creditworthy as Lessee,
and (c) a "Successor" shall mean a corporation or partnership in which or with
which Lessee is merged or consolidated, in accordance with applicable statutory
provisions for merger or consolidation of corporations, or a corporation or
partnership acquiring a substantial portion of the property and assets of Lessee.
SECTION 31. TERMS BINDING ON SUCCESSORS
All the terms, covenants and conditions of this Lease shall inure t6 the benefit of and be
binding upon the parties and their successors, including, without limitation, their assignees,
encumbrancers, occupiers or users, sublessees or other transferees. The provisions of this
Section shall not be deemed as a (1) waiver of any of the prohibitions and conditions against
assignments, encumbrances, occupations or uses, subleases or other transfers hereinbefore set
forth, or (2) City's consent thereto. If more than one lessee is a party to this Lease, the
obligations of the lessees shall be joint and several. Even if City's consent is not required,
Lessee shall immediately provide City with written notice of any, assignment, encumbrance,
occupation or use, sublease or other transfer.
SECTION 32. DEFAULT
The occurrence of any one or more of the following events shall constitute a material
default and breach ("Default") of this Lease by Lessee:
(a) Lessee's failure to make any payment of the Rent or other payment required to be
made by Lessee at the time required for payment under this Lease.
(b) Lessee's failure to obtain or maintain the insurances and/or the security deposit as
required under this Lease.
06agree/monroe lease-06 16
(c) Lessee's vacating or abandonment of the Property during the entire term of this
Lease or any renewals or extensions thereof or during any holdover period.
Closure of the Facilities for more than a combined total of one hundred eighty
(180) days in a calendar year, minus any days of closure of the Facilities caused
by City, shall be deemed an abandonment of the Property.
(d) Lessee's violation of the "Indemnification, Defense and Hold Harmless
Agreement", "No Assigning, Subleasing or Encumbering", "Hazardous
Substances", "Nondiscrimination", "Sale of Alcoholic Beverages and
Entertainment Prohibited", "Conflict of Interest" or Compliance with Laws"
Sections of this Lease Agreement.
(e) The insolvency of Lessee as evidenced by a receiver being appointed to take
possession of all or substantially all of Lessee's assets located at or on the
Property or of Lessee's interest in this Lease, or the making by Lessee of a
general arrangement or assignment for the benefit of creditors, or Lessee's filing a
petition in bankruptcy, whether voluntary or involuntary, or the attachment,
execution or the judicial seizure of substantially all of Lessee's assets located at or
on the Property or of Lessee's interest in the Lease.
(f) Lessee's failure to observe or perform any other term, covenant, obligation, duty,
responsibility or condition of this Lease to be observed or performed by Lessee
when such failure shall continue for a period of thirty (30) days after City's giving
written notice to Lessee, or such earlier period if specifically set forth in this
Lease; however, if the nature of such failure is such that more than thirty, (30)
days are reasonably required for its cure, then Lessee shall not be deemed to be in
06agree/monroe lease-06 17
Default if Lessee notifies City of the length of the additional time required to cure
and receives City's written approval of the additional time required, which
approval will not be unreasonably withheld, and commences such cure within
such thirty (30) day period and diligently proceeds with such cure to completion
during such additional time period approved by City.
SECTION 33. REMEDIES
(a) Cumulative Nature of Remedies. In the event of any Default by Lessee, City
shall have the remedies described in this Section in addition to all other rights and
remedies provided by law or equity, to which City may resort cumulatively or in
the alternative:
(1) Reentry without Termination. City may at City's sole discretion reenter
the Property, and, without terminating the Lease, at any time and from
time to time relet the Property or any part or parts of them for the account
and in the name of Lessee or otherwise. Any reletting may be for the
remainder of the term or for a longer or shorter period. City may in City's
sole discretion eject all persons or eject some and not others or eject none.
In addition, City may in its sole discretion remove some or all of the
personal property and trade inventory from the Property. City may store
such removed personal property and trade inventory in a public warehouse
or other location at the sole cost, expense and risk of Lessee, and for the
account of and in the name of Lessee. City shall apply all rents from
reletting as follows: first, to the payment of reasonable expenses
(including brokers' commissions) paid or incurred by or on behalf of City
06agree/monroelease-06 18
in recovering possession, placing the Property in good condition, and
preparing or altering the Property for reletting; second, to the reasonable
expense of securing new subtenants; third, to the fulfillment of Lessee's
covenants to the end of the term. City may execute any leases or
subleases made under this provision either in City's name or in Lessee's
name and City shall be entitled to all rents from the use, operation or
occupancy of the Property. Lessee shall nevertheless pay to City on the
dates specified in this Lease the equivalent of all sums required of Lessee
under this Lease, plus City's expenses, less the proceeds of any reletting or
attornment.
(2) Termination. In the event of a Default by Lessee, City may at City's
sole discretion terminate this Lease by giving Lessee written notice of
termination. In the event City terminates this Lease, City may recover
possession of the Property (which Lessee shall immediately surrender and
vacate upon demand) and remove all persons therefrom, and Lessee shall
comply with, without limitation, Sections 53 and 54 below. City also shall
be entitled to recover as damages all of the following:
(A) The worth at the time of the award of any unpaid Rent or other
charges which have been earned at the time of termination;
(B) The worth at the time of the award of the amount by which the
unpaid Rent and other charges which would have been earned after
termination until the time of the award exceeds the amount of the
06agree/monroe lease-06 19
loss of such rental and other charges that Lessee proves could have
been reasonably avoided;
(C) The worth at the time of the award of the amount by which the
unpaid Rent and other charges for the balance of the term after the
time of the award exceeds the amount of the loss of such rental and
other charges that Lessee proves could have been reasonably
avoided;
(D) Any other amount necessary to compensate City for the detriment
proximately caused by Lessee's failure to perform its obligations,
liabilities, duties or responsibilities under this Lease; and
(E) At City's sole discretion, such other amounts in addition to or in
lieu of the foregoing as may be permitted from time to time by
applicable California law.
As used in "Remedies" Section hereof, subsections (a)(2)(A) and (B), the "worth
at the time of the award" shall be computed by allowing interest at the rate of twelve
percent (12%) per annum. As used in "Remedies" Section hereof, subsection
37(a)(2)(C), the "worth at the time of the award" shall be computed by discounting such
amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of
the award, plus one percent (1%). The amount recoverable by City pursuant to the
"Remedies" Section, subsection (a)(2)(D) above shall include, without limitation, any
costs or expenses incurred by City in maintaining or preserving the Property after such
Default.
06agree/monroe lease-06 20
(3) Use of Personal Property. City may at City's sole discretion use the,
personal property and/or trade inventory located on, about or appurtenant
to the Property without compensation and without liability for use or
damage, or store them in a public warehouse or other location at the sole
cost, expense and risk of Lessee, and for the account of and in the name of
Lessee.
(b) Election of Remedy. The election of one remedy for any one item shall not
(c)
(d)
foreclose an election of any other remedy for another item or for the same item at
a later time.
City's Right to Cure Lessee's Default. Upon continuance of any Default, City
may in its sole discretion, but is not obligated to, cure such Default at Lessee's
sole cost and expense. If City at any time, by reason of such Default by Lessee,
pays any sum or does any act, the sum paid by City plus the reasonable cost of
performing such act, together with a penalty thereon at the penalty rate set forth in
the "Late Charge and Penalty" Section hereof from the date the costs were
incurred or the act performed by City to the date they are reimbursed to City by
Lessee, shall be due as additional rent not later than five (5) days after service of a
written demand therefor on Lessee, including reasonably detailed documentation
of the amount owed. No such payment or act shall constitute a waiver of Default
or of any remedy for Default or render City liable for any loss or damage resulting
from any such act.
Waiver of Rights. Lessee hereby waives any right of redemption or relief
from forfeiture under California Code of Civil Procedure Sections 1174 or 1179,
06agree/monroelease-06 21
or under any other present or future law, in the event Lessee is evicted or City
takes possession of the Property by reason of any Default by Lessee hereunder.
(e) Other Rights of City. No act of City, including, without limitation, City's entry
on the Property, efforts to relet the Property, or maintenance of the Property, shall
be construed as an election to terminate this Lease unless a written notice of such
intention is given to Lessee by City or unless the termination thereof is decreed by
a court of competent jurisdiction. Notwithstanding if City elects to continue the
Lease in full force and effect after a Default by Lessee and to relet the Property,
City may at any time after such reletting elect to terminate this Lease for any such
Default.
SECTION 34. CUMULATIVE REMEDIES
The remedies given to City in this Lease shall not be exclusive but shall be cumulative
and in addition to all remedies now or hereafter allowed by law or elsewhere provided in this
Lease. City shall have the right to exercise any other right or remedy which City may have at
law or in equity including, without limitation, City's rights under the unlawful detainer laws.
SECTION 35. WAIVER OF DEFAUL
The waiver by City of any Default by Lessee of any of the provisions of this Lease shall
not constitute a continuing waiver or a waiver of any subsequent Default by Lessee either of the
same or another provision of this Lease.
SECTION 36. CITY'S DEFAULTS/LESSEE'S REMEDY
In the event City fails to perform any material obligation of City under the Lease within
ninety (90) days after receiving written notice from Lessee specifying the nature of such default,
or, if the nature of City's obligation is such that more than ninety (90) days are required for its
06agree/monroe lease-06 22
performance, if City fails to commence such performance within such ninety (90) day period and
thereafter diligently prosecute the same to completion, then City shall be in default of this
obligation. If City's default materially interferes with Lessee's use of the Property for its
intended purpose, Lessee shall have the option to terminate the Lease by giving City at least
sixty (60) days' written notice of its intent to terminate. In such a situation, Lessee must still
comply with all of its obligations, liabilities, duties and responsibilities under the Lease,
including, without limitation, paying any Rent due up to the time of termination and surrendering
the Property pursuant to Sections 53 and 54 below. This remedy of termination is Lessee's sole
and exclusive remedy for a default by City.
SECTION 37. HAZARDOUS SUBSTANCES
Lessee represents and warrants that its use of the Property or operation or maintenance of
the Facilities shall not generate any Hazardous Substance (as defined below in this Section), and
that Lessee shall not store or dispose on the Property nor transport to or over the Property any
Hazardous Substance during the entire term of this Lease Agreement or any extensions thereof.
The foregoing restrictions shall not be deemed to restrict or prohibit the use by Lessee of
ordinary products as customarily used in Lessee's ordinary course of operation of the Nursery, or
cleaning products as customarily used in Lessee's ordinary course of maintenance of the
Facilities, provided that Lessee complies with all applicable provisions of federal and state laws
and rules and regulations thereto pertaining to the use, storage and disposal of such Hazardous
Substances or cleaning products. Lessee further agrees to clean up and remediate any such
Hazardous Substance on the Property, and agrees to protect, defend, indemnify and hold
harmless City, its officers, elected or appointed officials, employees, agents and volunteers from
and against any and all claims, damages, losses, expenses, judgments, demands and defense costs
06agree/monroe lease-06 23
(including, without limitation, costs and fees of litigation (including arbitration) of every nature
or liability of any kind or nature) arising out of or in connection with any Hazardous Substance
and any damage, loss, or expense or liability resulting from any Hazardous Substance including,
without limitation, all attorney's fees, costs and penalties incurred as a result thereof except any
release caused by the sole negligence or willful misconduct of City. City shall be reimbursed by
Lessee for all costs and attorney's fees incurred by City in enforcing Lessee's obligations set
forth in this Section. Lessee will conduct all defense at its sole cost and expense and City shall
approve selection of Lessee's counsel. This indemnity shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act as
limitation upon the amount of indemnification to be provided by Lessee. "Hazardous substance"
shall be interpreted broadly to mean any substance or material defined or designated as a
hazardous or toxic waste, hazardous or toxic material, hazardous or toxic or radioactive
substance, or other similar term, by any Federal, State or local environmental law, regulation or
rule presently in effect or promulgated in the future, as such law, regulation or rule may be
amended from time to time; and it shall be interpreted to include, without limitation, any
substance which after release into the environment will or may reasonably be anticipated to
cause sickness, death or disease.
SECTION 38. NATIONAL POLLUTANT DISCHARGE ELIMINATION SYSTEM
("NPDES") REQUIREMENT
In accordance with NPDES requirements, as promulgated by the United States
Environmental Protection Agency, a Water Quality Management Plan (WQMP) for the Property
must be maintained and updated by the Lessee as necessary. Non-stormwater discharges from
the Nursery and Property are prohibited. Within 45 days of City Council approval of the Lease
06agree/monroe lease-06 24
Agreement, Lessee shall submit to the Public Works Department an updated WQMP prepared by
a civil or environmental engineer licensed by the State of California. The updated WQMP shall
demonstrate the drainage trenches and detention basins have the capacity to detain the 85th
percentile storm event, or the first .7 inches of rainfall for every storm event (calculations must
be submitted).
The updated WQMP shall also update and/or revise the Best Management Practices
(`BMP") currently implemented for the sediment track -off concern. Use of crushed rock on the
driveway approach is not adequate, and the Lessee is required to propose and implement a new
BMP. It is the responsibility of the Lessee to maintain and implement all BMPs as indicated in
the WQMP, failure to maintain and implement all BMPs could result in Lease Termination in
addition to all federal, state, and local regulatory proceedings available under law.
Lessor hereby reserves the right to modify this Section 38 as may be necessary and/or
required to comply with federal, state, and local laws, regulations, and administrative orders and
permits.
SECTION 39. MAINTENANCE OF DRAINAGE DITCH
Lessee agrees to clean, keep clear, and maintain the drainage ditch running roughly
parallel to and west of the eastern property line of the Property at Lessee's own expense, and in
the event Lessee shall fail to perform the acts set forth in this section, City may at its option, do
such as at the expense of Lessee, which expense Lessee agrees to pay City upon demand.
SECTION 40. FENCES
City shall have the right, at its option, to fence the Property, or any portion thereof, in
which event it shall provide one or more suitable gates to afford Lessee access to the egress from
the Property. Should Lessee desire to install any fence on the Property, Lessee shall obtain the
06agree/monroe lease-06 25
prior written approval of City thereto,. Lessee's obligation to obtain City's prior written approval
is separate and independent of Lessee's obligation to obtain any permits from City, such as,
without limitation, a building permit. Notwithstanding the above, Lessee shall not install,
operate, maintain, cause or permit to be installed, operated or maintained any electrically charged
fence on the Property.
SECTION 41. CONSENT
When City's consent/approval is required under this Lease, its consent/approval for one
transaction or event shall not be deemed to be a consent/approval to any subsequent occurrence
of the same or any other transaction or event.
SECTION 42. HOLDOVER
Should Lessee hold over and continue in possession of the Property after expiration or
termination of this Lease, with or without the express prior written consent of City, Lessee's
continued occupancy of the Property shall constitute a month -to -month tenancy, subject to all the
terms and conditions of this Lease, at a monthly rent of one hundred ten percent (110%) of the
previous calendar year's annual Rent divided by twelve (12) (or the average monthly Rent for all
months Lessee owned/operated the Facilities if Lessee has owned/operated the Facilities for less
than one (1) year) or that month's actual Rent, whichever is greater, and shall not constitute a
renewal or extension of the Lease term.
SECTION 43. WAIVER OF CLAIMS
Lessee hereby waives any claim against City, its officers, elected or appointed officials,
employees, agents or volunteers for damage or loss caused by any suit or proceeding directly or
indirectly attacking the validity of this Lease, or any part thereof, or caused by any judgment or
06agree/monroe lease-06 26
award in any suit or proceeding declaring this Lease null, void or voidable, or delaying the Lease
or any part thereof from being carried out.
SECTION 44. INSPECTION OF PROPERTY
Upon at least twenty-four (24) hours advance written, verbal or electronic notice given by
City to Lessee, Lessee shall permit City or City's agents, representatives or employees to enter
the Property at all reasonable times for the purpose of inspecting, investigating and surveying the
Property to determine whether Lessee is complying with the terms of this Lease and for the
purpose of doing other lawful acts that may be necessary to protect City's interest in the Property
or to perform City's duties under this Lease. City also shall have the right in its sole discretion to
do any and all work of any nature necessary for the preservation, maintenance and operation of
property owned, controlled or occupied by City. Lessee shall be given reasonable notice when
such work becomes necessary, and Lessee shall adjust the operation of the Facilities in such a
manner that City may proceed expeditiously.
SECTION 45. PHOTOGRAPHY
Lessee acknowledges and agrees that City may grant permits to third parties engaged in
the production of still and motion pictures and related activities to take photographs
or videos of or on the Property when such permission shall not interfere with the primary
business of Lessee, all without providing Lessee with notice or requiring consent by Lessee.
SECTION 46. NONDISCRIMINATION
Lessee and its employees shall not discriminate because of race, religion, color, ancestry,
sex, age, national origin or physical handicap against any person by refusing to furnish such
person any accommodation, facility, rental, service or privilege offered to or enjoyed by the
06agree/monroe lease-06 27
general public. Nor shall Lessee or its employees publicize the accommodation, facilities,
rentals, services or privileges in any manner that would directly or inferentially reflect upon or
question the acceptability of the patronage of any person because of race, religion, color,
ancestry, sex, age, national origin or physical handicap.
In the performance of this Lease, Lessee shall not discriminate against any employee or
applicant for employment, because of race, religion, color, ancestry, sex, age, national origin or
physical handicap. Lessee shall take affirmative action to ensure that applicants are employed
and that employees are treated during employment, without regard to their race, religion, color,
ancestry, sex, age, national origin or physical handicap. Such action shall include, without
limitation, the following: employment, upgrading, demotion or transfer; recruitment or
recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and
selection for training, including, without limitation, apprenticeship. Lessee shall post in
conspicuous places, available to all employees and applicants for employment, notices setting
forth the provisions of this Section.
Lessee shall permit access to its records of employment, employment advertisements,
application forms, and other pertinent data and records by City, the State Fair Employment
Practices Commission or any other agency with jurisdiction over these matters, for the purpose
of investigation to ascertain compliance with this Section.
City may determine a violation of this Section to have occurred upon receipt of a final
judgment having that effect from a court in an action to which Lessee was a party, or upon
receipt of a written notice from the State Fair Employment Practices Commission or other
government agency with jurisdiction over these matters that it has investigated and determined
that Lessee has violated the Fair Employment Practices Act or other applicable discrimination
06agree/monroe lease-06 28
law and has issued an order which has become final, or obtained an injunction. In the event of
violation of this Section, City shall have the right to terminate this Lease, and any loss of revenue
sustained by City by reason thereof shall be borne and paid for by Lessee, at its sole cost and
expense.
SECTION 47. SALE OF ALCOHOLIC BEVERAGES AND ENTERTAINMENT
PROHIBITED
Notwithstanding anything to the contrary, the sale or provision of alcoholic beverages
and/or live entertainment in, on, or from the Property is expressly forbidden, unless expressly
permitted in writing by City in advance. For any proposed sale or provision of alcoholic
beverages, Lessee must first obtain written City approval prior to submitting any request for
approval to the Alcohol Beverage Commission.
SECTION 48. LIENS
Lessee shall keep the Property free and clear from any and all liens, including, without
limitation, mechanics' or materialmens' liens, claims and demands for work performed,
materials furnished, or operations conducted on or about the Property or by reason of any use or
occupancy by Lessee, or any person claiming under Lessee. When applicable, Lessee shall
cause a notice of nonresponsibility to be posted and recorded pursuant to California Civil Code
Section 3094.
SECTION 49. DESTRUCTION
Should the Property be partially destroyed, this Lease shall continue in full force and
effect, and Lessee, at Lessee's sole cost and expense, shall complete the work of repairing and
restoring the Property to their prior condition providing such work can be accomplished under all
applicable governmental laws and regulations within one hundred eighty (180) days. Should the
06agree/monroelease-06 29
Property be so far destroyed that in City's reasonable judgment they cannot be repaired or
restored to their former condition within one hundred eighty (180) days, City shall give Lessee
notice of such determination in writing and each party may, in that party's sole discretion:
(a) Continue this Lease in full force and effect in which case Lessee shall repair and
restore, at Lessee's sole cost and expense, the Property to their former condition;
or
(b) Terminate this Lease by giving the other party thirty (30) days' written notice of
such termination within sixty (60) days after the date that City gives Lessee notice
that the Property cannot be repaired or restored to their former condition within
one hundred eighty (180) days. In the event that either parry elects to terminate
this Lease, the entire amount of any insurance proceeds (excluding such proceeds
for personal property whether or not owned or leased by Lessee and trade
inventory, but only to the extent that the insurance proceeds specifically cover
those items) shall be paid to City. The proceeds of any such insurance payable to
City may be used, in the sole discretion of City, for rebuilding or repair as
necessary to restore the Property or for any other such purpose(s) as City sees fit.
In addition, if Lessee elects to terminate the Lease, Lessee must still comply with
all of its obligations, liabilities, duties and responsibilities under the Lease,
including, without limitation, paying any Rent due up to the time of termination
and surrendering the Property, pursuant to Sections 53 and 54 below.
In the event of the damage or destruction of the Facilities, and/or personal property
located on the Property not giving rise to a termination of this Lease, Lessee shall, at its sole cost
06agree/monroe lease-06 30
and expense, replace and repair the same as soon as reasonably possible to permit the prompt
continuation of Lessee's business at the Property.
SECTION 50. NO ABATEMENT OF RENT DURING REPAIR WORK
The Rent shall not be abated for the time Lessee is prevented from using the whole or a
portion of the Property. In addition, Lessee shall not be excused from the payment of taxes,
insurance or any other obligations for the time Lessee is prevented from using the whole or a
portion of the Property.
SECTION 51. EMINENT DOMAIN
If, during the term of this Lease or any renewals or extensions thereof or during any
holdover period, City's real property (whether held by City in fee simple, an easement interest or
otherwise) and/or the Property is taken in eminent domain, the entire award (that is, all 'forms) of
compensation, other than as provided herein, shall belong to and be paid to City. In the event of
condemnation, Lessee shall be entitled to an award of only the following forms of compensation,
if any, from the condemning authority: compensation for loss of business goodwill;
compensation for the value of any of Lessee's personal property; compensation for the value of
any of Lessee's trade inventory; and compensation for relocation benefits as authorized by law.
All other forms of compensation, such as, for example, but not by way of limitation, any bonus
value of Lessee's interest in this Lease, shall belong to and be paid to City. In the event of
condemnation, unless Lessee is allowed by the condemning authority to continue its operations
on the Property, the Lease shall terminate on the earliest of the following dates: the date the
condemning authority obtains a prejudgment order for possession; the date title to the Property
vests in the condemning authority; or the date when Lessee is required by the condemning
authority to cease its operations.
06agree/monroe lease-06 31
SECTION 52. IRRIGATION PIPELINES AND APPURTENANCES
Lessee agrees that any and all irrigation pipelines and appurtenances, as well as all well
pumping equipment, located on the Property at the commencement of Lessee's occupancy
thereof are the property of City, and shall remain upon and be surrendered with the premises
upon the termination of this Lease or any renewal or extension thereof. In consideration of the
privilege of using the same, Lessee agrees to maintain, operate, repair and replace if necessary, at
Lessee's sole cost and expense, any and all of said irrigation pipelines and appurtenances and
well pumping equipment, during the continuance of this Lease. Any and all well pumping
equipment placed on the Property by Lessee, the installation of which is made with the consent
of City and for which a rent adjustment is made, and any and all irrigation pipelines and
appurtenances and well pumping equipment installed by Lessee to replace equipment located on
the Property at the time Lessee entered into possession thereof, shall thereupon be and become
the property of City and shall remain upon and be surrendered with the Property upon the
termination of this Lease or any renewal or extension thereof. Lessee agrees to promptly deliver
to City a good and sufficient bill of sale for any and all such irrigation pipelines, appurtenances
and well pumping equipment installed on the Property at the time the same is installed. Lessee
further agrees that no such replacement pipelines or well pumping equipment shall be purchased
on other than a cash basis.
SECTION 53. RESTORATION AND SURRENDER OF PROPERTY/TITLE
TO IMPROVEMENTS
On expiration or termination of this Lease, Lessee shall, without compensation to Lessee,
promptly surrender and deliver the Property to City in as good condition as such were at the
commencement date of this Lease, reasonable wear and tear excepted. Lessee shall, at the option
06agree/monroe lease-06 32
of the City, remove the Facilities and restore the Property to its natural condition to the
satisfaction of, and at no cost to the City. In the alternative, and again and at the option of the
City, Lessee shall and without compensation to Lessee, surrender all Facilities to City in good
condition and repair, ordinary wear and tear excepted, free and clear of all liens and
encumbrances. Lessee shall remove all personal property and trade inventory. City may in its
sole discretion accept all or any portion of the Facilities and no sum whatsoever shall be paid to
Lessee or any other person; or City may require Lessee to remove all or any portion of the
Facilities, at Lessee's own risk and cost and expense; or City may itself remove or have removed
all or any portion of the Facilities, at Lessee's own risk and cost and expense. If required by City
to do so, in removing any such Facilities, Lessee shall restore the Property as nearly as possible
to the conditions existing prior to their installation or construction. All such removal and
restoration shall be to the satisfaction of City and shall be completed within thirty (30) days of
the expiration or termination of this Lease; provided, however, that Lessee shall be considered a
holdover tenant (pursuant to the "Holdover" Section hereof) after expiration or termination of the
Lease until the time Lessee completes this removal and restoration work, including, without
limitation, the removal of any personal property and trade inventory left on the Property. In
addition, any personal property or trade inventory left on the Property after the expiration of this
30-day period, regardless of cause, shall be deemed abandoned by Lessee. In City's sole
discretion, it may choose to do one or more of the following: (1) take any or all of such personal
property and trade inventory as City property; (2) store any or all of such personal property and
trade inventory in a public warehouse or other location at the sole cost, expense and risk of
Lessee, and for the account and in the name of Lessee; or (3) dispose of any or all of such
personal property and trade inventory without any liability to Lessee. In addition, Lessee's
06agree/monroe lease-06 33
indemnification, hold harmless and defense obligations set forth in this Lease shall apply to such
personal property and/or trade inventory, and to City's actions with respect thereto.
SECTION 54. FORCE MAJEURE - UNAVOIDABLE DELAYS
Should the performance of any act required by this Lease to be performed by either City
or Lessee be prevented or delayed by reason of an act of God, strike, lockout, labor troubles,
inability to secure materials, restrictive governmental laws or regulations, or any other cause
except financial inability not the fault of the party required to perform the act, the time for
performance of the act shall be extended for a period equivalent to the period of delay and
performance of the act during the period of delay shall be excused. Provided, however, that
nothing contained in this Section shall excuse the prompt payment of the Rent or other
consideration by Lessee as required by this Lease or the performance of any act rendered
difficult solely because of the financial condition of the party, City or Lessee, required to
perform the act.
SECTION 55. CITY'S OPTION TO CLOSE THE PROPERTY
City may close the Property without liability and without advance notice to Lessee
therefor at any time as City in its sole discretion deems necessary for the protection of life, limb
or property, or for public health, safety or welfare purposes, or upon reasonable notice to effect
any repair, remodeling or rebuilding deemed necessary by City in its sole discretion. The length
of time of any closing of the Property by City longer than two (2) weeks during a period when
the Facilities would otherwise be open shall extend the term of the Lease by the same amount of
time. If this occurs, Lessee and City shall memorialize this extension in writing.
O6agree/monroe lease-06 34
SECTION 56. DELIVERIES OF SUPPLIES
City may establish the days and times deliveries of supplies may be made and advise
Lessee in writing thereof.
SECTION 57. EMPLOYEE PARKING
City shall establish the days, times and locations where Lessee and Lessee's employees
may park, and the number of automobiles, trucks, and other motorized and non -motorized
vehicles that Lessee and Lessee's employees may park, and advise Lessee in writing thereof.
SECTION 58. CONFLICT OF INTEREST
Lessee warrants and covenants that no official or employee of City, nor any business
entity in which an official or employee of City is interested, (1) has been employed or retained
by Lessee to solicit or aid in the procuring of this Lease; or (2) shall be employed by Lessee in
the performance of this Lease without the immediate written divulgence of such fact to City. In
the event City determines that the employment of any such official, employee or business entity
is not compatible with such official's or employee's duties as an official or employee of City,
Lessee, upon request of City, shall terminate such employment immediately. For breaches or
violation of this Section, City shall have the right both to terminate this Lease without liability
and, in its discretion, recover the full amount of any such compensation paid to such official,
employee or business entity. No official or employee of City shall have any financial interest in
this Lease in violation of the applicable provisions of the California Government Code.
SECTION 59. NOTICE
Unless specifically providing for verbal or electronic notice, all notices, certificates, or other
communications required to be given hereunder shall be in writing and made in the following
manner, and shall be sufficiently given and deemed received when (a) personally delivered; or (b)
06agree/monroe lease-06 35
three (3) business days after being sent via United States certified mail — return receipt requested; or
(c) one (1) business day after being sent by reputable overnight courier, in each case to the
addresses specified below; provided that City and Lessee, by notice given hereunder, may designate
different addresses to which subsequent notices, certificates or other communications will be sent:
City:
City of Huntington Beach
ATTN: Director of Economic Development
2000 Main Street, P.O. Box 190
Huntington Beach, CA 92648
SECTION 60. COMPLIANCE WITH LAWS
Lessee:
Rex Gilmore and Larry Gilmore
Monroe Pacific Wholesale Nursery
10449 East Adams Avenue
Huntington Beach, CA 92646
Lessee, at its sole cost and expense, shall comply with all statutes, ordinances, regulations
and requirements of all governmental entities, including, without limitation, Federal, State,
county or municipal, relating to Lessee's use and occupancy of the Property and/or operation of
the Nursery whether such statutes, ordinances, regulations and requirements be now in force or
hereinafter enacted. This Lease is expressly subject to the laws, regulations and policies of City.
Lessee shall deliver to City a copy of any notice from any governmental entity received by
Lessee regarding any alleged violation of law regarding the Lease, Property or the Nursery or
from any person allegedly entitled to give notice under any conditions, covenants, or restrictions
binding or affecting the Property. The judgment of any court of competent jurisdiction, or the
admission by Lessee in a proceeding brought against Lessee by any government entity, that
Lessee has violated any such statute, ordinance, regulation or requirement shall be conclusive as
between City and Lessee and shall be grounds for termination of this Lease by City.
06agree/monroe lease-06 36
SECTION 61. INTERPRETATION OF THIS LEASE
The language of all parts of this Lease shall in all cases be construed as a whole,
according to its fair meaning, and not strictly for or against any of the parties. If any provision of
this Lease is held by an arbitrator or court of competent jurisdiction to be unenforceable, void,
illegal or invalid, such holding shall not invalidate or affect the remaining covenants and
provisions of this Lease. No covenant or provision shall be deemed dependent upon any other
unless so expressly provided here. As used in this Lease, the masculine or neuter gender and
singular or plural number shall be deemed to include the other whenever the context so indicates
or requires. Nothing contained herein shall be construed so as to require the commission of any
act contrary to law, and wherever there is any conflict between any provision contained herein
and any present or future statute, law, ordinance or regulation contrary to which the parties have
no right to contract, then the latter shall prevail, and the provision of this Lease which is hereby
affected shall be curtailed and limited only to the extent necessary to bring it within the
requirements of the law.
SECTION 62. SURVIVAL
Terms and conditions of this Lease, which by their sense and context survive the
expiration or termination of this Lease, shall so survive.
SECTION 63. MODIFICATION
No waiver or modification of any language in this Lease shall be valid unless in writing
and duly executed by both parties.
SECTION 64. SECTION HEADINGS
The titles, captions, section, paragraph and subject headings, and descriptive phrases at
the beginning of the various sections in this Lease are merely descriptive and are included solely
06agree/monroe lease-06 37
for convenience of reference only and are not representative of matters included or excluded
from such provisions, and do not interpret, define, limit or describe, or construe the intent of the
parties or affect the construction or interpretation of any provision of this Lease
SECTION 65. BROKERS
Each party warrants to and for the benefit of the other that it has had no dealings with any
real estate broker or other agent (attorneys excepted) in connection with the negotiation or
making of this Lease.
SECTION 66. INDEPENDENT CONTRACTOR
Lessee acknowledges and understands that at no time shall Lessee act in the performance
of this Agreement as an employee of City. Lessee shall secure at its own cost and expense, and
be responsible for any and all payment of all taxes, social security, state disability insurance
compensation, unemployment compensation and other payroll deductions for Lessee and its
officers, agents and employees and all business licenses, if any, in connection with the Lease
and/or operation of the Nursery.
SECTION 67. ATTORNEY'S FEES
Except as expressly set herein, in the event suit is brought by either party to construe,
interpret and/or enforce the terms and/or provisions of this Lease or to secure the performance
hereof, each party shall bear its own attorney's fees, such that the prevailing party shall not be
entitled to recover its attorney's fees from the non -prevailing party.
SECTION 68. LEGAL SERVICES SUBCONTRACTING PROHIBITED
Lessee and City agree that City is not liable for payment of any subcontractor work
involving legal services, and that such legal services are expressly outside the scope of services
contemplated hereunder. Lessee understands that pursuant to Huntington Beach City Charter
06agree/monroe lease-06 38
Section 309, the City Attorney is the exclusive legal counsel for City; and City shall not be liable
for payment of any legal services expenses incurred by Lessee.
SECTION 69. GOVERNING LAW
This Lease shall be governed and construed in accordance with the laws of the State of
California.
SECTION 70. DUPLICATE ORIGINAL
The original of this Lease and one or more copies hereto have been prepared and signed
as duplicate originals, each of which so executed shall, irrespective of the date of its execution
and delivery, be deemed an original. Each duplicate original shall be deemed an original
instrument as against any party who signed it.
SECTION 71. ENTIRETY
The parties acknowledge and agree that they are entering into this Lease freely and
voluntarily following extensive arm's length negotiations, and that each has had the opportunity to
consult with legal counsel prior to executing this Lease. The parties also acknowledge and agree
that no representations, inducements, promises, agreements or warranties, oral or otherwise, have
been made by that party, or anyone acting on that party's behalf, which are not embodied in this
Lease, and that that party has not executed this Lease in reliance on any representation, inducement,
promise, agreement, warranty, fact or circumstance not expressly set forth in this Lease. The Lease,
and the attached exhibits, contain the entire agreement between the parties respecting the subject
matter of this Lease, the Property, the leasing of the Property to Lessee, or the lease term created
under this Lease and supercede all prior understandings and agreements, whether oral or in writing
between the parties respecting the subject matter hereof.
06agree/monroe lease-06 39
IN WITNESS WHEREOF, the parties hereto have caused this Lease to be executed by and
through their authorized officers on(�[
REX GILMORE and LARRY GILMORE,
dba MONROE PACIFIC WHOLESALE
REVIEWED AND APPROVED:
Cit Administrator
06agree/monroe lease-06 40
CITY OF HUNTINGTON BEACH, a
municipal corporation of the State of
California
Mayor
qp&�)
City Clerk E1,14
APPROVED AS TO FORM:
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INITIATED AND AP ROVED:
Director of Economic evelopment
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ATTACHMENT #2
OINSURANCE AND INDEMNIFICATION WAIVER
MODIFICATION REQUEST
1. Requested by: Christi Mendoza, Risk Management
2. Date: April 12, 2006
3. Name of contractor/permittee: Monroe Pacific Wholesale Nursery
4. Description of work to be performed: Commercial nursery on leased city lands
5. Value and length of contract: $1,000,000. year-round operation
6. Waiver/modification request: CA -admitted carrier/cancellation/$500 deductible
7. Reason for request and why it should be granted: Unable to comply with the citys zero
deductible, cancellation clause wording and California -admitted insurance requirements
8. Identify the risks to the City in approving this waiver/modification: None.
Signature
5'�k/
Date:
APPROVALS
Approvals must be obtained in the order listed on this form. Two approvals are required
for a request to be granted. Approval froln the City Administrator's Office is only required if
Risk Manageme and ffie City Attomeys Office disagree.
I Ari7k Management
�
s/ d�
Approved ❑Denied Al
Signature Date
2. City Attorney's Office
proved ❑ Denie
Signature U Date
3. City Administrator's Office
❑ Approved ❑ Denied
Signature Date
If approved, the completed waiver/modification request is to be submitted to the
City A tomey's Office along with the contract for approval. Once the contract has been approved,
this form is to be filed with the Risk Management Division of Administrative Services
04/12/2006 16:02 7148327208 APOLLO AGENCIES INC PAGE 01/01
- CERTIFICATE OF LIABILITY INSURANCE °"'E'"'D°"'""'
>I�o0o z 03 3a o6
PRODUCER
Apollo Cosem' 1 Lines 00394033
Apollo Agencies. In*.
P . 0. Sox 11610
Santa Ana CA 92711
FbAme:714-832-2100 Fax:714-832-7208
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RKN[TS UPON THE CERTIFICATE
tIOLDER- THIS CERWICATE DOES NOT AMEND. EXTEND OR
ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
INSURERS AFFORDING COVERAGE
NAICO
INSURED
coo Pacific Wholesale
�a2arry Gilmore
10449 Adams Ave
Huntington Baaa CA 92646
INSURER & Matwrt. Mond Xwmww*ow Crwwp
INSURER
waww c:
NeUrARD:
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COVERAGES
THE POLICIES OF BJSURANCE LISTED IM AW MAYE BEEN ISSUED TO THE INSURED NAMED A11OW FOR THE POLICY PERIOD NIOICATM MOWMNSTANDING
ANY REQUmEMENT. TERM IM CONDITION OF ANY CONTRACT OR OTHER DOCLWNT VM RESPECT TO V&WM THIS CERTIFICATE MAYBE ISSUED OR
MAY PERTAIN. THE 1IM MANCE AFFORDED BY THE POLICIES DESCRIBED NEAEw IS SUBJECT TO ALL THE TERMS. EXCLUSIONS AM CONOITIOM OF SUCH
POLICIES. AWRMTE LNU 6NOV0 MAY HAVE BEEN REDUCED BY PAID CLAD.
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DATE
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10/30/06
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IMED EXP V" om pNMMon)
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claim
GOM"LAGGREGATE
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OWL AGGIIEGATE UW APPLN:a PER:
POLICY .a�Cr MLOC
PRODUCTS - COWIOP AGO
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AUTOMOOLG LIABILITY
ANY AUTO
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OF OPERATIONS I LOCATIONS J VEHIOLES I FXCL LWfiSAD= BY RMIDORSNMENT J SPECIAL PROVISIONS
*Except 10 days canewIlation for non payment of premium. Certificate holder
is named as an additional insured as respects the operations of the
insured as per the attached endorsement WK80 (04/01).
City of Huntington Reach, Its
Agents, Offleers S Employees
lkttn: Risk Management
2000 Main St
Huntington Beach CA 92648
1ILR4TI O3 I SHOULD ANY OF THE ABOVE DE9CRIW POLICIES BE CANCELLOD BEFORE THE EXPIRATI01
DATE TN OW, THE 1651ING wsuRER TBIt INDFJ►tIDRTOMAN. * 30 OAYS *AhrITFN
NOTICE TO THE CERTIFICATE MOLDER NAMED To THE LEFT, BUTTS ?ODD 90 SHALL
OILUA8N.L7Y OFF ANY WQ U INSUR KIMAGBNT S OR
04/12/2006 15:23 7148327208 APOLLO AGENCIES INC PAGE 03/03
This Endorsement Modifies Your Policy
(6H®e:tNe At Inception Unless Anotnw Date Shown Below)
ADDITIONAL INSURED ENDORSEMENT
The insurance afforded by this policy for "today Injury," "property damage" and/or "personal Injury" shall
also apply to the "additional insured" listed below for claims, suits, and/or damages made against the
"additional insured," but orgy to the extent the "additional insured" is being held responsible for the acts.
omissions and/or negligence of the "named insured_"
This insurance afforded shall not apply to claims, suits and/or damages arising out of the acts, omissions
and/or negligence of the •additional insured(s)."
The inclusion of the "additional insured(s)" shall not operate to Increase the Company's Limit of Liability.
To the extent, if any, that this policy affords coverage to an "additional insured," the "additional insured" is
subject to all of the terms of the policy.
The obligation of the Company to provide coverage to an "additional insured" is further limited by the
interest of the "additional Insured" as defined below.
Interest of the Additional insured(s) Defined:
LESSOR
For the purpose of this endorsement, the "named insured" is the person(s) and/or party(Les) designated on
the Declarations Page of the policy or on any endorsement. The "additional insured" is the person(s) and/or
party(ies) identified below.
Identity of Additional Insured(s).
SITY Of HUN7IN6TON BEACH ITA AG£NTS OfFI=
2OW HAZN ST.A NTINBTON BEACH,CA 926"
Wation
eJJ� p:PV_K -71
PattGyNo. Endorsement No.%% En Y ENWivo Date
Signers of Author. ave Promcer No.
AGENT WW 180 (04/01)
04/12/2006 15:23 7148327209 APOLLO AGENCIES INC PAGE 01/03
I A.,
APOLLO
Ad*HCJW1 INC.
I " 0 V R A R-C k
11610 Santa Ana, CA 92711
p 714-83221001 f 714-832-7208 * www.apolloinsurance.net
J Lie. #0394033
To: City of Huntington Beach Attn: Chris Mendoza
-Fax: 714-536-5212 From: Kathy Zall
Subject'. Monroe Pacific Wholesale
Nursery Date: 04-12-06
_Policy Number Pa (induding 2mM: 3
A•
N." "', an', 11 IN"i" Pe"I
Attached are the insurance certificate and the additional insured endorsement.
The insured will be doing $1,000,000 in receipts for his nursery business.
The insured (through me) Is requesting the waiver.
I will call you and verify that this is all you need.
At*.' Tft message a kder4ad for the we of She WivftW or onft to which is addressed and may =Haih into wafta that 4 confidential and
PrAdwd and MmPf from cffa*ftm under sApkable Aw. It do rea*r of Mis message Is not Owe wtvichd r=OWA you are hevreby rv~ that
&V dfts9n*H*K dobubm or confm Of this 0offmRswaWn is strieW pmhUed Nyou have m0WV*d fie cmVnwwAftn bn ener, plenee
owled the sender 11nmeftWly and dekste it fnxn your system Thank you
Apr 13 Ub U3:4ttp MUNKUL HAUlt-K;
n 4vwb:SblJ p•-Z
MD. 383 P. i
�r CERTHOLDER COPY NE
S ATIS R.O. BOX 420807, SAN FRANGSCO CA 94142-N07
00"PMNBAs'ION
CEATIPICA7E 0W WGiiKERS' COiliM[SATION INSURANCE
ISSUE DATE: 04-03-2008 GPOJPI OW17
POL CY Nt MINI 0000121-20M
CERTIFICATE A: 7
CERTMATE EXPIRE& 84-01-111007
04-01 2008/04-01-2b07
CITY OF HUw1mrON NE
ATTN RISK 'MA1tAGM111N1'
2000 MAIN ST
NLK"NOTOMI amm CA tlgo"-2m
This is To catty " we #ova Isetr" a veld WerkerW Camowwoom Ltd Policy in a 'Corm approwed by the
CAfornh InsoWs Commisslenw to Ova -ampioyer named -below tar the ptiltoy Period irWlexted
This polley Is net subject to cenoelmoon by the Fumd examot ueon20 days minnos wrhosn notice to do smpbya.
We will +Mao Site you 30drys adva mm notice should We Palley be concelred prior to its FAMMI exPlratiCn.
This c"fkWo of bm ranee is rat so inaurwKs Policy and dpa4 net amend exto d or dter ft coverage afforded
by tho Poky Getad bweK ►y requm+N keik tam or cwWWm of any cw*a4 or eter hdo wmwt
wft respect to W4gb Vila ctlrt[ticste df anps truly be issued or to wldoh R PW pertaim the haurance
afforded by the Policy doserlbed bweM is v*jact -to all the terms, sxchnlorn and eonditlorm of each porxx
R2pflESENTATI PFZSCMt1r
01PLO"ROS LIABILITY LIMIT INCLUOINC ORFME COSTS: $1,000,000 POP OCMKREMCE.
ENOORS NT 017M - LAW GILM NE - EXCLUDED.
610)ORstlom ' MITOO - REX GUmm - NXCLUDGD.
E--m-sEMENT new sunn a CERTYFx"TE 1NOM1l*ERS' NOTICE EFFECTM Oa-w-aw i5
ATTACM TO AND FOOS A PART OF TMS POLICY.
EMPLOYER
GILM M. LARRY (PARf"M Ate 4111 R I . WA tip
(PAWWR) =W NGWOE PACIFIC NII WRY
104" AOAM AYE
ML TINYi'ON SEWN CA '2l148
IRCIA1
AtEV l e6) PRINTED : 04-03-2008
Apr 1.3 W w.-fop �viv��KVt rAt;ir�, r �4yooa�ou p.
Monzoe q%cific
Wholesale Xursei y
Larry Gilmore
1og4q -€_ Adams Avenue
{ Huntington Bead, CA 926*6,
(714) 968-6900 FAX (714) 968-5360
Attention
Message-
6�;lm O/V-,
RCA ROUTING SHEET
INITIATING DEPARTMENT:
Economic Development
SUBJECT:
Lease Agreement with Monroe Pacific Nursery
COUNCIL MEETING DATE:
June 19, 2006
RCA ATTACHMENTS
STATUS
Ordinance (w/exhibits & legislative draft if applicable)
Attached
❑
Not Applicable
Resolution (w/exhibits & legislative draft if applicable)
Attached
❑
Not Applicable
Tract Map, Location Map and/or other Exhibits
Attached
❑
Not Applicable
Contract/Agreement (w/exhibits if applicable)
Attached
Not Applicable
❑
(Signed in full by the City Attorney)
Subleases, Third Party Agreements, etc.
Attached
Not Applicable
❑
(Approved as to form by City Attorney)
Certificates of Insurance (Approved b the City Attome
( pP Y tY Y)
Attached
Not Applicable
❑
Fiscal Impact Statement (Unbudget, over $5,000)
Attached
Not Applicable
❑
Bonds (If applicable)
Attached
Not Applicable
❑
Staff Report (If applicable)
Attached
Not Applicable
El
Commission, Board or Committee Report (If applicable)
Attached
Not Applicable
19
Findings/Conditions for Approval and/or Denial
Findin 9 pp
Attached
Not Applicable
EXPLANATION FOR MISSING ATTACHMENTS
REVIEWED
RETURNED
FORWARDED
Administrative Staff
( )
Assistant City Administrator Initial
)
)
City Administrator (initial)
( )
( )
City Clerk
CCU
• •- •
i
Page 1 of 2
Esparza, Patty
From: Flynn, Joan
Sent: Monday, June 19, 2006 10:51 AM
To: Esparza, Patty
Subject: FW: Late Communication Consent Item E:11 Monroe's Nursery Lease
Late Communication (including attachments)
-----Original Message -----
From: Merrilee Madrigal[mailto:merrilee_madrigal@hotmail.com]
Sent: Monday, June 19, 2006 10:32 AM
To: Flynn, Joan; Mayor Dave Sullivan; Gil Coerper; Green, Cathy; Cook, Debbie; Hardy, Jill; Bohr, Keith; Hansen,
Don
Cc: Culbreth-Graft, Penelope; Webb, David; Lucas, Geraldine; Wanda Marquis; Ray Heimstra
Subject: Late Communication Consent Item E:11 Monroe's Nursery Lease
Dear City Council Members,
Please Oppose Consent Calendar Item E:11: Monroe's Nursery Lease, or Approve with Changes:
Background: For years now Monroe's Nursery has operated without a watershed management plan
and discharges the worst wet weather water quality in this region. Staff s Report last year indicated their
lease was not renewed due to water quality compliance issues, and water quality compliance issues have
not been resolved today.
(For more information on water quality and residential flooding issues, please find HBRPF's Opposition
to Consent Item E-11.doc attached.)
Please oppose Monroe's Nursery lease renewal at this time, or approve with recommended
changes in blue:
Section 38 NPDES: Lease states a WQMP be submitted to Public Works for approval after the lease is
approved.
"In accordance with NPDES requirements, as promulgated by the United States Environmental Protection
Agency, a Water Quality Management Plan for the property must be maintained and updated by the Lessee as
necessary. Non-stormwater discharges from the Nursery and Property are prohibited. Within 45 days of City
Council approval of the lease agreement, lessee shall submit to the Public Works Department an updated WQMP
prepared by a civil engineer or environmental engineer licensed by the State of California. The updated WQMP
shall demonstrate the drainage trenches and detention basins have the capacity to detain the 85th percentile
storm event, or the first .7 inches of rainfall for every storm event (calculations must be submitted)."
We recommend a comprehensive watershed management plan be provided and approved prior to the execution
of a lease agreement. Specifically, lowering the grade of the 1 acre vacant lot (see photo attached) to create a
grassy swale/greenway with the retention capacity to detain the 85th percentile storm event
for stormwaters arriving at this location, not limited to the 2.8 acres leased by the City to Monroe's, but to include
the entire watershed area draining from Garfield Ave. Costs can be financed with prop 40/50 (river park/water
quality) and SWQCB grant funds. Maintenance can be provided by Monroe's Nursery, as being done on Atlanta
Ave by Hiro's Nursery. This is city owned property and we have an opportunity to do the right thing here.
Section 40 Fences: We recommend the chain link fence be moved back to Monroe's lease line.
Section 57 Parkinca: We recommend parking be accommodated for on site, within their fenced lease area.
t�/J 9 /06
6/19/2006
Page 2 of 2
Section 5 Term: Staff Report is recommending a 5 year term with two 5 year renewal options. We believe this is
premature without a watershed management plan in place. Alternatively we suggest a one year lease, with the
option to renew contingent upon completion of a comprehensive watershed management plan.
Thank You-,
Merrilee Madrigal
HB River Park Foundation / Director
Orange Coast River Park / Steering Committee Member
6/19/2006
HB River Park Foundation
10231 Cliff Drive
Huntington Beach, CA. 92646
714 317-1279
June 19, 2006
City Council Members
City of Huntington Beach
2000 Main Street
Huntington Beach, CA. 92648
RE: Consent Calendar Item E-11, Monroe's Nursery Lease
Oppose or Approve with Changes.
Provide Comprehensive Runoff, Watershed, Flood Improvement Plan.
The City property proposed for lease to Monroe's Nursery is the drainage area for storm waters
originating west of the Santa Ana River, east of Brookhurst Street, as far north as Garfield to
Adams Ave. (See Monroe's Nursery Drainage Area Aerial Map, attached)
Storm waters originating in this Santa Ana River Watershed Area drain to a single culvert at
Carmenia Street under Adams Ave to the pump station in Meredith Gardens for discharge to the
Santa Ana River. (See OC Flood Control District Map, attached).
The Glen Mar Community serviced adjacent to this drainage area has a 10 year flood frequency,
defined as one that occurs at intervals of once in 10 years (see Glen Mar's Final Subdivision
Report, attached). During 10 year rain events the residences along Carmenia Street flood.
Properties flood from the streets when the storm drain at Carmenia Street backs up, and flood
through their backyards where the river corridor grades are high.
Village Nursery operates south of Garfield. Monroe's Nursery operates south of Arevalos Park.
Combined stormwaters discharging from the city property contain nursery runoff with pollutants
in excess of MS-4 permit levels. Without wet weather treatment facilities, this location
discharges the worst water quality in the Santa Ana River Watershed Planning Area.
Glen Mar resident Kenny Krogstad at 19961 Carmenia Street broke out in a blood red rash for
one month after wading in floodwaters chest high while trying to save his car from the rain event
of October 17, 2004. Their living room was damaged from polluted floodwaters. The Steele's
property next door flooded so many times they cannot buy flood insurance and sold their house
after the rain that next year. Properties across the street that back up to the city owned river
corridor property flood from waters draining through their backyards.
Monroe's Nursery lease was not renewed in 2003 due to water quality compliance issues, (see
2005 Staff Report) nor was it approved on Council's July 18th, 2005 consent calendar. And three
years later water quality compliance issues still have not been addressed.
It is our hope the City will not renew Monroe's Nursery at this time, but first approve a water
quality management plan for this drainage area, pursuant to the City Wide Urban Runoff,
Watershed and Flood Management Plan adopted December 2004.
The HB River Park Foundation would like to recommend a cooperative watershed plan to
develop the city's vacant one acre parcel into a grassy swale greenbelt, to dually serve as a
natural water quality treatment facility for 20 acres of river corridor agricultural runoff, and
public entrance to Orange County's Santa Ana River Corridor Trail System, consistent with the
City's General Plan, CRUMP Plan, and Santa Ana River Blue Ribbon Plan.
View of City's Vacant 1 Acre River Corridor Property
Looking Northwest across the Santa Ana River Trail from Adams Ave.
Funding for a watershed/flood improvement/greenway project at this location can be 100 %
financed with Prop 40/50 river park/water quality and SWQCB grant funding. Maintenance
could be provided by Monroe's Nursery, as this open space greenway would serve as their wet
weather treatment facility, BMP.
Thank You,
Merrilee Madrigal
HB River Park Foundation/Director
Orange Coast River Park Steering Committee Member
Attachments:
Monroe's Nursery Drainage Area Aerial Map
Runoff and Flooding Photo Images
Teddi Hart Email: HB Environmental Board Meeting
Glen Mar's Final Subdivision (Flood Frequency) Report
Orange County's Flood Facility District Map
HBRPF Oppose Consent Item & I 1 doc
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Runoff and Flooding Photo Images
Monroe's Nursery Drainage Channel
Storm Water Runoff"
Sediments Discharged with Storm Water Runotf-
Carmenia Street 2-21-05 Before
Carmenia Street 2 Hours Later
From: Teddi Hart
Sent: Wednesday, December 01, 2004 6:10 PM
To: 'merrilee—madrigal@hotmail.com'
Subject: HB Environmental Board Meeting - Flood Review - Monroe's Nursery
I have lived at 19892 Carmania Lane, Glen Mar tract, since 1992.
My house backs up to the Monroe Nursery
Unlike my neighbors, fortunately I have drainage from my backyard out to the front. If I hadn't my house would have
been flooded during the October rain. My next door neighbor wasn't as lucky. The water came in through the back of
her house through the living room and into the dining room. All the floors on the first floor of her house were damaged.
The water out front came within 8' of my front door. The cars parked on the street had water half way up the inside of
the cars. This happened to 2 of our cars in the past 5 years. The waters force was so strong that it lifted a full lawn
garbage bag of wet grass cutting up from the curb to within 6' of the front of house.
The serious threat of flood into the house has happened 2 — 3 times in the past 5 years. However, whenever we have
a significant amount of rain the waters are usually above the curb. It seems that the drainage on our street cannot
keep up with the flow. Also, the water off Adams (heading west) sweeps around the bend at Ranger and we get
additional water flow from there. This happens whenever there is a significant amount of rain.
As an aside regarding the Monroe Nursery. During the dry months when they water they leave a foot wide ditch of
water sitting until the rains start. I have 2 issues with this, one the water seeps into my backyard and forms puddles
oust to show how much water there is) and two it is a breeding ground for mosquitoes. Perhaps you can have them
address this issue. Other then that, they're fairly good neighbors.
Thank you for your attention,
Teddi Hart
These are pictures taken February 21, 2004.
This flood happened within a 2 hour period approx 6:30 am — 8:30 am.
The before and after picture shows how bad it gets here.
February 21, 2004 6:30 AM
iiF.F —1i THE BUSINESS AND COMMERCE AGFNCY
✓EPARTMENT OF INVESTMENT`'!{
DIVISION OF REAL ESTATE ; MAY
OF THE
STATE OF CALIFORNIA��:li'�
MuroN G. GORnoN, Real Estate Commissioner
In the mutter of the application of FINAL SUBDIVISION
SPAMA.R DEVELOPMENT CO., a joint venture PUBLIC REPORT
composed of BRAEMAR HOMES, INC., EMPIRE
DEVELOR"T COMPANY AND SEACOVE CORPORATION,
all Califaimia corporations
for a final subdivision public report on FILE N0. 26034
TRACT NO. 5033
ORANGE COUNTY, CALIFORNIA
This Report Is Not a Recommendation or Endorsement of the Subdivision
But -Is Informative Only.
Buyer or Lessee Must Sign That He Has Received and Read This Report.
THIS REPORT EXPIRES FIVE YEARS FROM DATE OR UPON A MATERIAL CHANGE.
April 21, 1965
SPECTAL NOTE
YOUR ATTENTION IS ESPECIALLY DW, CTED TO THE PARAGRAPHS
BELOW HEADED: (x) RESTRICTION., AND (X) TITLE.
LOCATION AND SIZE: On Adams Avenue, Camania Lane and other streets in the City
of Huntington beach, Orange County.
Approximately 16.777 acres divided into 83 lots or parcels.
(X) TITLE: Title is subject, among other things, to:
Reservations of mineral, oil and gas rights, without right of surface entry.
70F7MG: The property is to be sold for residential purposes.
(X) RiTTAICTIONS: Restrictions, recorded in Hook 7423, Page 943, official Records
of the Orange County Recorder, affecting the development, araong other restric-
tions, contain the following provision:
No building shall be erected, placed or altered on any lot until the construction
plans and specifications and a plan showing the location of the constructionhave
been approved by the Architectural Control Committee.
PURCHASE MONEY nANDLINC WILL 13E AS FOLLOWS: All funds received from each pur-
chaser will be impounded in a neutral escrow depository until the legal title is
delivered to the urchaser. (Ref. Iiectiohs 11013, 11013.4(a), Business and
Professions Coder
YPIM, GROUND: The subdivider in his application for this report states that no
lots are to contain filled ground.
JJgW_:AIM MAIMM Orange County Flood Control District advises;
"It is the opinion of this office that the
is at present subject to
'Fre4ueatl,io defined as one that occurs at intervals of_ iny-9A , vhen
averaged over a long perm of time.
Krn w,"x aje -1- 4w.
LTronsit. 1
37
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RECEIVED FROM��'
AS PUBLIC RECO D.FOR COUNCIL MEETING
OF la !
CITY CLERK ICE
JOAN L. FLYNN, CITY CLERK
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