Loading...
HomeMy WebLinkAbout2012/09/11 Item 05CITY COUNCIL AGENDA STATEMENT ~~„~~ CITY OF CHULA VISTA 9/11/12, Item 5 ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ENTERING INTO LEASE AGREEMENTS WITH TRUGREEN LANDCARE AND WEST COAST ARBORIST FOR PORTIONS OF CITY OWNED PROP TY LOCATED AT 707 F STREET SUBMITTED BY: DIRECTOR OF PUBLIC WORKS ~(~ ~ D, _ ASSISTANT DIRECTOR OF EN RING 4N REVIEWED BY: ASSISTANT CITY MANAGER S T CITY MANAGER s-r !L 3S 4/5TH5 VOTE: YES ^ NO SUMMARY In June 2009, Council agreed to enter into lease agreements with TruGreen LandCare and West Coast Arborist to lease portions of the old Corporation Yard located at 707 F Street. In lieu of rental payments, these companies provide services to the City that were previously eliminated through budget cuts. This action would renew these leases for an additional year with up to two additional one-year terms. ENVIRONMENTAL REVIEW The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEQA) and has determined that the project qualifies for a Class 1 categorical exemption pursuant to Section 15301 [Existing Facilities] of the State CEQA Guidelines because the proposal involves negligible or no expansion of an existing facility. Thus, no further environmental review is necessary. RECOMMENDATION Council adopt the resolution. BOARDS/COMMISSION RECOMMENDATION Not applicable. DISCUSSION For several years, City staff has been striving to increase utilization of its facilities to increase efficiency and, where possible, generate revenue to offset maintenance and program costs. Since 2009, the City has been leasing available space at the old Corporation Yard located at 707 F Street. The current leases collectively generate about $96,000 per year in services for the City. Two of these leases are with TruGreen LandCare (TruGreen) and West Coast Arborist (WCA). 5-1 9/11/12, Item ~ Page 2 of 2 These agreements need to be renewed in order for the City to continue receiving their services. These two leases account for $96,000 in landscaping and tree trimming services to the City per year. Because of the uncertainty of the future for the 707 F Street site, we are continuing with one year leases with options to extend year-to-year. Additionally, should the need arise, we can terminate these leases with a 90-day notice. DECISION MAKER CONFLICT Staff has reviewed the property holdings of the City Council and has found no property holdings within 500 feet of the boundazies of the property that is the subject of this action. CURRENT FISCAL IMPACT There is no impact to the General Fund as the cost for services provided by TruGreen LandCare and West Coast Arborists will be in lieu of use of space at the old Corporation Yard located at 707 F Street per the proposed lease agreement. The benefits offered_by this arrangement also increases local business collaborative efforts and services during these difficult economic times. ONGOING FISCAL IMPACT These are one-yeaz lease agreements. As the lease agreements expire, staff will reevaluate the situation and make further recommendations at that time. There are no anticipated impacts to the General Fund. ATTACHMENTS 1. Lease Agreements w/Attachments Prepared by: Rick Ryals,Rea1 Property Manage, Public Works-Engineering J: IEngineerlAGENDAICAS2012109-II-121Trugreen WCA leases.doc 5-2 RESOLUTION N0.2011- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ENTERING INTO LEASE AGREEMENTS WITH TRUGREEN LANDCARE AND WEST COAST ARBORIST FOR PORTIONS OF CITY OWNED PROPERTY LOCATED AT 707 F STREET WHEREAS, in July 2009 Council agreed to enter into lease agreements with TruGreen LandCare (TruGreen) and West Coast Arborist (WCA) for City owned land located at 707 F Street; and WHEREAS, in exchange for rent from these tenants, the City receives needed landscaping and tree trimming services that the City can no longer perform; and WHEREAS, those leases now need to be renewed in order to ensure that these services are continued; and WHEREAS, both TruGreen and WCA have each agreed to enter into new one year lease agreements with two additional one-year options. NOW, THEREFORE BE IT RESOLVED that the City Council of the City of Chula Vista does hereby enter into lease agreements with TruGreen LandCare and West Coast Arborist for portions of City owned property located at 707 F Street. Presented by Approved as to form by Richard A. Hopkins Director of Public Works ~YlNl~p~yr i~ Glen R. Googins ~~~t ~ '1,19-~1 City Attorney 5-3 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORD Dated: ./ ~ ~ ~i PROPERTY LEASE AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND TRUGREEN LANDSCAPE FOR THE USE OF CITY OWNED REAL PROPERTY LOCATED AT 707 F STREET 5-4 PROPERTY LEASE AGREEMENT BY AND BETWEEN OF THE CITY OF CHULA VISTA AND TRUGREEN LANDCARE FOR THE USE OF CITY OWNED REAL PROPERTY LOCATED AT 707 F STREET 5-5 CITY OF CHULA VISTA LEASE AGREEMENT TRUGREENLANDCARE SECTION PARAGRAPH PAGE SECTION 1: USES 1.01 Premises 1 1.02 Uses 1 1.03 Reservation of Rights 2 SECTION 2: TERM 2.01 Term 2 2.02 Termination 2 2.03 Surrender of Premises 2 SECTION 3: COMPENSATION 3.01 Rent for Use of Premises 3 3.02 Utilities 3 SECTION 4: INSURANCE RISKS/SECURITY 4.01 Indemnity 3 4.02 Insurance 4 4.03 Accident Reports 6 SECTION 5: TERMS AND CONDITIONS OF OCCUPANCY 5.01 Form of Agreement 6 5.02 Right to Occupy 6 5.03 Taxes 6 5-6 CITY OF CHULA VISTA LEASE AGREEMENT TRUGREEN LANDCARE SECTION PARAGRAPH PAGE SECTION 6: IMPROVEMENTS/ALTERATIONS/REPAIRS 6.01 Acceptance of Premises 7 6.02 Waste, Damage, or Destruction 7 6.03 Maintenance 7 6.04 Improvements/Alterations 8 6.05 Liens 8 6.08 Signs 8 6.07 Ownership of Improvements 8 6.08 Breach by Lessee 9 SECTION 7: GENERAL PROVISIONS 7.01 Notices 9 7.02 City Approval 9 7.03 Nondiscrimination 10 7.04 Equal Opportunity 10 7.05 Entire Agreement 10 7.06 Interpretation of the Agreement 10 7.07 Agreement Modification 10 7.08 Atforney's Fees 10 7.09 Assignment and Subletting-No Encumbrance 11 7.10 Defaults and Termination 11 7.11 Other Regulations 11 7.12 Time is of Essence; Provisions Binding on Successors 11 7.13 Section Heading 12 7.14 GenderlSingular/Plural 12 7.15 Non-Liability of Officers 12 7.16 Relationship between City and Lessee 12 SECTION 8: SIGNATURES 8.01 Signatories 13 EXHIBITS Exhibit "A" - Legai Description of Premises Exhibit "B" -Sketch of Premises 5-7 THIS LEASE AGREEMENT, hereinafter called "Agreement", dated as of ,solely for identification purposes, is executed between the City of Chula Vista, a public body corporate and politic, hereinafter called "City", and TRUGREEN LANDCARE, a ,hereinafter called "Lessee", to establish terms and conditions of Lessee's use of certain real property owned by City and to provide terms and conditions of Lessee's occupancy and use of City's property. The effective date of this Agreement shall be the date this Agreement is approved by the City ("Effective Date"). RECITALS WHEREAS, City is the legal and equitable owner of that certain rea[ property located at 707 F Street, Chula Vista, currently identified as San Diego County Assessor's Parcel No. 567- 031-27, more fully described herein below; and WHERFJaS, Lessee is the owner and operator of TruGreen LandCare whose principle place of business is located at 5248 Governor Drive, San Diego, CA 92122; and WHEREAS, Lessee desires to and has requested permission to use a portion of said City real property, more particularly described herein for the storage and staging of landscaping equipment and supplies; and WHEREAS, City hereby Leases to Lessee and Lessee hereby Leases from City that certain portion of City's real property herein identified, under the terms, covenants., conditions and provisions contained herein. AGREEMENT NOW THEREFORE, THE PARTIES HERETO MUTUALLY AGREE AS FOLLOWS: SECTION 1: USES 1.01 Premises. City hereby Leases to, in accordance. with the terms, covenants, conditions and provisions hereof, that certain City owned real property located at 707 F Street, Chula Vista, and currently identified as San Diego County Assessor's Parcel No. 567-031-27, and more particularly shown a sketch thereof designated as Exhibit "A" attached hereto and by this reference made part of this Agreement (the "Premises"). In return for this permission, Lessee hereby agrees to act in accordance with and abide by the terms, covenants, conditions and provisions of this Agreement. 1.02 Uses. It is expressly agreed that the Premises shall be used by Lessee solely and exclusively for the purpose of storage and staging landscaping supplies and equipment and for such other related or incidental purposes as may be first approved in writing by the City's Real Property Manager ("Manage') and for no other purpose whatsoever. Lessee covenants and agrees to use the Premises only for the above specified purpose and to diligently pursue said purpose throughout the term hereof. Lessee shall not use or permit any use of the Premises in any manner which disturbs the use and quiet enjoyment by City or any surrounding tenants. In the event that Lessee faits to continuously use the Premises for said Page 1 osioaizoiz 7ruGreen Land Care License Agreement 5-8 purpose, or uses the Premises for purposes not expressly authorized herein, the Lessee shall be deemed in default under this Agreement. 1.03 Reservation of Rights. City shall not unreasonably or substantially interfere with Lessee use of the Premises while Lessee is in possession of the Premises. However, the City specifically retains the following rights: a. Subsurface Rights. City hereby reserves all rights, title and interest in any and all subsurface natural gas, oil, minerals and water on or within the Premises. b. Easements. City reserves the right to grant and use easements or to establish and use rights-of-way over; under, along and across the Premises for utilities, thoroughfares, or access as it deems advisable for the public good. c. Right to Enter. City has the right to enter the Premises for the purpose of performing maintenance, inspections, repairs or improvements, or developing municipal resources and services. SECTION 2: TERM 2.01 Term. The term of this Agreement shall be one year commencing on the Effective Date of this- Agreement. Upon the expiration of the initial term of this Agreement, Lessee may request to extend the term of the Lease for up to two aa-additional one-year terms. Lessee shall request said option by written notice to City not less fhan 90 (ninety) calendar days prior to the expiration of the Lease term. Any extension shall be subject to the approval of City. Unless otherwise mutually agreed by the parties in writing, the terms and conditions of this Agreement shall remain in effect during the extended term. If City for any reason cannot deliver possession of the Premises to Lessee at the commencement of the term, or if during the term of this Agreement Lessee is dispossessed for any reason whatsoever, City shall not be liable to Lessee for any loss or damage resulting therefrom. 2.02 Termination. Notwithstanding any other remedies provided by this Agreement, City has the right, at its sole discretion, to terminate this Agreement upon ninety (90) days written notice to Lessee. Lessee has the right to terminate this Agreement upon ninety (90) days written notice to City. 2.03 Surrender of Premises. At the expiration or earlier termination of this Agreement, Lessee shall surrender the Premises to City free and clear of all liens and encumbrances, except those liens and encumbrances which existed on the date of the execution of this Agreement by City. The Premises, when surrendered by Lessee, shall be in a safe and sanitary condition and shall be in as good or better condition as the condition at the commencement of this Agreement, absent normal wear and tear. Page 2 09/04/2012 TruGreen LandCare License Agreement 5-9 SECTION 3: RENT 3.01 Rent for Use of Premises. Licensee does hereby acknowledge and agree that providing landscaping services for the City as set forth in Scope of Services attached hereto as Exhibit "B", together with the maintenance and upkeep of the Premises, in an attractive, good, neat, and orderly condition. Said services shall be performed in coordination with and to the satisfaction of Public Works Department Siaff, by Licensee during the term of this Agreement is a material consideration of City entering into this Agreement. City agrees that the landscape services together with the maintenance and upkeep of the Premises by Licensee as set forth in Section 6 hereof, are valuable consideration received from Licensee and shall constitute all the property use payment to be paid by Licensee for its use of the Premises in accordance with the terms, covenants, conditions and provisions of this Agreement. Provided Licensee is not in breach or default under any of the terms hereof, Licensee shall not be required to pay any monetary consideration to City for its use and occupation of the Premises. For convenience only, consideration as set forth in this Section 3.01 may be referred to as rent. 3.02 Utilities. Lessee agrees that no utilities are available under this Lease and none are to be accessed without prior written approval of City. SECTION 4: INSURANCE RISKS/SECURITY 4.01 Indemnity. a. Lessee hereby agrees to defend, indemnify, and hold the City, its directors, officers, employees, and agents, harmless from and against any and all liability or claim of liability, loss or expense, including defense costs and legal fees and claims for damages of whatever character, nature and kind, whether directly or indirectly arising from or connected with, or related to this Agreement or an act or omission of Lessee, or any employee, agent, invitee, contractor of Lessee, or other person acting by or on behalf of Lessee on or about the Premises, including, but not limited to, liability, expense, and claims for bodily injury, death, personal injury, or property damage. This indemnity provision does not include any claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence or sole wi{Iful misconduct of the City, its officers, employees, or agents. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Lessee, its employees, agents or officers b. Costs of Defense and Award. Included in the obligations in Sections a1-aad-2, above, is the Lessee's obligation to defend, at Lessee's own cost, expense and risk, any and all aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its directors, officials, officers, employees, agents and/or volunteers. Lessee shall pay and satisfy any judgment, award or decree that may be rendered against City or its directors, Page 3 osioa~zolz TmGreen LandCare License Agreement 5-10 officials, officers, employees, agents and/or volunteers, for any and all legal expense and cost incurred by each of them in connection therewith. c. Insurance Proceeds. Lessee's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents, and/or volunteers. d. Declarations. Lessee's obligations under Section ^^^h,.~-~,;;,~'° ``~ shall not be limited by any prior or subsequent declaration by the Lessee. e. Enforcement Costs. Lessee agrees to pay any and all costs City incurs enforcing the indemnity and defense provisions set forth in Section 4. f. Survival. Lessee's obligations under Section ~;^,r'^'~„-" shall survive the termination of this Agreement. 4.02 Insurance. Lessee shall take out and maintain at all times during the term of this Agreement the following insurance at its sole expense: a. Lessee shall maintain the following minimum limits: General Liability Insurance Commercial General Liability Insurance covering liability of the Lessee with respect to all operations to be performed and all obligations assumed by the Lessee under the terms of this Agreement. Coverage for commercial general liability shall be at least as broad as Insurance Services Office Commercial General Liability Coverage (Occurrence Form CG 0001). Limits shall be no less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply to the Premises (with the ISO CG 2503, or ISO CG 2504, or insurer's equivalent endorsement provided to City) or the general aggregate limit shall be twice the required occurrence limit. Automobile Liability Insurance Automotive Liability Insurance covering the liability of Lessee arising out of the use of all owned, non-owned, and hired vehicles which bear, or are required to bear, license plates according to the laws of California and which are not covered under the Lessee Commercial General Liability insurance. Coverage under this policy shall have limits of liability of not less than one million dollars ($1,000,000) per occur-ence, combined single limit, for bodily injury and property damage (including loss of use) liability. Coverage shall be at least as broad as Insurance Services Office Automobile Liability Coverage (Form CA 0001), covering Symbol 1 (any auto). Workers' Compensation and Employer's Liability Insurance Page 4 osioarzot2 TmGreen LandCare License Agreement 5-11 Workers' Compensation and Employer's Liability Insurance complying withik the requirements of all applicable laws relating to workers' compensation insurance, covering or insuring all of the Lessee employees working on or about the Premises. Limits shall be no less than statutory limits per accident for bodily injury and disease. By his/her signature hereunder, Lessee certifies that it is aware of the provisions of Section 3700 of the Califomia Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and it will comply with such provisions in connection with any work performed on or about the Premises. Any persons providing services with or on behalf of Lessee shall be covered by workers' compensation (or qualified self-insurance) Page 5 b. All insurance companies affording coverage to the Lessee shall be required to add the City of Chula Vista, its officials, officers, employees, and agents as "additional insured(s)" under the insurance policy(s) required in accordance with this Agreement. Lessee shall furnish (or cause to be furnished) a certificate of insurance countersigned by an authorized agent of the insurance carrier on a form of the insurance carrier setting forth the general provisions of the insurance coverage. This countersigned certificate (and endorsement) shall name the City and the City, their officers, agents, employees, and authorized volunteers as additional insured under the policy: Coverage provided hereunder to the City and City as additional insured by Lessee shall be primary insurance and other insurance maintained by the City, its officials, officers, agents and/or employees, shall be excess only and not contributing with insurance provided pursuant this Section 4:02, and shall contain such provision in the policy(ies), certificate(s) and/or endorsement(s). The insurance policy or the certificate of insurance shall contain a waiver of subrogation for the benefd of the City, its officials, officers, employees, and agents. c. All insurance companies affording coverage to the Lessee shall be insurance organizations acceptable to the City, and authorized by the Insurance Commissioner of the State Department of Insurance to transact business of insurance in the State of California. Insurance is to be placed with insurers having a current A.M. Best rating of no less than A-, VII or equivalent or as otherwise approved by City. d. All insurance companies affording coverage shall provide thirty (30) days written notice to the City should the policy be cancelled before the expiration date. For the purposes of this notice requirement, any material change in the policy prior to the expiration shall be considered a cancellation. e. Lessee shall provide evidence of compliance with the insurance requirements listed above by providing a certificate of insurance, in a form satisfactory to the General Counsel (City Attorney), concurcently with the submittai of this Agreement. f. Lessee shall provide a substitute certificate of insurance no later than thirty (30) days prior to the policy expiration date. Failure by the Lessee to provide such a 09104120'12 TruGreen randCare Licznse Agreement 5-12 substitution and extend the policy expiration date shall be considered a default by Lessee and may subject the Lessee to a termination of this Agreement. g. Maintenance of insurance by the Lessee as specified in this Agreement shall in no way be interpreted as relieving the Lessee of any responsibility whatever and the Lessee may carry, at its own expense, such additional insurance as it deems necessary. If Lessee fails or refuses to take out and maintain the required insurance, or fails to provide the proof of coverage, City has the right to obtain the insurance. Lessee shall reimburse City for the premiums paid with interest at the maximum allowable legal rate then in effect in California. City shall give notice of the payment of premiums within thinly (30) days of payment stating the amount paid, names of the insurer(s), and rate of interest. _Said reimbursement and interest shall be paid by Lessee on the first (1st) day of the month following the notice of payment by City. City, at its discretion, may require the revision of amounts and coverage at anytime during the term of this Agreement by giving Lessee sixty (60) days prior written notice. City's requirements shall be designed to assure protection from and against the kind and extent of risk existing on the Premises. Lessee also agrees to obtain any additional insurance required by City for new improvements, in order to meet the requirements of this Agreement. j. Notwithstanding the preceding provisions of this Section 4.02, any failure or refusal by Lessee to take out or maintain insurance as required in this Agreement, or failure to provide the proof of insurance, shall be deemed a default under this Agreement and in such event, City may terminate this Agreement upon three (3} days written notice to Lessee. For the purposes of this Agreement, the condition to provide the insurance coverage required under this Section 4.02 shall be in addition to rent. 4.03 Accident Reports. Lessee shall promptly report to City any accident causing any property damage or any serious injury to persons on or about the Premises. This report shall contain the names and addresses of the parties involved, a statement of the circumstances, the date and hour, the names and addresses of any witnesses and other pertinent information. SECTION 5: TERMS AND CONDITIONS OF OCCUPANCY 5.01 Form of Agreement. This Agreement is a limited lease for the use of the Premises for those particular purposes ident~ed in Section 1.2. Nothing in this Agreement shall be interpreted to grant any interest in the Premises other than that specified in this Agreement. At no time shall the Lessee's limited interest in the Premises ripen info a leasehold or fee interest with a claim or right to exclusive possession thereof. 5.02 Right to Occupy. Lessee right to occupy the Premises may be terminated by City at any time if Lessee fails to satisfactorily perform the improvement, maintenance, and Page 6 osioano~z TmGreen LandCare License Agreement 5-13 upkeep duties or responsibilities of Lessee set forth hereunder. City reserves the right to terminate this Agreement as may be provided for elsewhere herein. 5.03 Taxes. Lessee shall pay, before delinquency, all taxes, assessments, and flees assessed or levied upon Lessee or the Premises, including the land, any buildings, structures, machines, equipment, appliances, or other improvements or properly of any nature whatsoever erected, installed, or maintained by Lessee or levied by reason of the business or other Lessee activities related to the Premises, including any licenses or permits. Lessee recognizes and agrees that this Agreement may create a possessory interest subject to properly taxation, and that Lessee may be subject to the payment of taxes levied on such interest, and that Lessee shall pay all such possessory interest taxes prior to their delinquency. SECTION 6: IMPROVEMENTS/ALTERATIONS/REPAIRS 6.01 Acceptance of Premises. The Premises is being offered to Lessee in an As-Is and Where-Is condition without any warranty, expressed or implied. Lessee represents and warrants that it has independently inspected the Premises and made all tests, investigations, and observations necessary to satisfy itself of the condition of the Premises and all improvement appurtenant thereto. Lessee acknowledges it is relying solely on such independent inspection, tests, investigations, and observations in making this Agreement Lessee further acknowledges that the Premises are in the condition called for by this Agreement, and that Lessee does not hold City responsible for any defects in the Premises. 6.02 Waste. Damage, or Destruction. Lessee shall give notice to City of any fire or other damage that occurs on the Premises within forty-eight (48) hours of such fire or damage. Lessee shall not commit or suffer to be committed any waste or injury or any public or private nuisance, to keep the Premises, adjoining sidewalks, and other public areas, clean and clear of refuse and obstructions, and to dispose of all garbage, trash, and rubbish in a manner satisfactory to City. If the Premises shall be damaged by any cause which puts the Premises into a condition which is not decent, safe, healthy and sanitary, Lessee agrees to make or cause to be made full repair of said damage and to restore the Premises to the condition which existed prior to said damage; or, at City's option, and upon receipt of written demand thereof, Lessee agrees to clear and remove from the Premises all debris resulting from said damage and repair the Premises in accordance with plans and specifications previously submitted to City and approved in writing in order to replace in kind and scope the improvements which existed prior to such damage. Lessee shall be responsible for all costs incurred in the repair and restoration, or rebuilding of the Premises. Lessee shall not cause or permit any hazardous material to be used, stored, transported, generated, or disposed in or about the Premises by Lessee, Lessee's agents, employees, contractors, Lessees, or invitees. "Hazardous Material" means any hazardous, toxic, or infectious substance, material, or waste, which is or becomes regulated by any local governmental entity, the State of California, or the United States government under any law, regulation or ordinance. 6.03 Maintenance. Lessee agrees to assume full responsibility and cost for the operation and maintenance of the Premises throughout the term of this Agreement. Lessee will Page 7 os~oano~2 TruGreen LandCare License Agreement 5-14 make customary and usual maintenance necessary to maintain and preserve the Premises, all improvements, including fencing, adjoining sidewalks, and other public areas, in a decent, safe, healthy, and sanitary condition satisfactory to City and in compliance with all applicable laws. Lessee shall remove and lawfully and properly dispose of all garbage, litter, trash, debris, and rubbish from or about the Premises, adjoining sidewalks, and other public areas, on a daily basis. All components of the fencing, including but not limited to posts and rails, shall be mended/replaced on an as-needed, when-needed basis, using material of similar type and style. Lessee shall maintain surrace on the Premises in a good, neat and orderly manner. Weeds, tree or shrub branches, leaves, twigs, and other similar debris shall be removed from the Premises as needed to maintain a neat appearance at all times. Lessee shall provide access control to the Premises to prevent access and parking of unauthorized vehicles. All maintenance and other Lessee duties set forth herein shall, during the term hereof, be done at Lessee sole cost and expense and City shall not be called upon for any outlay or expense related thereto. If at any time during the term of this Agreement, City reasonably determines that the Premises are not in a decent, safe, healthy, and sanitary condition, City may, at its sole discretion and option, terminate this Agreement upon written notice to Lessee and regain possession of the Premises from Lessee. In the event of such termination, or if City elects not to terminate, City may, upon written notice to Lessee, have any necessary maintenance work done in order to place the Premises back to a decent, safe, healthy, and sanitary condition at the expense of Lessee. In such event, City shall provide Lessee written notice and itemized billing showing the work performed and Lessee shall make payment to City no later than thirty (30) days after receipt of said notice and billing. The rights reserved in this Section 6.03 shall not create any obligations on City or increase obligations elsewhere in this Agreement imposed on City. The provisions of this Section 6.03 shall survive the expiration or earlier termination of this Agreement. 6.04 Improvements/Alterations. No improvements, sfructures, or installations shall be constructed on the Premises, and the Premises may not be altered by Lessee without prior written approval by the City. This provision shall not relieve Lessee of any obligation under this Agreement to maintain the Premises in a decent, safe, healthy, and sanitary condition, including structural repair and restoration of damaged or worn improvements. City shall not be called upon to, or be obligated by this Agreement to make or assume any expense for any existing improvements or alterations. 6.05 Liens. Lessee shall not, directly or indirectly, create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance, or claim on or with respect to all or any portion of the Premises without the prior written consent of the City's Property Manager. Lessee shall promptly, at its own expense, take such action as may be necessary to duly discharge or remove any such mortgage, pledge, lien, charge, encumbrance or claim on or with respect to all or any portion of the Premises for which Lessee does not have the prior written consent of the City's Property Manager. 6.06 Signs. Lessee shall no# erect or display any banners, pennants, flags, posters, signs, decorations, marquees, awnings, or similar devices or advertising on or about the Premises without the prior written consent of City. If any such unauthorized item is found on the Premises, Lessee shall remove the item at its expense within twenty-four (24} hours of written notice thereof by City, or City may thereupon remove the item at Lessee's cost. Page 8 osioa~zotz TniGreen LandCare License /{greement 5-15 6.07 Ownership of Improvements. Any and all improvements, structures, and installations or additions to the Premises now existing or constructed on the Premises by Lessee shall at Agreement expiration or termination be deemed to be part of the Premises and shall become, at City's option, Gity's property, free of all liens and claims except as otherwise provided in this Agreement. If the City chooses not to accept improvements made by Lessee, during the term of this Lease, and prefers to have such improvements removed, Lessee shall do so at its sole cost and expense. 6.08 Breach by Lessee. Lessee's refusal or failure to meet its obligations under this Section 6 shall be deemed a breach of this Agreement, and in such event, City may terminate this Agreement pursuant to the provision of Section 7.10 or elsewhere herein. SECTION 7: GENERAL PROVISIONS 7.01 Notices. All notices, demands, requests, consents or other communications which this Agreement contemplates or authorizes, or requires or permits either party to give to the other, shall be in writing and shall be personally delivered or mailed, postage prepaid, to the respective party as follows: To City: Rick Ryals Real Property Manager City of Chula Vista Department of Public Works 276 Fourth Avenue Chula Vista, CA 91910 With Gopy to: City of Chula Vista City Attorney 276 Fourth Avenue Chula Vista, CA 91910 To Lessee: TruGreen LandCare PO Box 22207 San Diego, CA 92192-2207 Attention: Jared Rice Either party may change its address by notice to the other party as provided herein. Communications shall be deemed to have been given and received on the first to occur of: (i) actual receipt at the offices of the party to whom the communication is to be sent, as designated above; or {ii) three working days following the deposit in the United States Mail of certified mail, postage prepaid, return receipt requested, addressed to the offices of the party to whom the communication is to be sent, as designated above, or (iii) actual receipt if made by recognized reliable currier service who maintains a receipt of delivery. Page 9 osioarzotz TruGreen LandCare License Agreement 5-16 7.02 City Approval. The City's Property Manager shall be the City's authorized representative in the interpretation and enforcement of all work performed in connection with this Agreement. The City's Property Manager may delegate authority in connection with this Agreement to the City's Property Manager's designee(s). For the purposes of directing Lessee in accordance with this Agreement, which does not result in a change to this Agreement, the City's Property Manager delegates authority to the Real Estate Manager and/or the Redevelopment Manager of the Economic and Community Development Department. For the purposes of interpretation of and/or changes to this agreement, the City's Property Manager delegates authority to the Real Estate Manager. 7.03 Nondiscrimination. Lessee agrees not to discriminate in any manner against or segregation of any person or persons, on account of race, color, religion, sex, familiar status, national origin, ancestry, age, disability or sexual orientation in the use, occupancy, tenure or enjoyment of the Premises, nor shall Lessee itself, or any person claiming under or through it, establish or permit such pracfice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of the Premises. 7.04 Equal Opportunity. Lessee shall assure applicants are employed and that employees are treated during employment without regard to race, familial status, color, religion, sex or national origin. Lessee hereby certify to City that Lessee is in compliance and throughout the term of this Agreement will comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices Act, and any other applicable Federal, State and Local law, regulation and policy (including without limitation those adopted by City) related to equal employment opportunity and affirmative action programs, including any such law, regulation, and policy hereinafter enacted. a. Compliance and performance by Lessee of the equal employment opportunity and affirmative action program provision of this Agreement is an express condition hereof and any failure by Lessee to so comply and perform shall be a default of this Agreement and City may exercise any right as provided herein and as otherwise provided by law. 7.05 Entire Agreement. This Agreement comprises the entire integrated understanding between City and Lessee concerning the use and occupation of the Premises and supersedes all prior negotiations, representations, or agreements- Each party has relied on its own examination of the Premises, advice from its own attorneys, and the warranties, representations, and covenants of the Agreement itself. 7.06 Interpretation of the Agreement. The interpretation, validity and enforcement of the Agreement shall be governed by and construed under the laws of the State of California. The Agreement does not limit any other rights or remedies available to City. a. The Lessee shall be responsible for complying with all Local, State, and Federal laws whether or not said laws are expressly stated or referred to herein. b. Should any provision herein be found or deemed to be invalid, the Agreement shall be construed as not containing such provision, and all other provisions which are otherwise lawful shall remain in full force and effect, and io this end the provisions of this Agreement are severable. Page 10 osloano~z TruGreen LandCare License Agreement 5-17 c. This Agreement shall inure to the benefrt of and be binding upon the parties hereto and their respective successors and assigns. 7.07 ggreement Modification. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by the parties hereto. 7.08 Attornev's Fees. In the event a suit is commenced by City against Lessee to enforce payment of amounts due, or to enforce any of the terms and conditions hereof, or in case City shall commence summary action under the laws of the State of California relating to the unlawful detention of Premises, for forfeit of this Agreement, and the possession of the Premises, provided City effects a recovery, Lessee shall pay City all reasonable costs expended in any action, together with a reasonable attorney's fee to be fixed by the court. Venue for any such suit or action shall be Califomia Superior Court, San Diego County, North County Branch. 7.09 Assighment and Subletting-No Encumbrance. This Agreement and any portion thereof shall not be assigned, transferred, or sublet, nor shall any of the Lessee's duties be delegated, without the express written consent of City. Any attempt to assign or delegate this Agreement without the express written consent of City shall be void and of no force or effect. A consent by City to one assignment, transfer, sublease, or delegation shall not be deemed to be a consent to any subsequent assignment, transfer, sublease, or delegation. 7.10 Defaults and Termination. If City has a good faith belief that Lessee is not complying with the terms of this Agreement, City shall give written notice of the default (with reasonable specffcity) to Lessee and demand the default to be cured within fifteen (15) days of the notice. If Lessee is actually in default of this Agreement and fails to cure the default within fifteen (15) days of the notice, or, if more than fifteen (15) days are reasonably required to cure the default and Lessee fails to give adequate assurance of due performance within ten (10) days of the notice, City may terminate this Agreement upon written notice to Lessee. City may also terminate this Agreement upon written notice to Lessee in the event that: a. Lessee has previously been notified by City of Lessee's default under this Agreement and Lessee, after beginning to cure the default, fails to diligently pursue the cure of the default to completion; or b. Lessee shall voluntarily file or have involuntarily filed against it any petition under any bankruptcy or insolvency actor law; or c. Lessee shall be adjudicated a bankruptcy; or d. Lessee shall make a general assignment for the benefit of creditors. Upon termination, City may immediately enter and take possession of the Premises. 7.11 No Waiver. The failure to require the remedy of a breach or enforce the terms and conditions of this Agreement in one instance or several instances shall not be interpreted to be a waiver of the right to enforce the terms and conditions of this Agreement for any subsequent breach. Page 11 os~oaizoiz TruGreen LandCare License Agreement 5-18 7.12 Other Regulations. All use of the Premises by Lessee under this Agreement shall be in accordance with the laws of the United States of America, the State of California, the County of San Diego, and in accordance with all applicative rules and regulations and ordinances of the City of Chula Vsta now in force, or hereinafter prescribed or promulgated by resolution or ordinance or by Local, State or Federal law. 7.13 Time is of Essence; Provisions Binding on Successors. Time is of the essence of all of the terms, covenants and conditions of this Agreement and, except as otherwise provided herein, all of the terms, covenants and conditions of this Agreement shall apply to, benefit and bind the successors and assigns of the respective parties, jointly and individually. 7.14 Section Headings. The Table of Contents and the section headings contained herein are for convenience onlv~^ ~~;~e and are not intended to define or limit the scope of any provision thereof. 7.15 Gender/Singular/Plural. The neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter, and the feminine includes the masculine and neuter, and each includes corporation, partnership, or other legal entity when the context so requires. The singutar number includes the plural whenever the context so requires. 7.16 Non-liability of Ofricials. No member, official or employee of the City shall be personally liable to Lessee, its assigns or successors in interest, in the event of any default or breach by the City, for any amount which may become due to Lessee its assigns or successors, or form any ob]igations under the terms of this Agreement. 7.17 Relationship between City and Lessee. It is hereby acknowledged that the relationship between City ahd Lessee is that of landowner and tenant at will and not that of a partnership or joint venture and that City and Lessee shall not be deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided herein, the City shall have no duties or obligations with respect to the improvement, maintenance or upkeep of the Premises. REMAINDER OF PAGE LEFT BLANK INTENTIONALLY [Signatures on Following Page] Page 12 osioai2o~z TruGreen LantlCare License Agreement 5-19 SECTION 8: SIGNATURES 8.01 Signatories. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity and authority to enter into and to execute this Agreement on behalf of the respective legal entities pf the Lessee and the City. IN WITNESS WHEREOF the parties hereto for themselves, their heirs, executors, administrators, successors, and assigns do hereby agree to the full performance of the covenants herein contained and have caused this Property Use Permit to be executed as of, but not necessarily on, the Effective Date by setting hereunto their signatures herein below. CITY: City of Chula Vista By: APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By: LESSEE: TruGreen Landcare By. Dated: 4 S r2 Page 13 09/04/2012 TruGreen IandCare License Agreement 5-20 Exhibit "A" TrueGreen LandCare Lease Area 5-21 Exhibit "B" Scope of Services Tru-Green Landcare shall furnish all labor, equipment, materials, tools, services, incidentals, and special skills required to continue the landscape maintenance of the following areas, as part of extending their original 2005 contract per Council Resolution 2005-266 DTD 7/26/2005. Terms and Conditions 1. Orange Ave Turf Islands from Connally Ave. to Melrose 2. Broadway Islands from Main st. to "L" st. 3. Palomar st. Island between Broadway and Industrial 4. South Main street parkway and islands from Oleander to Maxwell ave. 5. Parkway Islands in front of the Parkway Gymnasium between 3rd and 4th avenue 6. Third ave. turf Islands from Madrona to F st. 7. Est Island at Hwy 805 8. H st corridor between Hwy 5 and Broadway 9. West J st Islands between Hwy 5 and Broadway 10. Islands in front of Bonita High School south to Southwestern College on Otay Lakes Road 11. East H street turf Islands between Aubum ave. and Otay Lakes road 12. East J st islands between Gilbert Place and Cassia Place 8/14/2012 5-22 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM $Y THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPRQ~JAL BY 'T/I~ CITY C~pUNCIL ~ ---„ R. Gt6bgir Attorney Dated: ~ f PROPERTY LEASE AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND WEST COAST ARBORIST FOR THE USE OF CITY OWNED REAL PROPERTY LOCATED AT 707 F STREET 5-23 PROPERTY LEASE AGREEMENT BY AND BETWEEN OF THE CITY OF CHULA VISTA AND WEST COAST ARBORIST FOR THE USE OF CITY OWNED REAL PROPERTY LOCATED AT 707 F STREET 5-24 CITY OF CHULA VISTA LEASE AGREEMENT WEST COAST ARBORIST SECTION PARAGRAPH PAGE SECTION 1: USES 1.01 Premises 1 1.02 Uses 1 1.03 Reservation of Rights 2 SECTION 2: TERM 2.01 Term 2 2.02 Termination 2 2.03 Surrender of Premises 2 SECTION 3: COMPENSATION 3.01 Rent for Use of Premises 3 3.02 Utilities 3 SECTION 4: INSURANCE RISKS/SECURITY 4.01 Indemnity 3 4.02 Insurance 4 4.03 Accident Reports 6 SECTION 5: TERMS AND CONDITIONS OF OCCUPANCY 5.01 Form of Agreement 6 5.02 Right to Occupy 6 5.03 Taxes 6 5-25 CITY OF CHULA VISTA LEASE AGREEMENT WEST COAST ARBORIST SECTION PARAGRAPH PAGE SECTION 6: IMPROVEMENTS/ALTERATIONS/REPAIRS 6.01 Acceptance of Premises 7 6.02 Waste, Damage, or Destruction 7 6.03 Maintenance 7 8.04 Improvements/Alterations 8 8.05 Liens 8 8.06 Signs 8 6.07 Ownership of Improvements 8 6.08 Breach by Lessee 9 SECTION 7: GENERAL PROVISIONS 7.01 Notices 9 7.02 City Approval 9 7.03 Nondiscrimination 10 7.04 Equal Opportunity 10 7.05 Entire Agreement 10 7.06 Interpretation of the Agreement 10 7.07 Agreement Modification 10 7.08 Attorney's Fees 10 7.09 Assignment and Subletting-No Encumbrance 11 7.10 Defaults and Termination 11 7.11 Other Regulations 11 7.12 Time is of Essence; Provisions Binding on Successors 11 7.13 Section Heading 12 7.14 Gender/Singular/Plural 12 7.15 Non-Liability of Officers 12 7.16 Relationship between City and Lessee 12 SECTION 8: SIGNATURES 8.01 Signatories 13 EXHIBITS Exhibit "A" -Sketch of Premises 5-26 THIS LEASE AGREEMENT, hereinafter called "Agreement", dated as of solely for identification purposes, is executed between the City of Chula Vista, a public body corporate and politic, hereinafter called "City", and WEST COAST ARBORIST, a California Corporation, hereinafter called "Lessee", to establish terms and conditions of Lessee's use of certain real property owned by City and to provide terms and conditions of Lessee's occupancy and use of City's property. The effective date of this Agreement shall be the date this Agreement is approved by the City ("Effective Date"). RECITALS WHEREAS, City is the legal and equitable owner of that certain real property located at 707 F Street, Chula Vista, currently identified as San Diego County Assessor's Parcel No. 567- 031-27, more fully described herein below; and WHEREAS, Lessee is the owner and operator of West Coast Arborist whose principle place of business is located at 8524 Commerce Avenue, Suite B, San Diego, CA 92121; and WHEREAS, Lessee desires to and has requested permission to use a portion of said City real property, more particularly described herein for the storage and staging of landscaping equipment and supplies; and WHEREAS, City hereby Leases to Lessee and Lessee hereby Leases from City that certain portion of City's real property herein identified, under the terms, covenants, conditions and provisions contained herein. AGREEMENT NOW THEREFORE, THE PARTIES HERETO MUTUALLY AGREE AS FOLLOWS: SECTION 1: USES 1.01 Premises. City hereby Leases to, in accordance with the terms, covenants, conditions and provisions hereof, a portion of City owned real property located at 707 F Street, Chula Vista, and currently identified as San Diego County Assessor's Parcel No. 567-031-27, which portion is depicted in Exhibit "A" attached hereto and by this reference made part of this Agreement (the "Premises"). In return for this permission, Lessee hereby agrees to act in accordance with and abide by the terms, covenants, conditions and provisions of this Agreement. 1.02 Uses. It is expressly agreed that the Premises shall be used by Lessee solely and exclusively for the purpose of storage and staging landscaping supplies and equipment and for such other related or incidental purposes as may be first approved in writing by the City's Real Property Manager ("Manager") and for no other purpose whatsoever. Lessee covenants and agrees to use the Premises only for the above specified purpose and to diligently pursue said purpose throughout the term hereof. Lessee shall not use or permit any use of the Premises in any manner which disturbs the use and quiet enjoyment by City or any surrounding tenants. In the event that Lessee fails to continuously use the Premises for said Page 1 osiosizotz West Coast Arborist Lease Agreement 5-27 purpose, or uses the Premises for purposes not expressly authorized herein, the Lessee shall be deemed in default under this Agreement. 1.03 Reservation of Rights. City shall not unreasonably or substantially interfere with Lessee use of the Premises while Lessee is in possession of the Premises. However, the City specifically retains the following rights: a. Subsurtace Rights. City hereby reserves all rights, title and interest in any and all subsurface natural gas, oil, minerals and water on or within the Premises. b. Easements. City reserves the right to grant and use easements or to establish and use rights-of-way over, under, along and across the Premises for utilities, thoroughfares, or access as it deems advisable for the public good. c. Right to Enter: City has the right to enter the Premises for the purpose of performing maintenance, inspections, repairs or improvements, or developing municipal resources and services. SECTION 2: TERM 2.01 Term. The term of this Agreement shall be one (1) year commencing on the Effective Date of this Agreement. Upon the expiration of the initial term of this Agreement, Lessee may request to extend the term of the Lease for an additional one-year term. Lessee shall request said option by written notice to City not less than 90 (ninety) calendar days prior to the expiration of the Lease term. Any extension shall be subject to the approval of City Council. Unless otherwise mutually agreed by the parties in writing, the terms and conditions of this Agreement shall remain in effect during the extended term. If City for any reason cannot deliver possession of the Premises to Lessee at the commencement of the term, or if during the term of this Agreement Lessee is dispossessed for any reason whatsoever, City shall not be liable to Lessee for any loss or damage resulting therefrom. 2.02 Termination. Either party may terminate this Agreement upon ninety (90) days written notice to the other party. 2.03 Surrender of Premises. At the expiration or earlier termination of this Agreement, Lessee shall surrender the Premises to City free and clear of all liens and encumbrances, except those liens and encumbrances which existed on the date of the execution of this Agreement by City. The Premises, when surrendered by Lessee, shall be in a safe and sanitary condition and shall be in as good or better condition as the condition at the commencement of this Agreement, absent normal wear and tear. Page 2 osiosi2otz West Coast Arborist Lease Agreement 5-28 SECTION 3: RENT 3.01 Rent for Use of Premises. Licensee does hereby acknowledge and agree that West Coast Arborist (WCA) shall furnish tree trimming and removal services for the City of Chula Vista equivalent to one thousand dollars ($1000) or more per month as part of extending their existing 2009/2010 contract with the City of Chula Vista Urban Forestry Division. Removal costs will be negotiated on a case-by-case basis taking into consideration access limitations, size and type of tree, and tree-trimming services required for the City in coordination with and to the satisfaction of Public Works Department Staff. Licensee shall also be responsible for maintenance and upkeep of the Premises, in an attractive, good, neat, and orderly condition during the term of this Agreement: this obligation is a material consideration of City entering into this Agreement. City agrees that the tree trimming services together with the maintenance and upkeep of the Premises by Licensee as set forth in Section 6 hereof, are valuable consideration received from Licensee and shall constitute all the property use payment to be paid by Licensee for its use of the Premises in accordance with the terms, covenants, conditions and provisions of this Agreement. Provided Licensee is not in breach or default under any of the terms hereof, Licensee shall not be required to pay any monetary consideration to City for its use and occupation of the Premises. For convenience only, consideration as set forth in this Section 3.01 may be referred to as rent 3.02 Utilities. Lessee agrees that no utilities are available under this Lease and none are to be accessed without prior written approval of City. SECTION 4: INSURANCE RISKS/SECURITY 4.01 Indemnity. a. Lessee hereby agrees to defend, indemnify, and hold the City, its directors, officers, employees, and agents, harmless from and against any and all liability or claim of liability, loss or expense, including defense costs and legal fees and claims for damages of whatever character, nature and kind, whether directly or indirectly arising from or connected with, or related to this Agreement or an act or omission of Lessee, or any employee, agent, invitee, contractor, or licensee of Lessee, or other person acting by or on behalf of Lessee on or about the Premises, including, but not limited to, liability, expense, and claims for bodily injury, death, personal injury, or property damage. This indemnity provision does not include any claims, damages, liability, costs and expenses (including without limitations, attorneys fees) arising from the sole negligence or sole willful misconduct of the City, its officers, employees, or agents. Also covered is liability arising from, connected with, caused by or claimed to be caused by the active or passive negligent acts or omissions of the City, its agents, officers, or employees which may be in combination with the active or passive negligent acts or omissions of the Lessee, its employees, agents or officers b. Costs of Defense and Award. Included in the obligations in Section 4.01(a) is the Lessee's obligation to defend, at Lessee's own cost, expense and risk, any and all aforesaid suits, actions or other legal proceedings of every kind that may be brought or instituted against the City, its directors, officials, officers, employees, agents and/or volunteers. Lessee shall pay and satisfy any judgment, award or Page 3 osios~zot z West Coast Arborist Lease Agreement 5-29 decree that may be rendered against City or its directors, officials, officers, employees, agents and/or volunteers, for any and all legal expense and cost incurred by each of them in connection therewith. c. Insurance Proceeds. Lessee's obligation to indemnify shall not be restricted to insurance proceeds, if any, received by the City, its directors, officials, officers, employees, agents, andlor volunteers. d. Declarations. Lessee's obligations under Section 4 shall not be limited by any prior or subsequent declaration by the Lessee. e. Enforcement Costs. Lessee agrees to pay any and all costs City incurs enforcing the indemnity and defense provisions set forth in Section 4. f. Survival. Lessee's obligations under Section 4 shall survive the termination of this Agreement. 4.02 Insurance. Lessee shall take out and maintain at all times during the term of this Agreement the following insurance at its sole expense: a. Lessee shall maintain the following minimum limits: General Liability Insurance Commercial General Liability Insurance covering liability of the Lessee with respect to all operations to be performed and all obligations assumed by the Lessee under the terms of this Agreement. Coverage for commercial general liability shall be at least as broad as Insurance Services Office Commercial General Liability Coverage (Occurrence Form CG 0001). Limits shall be no less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply to the Premises (with the ISO CG 2503, or ISO CG 2504, or insurer's equivalent endorsement provided to City) or the general aggregate limit shall be twice the required occurrence limit. Automobile Liability Insurance Automotive Liability Insurance covering the liability of Lessee arising out of the use of all owned, non-owned, and hired vehicles which bear, or are required to bear, license plates according to the laws of California and which are not covered under the Lessee Commercial General Liability insurance. Coverage under this policy shall have limits of liability of not less than one million dollars ($1,000,000) per occurrence, combined single limit, for bodily injury and property damage (including loss of use) liability. Coverage shall be at least as broad as Insurance Services Office Automobile Liability Coverage (Form CA 0001), covering Symbol 1 (any auto). Page 4 09/06/2012 West Coast Arborist Lease Agreement 5-30 Workers' Compensation and Employer's Liability Insurance Page 5 Workers' Compensation and Employer's Liability Insurance complying will the requirements of all applicable laws relating to workers' compensation insurance, covering or insuring all of the Lessee employees working on or about the Premises. Limits shall be no less than statutory limits per accident for bodily injury and disease. By his/her signature hereunder, Lessee certifies that it is aware of the provisions of Section 3700 of the California Labor Code which require every employer to be insured against liability for workers' compensation or to undertake self-insurance in accordance with the provisions of that code, and it will comply with such provisions in connection with any work performed on or about the Premises. Any persons providing services with or on behalf of Lessee shall be covered by workers' compensation (or qualified self-insurance) b. All insurance companies affording coverage to the Lessee shall be required to add the City of Chula Vista, its officials, officers, employees, and agents as "additional insured(s)" under the insurance policy(s) required in accordance with this Agreement. Lessee shall furnish (or cause to be furnished) a certificate of insurance countersigned by an authorized agent of the insurance carrier on a form of the insurance carrier setting forth the general provisions of the insurance coverage. This countersigned certificate (and endorsement) shall name the City and the City, their officers, agents, employees, and authorized volunteers as additional insured under the policy. Coverage provided hereunder to the City and City as additional insured by Lessee shall be primary insurance and other insurance maintained by the City, its officials, officers, agents and/or employees, shall be excess only and not contributing with insurance provided pursuant this Section 4.02, and shall contain such provision in the policy(ies), certificate(s) and/or endorsement(s). The insurance policy or the certificate of insurance shall contain a waiver of subrogation for the benefit of the City, its officials, officers, employees, and agents. c. All insurance companies affording coverage to the Lessee shall be insurance organizations acceptable to the City, and authorized by the Insurance Commissioner of the State Department of Insurance to transact business of insurance in the State of California. Insurance is to be placed with insurers having a current A.M. Best rating of no Tess than A-, VII or equivalent or as otherwise approved by City. d. All insurance companies affording coverage shall provide thirty (30) days written notice to the City should the policy be cancelled before the expiration date. For the purposes of this notice requirement, any material change in the policy prior to the expiration shall be considered a cancellation. e. Lessee shall provide evidence of compliance with the insurance requirements listed above by providing a certificate of insurance, in a form satisfactory to the General Counsel (City Attorney), concurrently with the submittal of this Agreement. osiosizot z West Coast Arborist Lease Agreement 5-31 f. Lessee shall provide a substitute certificate of insurance no later than thirty (30) days prior to the policy expiration date. Failure by the Lessee to provide such a substitution and extend the policy expiration date shall be considered a default by Lessee and may subject the Lessee to a termination of this Agreement. g. Maintenance of insurance by the Lessee as specified in this Agreement shall in no way be interpreted as relieving the Lessee of any responsibility whatever and the Lessee may carry, at its own expense, such additional insurance as it deems necessary. h. If Lessee fails or refuses to take out and maintain the required insurance, or fails to provide the proof of coverage, City has the right to obtain the insurance. Lessee shall reimburse City for the premiums paid with interest at the maximum allowable legal rate then in effect in California. City shall give notice of the payment of premiums within thirty (30) days of payment stating the amount paid, names of the insurer(s), and rate of interest. Said reimbursement and interest shall be paid by Lessee on the first (1st) day of the month following the notice of payment by City. City, at its discretion, may require the revision of amounts and coverage a1 anytime during the term of this Agreement by giving Lessee sixty (60) days prior written notice. City's requirements shall be designed to assure protection from and against the kind and extent of risk existing on the Premises. Lessee also agrees to obtain any additional insurance required by City for new improvements, in order to meet the requirements of this Agreement. j. Notwithstanding the preceding provisions of this Section 4.02, any failure or refusal by Lessee to take out or maintain insurance as required in this Agreement, or failure to provide the proof of insurance, shall be deemed a default under this Agreement and in such event, City may terminate this Agreement upon three (3) days written notice to Lessee. For the purposes of this Agreement, the condition to provide the insurance coverage required under this Section 4.02 shall be in addition to rent. 4.03 Accident Reports. Lessee shall promptly report to City any accident causing any property damage or any serious injury to persons on or about the Premises. This report shall contain the names and addresses of the parties involved, a statement of the circumstances, the date and hour, the names and addresses of any witnesses and other pertinent information. SECTION 5: TERMS AND CONDITIONS OF OCCUPANCY 5.01 Form of Agreement. This Agreement is a limited lease for the use of the Premises for those particular purposes identified in Section 1.2. Nothing in this Agreement shall be interpreted to grant any interest in the Premises other than that specified in this Agreement. At no time shall. the Lessee's limited interest in the Premises ripen into a leasehold or fee interest with a claim or right to exclusive possession thereof. Page 6 09/06/2012 West Coast Arborist Lease Agreement 5-32 5.02 Right to Occuav. Lessee right to occupy the Premises may be terminated by City at any time if Lessee fails to satisfactorily perform the improvement, maintenance, and upkeep duties or responsibilities of Lessee set forth hereunder. City reserves the right to terminate this Agreement as may be provided for elsewhere herein. 5.03 Taxes. Lessee shall pay, before delinquency, all taxes, assessments, and fees assessed or levied upon Lessee or the Premises, including the land, any buildings, structures, machines, equipment, appliances, or other improvements or property of any nature whatsoever erected, installed, or maintained by Lessee or levied by reason of the business or other Lessee activities related to the Premises, including any licenses or permits. Lessee recognizes and agrees that this Agreement may create a possessory interest subject to property taxation, and that Lessee may be subject to the payment of taxes levied on such interest, and that Lessee shall pay all such possessory interest taxes prior to their delinquency. SECTION 6: IMPROVEMENTS/ALTERATIONS/REPAIRS 6.01 Acceptance of Premises. The Premises is being offered to Lessee in an As-Is and Where-Is condition without any warranty, expressed or implied. Lessee represents and warrants that it has independently inspected the Premises and made all tests, investigations, and observations necessary to satisfy itself of the condition of the Premises and all improvement appurtenant thereto. Lessee acknowledges it is relying solely on such independent inspection, tests, investigations, and observations in making this Agreement. Lessee further acknowledges that the Premises are in the condition called for by this Agreement, and that Lessee does not hold City responsible for any defects, patent or latent, to the extent permitted under the law, in the Premises. 6.02 Waste. Damage, or Destruction. Lessee shall give notice to City of any fire or other damage that occurs on the Premises within forty-eight (48) hours of such fire or damage. Lessee shall not commit or suffer to be committed any waste or injury or any public or private nuisance, to keep the Premises, adjoining sidewalks, and other public areas, clean and clear of refuse and obstructions, and to dispose of all garbage, trash, and rubbish in a manner satisfactory to City. If the Premises shall be damaged by any cause which puts the Premises into a condition which is not decent, safe, healthy and sanitary, Lessee agrees to make or cause to be made full repair of said damage and to restore the Premises to the condition which existed prior to said damage; or, at City's option, and upon receipt of written demand thereof, Lessee agrees to clear and remove from the Premises all debris resulting from said damage and repair the Premises in accordance with plans and specifications previously submitted to City and approved in writing in order to replace in kind and scope the improvements which existed prior to such damage. Lessee shall be responsible for all costs incurred in the repair and restoration, or rebuilding of the Premises. Lessee shall not cause or permit any hazardous material to be used, stored, transported, generated, or disposed in or about the Premises by Lessee, Lessee's agents, employees, contractors, Lessees, or invitees. "Hazardous Material" means any substance, material or waste which is or becomes (1) regulated by any local or regional governmental authority, the State of California or the United States Government as hazardous waste, (ii) is defined as a Page 7 osios~zot z West Coast Arborist Lease Agreement 5-33 "solid waste", "sludge", "hazardous waste", "extremely hazardous waste", "restricted hazardous waste", "Non-RCRA hazardous waste," "RCRA hazardous waste', or "recyclable material", under any federal, state or local statue, regulation or ordinance, including without limitation Sections 25115, 25117, 25117.9, 25120.2, 25120.5, 251227, 25140, 25141 of the California Health and Safety Code; (iii) defined as "Hazardous Substance" under Section 25316 of the California Health and Safety Code; (iv) defined as a "Hazardous Material", "Hazardous Substance", or "Hazardous Waste" under Section 25501 of the California Health and Safety Code; (v) defined as a "Hazardous Substance" under Section 25281 of the California Health and Safety Code; (vi) asbestos; (vii) petroleum products, including without limitation, petroleum, gasoline, used oil, crude oil, waste oil and any fraction hereof, natural gas, natural gas liquefied, natural gas or synthetic fuels, (viii) materials defined as hazardous or extremely hazardous pursuant to the California Code of Regulations; (ix) polychlorinated biphenyls; (x) defined as a "Hazardous Substance" pursuant to Section 311 of the Federal Water Pollution Control Act (33 U.S.C. Section 1251, et seq.); (xi) defined as a "Hazardous Waste" pursuant to Section 1004 of the Federal Resource Conservation and Recovery Act, 42 U.S.C. Section 6901, et seq., (xii) defined as a "Hazardous Substance" or "Mixed Waste" pursuant to Section 101 of the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. Section 9601, et seq. and regulations promulgated hereunder; (xiii) defined as a "Hazardous Substance' pursuant to Section 401.15 of the Clean Water Act, 40 C.F.R. 116; OR (xiv) defined as an "Extremely Hazardous Substance" pursuant to Section 302 of the Superfund Amendments and Reauthorizations Act of 1986, 42 U.S.C. Section 11002, et seq. 6.03 Maintenance. Lessee agrees to assume full responsibility and cost for the operation and maintenance of the Premises throughout the term of this Agreement. Lessee will make customary and usual maintenance necessary to maintain and preserve the Premises, all improvements, including fencing, adjoining sidewalks, and other public areas, in a decent, safe, healthy, and sanitary condition satisfactory to City and in compliance with all applicable laws. Lessee shall remove and lawfully and properly dispose of all garbage, litter, trash, debris, and rubbish from or about the Premises, adjoining sidewalks, and other public areas, on a daily basis. All components of the fencing, including but not limited to posts and rails, shall be mended/replaced on an as-needed, when-needed basis, using material of similar type and style. Lessee shall maintain surface on the Premises in a good, neat and orderly manner. Weeds, tree or shrub branches, leaves, twigs, and other similar debris shall be removed from the Premises as needed to maintain a neat appearance at all times. Lessee shall provide access control to the Premises to prevent access and parking of unauthorized vehicles. All maintenance and other Lessee duties set forth herein shall, during the term hereof, be done at Lessee sole cost and expense and City shall not be called upon for any outlay or expense related thereto. If at any time during the term of this Agreement, City reasonably determines that the Premises are not in a decent, safe, healthy, and sanitary condition, City may, at its sole discretion and option, terminate this Agreement upon written notice to Lessee and regain possession of the Premises from Lessee. In the event of such termination, or if City elects not to terminate, City may, upon written notice to Lessee, have any necessary maintenance work done in order to place the Premises back to a decent, safe, healthy, and sanitary condition at the expense of Lessee. In such event, City shall provide Lessee written notice and itemized billing showing the work performed and Lessee shall make payment to City no later than thirty (30) days after receipt of said notice and billing. The rights reserved in this Section 6.03 shall not create any obligations on City or increase obligations elsewhere in this Agreement imposed on City. The Page 8 09/06/2012 West Coast Arborist Lease Agreement 5-34 provisions of this Section 6.03 shall survive the expiration or earlier termination of this Agreement. a. Dangerous Condition. In the event that the Lessee becomes aware of a dangerous condition on or about the premises, the Lessee shall take all actions necessary to obviate the condition and immediately inform the City of such condition. Such notice shall not relieve the Lessee of any liability associated with the condition or the obligation to correct the condition. 6.04 Improvements/Alterations. No improvements, structures, or installations shall be constructed on the Premises, and the Premises may not be altered by Lessee without prior written approval by the City. This provision shall not relieve Lessee of any obligation under this Agreement to maintain the Premises in a decent, safe, healthy, and sanitary condition, including structural repair and restoration of damaged or worn improvements. City shall not called upon to or be obligated by this Agreement to make or assume any expense for any existing improvements or alterations. 6.05 Liens. Lessee shall not, directly or indirectly, create, incur, assume or suffer to exist any mortgage, pledge, lien, charge, encumbrance, or claim on or with respect to all or any portion of the Premises without the prior written consent of the City's Property Manager. Lessee shall promptly, at its own expense, take such action as may be necessary to duly discharge or remove any such mortgage, pledge, lien, charge, encumbrance or claim on or with respect to all or any portion of the Premises for which Lessee does not have the prior written consent of the City's Property Manager. 6.06 Signs. Lessee shall not erect or display any banners, pennants, flags, posters, signs, decorations, marquees, awnings, or similar devices or advertising on or about the Premises without the prior written consent of City. If any such unauthorized item is found on the Premises, Lessee shall remove the item at its expense within twenty-four (24) hours of written notice thereof by City, or City may thereupon remove the item at Lessee's cost. 6.07 Ownership of Improvements. Any and all improvements, structures, and installations or additions to the Premises now existing or constructed on the Premises by Lessee shall at Agreement expiration or termination be deemed to be part of the Premises and shall become, at City's option, City's property, free of all liens and claims except as otherwise provided in this Agreement. If the City chooses not to accept improvements made by Lessee, during the term of this Lease, and prefers to have such improvements removed, Lessee shall dd so at its sole cost and expense. 6.08 Breach by Lessee. Lessee's refusal or failure to meet its obligations under this Section 6 shall be deemed a breach of this Agreement, and in such event, City may terminate this Agreement pursuant to the provision of Section 7.10 or elsewhere herein. SECTION 7: GENERAL PROVISIONS 7.01 Notices. All notices, demands, requests, consents or other communications which this Agreement contemplates or authorizes, or requires or permits either party to give to Page 9 osiosizot z West Coast Arborist Lease Agreement 5-35 the other, shall be in writing and shall be personally delivered or mailed, postage prepaid, to the respective party as follows: To City: Rick Ryals Real Property Manager City of Chula Vista Department of Public Works 276 Fourth Avenue With Copy to: City of Chula Vista City Attorney 276 Fourth Avenue Chula Vista, CA 91910 To Lessee: West Coast Arborist, Inc. 8524 Commerce Avenue, Suite B San Diego, CA 92121 Attention: Mike Palat Either party may change its address by notice to the other party as provided herein. Communications shall be deemed to have been given and received on the first to occur of: (i) actual receipt at the offices of the party to whom the communication is to be sent, as designated above; or (ii) three working days following the deposit in the United States Mail of certified mail, postage prepaid, return receipt requested, addressed to the offices of the party to whom the communication is to be sent, as designated above, or (iii) actual receipt if made by recognized reliable currier service who maintains a receipt of delivery. 7.02 City Approval. The City's Property Manager shall be the City's authorized representative in the interpretation and enforcement of all work performed in connection with this Agreement. The City's Property Manager may delegate authority in connection with this Agreement to the City's Property Manager's designee(s). For the purposes of directing Lessee in accordance with this Agreement, which does not result in a change to this Agreement, the City's Property Manager delegates authority to the Real Estate Manager and/or the Redevelopment Manager of the Economic and Community Development Department. For the purposes of interpretation of and/or changes to this agreement, the City's Property Manager delegates authority to the Real Estate Manager. 7.03 Nondiscrimination. Lessee agrees not to discriminate in any manner against or segregation of any person or persons, on account of race, color, religion, sex, familiar status, national origin, ancestry, age, disability or sexual orientation in the use, occupancy, tenure or enjoyment of the Premises, nor shall Lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of the Premises. 7.04 Equal Opaortunity. Lessee shall assure applicants are employed and that employees are treated during employment without regard to race, familial status, color, religion, sex or national origin. Lessee hereby certify to City that Lessee is in compliance and throughout Page 10 osiosizotz West Coast Arborist Lease Agreement 5-36 the term of this Agreement will comply with Title VII of the Civil Rights Act of 1964, as amended, the California Fair Employment Practices Act, and any other applicable Federal, State and Local law, regulation and policy (including without limitation those adopted by City) related to equal employment opportunity and affirmative action programs, including any such law, regulation, and policy hereinafter enacted. a. Compliance and performance by Lessee of the equal employment opportunity and affirmative action program provision of this Agreement is an express condition hereof and any failure by Lessee to so comply and perform shall be a default of this Agreement and City may exercise any right as provided herein and as otherwise provided by law. 7.05 Entire Agreement. This Agreement comprises the entire integrated understanding between City and Lessee concerning the use and occupation of the Premises and supersedes all prior negotiations, representations, or agreements. Each party has relied on its own examination of the Premises, advice from its own attorneys, and the warranties, representations, and covenants of the Agreement itself. 7.06 Interpretation of the Agreement. The interpretation, validity and enforcement of the Agreement shall be governed by and construed under the laws of the State of California. The Agreement does not limit any other rights or remedies available to City. a. The Lessee shall be responsible for complying with all Local, State, and Federal laws whether or not said laws are expressly stated or referred to herein. b. Should any provision herein be found or deemed to be invalid, the Agreement shall be construed as not containing such provision, and all other provisions which are otherwise lawful shall remain in full force and effect, and to this end the provisions of this Agreement are severable. c. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. 7.07 Agreement Modification. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by the parties hereto. 7.08 Attornev's Fees. In the event a suit is commenced by City against Lessee to enforce payment of amounts due, or to enforce any of the terms and conditions hereof, or in case City shall commence summary action under the laws of the State of California relating to the unlawful detention of Premises, for forfeit of this Agreement, and the possession of the Premises, provided City effects a recovery, Lessee shall pay City all reasonable costs expended in any action, together with a reasonable attorney's fee to be fixed by the court. Venue for any such suit or action shall be California Superior Court, San Diego County. 7.09 Assignment and Subletting-No Encumbrance. This Agreement and any portion thereof shall not be assigned, transferred, or sublet, nor shall any of the Lessee's duties be delegated, without the express written consent of City. Any attempt to assign or delegate this Agreement without the express written consent of City shall be void and of no force or effect. A consent by City to one assignment, transfer, sublease, or delegation shall not be deemed to be a consent to any subsequent assignment, transfer, sublease, or delegation. Page 11 osiosrzot z West Coast Arborist Lease Agreement 5-37 7.10 Defaults and Termination. If City has a good faith belief that Lessee is not complying with the terms of this Agreement, City shall give written notice of the default (with reasonable specificity) to Lessee and demand the default to be cured within fifteen (15) days of the notice. If Lessee is actually in default of this Agreement and fails to cure the default within fifteen (15) days of the notice, or, if more than fifteen (15) days are reasonably required to cure the default and Lessee fails to give adequate assurance of due performance within ten (10) days of the notice, City may terminate this Agreement upon written notice to Lessee. City may also terminate this Agreement upon written notice to Lessee in the event that: a. Lessee has previously been notified by City of Lessee's default under this Agreement and Lessee, after beginning to cure the default, fails to diligently pursue the cure of the default to completion; or b. Lessee shall voluntarily file or have involuntarily filed against it any petition under any bankruptcy or insolvency act or law; or c. Lessee shall be adjudicated a bankruptcy; or d. Lessee shall make a general assignment for the benefit of creditors. Upon termination, City may immediately enter and take possession of the Premises. 7.11 No Waiver. The failure to require the remedy of a breach or enforce the terms and conditions of this Agreement in one instance or several instances shall not be interpreted to be a waiver of the right to enforce the terms and conditions of this Agreement for any subsequent breach. 7.12 Other Regulations. All use of the Premises by Lessee under this Agreement shall be in accordance with the laws of the United States of America, the State of California, the County of San Diego, and in accordance with all applicative rules and regulations and ordinances of the City of Chula Vista now in force, or hereinafter prescribed or promulgated by resolution or ordinance or by Local, State or Federal law. 7.13 Time is of Essence; Provisions Binding on Successors. Time is of the essence of all of the terms, covenants and conditions of this Agreement and, except as otherwise provided herein, all of the terms, covenants and conditions of this Agreement shall apply to, benefit and bind the successors and assigns of the respective parties, jointly and individually. 7.14 Section Headings. The Table of Contents and the section headings contained herein are for convenience in reference and are not intended to define or limit the scope of any provision thereof. 7.15 Gender/Singular/Plural. The neuter gender includes the feminine and masculine, the masculine includes the feminine and neuter, and the feminine includes the masculine and neuter, and each includes corporation, partnership, or other legal entity when the context so requires. The singular number includes the plural whenever the context so requires. Page 12 osiosizot z West Coast Arborist Lease Agreement 5-38 7.16 Non-liability of Officials. No member, official or employee of the City shall be personally liable to Lessee, its assigns or successors in interest, in the event of any default or breach by the City, for any amount which may become due to Lessee is assigns or successors, or in any obligations under the terms of this Agreement. 7.17 Relationship between Citv and Lessee. It is hereby acknowledged that the relationship between City and Lessee is that of landowner and tenant at will and not that of a partnership or joint venture and that City and Lessee shall not be deemed or construed for any purpose to be the agent of the other. Accordingly, except as expressly provided herein, the City shall have no duties or obligations with respect to the improvement, maintenance or upkeep of the Premises. REMAINDER OF PAGE LEFT BLANK INTENTIONALLY [Signatures on Following Page] Page 13 osiosizot 2 West Coast Arborist Lease Agreement 5-39 SECTION 8: SIGNATURES 8.01 Signatories. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity and authority to enter into and to execute this Agreement on behalf of the respective legal entities of the Lessee and the City, IN WITNESS WHEREOF the parties hereto for themselves, their heirs, executors, administrators, successors, and assigns do hereby agree to the full performance of the covenants herein contained and have caused this Property Use Permit to be executed as of, but not necessarily on, the Effective Date by setting hereunto their signatures herein below. CITY: City of Chula Vista By: APPROVED AS TO FORM: CITY ATTORNEY'S OFFICE By: LESSEE: West Coast Arborist, Inc. Dated: ~~ ~ ~ z--- Page 14 09/05/2012 West Coast Arborist Lease Agreement 5-40 Exhibit "A" West Coast Arborist Lease Area 5-41