HomeMy WebLinkAbout12.b. (Handout) Public hearing to consider entering into a lease agreement with AgLantis for Kiewit Property for CoCo San Sustainable FarmItem No. 12.b.
Sustainable Urban Farm
Proposal
Danea Gemmell
Environmental Services Division Manager
April 17, 2014
Central Contra Costa Sanitary District
Site Plan
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Proposed Farm Improvements
PARKING -
BARN
TEACHING GARDENS 0 `
RE5TR000M5 ry
9p.
5TAIR TO GREEN ROOF
K10'5 CORNER
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64PEEN HOU5E
7�p,�HIN6 FACILITY
600 SEA75
TEACHING GARDENS
IZ
Permitted Crops
Suitable
o Salad Greens
o Tomatoes
• Other Vegetable Crops
• Herbs (Basil, etc)
• Parry's Agave
• Mexican Marigold
• Bee Garden Plants
o Rosemary
o Yarrow
o Sage
o Mint
o Sweet Alyssum
o Lavender
o California Poppy
Not Suitable
• Corn
• Fruits
• Nuts
• Seed producing
• Alfalfa
• Rice
• Sweet bay Tree (Habitat)
Taken from Apnl 2013 ESA Memo on Airport Land Use Compatibility and Crop Suitability Evaluations for Kievrit Property
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LEASE
== Lease Terms
7-: ;7-
• Conformance with all airport regulations and guidelines
• Provide, at no cost to the District, $5 Million insurance coverage
• Annual lease cost shall be $1 for use of the property for 10 years
• Lease includes Recycled Water Service Cost
• Cost of all site improvements are the responsibility of CoCo San
Sustainable Farm
• Performance standards that include housekeeping of the site and general
farm milestones to ensure success of the demonstration project
Incorporate any conditions of a Land Use Permit from Contra Costa County
No public market stand or community gardens A
Performance Agreement
Year 1 Performance Goals
• Construct perimeter fencing and some simple farm
infrastructure to allow planting
• Plant a crop — 5 acres
Year 2 Performance Goals
• Provide goods to a market or Donate goods to Food Bank or
School District
• Develop a teaching plan curriculum
• Increase volunteers' participation by 15% from previous year
Year 3 Performance Goals
• Get Building Permit and construct Green House
• Provide a teaching facility and start sustainable curriculum
• Complete long term Strategic Plan
3
The Board may wish to consider the following actions:
1) Consider entering into a lease agreement with AgLantis of an
approximate 14.8 -acre portion of the District's Kiewit property
(APN 159 - 140 -051) for the CoCo San Sustainable Farm Project for a
term of up to ten years in the amount of $1 per year (may be modified
after 3 years).
2) If a majority of the Board agrees to enter into a lease agreement, take
the following actions:
• Authorize the General Manager or his designee to execute the lease
agreement; and
• Declare the property as currently unneeded for a period not to exceed
ten years.
Questions ... ?
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/02. L.
(Handoa�)
UDRAFT
LEASE AGREEMENT
by and between
CENTRAL CONTRA COSTA SANITARY DISTRICT
and
AGLANTIS
A California Non - Profit Public Benefit Corporation
for the
COCO SAN SUSTAINABLE FARM PROJECT
Property located in
Contra Costa County at the Kiewit Property (APN 159- 140 -051)
April 18, 2014
TABLE OF CONTENTS
RECITALS.................................................................................................................................... ..............................3
ARTICLE I DEFINITIONS, DEMISE OF PROPERTY .......................................................... ..............................3
1.1 DEFINITIONS ........................................................................................................ ..............................3
1.2 INCORPORATION OF RECITALS ........................................................................... ............................... 5
1.3 CREATION OF LEASE .......................................................................................... ............................... 5
1.4. CONDITION OF TITLE ........................................................................................... ..............................5
ARTICLE II TERM OF LEASE, RENT, SECURITY DEPOSIT ........................................... ..............................5
2.1
TERM .................................................................................................................. ............................... 5
2.2
RENT .................................................................................................................. ............................... 6
2.3
ADDITIONAL TENANT PAYMENTS ...................................................................... ............................... 6
2.4
TRIPLE NET LEASE ............................................................................................. ............................... 6
2.5
SURRENDER ......................................................................................................... ..............................7
ARTICLE III TAXES, ASSESSMENTS AND OTHER CHARGES ....................................... ..............................7
3.1 IM POs ITIONS ....................................................................................................... ............................... 7
3.2 TENANT RIGHT TO CONTEST .............................................................................. ............................... 8
3.3 TENANT DUTY TO FILE ....................................................................................... ............................... 8
ARTICLE IV MANAGEMENT, USE AND OPERATION OF THE PROPERTY ............... ..............................8
4.1
PERMITTED USES ................................................................................................ ............................... 8
4.2
PERFORMANCE AGREEMENT .............................................................................. ............................... 9
4.3
EASEMENTS, RESERVATION OF RIGHTS .............................................................. ............................... 9
4.4
MAINTENANCE, SECURITY AND INSPECTION OF THE PREMISES .......................... ............................... 9
4.5
DISTRICT'S RIGHT TO PERFORM TENANT OBLIGATIONS .................................. ............................... 10
4.6
DISTRICT NOT OBLIGATED TO PERFORM REPAIRS ........................................... ............................... 10
4.7
COMPLIANCE WITH LAWS ................................................................................ ............................... 10
4.8
TENANT RIGHT TO CONTEST ............................................................................ ............................... 11
4.9
FINANCIAL REPORTS ........................................................................................ ............................... 11
4.10
UTILITIES ........................................................................................................... .............................11
4.11
NONDISCRIMI NATION ......................................................................................... .............................11
ARTICLE V CONDITION OF THE PREMISES; ENVIRONMENTAL MATTERS ......... .............................12
5.1
CONDITION OF THE PREMISES ........................................................................... ...............................
12
5.2
TENANT'S COVENANTS .................................................................................... ...............................
12
5.3
RELEASE OF CLAIMS ........................................................................................ ...............................
13
5.4
ENVIRONMENTAL INDEMNITY .......................................................................... ...............................
14
5.5
DEFINITIONS ....................................................................................................... .............................14
6.6
ARTICLE VI ALTERATIONS AND NEW CONSTRUCTION ............................................. .............................15
6.1
CHANGES AND ALTERATIONS ........................................................................... ...............................
15
6.2
NO RIGHT TO DEMOLISH ............................... ............................... ERROR! BOOKMARK NOT DEFINED.
6.3
COMPLIANCE WITH LAWS ................................................................................ ...............................
16
6.4
RIGHTS OF ACCESS ........................................................................................... ...............................
16
6.5
INDEMNITY ....................................................................................................... ...............................
16
6.6
MECHANIC'S LI ENS .......................................................................................... ...............................
17
6.7
CONTEMPLATED IMPROVEMENTS ..................................................................... ...............................
17
ARTICLE VII INDEMNITY AND INSURANCE .................................................................... .............................17
7.1 INDEMNITY ....................................................................................................... ............................... 17
7.2 INSURANCE REQUIREMENTS ............................................................................. ............................... 18
ARTICLE VIII DAMAGE AND DESTRUCTION .................................................................. .............................19
8.1 DAMAGE OR DESTRUCTION .............................................................................. ............................... 19
8.2 NOTICE REQUIRED ........................................................................................... ............................... 19
8.3 DISTRICT'S RIGHT TO TERMINATE ................................................................... ............................... 20
ARTICLE IX SECURITY AND PREMISES CLEAN -UP BOND .......................................... .............................20
9.2 SECURITY DEPOSIT OR PREMISES CLEAN -UP BOND ......................................... ............................... 20
ARTICLE X AGENCY'S RIGHT TO PERFORM TENANT'S COVENANTS ................... .............................20
ARTICLEXI MORTGAGES ..................................................................................................... .............................21
11.1 NON - SUBORDINATION OF FEE ............................................................................ .............................21
ARTICLE XII ASSIGNMENT, TRANSFER, SUBLETTING; NONDISTURBANCE AND ATTORNMENT
....................................................................................................................................... ............................... 21
12.1 RESTRICTIONS ON TRANSFER, ASSIGNMENT AND ENCUMBRANCE ................... ............................... 21
12.2 NO INVOLUNTARY TRANSFERS ........................................................................ ............................... 21
12.3 ASSUMPTION AGREEMENT AND RELEASE ........................................................ ............................... 22
12.4 SALE BY DISTRICT ............................................................................................ ............................... 22
ARTICLE XIII DEFAULT, REMEDIES AND TERMINATION .......................................... .............................22
13.1 EVENT OF DEFAULT ......................................................................................... ............................... 22
13.2 NOTICE AND OPPORTUNITY TO CURE ............................................................... ............................... 23
13.3 REMEDIES UPON DEFAULT ............................................................................... ............................... 24
13.4 REMEDIES CUMULATIVE .................................................................................. ............................... 25
13.5 NO ELECTION OF REMEDIES ............................................................................. ............................... 25
13.6 SURVIVAL OF OBLIGATIONS ............................................................................... .............................25
ARTICLE XIV GENERAL PROVISIONS ............................................................................... .............................25
14.1
FORCE MAIEURE, EXTENSION OF TIMES OF PERFORMANCE ............................. ............................... 25
14.3
REPRESENTATIONS OF DISTRICT AND TENANT ................................................. ............................... 26
14.4
MISCELLANEOUS ................................................................................................ .............................26
14.4.1
NOTICES ............................................................................................................. .............................26
14.4.2
CAPTIONS, CONSTRUCTION .............................................................................. ...............................
27
14.4.3
SUCCESSORS AND ASSIGNS .............................................................................. ...............................
28
14.4.4
SHORT FORM OF LEASE .................................................................................... ...............................
26
14.4.5
GOVERNING LAW ............................................................................................. ...............................
28
14.4.6
ATTORNEY'S FEES ............................................................................................ ...............................
28
14.4.7
INDEMNITY INCLUDES DEFENSE COSTS ........................................................... ...............................
28
14.4.8
NO THIRD PARTY BENEFICIARIES, DISCLAIMER OF PARTNERSHIP, LENDER/BORROWER
RELATIONSHIP.................................................................................................. ...............................
28
14.4.9
ENTIRE AGREEMENT ........................................................................................ ...............................
28
14.4.10
WAIVER, MODIFI CATION .................................................................................. ...............................
29
14.4.11
TIME IS OF THE ESSENCE .................................................................................. ...............................
29
14.4.12
COUNTERPARTS .................................................................................................. .............................29
14.4.13
ACTION BY THE PARTIES .................................................................................. ...............................
29
14.4.14
MUTUAL NON - LIABILITY OF OFFICIALS AND EMPLOYEES ................................. ...............................
29
This LEASE AGREEMENT (this "Lease" or this "Agreement "), dated as of ,
2014 (the "Effective Date "), is entered into by and between the CENTRAL CONTRA COSTA
SANITARY DISTRICT, a California special district ( "District ") and AGLANTIS, a California
Non - profit Public Benefit Corporation ( "Tenant "), currently Doing Business As CoCo San
Sustainable Farm. District and Tenant are collectively referred to in this Agreement as the
"Parties."
RECITALS
A. Under Health & Safety Code § 6514.1(e), the District can lease property not
to exceed ten (10) years without subjecting the lease of the property to a competitive bid
process.
B. The District is the owner of fee title to real property located at Imhoff Drive,
Martinez, Contra Costa County (the "Property "), known as APN 159- 140 -051, as more
particularly described in Exhibit "A" attached hereto and incorporated herein by this reference.
C. The Tenant desires to lease from the District a portion of the Property consisting
of approximately fourteen and eight tenths (14.8) acres (the "Premises "), as depicted in Exhibit
"B" attached hereto and incorporated herein by this reference.
D. The property subject to this lease is required by the District to be used as a
buffer zone. The Tenant desires to lease the Premises from the District for a term up to ten (10)
years for the creation of CoCo San Sustainable Farm to (i) directly support the District's
mission to foster sustainable and renewable practices, including recycled water; (ii) teach
sustainable living practices, recycled water science, Delta awareness, sustainable watershed
practices, integrated pest management, pollution prevention, soils science and other science
related to the District's educational programs; (iii) promote the District's environmental
messages, including collecting and diverting household hazardous waste for proper reuse or
disposal; (iv) showcase green technologies, including fostering green building practices and
green jobs; and (v) demonstrate how to reduce the carbon and environmental footprint of food
production and distribution (collectively, the "Sustainable Farm ").
E. The use of the Sustainable Farm for teaching and educational purposes benefits
the constituents of the District within central Contra Costa County.
F. District desires to lease the Premises to Tenant under the terms and conditions of
this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, including the benefits to the District and public set forth in the
Recitals above, the District and the Tenant hereby agree as of the Effective Date as follows.
ARTICLE I
DEFINITIONS, DEMISE OF PROPERTY
1.1 Definitions. For purposes of this Agreement, the following terms have the meanings set
forth in this section. Additional definitions are set forth in the Recitals and the text of this
3
Agreement.
(a) "Agreement" is defined on page 1.
(b) "Applicable Laws" is defined in paragraph 6.3.
(c) "As -is" is (not defined)
(d) "Border Zone Property" is defined in paragraph 5.2(c).
(e) "Claims" is defined in paragraph 3.2.
(f) "Commencement Date" is defined in paragraph 2.1.
(g) "Default Rate" is defined in paragraph 10.2.
(h) "District" is defined on page 1.
(i) "Effective Date" is defined on page 1.
0) "Events of Default" is defined in paragraph 13.1.
(k) "Expiration Date" is defined in paragraph 2.1.
(1) "Force Majeure" is defined in paragraph 14.1
(m) "Hazardous Materials" is defined in paragraph 5.5.1.
(n) "Hazardous Materials Claims" is defined in paragraph 5.2(c).
(o) "Hazardous Materials Laws" is defined in paragraph 5.5.2.
(p) "Impositions" is defined in paragraph 3.1.
(q) "Improvements" is defined in paragraph 6.1.
(r) "Indemnitees" is defined in paragraph 3.2.
(s) "Land Use Claims" is defined in paragraph 5.2(c).
(t) "Late Payment Penalty" is defined in paragraph 2.2.
(u) "Lease" is defined on page 1.
(v) "Lease Termination" is defined in paragraph 2.1.
(w) "Notice of Default" is defined in paragraph 13.2.1.
(x) "Parties" is defined on page 1.
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DR k i "T
(y) "Performance Agreement" is defined in paragraph 4.2.
(z) "Premises" is defined in Recital C.
(aa) "Premises Clean-up Bond" is defined in paragraph 9.2.
(bb) "Property" is defined in Recital B.
(cc) "Rent" is defined in paragraph 2.2.
(dd) "Security Deposit" is defined in paragraph 9.2.
(ee) "Sustainable Farm" is defined in Recital D.
(ff) "Tenant' is defined on page 1.
(gg) "Term" is defined in paragraph 2.1.
(hh) "Transfer" is defined on page 1.
(ii) "Utilities" is defined on page 9.
1.2 Incorporation of Recitals. The Parties acknowledge the truth of the Recitals set forth
above, and all such Recitals are hereby incorporated into this Agreement.
1.3 Creation of Lease. District hereby leases to Tenant, and Tenant hereby leases from
District, the Premises for the Term subject to the terms and conditions and for the purposes set
forth in this Agreement.
1.4. Condition of Title. Landlord leases the Premises to Tenant subject to all easements,
covenants, conditions, restrictions and other title matters of record existing as of the Effective
Date, including the airport navigation restrictions, and all matters that would be apparent from an
inspection of the Premises on the Effective Date.
ARTICLE II
TERM OF LEASE, RENT, SECURITY DEPOSIT
2.1 Term. The term of this Agreement (the "Term ") shall commence on , 2014 (the
"Commencement Date "), and unless terminated earlier pursuant to the provisions hereof, shall
expire on April 16, 2024 (the "Expiration Date "). The expiration of the Term or the sooner
termination of this Agreement is referred to herein as the "Lease Termination." Before the
Expiration Date, District or Tenant may initiate negotiations for a new lease term for a period not
to exceed an additional ten (10) years. Although neither party shall have an obligation to extend
or enter into further negotiations, should Tenant desire to negotiate a new lease, Tenant must
provide written notice to District of the desire to negotiate a new lease at least one (1) year, and
not more than two (2) years, prior to the Expiration Date. The Parties agree to execute and
record a Memorandum of this Lease in the Official Records of Contra Costa County in
accordance with Paragraph 14.4.4 of this Agreement. Tenant shall have no right to take
M
possession of the Premises for the uses of the property provided for in Article IV until insurance
policies are in place. Until such time that a land use permit, as referenced in Section 3.1 and
Section 4. 1, is obtained, Tenant shall only engage in activities such as fund raising, planning and
minor construction and maintenance that are allowed under the existing zoning and permitted
uses.
Notwithstanding the foregoing, the District will have the right to terminate this lease and
Agreement as to any or all portions of the Premises, if the District Board declares the same to be
required for public use. If such a determination of the need for public use of the Premises is
made, this Lease shall be subject to cancellation and termination by the District at any time
thereafter by giving Tenant notice in writing as soon as possible, but no later than one year prior
to the date such termination shall become effective.
2.2 Rent. Commencing on the first day of the month after the Commencement Date, the
Tenant shall pay to the District rent for the Premises ( "Rent ") during the initial portion of the
Term in the amount of One Dollar ($1.00) per year. Rent is due and payable on the
Commencement Date and on the first day of March in each subsequent year to District at the
address shown in Paragraph 14.4.1 or such other place as the District may designate in writing.
It is the intention and expectation of the Parties that during the Term, the Sustainable Farm
project will generate revenues from donations and the sale of farm products and related services.
It is further understood and agreed that it will take several years for the Sustainable Farm project
to reach a level where it may generate funds sufficient to pay Rent in excess of the One Dollar
($1.00) per year. In order to address the potential that the Sustainable Farm project may have
sufficient revenues to pay additional Rent, it is agreed that within ninety (90) days from the
expiration of the third year of the Term, the Parties will meet and confer to discuss the potential
viability of the Sustainable Farm project and paying additional Rent to District. In the event
revenues are available and an agreement between the Parties cannot be reached as to the amount
of additional Rent to be charged during the remainder of the Term, either party may request that
the amount of the additional Rent appropriately payable must be mediated. Absent an alternative
agreement by the Parties as to the selection of a mediator, the mediation shall be administered by
JAMS with the mediator selected by agreement or as follows: The mediator shall be mutually
selected by the Parties, but in case of disagreement, the mediator shall be selected by lot from
among two (2) nominations provided by each party. All costs and fees required by the mediator
shall be split equally between the Parties; otherwise, each party shall bear its own costs of
mediation. If mediation fails to resolve the dispute within thirty (30) days, either party may
pursue litigation to resolve the dispute.
2.3 Additional Tenant Payments. The Tenant shall pay, and discharge when due, all
Impositions described in Article III, all insurance premiums, utility costs, maintenance costs and
all other liabilities and obligations which the Tenant assumes or agrees to pay or undertake
pursuant to this Agreement and any that are necessary for farm operations.
2.4 Triple Net Lease. This is a triple net lease to the District. It is the intent of the Parties
that the Rent shall be an absolutely net return to the District and that the Tenant shall pay all
costs and expenses relating to the Premises of any kind or nature whatsoever. Such costs and
expenses shall include, without limitation, all amounts attributable to, paid or incurred in
:01
connection with the ownership, operation, repair, restoration, maintenance and management of
the Premises, real property possessory interest taxes, rent taxes, gross receipt taxes (whether
assessed against the District or assessed against the Tenant and collected by the District, or both),
potable water charges, insurance premiums, utilities, refuse disposal, lighting (including outside
lighting), fire detection systems including monitoring, maintenance and repair, security, labor,
maintenance costs, repair costs, service contracts, costs of licenses, permits and inspections, and
all other costs and expenses paid or incurred with respect to the Premises.
An exception to these inclusive obligations of Tenant is that recycled water shall be furnished
without charge to Tenant for the first three (3) years of the lease Term, and potentially for the
duration of the Term except as provided in § 4.10.
2.5 Surrender. Upon the expiration or earlier termination of this Lease, or upon the exercise
by District of District's right to re -enter the Premises without terminating this Lease, Tenant
shall surrender the Premises free of Hazardous Materials, except for Hazardous Materials found
to have been present at the time the Tenant took possession, (as defined in Paragraph 5.5. 1) and,
unless otherwise approved in writing by District, Tenant shall, at its own cost and expense,
remove all equipment and Improvements (as defined in Paragraph 6.1 below) constructed upon
the Premises, except the roads, utilities, fencing, and any buildings that are pre- approved by
District to remain on the Premises. All other Improvements and equipment shall be removed
unless the District and Tenant agree otherwise in a separate writing. Unless otherwise agreed to
by the Parties, Tenant shall return Premises to the graded and cleared condition existing at the
initiation of the Term.
ARTICLE III
TAXES, ASSESSMENTS AND OTHER CHARGES
3.1 Impositions. Throughout the Term, the Tenant shall pay prior to delinquency, all real
property taxes, possessory interest taxes, license and permit fees, except the fee for the land use
permit which will be applied for by the District within sixty days (60) of the commencement of
this lease, and sales, use or occupancy taxes, assessments whether general or special, ordinary or
extraordinary, unforeseen, as well as foreseen, of any kind or nature whatsoever, pertaining to
the Premises or part thereof, including, but not limited to (i) any assessment, levy, imposition or
charge in lieu of or in substitution for real estate taxes; and (ii) any assessment for public
improvements or benefits which is assessed, levied, or imposed upon or which becomes due and
payable and a lien upon (a) the Premises or any part thereof or any personal property, equipment
or other facility used in the operation thereof; (b) the rent or income received by the Tenant;
(c) any use or occupancy of the Premises or part thereof, or (d) this transaction or any document
to which the Tenant is a party creating or transferring an estate or interest in the Premises or part
thereof. All of the foregoing are hereinafter referred to as "Impositions."
3.1.1 Installments. If by law any Imposition is payable, or may at the option of the
taxpayer be paid in installments (whether or not interest shall accrue on the unpaid balance of
such Imposition), the Tenant may pay the same together with any accrued interest on the unpaid
balance of such Imposition in installments as the same respectively becomes due and before any
fine or penalty may be added thereto for the nonpayment of any such installment and interest.
Any Impositions relating to tax years that are only partially included in the Term of this
Agreement shall be prorated between the Tenant and the District.
3.1.2 Evidence of Payment. Upon request by the District, the Tenant shall furnish, in
form satisfactory to the District, evidence of payment prior to delinquency of all Impositions
payable by the Tenant.
3.2 Tenant Right to Contest. The Tenant shall have the right before any delinquency occurs
to contest or object to the amount or validity of any Imposition by appropriate legal proceedings,
but such right shall not be deemed or construed in any way as relieving, modifying or extending
the Tenant's covenant to pay any such Imposition at the time and in the manner required by law.
Any such contest shall be conducted in accordance with and subject to the requirements of all
Applicable Laws and otherwise in a manner that does not subject the District's title to the
Property to foreclosure or forfeiture. Tenant shall indemnify, defend, and hold the District and
its elected and appointed officers, officials, employees, agents and representatives (all of the
foregoing, collectively the "Indemnitees ") harmless from and against all liabilities, losses,
damages, fines, deficiencies, penalties, claims, demands, suits, actions, causes of action, legal or
administrative proceedings, judgments, costs and expenses (including without limitation
reasonable attorneys' fees and court costs) (all of the foregoing, collectively "Claims ") arising as
a result of or in connection with any such contest brought by the Tenant. During any contest of
an Imposition, the Tenant shall (by payment of disputed sums, if necessary) prevent any
advertisement of tax sale, foreclosure of, or any divesting of the District's title, reversion or other
interest in the Property or the Premises. Upon final determination of the amount or validity of
any Imposition contested pursuant to this Paragraph 3.2, the Tenant shall immediately pay such
Imposition and all costs and expenses relating to such challenge.
3.3 Tenant Duty to File. The Tenant shall have the duty of making or filing any declaration,
statement or report which may be necessary or advisable in connection with the determination,
equalization, reduction or payment of any Imposition which is or which may become payable by
the Tenant under the provisions of this Article III, and shall notify the District in writing upon
making such filing, declaration, statement or report, and the District shall not be responsible for
the contents of any such declaration, statement or report, provided; however, the District shall
cooperate with the Tenant in connection with the foregoing, including joinder in any application
pertaining thereto to the extent required under Applicable Laws, all at no cost to the District.
ARTICLE IV
MANAGEMENT, USE AND OPERATION OF THE PROPERTY
4.1 Permitted Uses. The Tenant may use the Premises for the creation of a non - profit
sustainable urban farm with teaching facilities as described in Recital D, and as further described
in Exhibit "C," and as further conditioned and described in any land use permit obtained by the
District and applicable to the Premises, and as otherwise described herein, and for no other
purposes without the prior written consent of the District. Commencing upon the date that IRS
Code 501(c)(3) non - profit status is obtained by Tenant after the execution of this Lease, which
shall not be more than six (6) months after its execution, it shall be an Event of Default under
this lease if at any time during the term of this lease after the aforementioned date Tenant is not a
501(c)(3) entity recognized by and in good standing with the United States Internal Revenue
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Service. The Tenant shall not use or permit the Premises to be used in whole or in part during
the Term for any purpose other than as permitted pursuant to this Lease or by the District's
written consent, including but not limited to the use of the Premises for human shelter,
habitation, residential, or camping purposes. Tenant may have overnight security guard(s) upon
the Premises, as needed.
4.2 Performance Agreement. Tenant shall enter into a performance agreement (the
"Performance Agreement ") with District that will set forth performance benchmarks as per
Exhibit "D" for the Sustainable Farm, including but not limited to, operating requirements,
limitations on fertilizing chemicals, farming, teaching and outreach goals. Failure to enter into
the Performance Agreement is an Event of Default under Article XIII, and any event of default
under the Performance Agreement is also an Event of Default under this Agreement.
4.3 Easements, Reservation of Rights. The District reserves the right to locate and construct
its own utilities and to grant nonexclusive easements across the Property for utility and other
purposes including the installation, maintenance, repair and replacement of utilities, provided
that the exercise of such rights does not unreasonably interfere with the Tenant's use of the
Premises for the purposes set forth herein.
4.4 Maintenance, Security and Inspection of the Premises.
4.4.1 Maintenance. At the Tenant's sole cost and expense throughout the Term, the
Tenant shall operate, maintain and manage the Premises including all improvements thereon in
good order and repair and in neat, clean, sanitary, and safe condition in compliance with all local,
state and federal laws, statutes and regulations relating to the use, occupancy or operation of the
Premises including all FAA and similar regulations that apply to properties adjacent to an
airport. To the extent the Tenant makes use of the property during any non - daylight periods, the
Tenant shall ensure that the Premises are served by adequate lighting in accordance with
applicable local, state and federal laws. The Tenant shall keep and maintain all portions of the
Premises in a clean and orderly condition, free of accumulation of rubbish and graffiti. The
Tenant shall promptly, at the Tenant's own cost and expense, make all necessary repairs,
including replacements or renewals when necessary, and all such repairs to all improvements
provided by Tenant as may be set forth in Exhibit "C" or provided pursuant to Exhibit "C" or
Article VI (Alternations and New Construction) shall be at least equal in quality to the original
work. The Tenant's failure to maintain the Premises in accordance with this Agreement shall, in
the District's discretion, be grounds for termination of this Agreement pursuant to Article XIV.
4.4.2 Security. Tenant shall construct a fence surrounding the Premises to ensure
security of the Premises. The Parties acknowledge that the CalTrans installed and maintained
fencing meets this requirement on part of the southern edge of the property, as depicted in
Exhibit B. Tenant shall also provide security for the Premises, either in the form of on -site
security guards or security cameras, in consultation with District. Tenant shall prepare and
deliver an emergency response plan for the Sustainable Farm use of the Premises by July 1, 2014
to be delivered concurrently with the business plan required under Paragraph 4.9, which must be
updated and delivered to the District on an annual basis. Tenant shall ensure that no person is
living or camping on the Premises at any time. Overnight security personnel are not considered
to be living or camping on the premises.
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4.4.3 Inspection. At any time during the Term, upon reasonable advance notice, except
in emergency situations, the District may conduct interior and/or exterior inspections of the
Premises to confirm that it is in compliance as required herein. The District may deliver to the
Tenant written notification of any portions of the Premises which the District has determined are
not properly maintained, and the Tenant shall promptly prepare and deliver to the District the
Tenant's proposed plan for remedying the indicated deficiencies. If the Tenant disputes the
characterization of the deficiencies, it may provide an explanation of why the determination of
improper maintenance is incorrect. The parties shall meet and confer and use best efforts to
resolve any such dispute, but if an agreement is not reached, the District's determination shall be
final and binding. The Tenant's failure to deliver a remedial plan and to complete remedial work
within a reasonable time as determined by the District in its reasonable discretion shall be an
Event of Default.
4.4.4 The failure of the District to inspect or to notify the Tenant of any deficiency shall
not be a waiver of default or of the District's right to enforce the Tenant's maintenance and
repair obligations.
4.5 District's Right to Perform Tenant Obligations. If the Tenant fails to perform its
obligations to maintain the Premises in accordance with the standards set forth in this Lease, the
District shall have the right, but not the obligation, to perform such work upon delivery of
written notice to the Tenant, and the Tenant shall reimburse the District for all expenditures the
District incurs in connection with such work together with interest thereon at the Default Rate
specified in Article X. The District's election to undertake such obligation shall not operate as a
waiver of any other right or remedy the District may have pursuant to this Agreement.
4.6 District Not Obligated to Perform Repairs. Notwithstanding any contrary provision
herein, the District shall not be obligated to make any repairs, alterations, additions,
improvements or betterments to the Premises during the term of this Agreement nor shall the
District be obligated to maintain or operate the Premises.
4.7 Compliance with Laws. The Tenant, at its sole cost and expense, shall comply with all
Applicable Laws, Rules and Regulations pertaining to the use, operation and management of the
Premises, including but not limited to all laws relating to the use of property adjacent to airports
and/or navigation easements, specifically including selection of crops and maintenance of the
property or to minimize or limit the potential for attraction of birds. The Parties acknowledge and
agree that the Sustainable Farm use of the Premises lies between two avian corridors (Walnut
Creek and Grayson Creek); the Tenant is not responsible for the activities of any federally
protected birds. The Tenant shall not itself use the Premises for any unlawful purpose or
perform, permit or suffer any act, omission to act or commission to act upon or about the
Property or the Premises that would result in a nuisance or a violation of law. The Tenant shall
use its best efforts to not allow any permittees, licensees, guests or invitees to use the Premises
for any unlawful purpose or perform, permit or suffer any act, omission to act or commission
upon or about the Property or the Premises which would result in a nuisance or a violation of
law. The District will apply for the initial land use permit within two months of the
commencement of this Lease. The Tenant will be responsible for obtaining all other necessary
permits prior to the commencement of any activity requiring a permit.
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4.8 Tenant Right to Contest. The Tenant shall have the right to contest by appropriate
proceedings, in the name of the Tenant, and without cost or expense to the District, the validity
or application of any Applicable Law. If compliance with any Applicable Law may legally be
delayed pending the prosecution of any such proceeding without the incurrence of any lien,
charge or liability against the Premises or Tenant's interest therein, and without subjecting the
Tenant or the District to any liability, civil or criminal, for failure so to comply therewith, the
Tenant may delay compliance therewith until the final determination of such proceeding. The
Tenant shall indemnify, defend (with counsel approved by the District), protect and hold the
District harmless from and against all Claims arising in connection with any such contest brought
by the Tenant. The foregoing indemnity obligation shall survive the expiration or earlier
termination of this Agreement.
4.9 Financial Reporting. No later than sixty (60) days after execution of this Agreement and
annually on April 1" of each year during the Term, the Tenant shall deliver to the District a
business plan, in a form and substance satisfactory to the District, setting forth the Tenant's plans
for current operation and a minimum of three (3) years future operations of the Sustainable Farm
use on the Premises. The business plan must include an estimated annual operating budget and
an annual capital improvement budget for the coming year, as well as, after the first year of
operations, a report on the previous year's performance results, including but not limited to, the
approximate number of people instructed while visiting the Premises; the approximate number of
volunteers who worked upon the Premises; and approximate number of people that participated
in other Sustainable Farm programs delivered offsite. Exhibit "D" outlines the performance
agreement that shall be included in the business plan. Tenant shall also submit annual financial
reports to the District setting forth the operating costs and profit and loss statements for the
Sustainable Farm and financial condition of the Sustainable Farm, all in accordance with
Generally Accepted Accounting Principles, within one hundred (100) days of the fiscal year end
of the Sustainable Farm.
4.10 Utilities. Tenant agrees to arrange for and pay for all potable water, fuel, telephone,
electric power, materials, sanitation and other property- related services obtained from third
parties, and for the removal of trash, garbage, rubbish and other waste in and around the
Premises. District will permit Tenant to connect to District's facilities for the use of recycled
water, which recycled water will be provided at no cost for a minimum of three (3) years and
thereafter shall be metered separately and billed to Tenant or may continue to be free of charge at
the sole discretion of the District. District may, in its sole discretion, waive the recycled water
costs if District determines that Tenant is fully compliant with this Agreement. Tenant hereby
agrees that District's finding related to the billings for recycled water, if charged, will be
conclusive. Tenant may install renewable energy facilities or equipment upon the Premises, as
long as such facilities or equipment comply with all Applicable Laws and provisions of this
Lease. Tenant may provide positive energy flow to the District upon the District's consent.
4.11 Nondiscrimination. The Tenant herein covenants by and for itself, its heirs, executors,
administrators, and assigns, and all persons claiming under or through Tenant that this lease is
made and accepted upon and subject to the following conditions: That there shall be no
discrimination against or segregation of any person or group of persons, on account of any basis
listed in subdivision (a) or (d) of § 12955 of the Government Code, as those bases are defined in
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sections 12926, 12926. 1, subdivision (m) and paragraph (1) of subdivision (p) of section 12955,
and section 12955.2 of the Government Code, in the leasing, subleasing, transferring, use,
occupancy, tenure or enjoyment of the Premises herein leased nor shall the Tenant, or any person
claiming under or through Tenant, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, sublessees, subtenants, invitees, volunteers or vendees in the Premises herein
leased.
ARTICLE V
CONDITION OF THE PREMISES; ENVIRONMENTAL MATTERS
5.1 Condition of the Premises.
5.1.1 As -is Condition. The Tenant will lease the Premises in the condition the Premises
exists as of the Commencement Date, unless Tenant and District agree in writing to retain any
changes to Premises. Tenant acknowledges that modifications to the current land use
entitlements are required for Tenant's use of the Premises as anticipated by this Agreement. The
District will apply for the necessary land use permit within sixty (60) days of the commencement
of this lease. District does not make any representations, guarantees or warranties as to any
conditions imposed upon the Premises by any land use permit issued. Tenant shall not look to
District for any satisfaction or execution of any conditions imposed by a land use permit that are
not in the District's control or jurisdiction.
5.1.2 No Representations. The Tenant acknowledges that except as expressly set forth
herein, the District makes no representations or warranties expressed or implied regarding the
condition of the Premises or the fitness or suitability thereof for the Tenant's purposes, including
but not limited to, the condition of the soil, its geology, topography, the presence or absence of
fill, the presence or absence of Hazardous Materials, drainage, flood zone designation, or
compliance with Hazardous Materials Laws, and no patent or latent defect or deficiency in the
condition of the Premises shall affect the rights of the Tenant or the District hereunder. The
Tenant shall rely solely on its own independent investigation and judgment as to all matters
relating to the Property. The Tenant acknowledges and agrees that prior to the Effective Date it
has made such investigations of the Premises, including without limitation such inquiries of
governmental agencies, soils testing, tests and inspections as Tenant deemed necessary to
determine the condition of the Property, and has approved all such characteristics and conditions
and shall lease the Property in its condition as of the Effective Date "As -is" "Where -is" and with
all faults. The Tenant further acknowledges that the District has made available to Tenant all
data and information related to the Premises available to the District, but without warranty or
representation by the District as to the completeness, correctness or validity of such data and
information, except as otherwise set forth in this Agreement.
5.2 Tenant's Covenants. The Tenant hereby covenants and agrees that throughout the Term:
(a) The Premises, and the use and operation thereof, shall be in compliance with all
Hazardous Materials Laws, and the Tenant shall not cause or permit the Premises or any portion
thereof to be in violation of any Hazardous Materials Laws.
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(b) The Tenant shall not permit the Premises or any portion thereof to be a site for the
use, generation, treatment, manufacture, storage, disposal or transportation of Hazardous
Materials nor shall the Tenant permit the presence or release of Hazardous Materials in, on,
under, about or from the Premises with the exception of materials customarily used in
construction, operation, use or maintenance of similar agricultural operations, provided such
materials are used, stored and disposed of in compliance with Hazardous Materials Laws.
Tenant shall have the right to review all District and other publicly available records pertaining
to the prior uses of the Property and may undertake such examinations as it deems appropriate as
further referenced in Paragraph 5.1.2 above.
(c) Upon receiving knowledge of the same, the Tenant shall immediately advise the
District in writing of: (i) any and all enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened against the Tenant, the Premises or the
Property pursuant to any applicable Hazardous Materials Laws; (ii) any and all complaints,
claims, citations, demands, inquiries, reports, or notices made or threatened by any third party
against the Tenant, the Premises or the Property relating to damage, contribution, cost recovery,
compensation, loss or injury resulting from any Hazardous Materials; (iii) the presence or release
of any Hazardous Materials in, on, under, about or from the Premises or the Property; or (iv)
Tenant's discovery of any occurrence or condition on any real property adjoining or in the
vicinity of the Property classified as "Border Zone Property" (i.e. Runway Protection Zone)
under the provisions of California Health & Safety Code section 25220 et seq., or any regulation
adopted in connection therewith, that may in any way affect the Property pursuant to any
Hazardous Materials Laws or cause it or any part thereof to be designated as Border Zone
Property. The matters set forth in the foregoing clauses (i) through (iv) are hereinafter referred
to as "Land Use Claims." The District shall have the right to join and participate in, as a party if
it so elects, any legal proceedings or actions initiated in connection with any Hazardous
Materials Claim, and to have its reasonable attorney's fees in connection therewith paid by the
Tenant. The District and Tenant share the good faith belief that the soil has been adequately
tested and is not the site of a toxic spill from the previous "clean fill" activities of the District.
However, Tenant shall not be responsible for clean -up of any Hazardous Materials discovered on
the property, if such are found to have been present at the time this lease is executed. The Tenant
will clean up reasonably small materials such as garbage, but not large toxic dumps, should they
be discovered to have already occurred prior to possession by the Tenant. Any dispute will be
settled by the mediation process set forth above in section 2.2 of this Lease.
(d) Without the District's prior written consent, which shall not be unreasonably
withheld, the Tenant shall not take any remedial action in response to the presence of any
Hazardous Materials in, on, under, or about the Premises or the Property (other than in
emergency situations or as required by governmental agencies having jurisdiction in which case
the District agrees to provide its consent without delay), nor enter into any settlement agreement,
consent decree, or other compromise with respect to any hazardous materials claim and
remediation or cleanup orders.
5.3 Release of Claims. The Tenant hereby waives, releases and discharges forever the
Indemnitees from all present and future claims the Tenant may have arising directly or indirectly
from the presence or alleged presence of hazardous materials on, under, in or about the Premises;
provided however, this release excludes and shall not apply to (i) any hazardous material that
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originates from District -owned property other than the Property and which migrates onto the
Premises after the Commencement Date, or (ii) any hazardous materials that are generated or
caused by the Indemnitees' acts or omissions after the Commencement Date. The Tenant is
aware of and familiar with the provisions of § 1542 of the California Civil Code which provides:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING
THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE
MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
5.3.1 As such relates to this Paragraph 5.3, the Tenant hereby waives and relinquishes
all rights and benefits which it may have under § 1542 of the California Civil Code.
Tenant Initials
5.4 Environmental Indemnity. The Tenant shall indemnify, defend and hold the District
harmless from and against all claims arising during the Term and resulting, arising, or based
directly or indirectly in whole or in part, upon (i) the presence, release, use, generation,
discharge, transport, storage or disposal of any Hazardous Materials on, under, in or about, or the
transportation of any such Hazardous Materials to or from the Premises during the Term; (ii) the
failure of the Tenant, the Tenant's employees, agents, contractors, subcontractors, licensees,
permittees, or any person acting on behalf of any of the foregoing to comply with Hazardous
Materials Laws; or (iii) the breach by the Tenant of any of its covenants contained in this
Article VII. The foregoing indemnity shall further apply to any residual contamination in, on,
under or about the Premises or affecting any natural resources, and to any contamination of any
property or natural resources arising in connection with the generation, use, handling, treatment,
storage, transport or disposal of any such Hazardous Materials, and irrespective of whether any
of such activities were or will be undertaken in accordance with Hazardous Materials Laws and
shall include, without limitation, any Claims arising in connection with any investigation of site
conditions or any cleanup, remedial, removal or restoration work ordered by a court or required
by any federal, state, or local governmental agency or political subdivision. This Paragraph 5.4
shall survive the expiration or earlier termination of this Agreement.
5.5 Definitions.
5.5.1 Hazardous Materials. As used herein, "Hazardous Materials" means any
substance, material, or waste which is or becomes regulated by any local, state or federal
authority, agency or governmental body, including any material or substance which is: (i)
defined as a "hazardous waste," "extremely hazardous waste," or "restricted hazardous waste"
under § 25115, 25117 or 25122.7, or listed pursuant to § 25140 of the California Health & Safety
Code, Division 20, Chapter 6.5 (Hazardous Waste Control Law); (ii) defined as a "hazardous
substance" under § 25316 of the California Health & Safety Code, Division 20, Chapter 6.8
(Carpenter- Presley - Tanner Hazardous Substance Account Act); (iii) defined as a "hazardous
material," "hazardous substance," or "hazardous waste" under § 25501 of the California Health
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& Safety Code, Division 20, Chapter 6.95 (Hazardous Materials Release Response Plans and
Inventory); (iv) defined as a "hazardous substance" under § 25281 of the California Health &
Safety Code, Division 20, Chapter 6.7 (Underground Storage of Hazardous Substances);
(v) petroleum; (vi) friable asbestos; (vii) polychlorinated biphenyls; (viii) listed under Article 9
or defined as "hazardous" or "extremely hazardous" pursuant to Article 11 of Title 22 of the
California Administrative Code, Division 4, Chapter 20; (ix) designated as "hazardous
substances" pursuant to § 311 of the Clean Water Act (33 U.S.C. § 1317); (x) defined as a
"hazardous waste" pursuant to § 1004 of the Resource Conservation and Recovery Act, 42
U.S.C. § 6901, et seq. (42 U.S.C. § 6903); or (xi) defined as "hazardous substances" pursuant to
§ 101 of the Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. § 9601, et seq., as the foregoing statutes and regulations now exist or may hereafter be
amended.
5.5.2 Hazardous Materials Laws. As used herein "Hazardous Materials Laws" means
all federal, state and local laws, ordinances, regulations, orders and directives pertaining to
Hazardous Materials, including without limitation, the laws, statutes and regulations cited in the
preceding Paragraph 5.5.1, as any of the foregoing may be amended from time to time.
ARTICLE VI
ALTERATIONS AND NEW CONSTRUCTION
6.1 Changes and Alterations. During the Term of this Agreement, the Tenant shall not make
any change, alteration or addition to the Premises (collectively, the "Improvements ") without the
prior written consent of the District, which shall not be unreasonably withheld. All alterations
and additions shall be made at the Tenant's sole cost and expense and shall comply with all of
the following, including, but not limited to, any conditions imposed by the District:
(a) The Improvements shall be necessary for the operation of the Sustainable Farm,
and the permitted uses set forth in Paragraph 4.1 of this Agreement.
(b) No Improvements shall be undertaken until the Tenant shall have obtained all
required permits and authorizations of any federal, state or local government or departments or
subdivisions of any of them, having jurisdiction.
(c) The Improvements shall be made in a good and workmanlike manner and in
accordance with all applicable permits, Exhibit C, and all Applicable Laws.
(d) During the construction of any Improvements on the Premises, or the permitted
demolition or new construction or any restoration, the Tenant shall comply with the insurance
requirements set forth in Paragraph 7.2, which policy or policies by endorsement thereto, if not
then covered, shall also insure any change, alteration or addition or new construction, including
all materials and equipment incorporated in, on or about the Premises.
(e) Prior to commencement of any construction, change, alteration or repair, the
Tenant shall deliver to the District not later than thirty (30) days written notice of the proposed
work, a general description of the proposed work and sufficient information to permit the District
to post a notice of non - responsibility on the Property and/or Premises.
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6.2 Compliance with Laws. The Tenant shall carry out the construction of the Improvements
in conformity with all applicable state and federal laws and regulations, including without
limitation, all applicable state and federal labor laws and standards, and all applicable disabled
and handicapped access requirements, including without limitation, the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq., California Government Code § 4450, et seq.,
California Government Code § 11135, et seq., and the Unruh Civil Rights Act, California Civil
Code § 51, et seq. The Tenant shall comply with all local ordinances and regulations relating to
the conduct of construction, including without limitation, all local ordinances and regulations
relating to noise, construction hours and maintenance of the construction site. All of the
foregoing state, federal and local laws, regulations and ordinances are hereafter referred to as the
"Applicable Laws."
6.3 Rights of Access. The District shall have the right of access to the Premises for purposes
of assuring compliance with this Agreement and to access and repair the onsite infrastructure of
District including but not limited to recycled water and sewer lines, so long as the District
complies with all safety rules and does not unreasonably interfere with the progress of
construction of the Improvements. The District shall give the Tenant reasonable advance notice
prior to exercising its rights pursuant to this Paragraph 6.3 except in the event of emergency in
which case notice shall not be required.
6.4 Indemnity. In lieu of and not withstanding any statute, regulation or rule that may
otherwise affect the terms of this Agreement, the Parties agree that all losses or liabilities
incurred by a party shall not be shared pro rata, but instead the Tenant and the District agree to
the following:
(a) The Tenant shall defend (with counsel reasonably acceptable to the District),
indemnify and hold harmless the Indemnitees from and against any and all present and future
Claims arising during the term of this Agreement from or in connection with the Tenant's failure
to comply with all Applicable Laws relating to the operation or maintenance of the Premises or
the Improvements, or the Tenant's activities or performance under this Agreement, whether such
activity or performance is by the Tenant or by anyone directly or indirectly employed by or
contracted with by the Tenant and whether such Claims shall be discovered before or after Lease
Termination. The Tenant's indemnity obligations under this Paragraph 6.4 shall not extend to
Claims to the extent they arise as a result of the Indemnitees' active negligence or willful
misconduct.
(b) At its sole discretion, the District may participate at its own expense in the
defense of any claim, action or proceeding, but such participation shall not relieve the Tenant of
any obligation imposed by this Agreement. The District shall notify the Tenant promptly of any
claim, action or proceeding and cooperate fully in its defense.
(c) The Tenant agrees to defend, indemnify and hold harmless the Indemnitees from
any claim, action or proceeding against the Indemnitees, arising solely out of the acts or
omissions of the District in the performance of this Agreement. At its sole discretion, the
District may participate at its own expense in the defense of any claim, action or proceeding, but
such participation shall not relieve the District of any obligation imposed by this Agreement.
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The District shall notify the Tenant promptly of any claim, action or proceeding and cooperate
fully in the defense.
6.5 Mechanic's Liens. Subject to the right to contest the same prior to payment, the Parties
agree and shall keep the Premises and the Property free and clear of all mechanics' liens and
other liens including stop notices, on account of work done by or for a Party. Each Party shall
indemnify, defend (with counsel reasonably acceptable to the other Party) and hold such Party's
Indemnitees harmless from and against all liability, loss, damages, costs and expenses (including
reasonable attorney's fees) incurred by or brought against a Party for claims of lien of laborers or
materialmen or others for work performed or materials or supplies furnished to a Party or
persons claiming under it. In the event any lien is recorded, the appropriate Party shall, within
twenty (20) days following such recordation, cause such lien to be removed of record by bonding
or otherwise.
6.6 Contemplated Improvements. Notwithstanding any other provisions of this Article VI,
the Parties contemplate that the following Improvements will be constructed by Tenant upon
design review and written approval from District: (i) secure fencing around Premises; (ii)
installation of electrical power poles; (iii) irrigation; (iv) parking facilities; (v) teaching facilities
(vi) green houses, barns, and farm support structures; (vii) signage as allowable by County and
Caltrans regulations; and (viii) renewable energy installations; (ix) potable water installation; (x)
any off - Premises traffic impact or street improvements that are required due to the operation of
the Sustainable Farm. Construction and contemplated Improvements shall be consistent with all
additional descriptions contained in Exhibit "C."
ARTICLE VII
INDEMNITY AND INSURANCE
7.1 Indemnity. The Tenant shall indemnify, defend and hold the District harmless from and
against any and all Claims arising during the Term and arising from or in connection with any of
the following: (i) the operation or management of the Premises; (ii) any work or thing done on
or in the Premises; (iii) any condition of any alteration or addition constructed by the Tenant on
the Premises; (iv) any breach or default by the Tenant in the performance of any covenant or
agreement to be performed by the Tenant pursuant to the terms of this Agreement; (v) any gross
negligence of the Tenant, or any of its agents, contractors, subcontractors, employees, volunteers
or licensees; (vi) any accident, injury or damage caused to any person occurring during the Term
in or on the Premises; and (vii) the furnishing of labor or materials by the Tenant or its
contractors, subcontractors, employees, volunteers or agents. In the event any such action or
proceeding is brought against the District by reason of any such Claim, the Tenant, upon notice
from the District, covenants to defend such action or proceeding by counsel reasonably
satisfactory to the District. If an insurer under insurance required to be maintained by the Tenant
hereunder shall undertake to defend the District under a reservation of rights with respect to
ultimate coverage and the District shall reasonably deem it necessary to retain independent
counsel with respect to such matter, the Tenant shall pay the reasonable fees of such counsel.
The obligations of the Tenant under this Article VII shall not apply to any Claim or other matter
to the extent such arises as a result of the gross negligence or willful misconduct of the District.
This section shall survive the expiration or earlier termination of this Agreement.
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7.2 Insurance Requirements. Tenant, at its sole expense, shall maintain in effect at all times
during the performance of its obligations hereunder, Comprehensive General Liability Insurance
coverage with limits not less than those set forth below with insurers and under forms of policies
satisfactory to the District.
7.2.1 General Liability Insurance, including contractual liability, independent
contractors, and broad form property damage coverage. This insurance shall be in a
comprehensive occurrence form with an endorsement naming the District as an additional
insured and with a standard cross - liability clause or endorsement. The limit amount for this
insurance shall not be less than $5,000,000 per occurrence combined single limit for bodily
injury and property damage.
7.2.2 The insurance policy described above shall include the following provisions or
have them added by endorsement:
(a) The coverage shall be primary, and no other insurance or self - insurance
such as may be utilized by the District shall contribute to a loss under the policy.
(b) The policy shall not be canceled or materially altered without thirty (30)
days prior written notice to the District.
(c) The certificates and endorsements are to be signed by a person authorized
by the insurers to bind coverage on their behalf.
7.2.3 The insurer(s) utilized shall conform to the following terms:
(a) Insurers shall have at least an "A" policyholder rating and a "VII"
financial rating in accordance with the most current Best's Key Rating Guide.
(b) Tenant shall furnish to the District, no later than ten (10) days prior to the
expiration of the current insurance, with adequate certificates of insurance and with original
endorsements affecting coverage as will demonstrate that the provisions and/or requirements of
this section have been complied.
(c) Tenant shall provide thirty (30) days' prior written notice to the District
before the policy is canceled or materially altered.
7.2.4 Tenant shall maintain Workers' Compensation and Employer's Liability
coverages per the statutory requirements at the location of work and to the extent included under
the Workers' Compensation Insurance Policy. Tenant shall also maintain coverage pursuant to
the general liability policy or through endorsements or through separate insurance policies which
provide coverage for products liability, bee stings, and other potential agricultural dangers as
well as with the aviation liabilities associated with proximity of the Premises to an airport.
7.2.5 The District reserves the right to require receipt of complete copies of all required
insurance policies at any time.
7.2.6 If the Tenant undertakes the construction of any improvements pursuant to
Article VI, the Tenant shall ensure that its general contractor carries liability, property damage,
workers' compensation and builder's risk insurance throughout construction of the
Improvements, naming the District as additional insureds and otherwise in compliance with all
requirements set forth in this Paragraph 7.2.
7.2.7 District reserves the right to increase the General Liability insurance from
$5,000,000 per occurrence up to $10,000,000 per occurrence depending upon the increased
exposure to the District as the Sustainable Farm public activity increases. District will review
the minimum coverage amount within ninety (90) days of the anniversary date of this
Agreement.
7.2.8 Tenant shall obtain signed waivers from all invitees and volunteers entering or
working upon the Premises. The waivers shall provide that District is held harmless from any
and all damages to persons or property that may occur while the invitee or volunteer is upon the
Premises. Parents of minors shall be required to execute the waiver on behalf of their minor
child before the child may enter upon the Premises.
ARTICLE VIII
DAMAGE AND DESTRUCTION
8.1 Damage or Destruction. In the event of any damage to or destruction of the Premises
during the Term, the District shall elect by written notice delivered to Tenant within sixty (60)
days following the date of the occurrence of the damage, or becoming aware of the damage to,
either remove or restore the damage to contemplated Improvements and Improvements on
Premises or restore and rebuild the Premises as nearly as possible to their condition immediately
prior to such damage or destruction, subject to any restrictions imposed by changes in any
Applicable Law. If the District elects to restore the Premises, the District shall commence
diligently and continuously to carry out such rebuilding to full completion as soon as possible
and shall commence reconstruction of the Premises within the earlier of ninety (90) days
following the date of occurrence of the damage or the date upon which insurance proceeds are
made available for such work. Upon the occurrence of damage or destruction, all insurance
proceeds paid in respect of such damage or destruction shall be applied to the payment of the
costs of the restoration and rebuilding required to be performed by the District pursuant to this
Agreement. If the District does not elect to restore the Premises and the District does not
exercise its right to terminate this Agreement pursuant to Paragraph 13.3 within one hundred
twenty (120) days following the date of the occurrence of the damage, then at the District's
option this Agreement shall terminate upon delivery of written notice to the Tenant. If the
District elects to restore the Premises, the District shall confer with the Tenant regarding the
design and plans for such restoration of the Premises.
8.2 Notice Required. In the event of material damage to or destruction of the Premises, or
any part thereof, the Tenant shall promptly give the District notice of such occurrence and take
all actions reasonably required to protect against hazards caused by such damage or destruction.
For purposes of this Article VIII, damage or destruction shall be deemed to be material if the
estimated cost to repair equals or exceeds Fifty Thousand Dollars ($50,000).
ICI
8.3 District's Right to Terminate. Notwithstanding any contrary provision of this Article
VIII, the District shall have the option to terminate this Agreement and be relieved of the
obligation to restore the Premises where all or substantially all of the Premises are substantially
damaged or destroyed and such damage or destruction resulted from a cause not insured against
by the Tenant and/or the District nor required to be insured against by the Tenant and/or the
District under this Agreement.
ARTICLE IX
SECURITY AND PREMISES CLEAN -UP BOND
On the Commencement Date and on an annual basis each April 1 during the Term, Tenant shall
furnish to District a bond or a deposit covering the faithful performance of Tenant's Premises
clean-up obligations set forth in Paragraph 2.5 in such form as District may prescribe, and with
such sureties as District may approve, in the exercise of District's reasonable judgment. This
bond or security shall also operate as a security bond or deposit.
9.1 Use of Security Deposit or Bond.
If the Tenant is in default with respect to any provision of this Agreement, the District may, but
has no obligation to, use the Security Deposit or any portion of the Security Deposit or Premises
Clean-up Bond or any portion of the Premises Clean -up Bond to cure such default or to
compensate the District for any damage or reasonable expense sustained by the District and
resulting from such default, but only after providing the Tenant with an opportunity to cure such
default pursuant to the provisions of Paragraph 13.1. The District shall provide the Tenant with
evidence of damages incurred as a result of a default by the Tenant. If this Agreement has not
been terminated as a result of such default, the Tenant, on demand from the District, shall
promptly restore the Security Deposit to the full amount required by Paragraph 9.2.
9.2 Security Deposit or Premises Clean-up Bond.
Upon execution of this Agreement, the Tenant may provide a security deposit to the District in
the amount of one thousand Dollars ($1000), until such time as the District obtains the land use
permit, at which time the security deposit will increase to a total of $5000 (the "Security
Deposit" or "Premises Clean-up Bond ") or as noted above, may provide a Bond. If a Security
Deposit is provided, and the Tenant is not in default under this Agreement, the District shall
return the Security Deposit or Premises Clean-up Bond to the Tenant upon termination of this
Agreement. The District shall have no obligation to pay or earn interest on the Security Deposit
and Premises Clean-up Deposit, if selected by the Tenant. If interest is paid thereon, such interest
shall become part of the Security Deposit or Premises Clean-up Bond. The District retains the
right to increase the Security Deposit up to $10,000, with sixty (60) days' notice, if the District
deems this is necessary because of increased activities by the Tenant.
ARTICLE X
AGENCY'S RIGHT TO PERFORM TENANT'S COVENANTS
10.1 If the Tenant shall at any time fail to pay any Imposition or other charge payable by the
Tenant to a third party as required by this Agreement, or to comply with the requirements set
forth in Paragraph 7.2 pertaining to insurance, or to make any other payment or perform any
20
11RAI'T.
other act on its part to be made or performed hereunder within the time permitted by this
Agreement, then the District, after thirty (30) days' written notice to the Tenant and without
waiving or releasing the Tenant from any obligation of the Tenant hereunder, may (but shall not
be required to): (i) pay such Imposition or other charge payable by the Tenant; (ii) pay for and
maintain the insurance policies required pursuant to this Agreement; or (iii) make such other
payment or perform such other act on the Tenant's part to be made or performed under this
Agreement; and the District may enter upon the Premises for such purpose and take all such
action thereon as may be reasonably necessary therefor.
10.2 All sums paid by the District and all costs and expenses incurred by the District in
connection with any such payment or the performance of any such act (together with interest
thereon at the Default Rate from the respective dates of the District's making of each such
payment) shall constitute additional Rent payable by the Tenant under this Agreement and shall
be paid by the Tenant to the District on demand. The "Default Rate" means interest calculated at
an annual rate equal to the lesser of twelve percent (12 %) or the maximum rate of interest
permitted by law.
ARTICLE XI
MORTGAGES
11.1 Non - Subordination of Fee. Nothing in this Agreement shall be construed as an
agreement by the District to subordinate its fee interest in the Property or its right to rent
payments hereunder or any other right of the District herein. Except as expressly set forth in this
Agreement, the Tenant shall not mortgage its interest in the Premises without the District's prior
written approval. Notwithstanding anything to the contrary, the District shall have no obligation
to encumber or otherwise subordinate its fee interest in the Property or approve any mortgage of
the Tenant's leasehold estate.
ARTICLE XII
ASSIGNMENT, TRANSFER, SUBLETTING; NONDISTURBANCE AND ATTORNMENT
12.1 Restrictions on Transfer, Assignment and Encumbrance. The Tenant shall have no right
to sell, transfer, sublet, assign, encumber, hypothecate or otherwise convey ( "Transfer ") its
leasehold interest hereunder or any portion of its interest in the Premises or this Agreement
voluntarily, involuntarily, by operation of law, or otherwise, without the District's prior written
consent, including but not limited to use of the property or sublease to the public for community
gardens. No voluntary or involuntary assignee, subtenant, or successor in interest of the Tenant
shall acquire any rights or powers under this Agreement absent such consent.
12.2 No Involuntary Transfers. Without limiting any other restrictions on transfer contained
in this Agreement, no interest of the Tenant in this Agreement, the Premises or part thereof shall
be assignable or transferable without written approval of the District: (i) pursuant to any
voluntary or involuntary proceeding under federal or state bankruptcy or insolvency law; (ii)
pursuant to any assignment of the Tenant's assets for the benefit of its creditors; or (iii) pursuant
to any order of attachment, garnishment, receivership, or similar action. Any transfer described
in this Paragraph 12.2 shall constitute an Event of Default under this Agreement by the Tenant,
and the Tenant shall have the right to terminate this Agreement pursuant to Article XII as a result
21
of any such transfer taking place, in which case this Agreement shall not be treated as an asset of
the Tenant.
12.3 Assumption Agreement and Release. No permitted Transfer shall be effective until any
curable default hereunder shall have been cured and there shall have been delivered to the
District an assumption agreement, executed by the transferor and the proposed transferee,
whereby such transferee expressly assumes such obligations as arise and/or accrue at any time
after such Transfer takes place; and whereby such transferee assumes liability for the obligations
of this Agreement.
12.4 Sale by District. Nothing contained in this Agreement shall be deemed in any way to
limit, restrict or otherwise affect the right of the District to sell, transfer, assign or convey all or
any portion of the right, title and estate of the District in the Property and in this Agreement;
provided, however, that in each such instance any such sale, transfer, assignment or conveyance
shall be subject to this Agreement, and the Tenant's other rights arising out of this Agreement
shall not be affected or disturbed in any way by any such sale, transfer, assignment or
conveyance. At such time as the District shall sell, transfer, assign or convey the entire right,
title and estate of the District in the Property and in this Agreement, all obligations and liability
on the part of the District arising under this Agreement after the effective date of such sale,
transfer, assignment or conveyance shall terminate as to the District, and thereupon all such
liabilities and obligations shall be binding upon the transferee.
12.5 Nondisturbance. Provided that the Tenant is not in default under this Agreement, the
Tenant's possession, use and enjoyment of the Premises shall not be unreasonably interfered
with or otherwise affected in any manner inconsistent with the terms of this Agreement as a
result of any act or omission of the District. None -the -less, the District shall have reasonable
rights of access to the Premises, including Improvements, for inspections and confirmation of
consistency with the Agreement conditions and other written approvals. The Tenant shall also
ensure that its possession, uses and enjoyment of the Premises does not interfere with, disturb or
diminish or otherwise affect in any manner any other tenants on the Property
ARTICLE XIII
DEFAULT, REMEDIES AND TERMINATION
13.1 Event of Default. The Tenant shall be in default under this Agreement upon the
occurrence of any of the following ( "Events of Default "):
(a) Payment of Rent. The Tenant at any time is in default hereunder as to payment of
Rent and such default continues for ten (10) days.
(b) Other Monetary Obligations. The Tenant at any time is in default hereunder as to
any monetary obligation (including without limitation, the Tenant's obligation to pay taxes and
assessments due on the Premises or part thereof, subject to the Tenant's rights to contest such
charges pursuant to Paragraph 3.2), and such default continues for thirty (30) days after the date
upon which the District shall have given the Tenant a Notice of Default (as defined in Paragraph
13.2.1).
22
(c) Insurance. The Tenant fails to obtain and maintain any insurance required
pursuant to Paragraph 7.2 of this Agreement, and the Tenant fails to cure such default within ten
(10) days following receipt of Notice of Default.
(d) Abandonment. The Tenant abandons the Premises and ceases to use it for the
purposes authorized hereby for a period of ninety (90) days or more or as established pursuant to
§ 1951.3 of the California Civil Code except when prevented by Force Majeure.
(e) Transfer. A voluntary or involuntary Transfer of all or any portion of the
Tenant's interest in this Agreement occurs in violation of the provisions of Article XII.
(f) Non - Monetary Obligations. The Tenant defaults in the performance of any term,
provision, covenant or agreement contained in this Agreement other than an obligation
enumerated in this Paragraph 13. 1, and unless a shorter cure period is specified for such default,
the default continues for thirty (30) days after the date upon which the District shall have given
written notice of the default to the Tenant; provided however, if the default is of a nature that it
cannot be cured within thirty (30) days, an Event of Default shall not arise hereunder if the
Tenant commences to cure the default within thirty (30) days and thereafter prosecutes the curing
of such default with due diligence and in good faith to completion and in no event later than one
hundred and eighty (180) days after receipt of a Notice of Default.
(g) Bankruptcy. The Tenant files a voluntary petition in bankruptcy or files any
petition or answer seeking or acquiescing in any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief for itself under any present or future
federal, state or other statute, law or regulation relating to bankruptcy, insolvency or other relief
for debtors or seeks or consents to or acquiesces in the appointment of any trustee, receiver or
liquidator of the Tenant or of all or any substantial part of its property, or of any or all of the
royalties, revenues, rents, issues or profits thereof, or makes any general assignment for the
benefit of creditors, or admits in writing its inability to pay its debts generally as they become
due.
(h) Attachment. A writ of execution or attachment or any similar process is issued or
levied against all or any part of the interest of the Tenant in the Premises and such execution,
attachment or similar process is not released, bonded, satisfied, or vacated or stayed within sixty
(60) days after its entry or levy, such sixty (60) day period to be extended during any period of a
bona fide appeal diligently pursued by Tenant.
13.2 Notice and Opportunity to Cure.
13.2.1 Notice of Default. Upon the occurrence of a default hereunder, the non - defaulting
party shall deliver a notice to the nonperforming party (the "Notice of Default "), stating the
nature of the obligation which such nonperforming party has failed to perform and stating the
applicable period of time, if any, permitted to cure the default.
13.2.2 Failure to Give Notice, No Waiver. Failure to give, or delay in giving, the Notice
of Default shall not constitute a waiver of any obligation, requirement or covenant required to be
performed hereunder. No failure or delay by either party in asserting any rights and remedies as
23
to any breach shall operate as a waiver of any breach or of any such rights or remedies. Delay by
either party in asserting any of its rights and remedies shall not deprive such party of the right to
institute and maintain any action or proceeding which it may deem appropriate to protect, assert
or enforce any such rights or remedies.
13.3 Remedies Upon Default.
13.3.1 District's Remedies. Upon the occurrence of any Event of Default and in addition
to any and all other rights or remedies of the District hereunder and/or provided by law, the
District shall have the right to terminate this Agreement and/or the Tenant's possessory rights
hereunder, in accordance with applicable law to re -enter the Premises and take possession
thereof and of the Fixtures and any Improvements, and except as otherwise provided herein, to
remove all persons and property therefrom, and to store such property at the Tenant's risk and
for the Tenant's account, and the Tenant shall have no further claim thereon or hereunder. The
District's re -entry or taking of possession of the Premises shall not be construed as an election on
the District's part to terminate this Agreement unless the District shall have given written notice
of such intention to the Tenant. In no event shall this Agreement be treated as an asset of the
Tenant after any final adjudication in bankruptcy except at the District's option so to treat the
same but no trustee, receiver, or liquidator of the Tenant shall have any right to disaffirm this
Agreement.
13.3.2 Remedies Upon Abandonment. If the Tenant should default under this
Agreement and abandon the Premises, the District may, at its option, enforce all of its rights and
remedies under this Agreement, including the right to recover the rent as it becomes due
hereunder. Additionally, the District shall be entitled to recover from the Tenant all costs of
maintenance and preservation of the Premises, and all costs, including attorneys' and receiver's
fees incurred in connection with the appointment of and performance by a receiver to protect the
Premises and the District's interest under this Agreement.
13.3.3 District Rijzht to Continue Lease. In the event of any default under this Agreement
by the Tenant (and regardless of whether or not the Tenant has abandoned the Premises), this
Agreement shall not terminate (except by an exercise of the District's right to terminate under
Paragraph 13.3. 1) unless the District makes such election by the giving of any notice (including,
without limitation, any notice preliminary or prerequisite to the bringing of legal proceedings in
unlawful detainer) to terminate the Tenant's right to possession. For so long as this Agreement
continues in effect, the District may enforce all of the District's rights and remedies under this
Agreement, including, without limitation, the right to recover all rent and other monetary
payments as they become due hereunder. For the purposes of this Agreement, the following
shall not constitute termination of the Tenant's right to possession: (a) acts of maintenance or
preservation or efforts to relet the Premises; or (b) the appointment of a receiver upon initiative
of the District to protect the District's interest under this Agreement.
13.3.4 Right to Injunction, Specific Performance. In the Event of Default by the Tenant
under this Agreement, the District shall have the right to commence an action against the Tenant
for damages, injunction and/or specific performance. The Tenant's failure, for any reason, to
24
1.)IiAI,„ I..
comply with a court- ordered injunction or order for specific performance shall constitute a
breach under this Agreement.
13.4 Remedies Cumulative. No remedy specified in this Article XIII shall be considered
exclusive of any other remedy, but the same shall be cumulative and shall be in addition to every
other remedy provided hereunder or now or hereafter existing at law or in equity or by statute,
and every power and remedy provided by this Agreement may be exercised from time to time
and as often as occasion may arise or as may be deemed expedient, subject to any limitations set
forth herein.
13.5 No Election of Remedies. The rights given in this Article XIII to receive, collect or sue
for any rent or rents, moneys or payments, or to enforce the terms, provisions and conditions of
this Agreement, or to prevent the breach or nonobservance thereof, or the exercise of any such
right or of any other right or remedy hereunder or otherwise granted or arising, shall not in any
way affect or impair or toll the right or power of the District upon the conditions and subject to
the provisions in this Agreement to terminate the Tenant's right of possession because of any
default in or breach of any of the covenants, provisions or conditions of this Agreement beyond
the applicable cure period.
13.6 Survival of Obligations. Nothing herein shall be deemed to affect the right of the District
under Article VIII of this Agreement to indemnification for liability arising prior to the
termination of this Agreement for personal injuries or property damage, nor shall anything herein
be deemed to affect the right of the District to equitable relief where such relief is appropriate.
No expiration or termination of the Term by operation of law, or otherwise, and no repossession
of the Improvements or any part thereof shall relieve the Tenant of its previously accrued
liabilities and obligations hereunder, all of which shall survive such expiration, termination or
repossession.
ARTICLE XIV
GENERAL PROVISIONS
14.1 Force Majeure, Extension of Times of Performance. Subject to the limitations set forth
below, performance by either Party shall not be deemed to be in default, and all performance and
other dates specified in this Agreement shall be extended where delays are due to war,
insurrection, strikes, lockouts, riots, floods, earthquakes, fires, casualties, acts of God, acts of the
public enemy, epidemics, quarantine restrictions, freight embargoes, governmental restrictions or
priority, unusually severe weather, acts or omissions of the other party, acts or failures to act of
any public or governmental agency or entity or any other cause beyond the affected party's
reasonable control ( "Force Majeure Times ") All of performance under this Agreement may also
be extended in writing by the mutual agreement of the Tenant and the District (acting in the
discretion of its District Manager unless he or she determines in his or her discretion to refer
such matter to the Board of Directors of District). Each party expressly assumes the risk of such
adverse economic or market changes and/or financial inability, whether or not foreseeable as of
the Effective Date.
25
14.3 Representations of District and Tenant.
14.3.1 The Tenant hereby represents and warrants that all of the following are true and
correct as of the Effective Date:
(a) The Tenant has taken all requisite action in connection with the execution
of this Agreement and the undertaking of the obligations set forth herein. This Agreement
constitutes the legally valid and binding obligation of the Tenant, enforceable against the Tenant
in accordance with its terms, except as it may be affected by bankruptcy, insolvency or similar
laws or by legal or equitable principles relating to or limiting the rights of contracting parties
generally; and
(b) The execution of this Agreement and the acceptance of the obligations set
forth herein do not violate any court order or ruling binding upon the Tenant or any provision of
any indenture, agreement or other instrument to which Tenant is a party or may be bound.
14.3.2 District hereby represents and warrants that all of the following are true and
correct as of the Effective Date:
(a) The District has taken all requisite action in connection with the execution
of this Agreement and the undertaking of the obligations set forth herein. This Agreement
constitutes the legally valid and binding obligation of the District, enforceable against the
District in accordance with its terms, except as it may be affected by bankruptcy, insolvency or
similar laws or by legal or equitable principles relating to or limiting the rights of contracting
parties generally; and
(b) The execution of this Agreement and the acceptance of the obligations set
forth herein do not violate any court order or ruling binding upon the District or any provision of
any indenture, agreement or other instrument to which the District is a party or may be bound.
Neither the entry into nor the performance of this Agreement will violate, be in conflict with or
constitute a default under any charter, bylaw, partnership agreement, trust agreement, mortgage,
deed of trust, indenture, contract, judgment, order or other agreement, charge, right or interest
applicable to the District.
14.4 Miscellaneous.
14.4.1 Severability. If any term or provision of this Agreement or the application thereof
to any person or circumstance shall, to any extent, be held by a court of competent jurisdiction to
be invalid or unenforceable, the remainder of this Agreement, or the application of such term or
provision to persons or circumstances other than those as to which it is held invalid or
unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall
be valid and be enforced to the fullest extent permitted by law
14.4.1 Notices. Except as otherwise specified herein, all notices to be sent pursuant to
this Agreement shall be made in writing, and sent to the Parties at their respective addresses
specified below or to such other address as a Party may designate by written notice delivered to
the other parties in accordance with this section. All such notices shall be sent by:
26
(i) Personal delivery, in which case notice is effective upon delivery;
(ii) Certified or registered mail, return receipt requested, in which case notice
shall be deemed delivered on receipt if delivery is confirmed by a return receipt;
(iii) Nationally recognized overnight courier, with charges prepaid or charged
to the sender's account, in which case notice is effective on delivery if delivery is confirmed by
the delivery service; or
(iv) Facsimile transmission, in which case notice shall be deemed delivered
upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first
class or certified mail or by overnight delivery, or (b) a transmission report is generated
reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered
to have been received on the next business day if it is received after 5:00 p.m. recipient's time or
on a nonbusiness day.
Tenant: AgLantis
62 Scenic Drive
Orinda, CA 94563
Attention: Carolyn R. Phinney
Telephone: 925-788-7374
Facsimile: 925- 253 -9500
District
Manager: Central Contra Costa Sanitary District
5500 Imhoff Drive
Martinez, CA 94553
Attention: Environmental Services Division Manager
Telephone: 925- 229 -7118
Facsimile: 925- 228 -4624
With copy to:
Meyers Nave Riback Silver & Wilson
555 12th Street, Suite 1500
Oakland, CA 94607
Attention: Counsel for the District
Telephone: (510) 808 -2000
Facsimile: (510) 444 -1108
14.4.2 Captions, Construction. The section headings and captions used herein are solely
for convenience and shall not be used to interpret this Lease. The Parties acknowledge that this
Agreement is the product of negotiation and compromise on the part of both Parties, and the
Parties agree that since both Parties have participated in the negotiation and drafting of this
Agreement with the advice of counsel, this Agreement shall not be construed as if prepared by
27
one of the Parties, but rather according to its fair meaning as a whole, as if both Parties had
prepared it.
14.4.3 Successors and Assigns. Subject to the restrictions on transfer set forth in Article
XII, this Agreement shall be binding upon and shall inure to the benefit of the Parties and their
respective successors and assigns. Any reference in this Lease to a specifically named Party
shall be deemed to apply to any permitted successor and assign of such Party who has acquired
an interest in compliance with this Agreement as if in every case so expressed.
14.4.4 Short Form of Lease. A memorandum of lease shall be executed by the Parties
and recorded in the Official Records of Contra Costa County.
14.4.5 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the state of California without regard to principles of conflicts of
laws. Any action to enforce or interpret this Agreement shall be filed in Contra Costa Superior
Court of California or in the United States District Court, Northern District of California.
14.4.6 Attorneys Fees. If either Party commences an action against the other to enforce
any obligation contained herein, or to interpret any provision hereof, the prevailing party shall be
entitled to recover from the other Party reasonable counsel fees, costs and necessary
disbursements, as determined by the court having jurisdiction over the action.
14.4.7 Indemnity Includes Defense Costs. In any case where either Party is obligated
under an express provision of this Lease, to indemnify and to save the other Party harmless from
any damage or liability, the same shall be deemed to include defense of the indemnitee by the
indemnitor, such defense to be through legal counsel reasonably acceptable to the indemnitee.
14.4.8 No Third Party Beneficiaries. Disclaimer of Partnership Lender /Borrower
Relationship. Nothing contained in this Agreement is intended to or shall be deemed to confer
upon any person, other than the Parties any rights or remedies hereunder. The relationship of the
parties under this Agreement is solely that of landlord and tenant, and it is expressly understood
and agreed that the District does not as a result of this Agreement in any way nor for any purpose
become a partner of the Tenant or a joint venturer with the Tenant in the conduct of the Tenant's
business or otherwise. This Agreement is not intended to, and shall not be construed to, create
the relationship of principal and agent, partnership, joint venture, or association as between the
District and the Tenant. It is further expressly understood and agreed that this Agreement is not
intended to, and shall not be construed to create the relationship of lender and borrower, and the
District does not, solely as a result of this Agreement, become a lender to the Tenant.
14.4.9 Entire Agreement. This Agreement, together with Exhibits "A," `B," "C," and
"D," which by this reference is hereby incorporated herein, contains the entire agreement
between the Parties relative to the transactions covered hereby. All previous correspondence,
communications, discussions, agreements, understandings or proposals and acceptances thereof
between the Parties or their representatives, whether oral or written, are deemed to have been
integrated into and superseded by this Agreement and are of no further force and effect except as
expressly provided in this Agreement.
FM
I)R:k "I'
14.4.10 Waiver, Modification. No waiver of any breach of any covenant or provision of
this Agreement shall be deemed a waiver of any subsequent breach of the same or any other
covenant or provision hereof. No waiver shall be valid unless in writing and executed by the
waiving party. An extension of time for performance of any obligation or act shall not be
deemed an extension of the time for performance of any other obligation or act, and no extension
shall be valid unless in writing and executed by the waiving party. This Agreement may be
amended or modified only by a written instrument executed by the Parties.
14.4.11 Time is of the Essence. Time is of the essence of this Agreement and of each
provision hereof.
14.4.12 Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be an original and all of which together shall constitute one and the same
instrument.
14.4.13 Action by the Parties. Except as may be otherwise specifically provided herein,
whenever any approval, notice, direction, consent or request by the Tenant in its capacity as
tenant hereunder is required or permitted under this Agreement, such action shall be in writing,
and such action may be given, made or taken by the District General Manager or by any person
who shall have been designated by the District General Manager, without further approval by the
Board of Directors of District unless the District General Manager determines in his or her
discretion that such matter requires consideration by the Board of Directors of District.
14.4.14 Mutual Non - Liability of Officials and Employees. No member, official,
employee, agent or volunteer of the Tenant or the District shall be personally liable to Tenant or
District or their successors in interest in the event of any default or breach by the Tenant or the
District or for any amount which may become due to the District pursuant to this Agreement.
Date.
IN WITNESS WHEREOF, the Parties have entered into this Lease as of the Effective
TENANT:
AGLANTIS
By:
Its:
PU
ATTEST:
Secretary of the District
APPROVED AS TO FORM:
Counsel for the District
DISTRICT:
CENTRAL CONTRA COSTA SANITARY DISTRICT
I:
Its:
30
EXHIBIT "A"
PROPERTY
REAL PROPERTY IN THE COUNTY OF CONTRA COSTA, STATE OF
CALIFORNIA DESCRIBED AS FOLLOWS:
ALL THAT PORTION OF PARCEL C AS DESCRIBED IN THE GRANT DEED
TO THE CENTRAL CONTRA COSTA SANITARY DISTRICT RECORDED
JANUARY 16, 1981 IN BOOK 10168 OF OFFICIAL RECORDS OF SAID
COUNTY AT PAGE 209 (10168 O.R. 209), DESCRIBED AS FOLLOWS:
COMMENCING AT FOUND 1.5" IRON PIPE MONUMENT WITH TAG
STAMPED "CEN SAN" HAVING COORDINATES OF (Y) 2190838.42 FEET
AND (X) 6112255.80 FEET, NORTH AMERICAN DATUM OF 1983, ZONE 0403,
GPS EPOCH 2007.00 [NAD83], SAID IRON PIPE MONUMENT BEING
LOCATED AT THE NORTHERLY TERMINUS OF THE COURSE SHOWN AS
SOUTH 440 44'31 " EAST 85.45 FEET AS SHOWN UPON THE PARCEL MAP
RECORDED DECEMBER 29, 1980 IN BOOK 91 OF PARCEL MAPS PAGE 41
(91 PM 41);
THENCE NORTH 880 15'39" WEST 433.92 FEET (NORTH 88° 15' 06" WEST
433.56 FEET— RECORD PER 91 PM 41) TO A SIMILAR FOUND IRON PIPE
MONUMENT BEING LOCATED AT THE EASTERLY TERMINUS OF THE
COURSE SHOWN AS SOUTH 760 06'45" EAST 190.56 FEET AS SHOWN
UPON SAID MAP (91 PM 41), LAST SAID IRON PIPE MONUMENT HAVING
COORDINATES OF (Y) 2190851.59 FEET AND (X) 6111822.09 FEET [NAD83];
THENCE SOUTH 740 39'18" WEST 423.32 FEET TO A POINT ON THE
WESTERLY LINE OF SAID PARCEL C (10168 O.R. 209), SAID POINT BEARS
SOUTH 210 52'50" WEST 79.20 FEET FROM THE SOUTHWESTERLY
TERMINUS OF THE COURSE SHOWN AS NORTH 66" 33'16" EAST 211.61
FEET UPON SAID MAP (91 PM 41), SAID POINT BEING THE POINT OF
BEGINNING;
THENCE FROM SAID POINT OF BEGINNING LEAVING SAID WESTERLY
LINE NORTH 810 46'53" EAST 267.40 FEET;
THENCE SOUTH 760 15'56n EAST 178.22 FEET;
THENCE SOUTH 000 20'34" EAST 641 06 FEET;
Kiewit Lease Parcel 1 Page 1 of 2
Central Contra Costa Sanitary District
APN 159 - 140 -051
THENCE SOUTH 640 04'52" WEST 608.10 FEET;
THENCE SOUTH 310 28'37" EAST 315.76 FEET TO A POINT ON THE
SOUTHEASTERLY LINE OF SAID PARCEL C;
THENCE ALONG SAID SOUTHEASTERLY LINE THE FOLLOWING TWO
COURSES, (1) SOUTH 560 39' 09" WEST 135.95 FEET, (2) SOUTH 680 02'48"
WEST 361.53 FEET;
THENCE LEAVING SAID SOUTHEASTERLY LINE NORTH 220 27'58" WEST
181.39 FEET TO A POINT ON THE WESTERLY LINE OF SAID PARCEL C;
THENCE ALONG SAID WESTERLY LINE THE FOLLOWING THREE
COURSES, (1) NORTH 21° 52'50" EAST 267.00 FEET, (2) NORTH 27" 08'57"
WEST 39.70 FEET, (3) NORTH 21- 52'50" EAST 1012.35 FEET TO THE
POINT OF BEGINNING.
EXCEPTING THEREFROM ALL THAT PORTION OF LAND AS DESCRIBED IN
THE QUITCLAIM DEED TO THE CONTRA COSTA COUNTY FLOOD
CONTROL AND WATER CONSERVATION DISTRICT RECORDED JULY 24,
1973 IN BOOK 7003 OF OFFICIAL RECORDS AT PAGE 798, CONTRA COSTA
COUNTY RECORDS.
UNLESS OTHERWISE SPECIFIED ALL BEARINGS AND DISTANCES SHOWN
HEREIN ARE BASED ON THE NORTH AMERICAN DATUM OF 1983, ZONE
0403, GPS EPOCH 2007.00. MULTIPLY GRID DISTANCES SHOWN HEREIN
BY 1.00005736 TO OBTAIN GROUND DISTANCES.
CONTAINING A TOTAL OF 14.8 ACRES MORE OR LESS.
ATTACHED HERETO IS A PLAT ENTITLED EXHIBIT "B" AND BY THIS
REFERENCE MADE A PART HEREOF.
i.
v EXP.12/31 /15
DATE: APRIL 4,201
Kiewit Lease Parcei 1 Page 2 of 2
Central Contra Costa Sanitary District
APN 159 - 140 -051
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EXHIBIT "C"
Use of Premises Description
Land Uses:
As shown in Exhibit `B ", the project site is primarily located in the within Safety Zones 2 and 4, associated with
Runways 14L and 14R of Buchanan Field Airport. The allowable uses included in the Air Port Land Use
Compatibility Plan (ALUCP) sets forth a variety of safety compatibility policies that are applicable to this
development. The majority of the project site is located within Safety Zone 2. Aircraft at Buchanan Field Airport
overfly Safety Zone 2 at low altitudes on final approach and during departure /takeoff. According to the
California Airport Land Use Planning Handbook, the majority of off - airport aircraft accidents occur in Safety
Zones 1 and 2.
Land use compatibility policies applicable to Safety Zone 2 at Buchanan Field Airport include the following:
5.3.3(a) Land uses shall be limited to a maximum of 30 people per acre or 1 person per 500 square feet of
gross building floor area.
5.3.3(a)(1) Hotels, restaurants, shopping centers, theaters, and other places of public assembly typically
do not comply with this criterion, but are acceptable if the usage is limited through building design, use
permit, and /or other mechanisms. 5.3.3(b) Buildings shall have no more than two habitable floors above
ground.
5.3.3(c) Residences, children's schools (through grade 12), day care centers, hospitals, and nursing homes
are specifically prohibited.
5.3.3(d) Aboveground bulk storage of hazardous materials is prohibited with the exception of:
(1) On- airport storage of aviation fuel and other aviation - related flammable materials
(2) Up to 2,000 gallons of nonaviation flammable materials.
The western portion of the project site is located within Safety Zone 4. Land use compatibility policies applicable
to Safety Zone 4 include the following:
5.3.5(a) Land use intensity is not limited2 other than that buildings shall have no more than four habitable
floors above ground.
5.3.5(b) Aboveground storage of more than 2,000 gallons of fuel or other hazardous materials is
prohibited in existing or planned residential or commercial areas.
Hazardous Wildlife Attractants
Wildlife that is hazardous to aircraft in operation, and the types of land uses that attract them, have become an
increasing focus of the FAA and airport operators over the last few years. FAA guidance documents, such as AC
150/5200 -33B, Hazardous Wildlife Attractants on or Near Airports, asks airport operators, local planners, and
developers to consider whether a proposed land use will increase wildlife hazards. A variety of land use types and
activities, including agriculture, have been identified by the FAA as potential hazardous wildlife attractants. The
FAA definition of wildlife attractants includes human -made or natural areas, such as poorly drained areas,
retention ponds, agricultural activities, and wetlands.
Two key objectives were identified for the analysis of plant species (or farm crops) and their compatibility with
airport hazard wildlife management, including (1) identifying plant species that provide low or no habitat or food
sources for wildlife and (2) planting native species where feasible to avoid facilitating the spread of potential
invasive species.
ALLOWABLE CROPS FOR CULTIVATION AT THE PROJECT SITE
Allowable Crop or Plant Species
Suitability for Cultivation Near Airports
Pineapple guava (Acca sellowiana) Moderately suitable. Birds are not known to eat the fruit of the
• Evergreen large shrub growing to 20 feet tall and produces fruit pineapple guava plant; however, small bird species may eat the
in the winter. flowers.
Meyer lemon (Critrus x meyen)
• Small to medium shrub growing to 6 -10 feet tall; evergreen;
produces fruit in the winter.
Parry's agave (Agave parryi ssp. neomexicana)
• Perennial slow - growing shrub that grows to 3 feet tall; mature
plants produce tall (12 -15 feet) flowering spike that attracts
hummingbirds; resists deer and rabbits.
Mexican marigold (Tagetes lemmonii)
• Mounding evergreen shrub that grows to 6 feet tall; flowers in
the summer.
Rosemary'lndian Spire' (Rosmarinus ofircinalis)
• Columnar perennial shrub growing to 5 feet tall; fragrant needle -
like leaves with blue flowers in the spring.
White sage (Salvia apiana)
• Mounding evergreen shrub that grows to 5 feet tall; leaves have
strong aroma; flowers are very attractive to bees.
Bee Garden Plants
Yarrow (Achillea spp.)
Sage (Salvia spp.)
Mint (Mentha spp.)
Sweet alyssum (Lobularia maritima)
Lavender (Lavandula spica, Lavandula vera, Lavandula intermedia,
Lavandula dentate)
Wonder of Staffa (Aster frikartit)
California poppy (Eschscholzia califomica)
Penstemon 'Blue Bedder'
Vegetable Crops
Salad greens (lettuces)
Tomatoes
Other vegetable crops (e.g., kale)
Herbs (Basil, etc.)
Other
Flowers: Depending on the species, some flowers may produce
seeds that attract small bird species. For example, sunflower or
species from the sunflower family are known to produce large seeds
that are edible to many_passerines and moderate -sized birds.
These crops are subject to modifications.
Moderately suitable. Plant is not known to attract many bird or
wildlife species. As with most shrubs, small birds may use the
canopy for nesting.
Highly suitable.
Moderately to highly suitable.
Highly suitable.
Highly suitable.
Highly suitable.
Moderately suitable. Rodents that are found in irrigated row and
field crop habitats need to be controlled via trapping or other
methods to reduce potential prey base for raptor species.
Highly suitable.
I, S
Suitability varies depending on species and extent of plantings.
Anticipated Capital Improvements
Per Article VI of this Agreement, the Tenant shall not make any change, alteration or addition to the
without the prior written consent of the District, unless it is described herein. The following
Improvements are anticipated as part of the Agreement.
Capital Improvements for first Three Years
• 20 -foot gravel road along perimeter as shown in Exhibit B
• Parking Facilities including accessible stalls as shown in
Tenant Provided Plan Document
• Teaching Gardens
• Green House
• Barn
• Secure Perimeter Chain Link Fence similar to District
Standards
• Distribution Irrigation System
• Solar Panels and renewable energy installations
• Installation of electrical power poles
• Signage as allowable by County and Caltrans regulations
• Potable water installation
Removable Structures such as hoop houses and temporary office buildings are not considered capital
improvements subject to approval through Article VI. All improvements, both temporary and
permanent, shall comply with all permit requirements in accordance with Section 6.3 of the Agreement.'
Tenant Provided Planning Document
PARKIN&
BARN —
TEAGHINO OARDENS
RE5TR000MS
STAIR TO GREEN ROOF
KID'S CORNER
OFFIGE
GREEN HOUSE
TEAGH I NO FAG I L I TY
600 SEAT5
TEAGHINO OARDENS
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EXHIBIT "D"
Performance Agreement
Included in Business Plan
Per Section 4.9 Financial Reports, a Business Plan will be submitted sixty days after execution of this
Agreement and annually thereafter. The business plan must include an annual operating budget, an
annual capital improvement budget and performance goals for the coming year; and a report on the prior
year's performance results. Specific performance goals will start after the approval of the Land Use
Permit.
Standards and Goals to be included Annually
• Annual Operating Budget
• Proposed Capital Improvements for following year
• Number of people taught at the Farm
• Number of volunteers
• Number of people that participated in other Sustainable
Farm programs delivered offsite
• Annual financial reports to the District setting forth the
operating costs and profit and loss statements
Year 1 Performance Goals
• Construct perimeter fencing and some simple farm
infrastructure to allow planting
• Plant a crop — 5 acres
Year 2 Performance Goals
• Provide goods to a market or Donate goods to Food Bank or
School District
• Develop a teaching plan curriculum _
• Increase volunteers participation by 15% from previous year
Year 3 Performance Goals
• Get Building Permit and construct Green House
• Provide a teaching facility and start sustainable curriculum_
• Complete long term Strategic Plan