HomeMy WebLinkAboutContracts & Agreements_228-2022SUNSET TEMPORARY TANK REPLACEMENT
LAND LEASE AGREEMENT
This Temporary Tank Land Lease Agreement (this "Lease") is made and entered into this
1 st day of November, 2022 (the "Effective Date"), by and between the City of Redlands, a
municipal corporation and general law city ("Tenant"), and Cathy A. Macknet, Kenneth D.
Macknet, and Mark R. Macknet, individuals ("Landlord"). Landlord and Tenant are sometimes
individually referred to herein as a "Party," and together, as the "Parties."
PREAMBLE
A. Landlord, for and in consideration of the rent to be paid by Tenant and for
the covenants and provisions to be kept and performed by Tenant under this Lease, hereby leases
to Tenant for Tenant's sole use, and Tenant agrees to lease from Landlord's real property (the
"Property") Assessor's Parcel No. 0300451130000 ("Site") located in Redlands, California, 92373,
as more particularly described in Exhibit "A" attached hereto and incorporated herein by this
reference. A copy of the plan of development of the Site to be leased by Tenant pursuant to this
Lease is attached hereto as Exhibit `B" and incorporated herein by this reference.
B. The Site is to be used for one temporary tank ("Tank") installed for the
purpose of providing temporary water service to residents, while the Sunset Reservoir is
demolished and reconstructed. Additional use of the Site includes an Environmental Assessment,
and any other studies, surveys, and investigations needed for the Tank.
AGREEMENT
Section 1. Term. Tenant hereby agrees to lease the Site from Landlord for the rent of
One Thousand Five Hundred Dollars ($1,500) per month payable within forty-five (45) days of
the Effective Date of this Lease (thereafter payable monthly on the anniversary of this Lease) for
an initial term of a minimum of twenty-four (24) months. The Tenant shall have the option to
extend the initial term of this agreement as seen appropriate for the construction and use of the
Tank, on the same terms and conditions, by providing written notice to Landlord at least thirty (30)
days prior to the expiration of the initial term or any extended term.
Section 2. Use of Site. During the Term of this Lease, the Site shall be used by Tenant
for the purpose of environmental assessments, studies, surveys, and investigations; and installing,
maintaining, repairing, modifying, operating, and removing, at its sole expense, the Tank.
Construction plans are included in Exhibit `B". Landlord hereby grants Tenant, its employees, and
authorized agents a license for ingress and egress to and from the Property twenty-four (24) hours
per day, seven (7) days a week without prior notice. included in Exhibit "B."
Section 3. As Is Condition. Except as otherwise expressly stated herein, Tenant is
leasing the Site in "as is" condition and Landlord does not represent that the Site is suitable for
Tenant's intended use. Tenant is responsible to undertake such due diligence as it deems necessary
to determine the condition and suitability of the Site.
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Section 4. Title and Quiet Possession. Landlord represents and agrees that: (a) it is the
owner of the Property; (b) it has the right to enter into this Lease; (c) the person(s) signing this
Lease has the authority to sign on behalf of Landlord; and (d) Tenant is entitled to access to and
use of the Site as provided herein throughout the Term of this Lease, as may be extended.
Notwithstanding the foregoing, in the event of any situation that poses an emergency (i.e., an
immediate threat of substantial harm to persons and/or property) which requires entry onto the Site
by Landlord, Landlord may enter the Site and take such actions as are required to protect
individuals or personal property from such substantial harm or damage; provided, however, that
promptly and no later than twenty-four (24) hours after Landlord's entry onto the Site, Landlord
shall give Tenant telephonic and written notice of Landlord's entry onto the Site. In connection
with Landlord's entry, Landlord will use reasonable efforts to minimize any disruption to Tenant's
operations at the Property or use of the Site. Landlord covenants that, so long as Tenant timely
pays the rent and performs its covenants under this Lease, Tenant shall have use of the Site for the
purposes described herein.
Section 5. Assignment. Tenant shall not sell, assign or transfer this Lease or sublet all
or any portion of the Site to any other party without the prior written consent of Landlord. In the
event that Tenant attempts any assignment, transfer or subletting requiring Landlord's consent
without Landlord's prior written consent, such action shall be null and void. No change of control
of Tenant or transfer upon dissolution of Tenant shall constitute an assignment hereunder.
Section 6. Notices. Unless otherwise noted, all notices hereunder must be in writing
and shall be deemed validly given if sent by certified mail, return receipt requested or by
commercial courier, provided the courier's regular business is delivery service and provided further
that it guarantees delivery to the addressee by the end of the next business day following the
courier's receipt from the sender, addressed as follows (or any other address that the Party to be
notified may have designated to the sender by like notice):
Tenant:
City of Redlands
c/o City Clerk
35 Cajon Street
P.O. Box 3005 (mailing)
Redlands, CA 92373
jdonaldson@cityofredlands.org
Phone: (909) 798-7531
Fax: (909) 798-7535
Landlord:
Cathy A. Macknet
Kenneth D. Macknet
Mark R. Macknet
25815 Barton Road, Suite 101
Loma Linda, CA 92354
cmacknet@hotmail.com
mmacknet@mac.com
dmacknet@gmail.com
909-214-7771 (Cathy)
909-363-6238 (Mark)
Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained
pursuant to the foregoing.
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Section 7. Improvements. Tenant may, at its sole expense, make any improvements
on the Site. Tenant may make substitutions, replacements, upgrades and modifications to its Tank;
provided, however, that such improvements remain within the physical parameters of the Site and
do not violate the provisions of the Agreement.
Section 8. Compliance with Laws. Tenant shall comply with all applicable laws
relating to Tenant's use of the Site. In addition, during the Term, Landlord shall maintain the
Property in compliance with all applicable laws, rules, regulations, ordinances, directives,
covenants, easements, zoning and land use regulations, and restrictions of record, permits, building
codes, and the requirements of any applicable fire insurance underwriter or rating bureau, now in
effect or which may hereafter come into effect (including, without limitation, the Americans with
Disabilities Act and laws regulating hazardous substances) (collectively, "Laws").
Section 9. Termination.
A. Either Party may terminate this Lease at any time upon thirty (30) days prior
notice to the other Party.
B. Upon termination, all prepaid rent, as prorated by use, shall be returned to
Tenant, up to a maximum of six (6) months of the then -current rent. Tenant shall be allowed to
remove all of its personal property and return the Site to their pre -Lease condition.
C. Removal/Restoration. Tenant shall, within ninety (90) days of expiration,
cancellation or termination of this Lease implement a mutually agreed upon method of abandoning
the Site including restoring the Property to as close to its condition on the Effective Date of this
Lease as is reasonably possible, unless otherwise noted in writing.
Section 10. Default.
A. If either Party is in default under this Lease for a period of: (a) fifteen (15)
days following receipt of notice of default from the non -defaulting Party with respect to a default
which may be cured solely by the payment of money; or (b) thirty (30) days following receipt of
notice of default from the non -defaulting Party with respect to a default which may not be cured
solely by the payment of money, then, in either event, the non -defaulting Party may pursue any
remedies available to it against the defaulting Party under applicable law, including, but not
limited to, the right to terminate this Lease. If the non -monetary default may not reasonably be
cured within a thirty (30) day period, this Lease may not be terminated if the defaulting Party
commences action to cure the default within such thirty (30) day period and proceeds with due
diligence to fully cure the default, and cures no later than ninety (90) days from the notice of
default.
B. Upon a default, the non -defaulting Party may at its option (but without
obligation to do so), perform the defaulting Party's duty or obligation on the defaulting Party's
behalf', including but not limited to the obtaining of reasonably required insurance policies and
meeting the obligations established in Section 9 Paragraph "C." The costs and expenses of any
such performance by the non -defaulting Party shall be due and payable by the defaulting Party
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upon invoice therefore. In the event of a default by either Party with respect to a material provision
of this Lease, without limiting the non -defaulting Party in the exercise of any right or remedy
which the non -defaulting Party may have by reason of such default, the non -defaulting Party may
terminate this Lease and/or pursue any remedy now or hereafter available to the non -defaulting
Party under the Laws or judicial decisions of the state in which the Site are located; provided,
however, Landlord shall use reasonable efforts to mitigate its damages in connection with a default
by Tenant. If Tenant so performs any of Landlord's obligations hereunder, the full amount of the
reasonable and actual cost and expense incurred by Tenant shall immediately be owing by
Landlord to Tenant, and Landlord shall pay to Tenant upon demand the full undisputed amount
thereof with interest thereon from the date of payment at the greater of (i) ten percent (10%) per
annum, or (ii) the highest rate permitted by applicable Laws. Notwithstanding the foregoing, if
Landlord does not pay Tenant the full undisputed amount within thirty (30) days of its receipt of
an invoice setting forth the amount due from Landlord, Tenant may offset the full undisputed
amount, including all accrued interest, due against all fees due and owing to Landlord until the full
undisputed amount, including all accrued interest, is fully reimbursed to Tenant.
Section 11. Indemnity. Each Party shall defend, indemnify and hold the other harmless
against any claim of liability or loss from personal injury or property damage resulting from or
arising out of the negligence or willful misconduct of the indemnifying Party, its employees,
contractors or agents, except to the extent such claims or damages may be due to or caused by the
negligence or willful misconduct of the other Party, or its employees, contractors or agents.
Further, Tenant shall defend, indemnify and hold harmless Landlord against, all claims arising out
of the drilling, installation, operation, use, maintenance, repair, removal or presence of Tenant's
Tank. The obligations under this Section shall survive the expiration or termination of this Lease.
Section 12. Hazardous Substances. Landlord represents that no substance, chemical or
waste (collectively, "Hazardous Substance") exists on or under the Property including the Site, that
is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or
regulation. Landlord and Tenant shall not introduce or use any such Hazardous Substance on the
Site in violation of any applicable Law. Landlord and Tenant shall each hold the other harmless
and indemnify the other from, and assume all duties, responsibility and liability at its sole cost and
expense, for all duties, responsibilities, and liability (for payment of penalties, sanctions,
forfeitures, losses, costs, or damages) and for responding to any action, notice, claim, order,
summons, citation, directive, litigation, investigation or proceeding which is in any way related to
the indemnifying Party's failure to comply with any environmental or industrial hygiene Law,
including without limitation any regulations, guidelines, standards or policies of any governmental
authorities regulating or imposing standards of liability or standards of conduct with regard to any
environmental or industrial hygiene concerns or conditions as may now or at any time hereafter be
in effect, except to the extent such noncompliance is caused by the other Party. Landlord shall hold
harmless, indemnify and defend Tenant for all claims or losses, including all costs and expenses,
relating to any environmental or industrial hygiene conditions arising out of or in any way related
to the condition of the Property or activities conducted thereon, unless such environmental
conditions are caused solely by Tenant, in which event Tenant shall hold harmless, indemnify and
defend Landlord for all costs and expenses, including reasonable attorneys' fees for said sole
negligence of Tenant. The obligations under this Section shall survive the expiration of
termination of the Lease.
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Section 13. Insurance.
A. (1) Tenant shall procure and maintain commercial general liability
insurance, with limits of not less than One Million Dollars ($1,000,000) per occurrence Two
Million Dollars ($2,000,000) aggregate for bodily injury and property damage liability, with a
certificate of insurance to be furnished to Landlord prior to Tenant's occupancy of the Site. Such
policy of insurance shall be additionally endorsed to cover work done within fifty (50) feet of a
railroad. (2) Tenant shall also procure and maintain owned, non -owned and hired vehicles
insurance with limits of not less than One Million Dollars ($1,000,000) combined single limit for
bodily injury liability and property damage liability, with a certificate of insurance and
endorsement to be furnished prior to Tenant's occupancy of the Site. (3) Tenant shall also procure
and maintain commercial umbrella/excess liability insurance with limits of not less than Five
Million Dollars ($5,000,000) combined single limit for bodily injury and property damage liability.
(4)(i) Landlord shall be named as an additional insured under the insurance policies required of
Tenant, (ii) and such insurance shall be primary with respect to Landlord and non-contributing to
any insurance or self-insurance maintained by Landlord as with respect to any liability from
Tenant's negligence or intentional misconduct. (iii) Such policy shall provide that cancellation
will not occur without at least thirty (30) days prior written notice to Landlord. (5) Insurance
requirements shall be reviewed by Landlord and adjusted by Landlord, on every one-year
anniversary date of this Lease, to insure that the insurance maintained by Tenant is in amounts
consistent with prudent practice for cities. Tenant shall provide any new certificates of insurance
with new limits of liability coverage within thirty (30) days of notice by Landlord to Tenant.
Notwithstanding anything to contrary, such limits may be satisfied by a combination of primary
and umbrella policies. (6) Tenant may satisfy this requirement by obtaining the appropriate
endorsement to any master policy of liability insurance Tenant may maintain.
B. Workers' Compensation and Employer's Liability. Tenant shall procure
and maintain Workers' Compensation and Employer's Liability insurance in accordance with
statutory coverage limits throughout the Term of this Lease in accordance with the laws of the
State of California, with an insurance carrier acceptable to Landlord.
Section 14. Maintenance. Tenant shall be responsible for repairing and maintaining the
Tank and any other improvements installed by Tenant at the Site in a proper operating and safe
condition; provided, however, if any such repair or maintenance is required due to acts of Landlord,
its agents or employees, Landlord shall reimburse Tenant for the reasonable costs incurred by
Tenant to restore the damaged areas to the condition which existed immediately prior thereto.
Landlord will maintain and repair all other portions of the Property of which the Site are a part in
a proper operating and reasonably safe condition and otherwise in compliance with applicable
Law.
Section 15. Limitation of Liability. Except for indemnification pursuant to Section 13,
neither Party shall be liable to the other, or any of their respective agents, representatives,
employees for any lost revenue, lost profits, loss of technology, rights or services, incidental,
punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of
service, even if advised of the possibility of such damages, whether under theory of contract, tort
(including negligence), strict liability or otherwise.
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Section 16. Miscellaneous.
A. This Lease applies to and binds the successors and assigns of the Parties to
this Lease if, and only if, the Lease is transferred in accordance with the provisions of Section 5;
B. This Lease shall be governed by and construed in accordance with the laws
of the State of California;
C. This Lease (including the Exhibits) constitutes the entire agreement of the
Parties as to the subject matter hereof, and supersedes all prior written and verbal agreements,
representations, promises and understandings between the Parties. Any amendments to this Lease
shall be in writing and executed by the Parties;
D. If any provision of this Lease is determined by a court of competent
jurisdiction invalid or unenforceable, the remainder of this Lease or the application of such
provision to persons other than those as to whom it is held invalid or unenforceable will not be
affected and each provision of this Lease will be valid and enforceable to the fullest extent
permitted by law unless such invalidity or unenforceability materially affects the purpose and
reasons of the Parties for entering into this Lease; and
E. In the event any action is commenced to enforce or interpret any of the terms
or conditions of this Lease the prevailing Party shall, in addition to costs and any other relief, be
entitled to recovery of its reasonable attorneys' fees, including fees for the use of in-house counsel
by a Party at rates prevailing in San Bernardino County, California.
Section 17. Subordination and Non -Disturbance. At Landlord's option, this Lease shall
be subordinate to any mortgage or other security interest given by Landlord which from time to
time may encumber all or part of the Property or right-of-way; provided, however, every such
mortgage or other security interest shall recognize the validity of this Lease in the event of a
foreclosure of Landlord's interest and also Tenant's right to remain in occupancy of and have
access to the Site as long as Tenant is not in default of this Agreement. Landlord and Tenant shall
execute whatever instruments may reasonably be required to evidence this subordination clause.
In the event the Property is encumbered by a mortgage or other security interest, Landlord will,
immediately after this Lease is executed, obtain and furnish to Tenant, a non -disturbance
agreement from for each such mortgage or other security interest in recordable form. In the event
that Landlord defaults in the payment and/or other performance of any mortgage or other security
interest encumbering the Property, Tenant, may, at its sole option and without obligation, cure or
correct Landlord's default and upon doing so, Tenant shall be subrogated to any and all rights,
titles, liens and equities of the holders of such mortgage or security interest and Tenant shall be
entitled to deduct and setoff against all rents that may otherwise become due under this Lease the
sums paid by Tenant to cure or correct such defaults.
Section 18. Destruction of Site. If the Site or Property are destroyed, or damaged so as
to hinder Tenant's effective use of the Site, Tenant may elect to terminate this Lease as of the date
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of the damage or destruction by so notifying Landlord no more than thirty (30) days following the
date of damage or destruction.
Section 19. Condemnation. If a condemning authority takes all or a portion of the
Property, which taking renders the Site unsuitable for Tenant's use, then Tenant may terminate
this Lease as of the date when possession is delivered to the condemning authority. In any
condemnation proceeding each Party shall be entitled to make a claim against the condemning
authority for just compensation. Sale of all or part of the Site to a purchaser with the power of
eminent domain in the face of exercise of such power shall be treated as a taking by the
condemning authority. In the event of such taking, Landlord shall promptly reimburse Tenant
any Rent prepaid by Tenant. Furthermore, Landlord and Tenant shall each be entitled to pursue
their own separate awards with respect to such taking, provided that no such award to Tenant shall
reduce any award to Landlord.
Section 20. Pre -Construction Testing. Tenant shall have the right (but not the
obligation) at any time following the full execution of this Lease, to enter the Site for the purposes
of making necessary studies, inspections, and engineering surveys (and soil tests where applicable)
and other reasonably necessary tests (collectively, "Tests") to determine the suitability of the Site
for the Tank and for the purpose of preparing for the construction of the Tank. During any Tests
or pre -construction work, Tenant will have insurance as set forth in this Lease. If Tenant
determines that the Site is unsuitable for Tenant's contemplated use, then Tenant will notify
Landlord and this Lease will terminate.
Section 21. Rights Upon Sale. Should Landlord, at any time during the Term decide (i)
to sell or transfer all or any part of the Property to a purchaser other than Tenant, or (ii) to grant to
a third party by easement or other legal instrument an interest in and to that portion of the Property
occupied by Tenant, such sale or grant of an easement or interest therein shall be under and subject
to this Lease and any such purchaser or transferee shall recognize Tenant's rights hereunder under
the terms of this Lease. To the extent that Landlord grants to a third party by easement or other
legal instrument an interest in and to that portion of the Property occupied by Tenant, Landlord
thereby assigns this Lease to said third party but Landlord shall not be released from its obligations
to Tenant under this Lease, and Tenant shall have the right to look to Landlord and the third party
for the full performance of this Lease.
Section 22. Survival. The provision of this Lease relating to indemnification from one
Party to the other Party shall survive any termination or expiration of this Lease. Additionally,
any provisions of this Lease which require performance subsequent to the termination or expiration
of this Lease shall also survive such termination or expiration.
Section 23. Captions. The captions contained in this Lease are inserted for convenience
only and are not intended to be part of the Lease. They shall not affect or be utilized in the
construction or interpretation of this Lease.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their seals
the day and year first above written.
C.I=T' OJ- F DLANDS MACKNET
Paul T. Barich, Mayor
ATTEST:
jL
nne Donaldson, City Clerk
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geitA
acknet Property
Y � Owner
Kenneth D. Macknet, Property Owner
rk R. Macknet, Property Owner