0 LEASE AGREEMEORICiNAL
OCWD WELL MBI- 2)
This LEASE AGREEMENT (" Lease") ismadeandenteredintoasof L A'S i0 by and between the CITY OF ANAHEIM, a municipal corporation (" LESSOR"), and the ORANGE COUNTY WATER DISTRICT, a political subdivisionof the Stateof California organized under Chapter 924 of the Statutes of 1933, as amended (" Lessee").
PART I
FUNDAMENTAL LEASE TERMS
1. 1 Lease: For andin considerationof thepaymentof rentalsandtheperformanceby Lessee of eachandeveryterm, covenantandconditionof this Lease, LESSORherebyleasesto Lessee, andLesseeleasesandhiresfrom LESSOR, the following realpropertyownedby LESSOR, for the use, purpose or activity specified in Paragraph1.1.2:
1. 1. 1 Leased Property: Located on a portion of 1790 S. Douglass Road, Anaheim, California (" Property"), and more particularly describedand shown in Exhibit " A" attachedheretoandincorporatedhereinby this reference ("Premises"), The Premises also include the Fenced Premises, Appurtenant Premises, Access Premises, and the Construction and Maintenance Area.
1. 1.2 Use of Leased Premises: For and during the term of this Lease, and any extensionor renewalof it, Lesseeshall usethe Premisessolely andexclusivelyfor the following purpose(s) or activity(ies): to install, construct, reconstruct, redevelop, inspect, maintain, operate, and improve one injection well, pipeline and appurtenantfacilities collectively hereafter, " Injection Well") for the purposeof rechargingthe underlying groundwater basin with GWRS Water ( seedefinition in Part III), including egressfrom and ingressto the Injection Well over the Property ("Access Premises"), as shown on Exhibit " A", attached hereto and incorporated herein. The Injection Well shall include all those Lessee -installed facilities within Fenced Premises and the Appurtenant Premises which arerequiredto accomplishtheforegoingpurpose.
1. 2 Term: This Leaseshall commenceon January2, 2013 ("Commencement Date") and, subjectto PartII below, shallcontinueto andterminateat 11:59p.m. localtimeonJanuary2, 2043 (" Expiration Date"). This Leaseis subjectto earlyterminationin accordancewith Section
2.10andParagraph1.2 of thisLease. ThisLeaseandtheLessee's rightshereundermaynotbe extendedbeyondtheExpirationDateunlesssuchextensionissetforthinwritingandsignedby both LESSOR and the Lessee. Notwithstandinganyotherprovisionof this Lease, LESSORor Lesseeshall havethe right for any reason, at anytime, with or without cause, to terminatethis Leaseprior to theExpirationDate, by giving theotherpartya twelve (12) monthswritten notice of terminationattheaddressprovidedherein.
RECORD NO _
OCVVD DOG.
Should LESSOR determine that the Premises are needed by LESSOR for any reason, and terminates this Lease, by written notice delivered to Lesseeat the address in Lease Paragraph
2.11.1 during the first 20 yearsof this Lease, LESSORshall reimburseLesseefor the initial construction cost incurred by Lessee for the construction of the Injection Well. The reimbursementshall be on a straightline depreciationbasis, calculatedover the initial 20 year term from the Commencement Date of this Lease. As an alternative to reimbursement, LESSOR maydevelopsimilar facilities on otherLESSORland, subjectto Lesseeapprovalof saidfacility development.
BY PLACING ITS INITI S HERE, LESSEE ACKNOWLEDGE THAT THEY HAVE
READ AND UNDE TAND THE PROVISIONS OF THIS LEASE FOR
TERMINATION WIT
01 WITHOUT CAUSE AS SET FORTH IN PARAGRAPH 1.2
HEREINABOVE. _
Lessee: ' N
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I I VV v\
1. 3 Lease Consideration: As partial consideration for the Lease of the Premises, Lessee shall pay to LESSOR the sum of ONE & 00/ 100 Dollar ($ 1. 00) ( the " Rental Payment"), in accordancewith PartII of this Lease. TheRentalPaymentshallbe dueasonelump sumon the Commencement Date of this Lease.
1. 4 Notices and Payments: All payments, notices and other writings required to be deliveredunderthisLeaseto eitherpartyshallbedeliveredin accordancewith theprovisionsof Part II ( General Provisions), to LESSOR at the address set forth in Part II, and to Lessee at the address set forth in this Part I.
1. 5 Attachments: This Leaseincorporatesby referencethefollowing Attachmentsto this Lease:
Part I: Fundamental Lease Terms
Part II: General Lease Provisions
Part III: Special Lease Provisions
Exhibit A: Legal Description of the Premises; Construction and Maintenance Area; Sketch of Premises; and Construction and Maintenance Area Exhibit B: Lot B
1. 6 Integration: This Leaserepresentsthe entireunderstandingof LESSORandLesseeas to theLeaseandall othermatterscontainedherein. No priororalorwrittenunderstandingshall be of any force or effect with regardto those matterscoveredby this Lease. This Lease supersedes and cancels any and all previous negotiations, arrangements, agreements or understandings, if any, betweentheparties, andnoneshallbeusedto interpretthis Lease.
SIGNATURES NEXT PAGE]
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IN WITNESS WHEREOF, the parties have executedandenteredinto this Leaseasof the date first set forth above.
CITY OF ANAHEIIV,, a municipal
Gail Eastman - Mayor Pro
ATTEST:
By:
City Clerk
APPROVED AS TO FORM:
MICHAEL R. W. HOUSTON, INTERIM CITY
ATTORNEY
By:
Daniel A. Ballin
Deputy City Attorney
ORANGE COUNTY WATER
DISTRICT, a political subdivision of the
Stat organized under Chapter
4 of e , tatutes o 1933, as amended
By:
Shawn Dewane, President
By:
XXXXX
Michael P. Wehner, Assistant Genera
APPROVED AS TO FORM:
RUTAN^ TUCKER, LLP.
I:
General FMinkli
I' Y
Orange j4ounty Water District
Lessee
If by mail:
ORANGE COUNTY WATER DISTRICT
P.O. Box 8300
Fountain Valley, CA 92728-8300
Attn: Property Management
If by personaldelivery:
ORANGE COUNTY WATER DISTRICT
18700 Ward Street
Fountain Valley, CA 92708
Attn: Property Management
Manager
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PART II
GENERAL LEASE PROVISIONS
2. 1 Lease Rental Payments
2. 1. 1 Transmittal of Payments: Lessee shall make all Rental Payments, and pay all othersumsdueunderthis Lease, in lawful moneyof theUnitedStates, by checkpayable to " CITY OF ANAHEIM," and shall personally deliver or mail all Rental Payments without any notice or demand to LESSOR at the addressset forth in Paragraph 2.11.1 below. Lesseeassumesall risk of lossor latepaymentif anypaymentis madeby mail.
2. 1. 2 No Offsets: All Rental Payments and other sums due under this Lease shall be paidwithout offset or deduction, andshallbedeemedpaymentson account. Neitherthe paymentby Lesseenor the acceptanceby LESSORof anyRentalPaymentor othersum in anamountwhich is lessthanthe amountdueandpayablepursuantto this Lease, nor the issuanceof a monthly statementshowingasdueandpayablean amountlessthan is properly due and payable pursuantto the terms of this Lease, shall constitute an agreementby LESSOR modifying this Lease or a waiver of LESSOR's right to receive all Rental Paymentsand other sumsprovided for in this Lease. No endorsement or statementon any check or any letter accompanyingany check or payment shall be deemedanaccordor satisfaction, andLESSORshallacceptall checksandpayments from Lesseewithout prejudice to LESSOR's right to recover the balance of the amount dueor to pursueanyotherremedyin this Leaseor otherwiseprovidedby law.
2. 1. 3 Holding Over: If Lessee remains in possession of the Premises after the expiration of the Leaseterm or any authorizedextensionor renewalthereof with the consentof LESSOR (eitherexpressor implied) andwithoutexecutinga newlease, then such holding over shall not be considered a renewal of this Lease, but rather shall be construedasa tenancyfrommonthto month, subjectto all conditions, provisions, and obligationsof thisLeaseinsofarasthesameareapplicableto amonth -to -monthtenancy; provided, however, that Lesseeshall pay as rent to LESSOR, for eachmonth that Lessee holdsover, anamountequalto two hundredpercent (200%) of the Rental Payment as set forth in Paragraph 1.3. Notwithstandingthe foregoing, nothingcontainedin this Lease shallbedeemedconsentby LESSORto occupancyor possessionof thePremisesby Lessee after the expiration or termination of this Lease.
2. 1.4 Proration.
2. 2 Charges for Late Payments:
2. 2. 1 Lesseeand LESSOR hereby acknowledge and agreethat such late chargesdo not representandshallnot be deemedto be an interestpayment, but that suchlate charges 4-
represent a fair and reasonable estimate of the costs and expenses that LESSOR will incur by reasonof Lessee's late payment.
2.2. 2 Acceptanceby LESSOR of any delinquent payment or late charge shall in no way constitute a waiver of Lessee' s default with respect to such overdue and delinquent payment, or in any way impair, preventor restrictLESSORfrom exercisingany of its rightsor remediessetforth in this Leaseor otherwiseprovidedat law.
2. 3 Condition and InsQection of Premises
2. 3. 1 Premises Leased " As - Is": Lessee acknowledges that the Premises are being leased to Lessee on an " as -is" basis, and Lessee takes and occupies the Premises without reliance upon any representationby LESSOR, or any of its officers, employees, agentsor representatives, or any other person, concerning the Premises, their fitness for Lessee's intendeduse or any other particularpurposeof use, their income producinghistory, potentialor capabilities, their value, or any otherpromise, representationor inducement not expressly set forth in this Lease.
2. 3. 2 No Representationor WarrantyConcerningPremises: Lessee acknowledges that neither LESSOR, nor any of its officers, employees, agents or representatives, has made anywrittenororalrepresentation, promise, orwarranty, expressedorimplied, concerning thePremises, theirfitnessfor Lessee's intendeduseor anyotherpurposeor use, their incomeproducinghistory, potentialor capabilities, their value, or any othermatternot expressly set forth in this Lease.
2. 3. 3 Inspection by Lessee: Lesseeacknowledgesthat Lesseehashadthe opportunity to and has inspected the Premises prior to the execution of this Lease, and that Lessee takes and leasesthe Premisesin the condition in which the Premisesexist as of the date of this Lease. Lesseestipulatesthat the Premisesarein good, clean, safeand leasable condition, and fit for Lessee's intended use, as of the date of this Lease and the Commencement Date
2. 4 Use of Premises
2. 4. 1 Conditions of Use: For andduring the term of this Lease, andany extensionor renewalthereof, Lessee'suseof thePremisesshallbesubjecttothefollowingconditions, covenants and restrictions:
2. 4. 1. 1 Exceptasprovidedin thisLease, thePremisesshallbeusedonlyforthe purposes specified in Paragraph 1.1.2 above, and the Premises shall not be used for any otheruseor purposewhatsoever, withoutthe prior writtenconsentof LESSOR.
2. 4. 1.2.
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2. 4. 1. 3.
2. 4. 1. 4.
2. 4. 1. 5.
2. 4. 1. 6 LESSOR or its authorized representative shall have the right at all reasonabletimes to enter upon the Premisesand inspect the generalcondition of the Premisesto determine if Lesseeis complying with the terms, conditions, requirements and provisions of this Lease.
2. 4. 2 Utilities and Services.
2. 4. 3 Permits and Approvals: Lesseeshall obtainany and all governmentalpermits, approvals, leasesor other authorizations which may be required in connection with the use of the Premises as set forth in this Lease. No approval or consent given under this Leaseby LESSOR shall affect or limit Lessee's obligationshereunder, nor shall any approvals or consents given by LESSOR, in its capacity as a party to this Lease, be deemed to be approval as to compliance or conformance with any applicable governmental codes, laws, orders, rules or regulations.
2. 5 Insurance: Without limiting Lessee's indemnification obligations, Lesseeshall not take possession of, enter or occupy the Premises until Lessee has obtained all of the insurance required herein from a company or companies acceptableto LESSOR, and Lesseeshall maintain all suchinsurancein full force and effect at all times during the term of this Leaseand any extensionor renewalthereof. Insuranceshallbeplacedwith insurershavinga currentA.M. Best ratingof no lessthanA-:VII or equivalentor asotherwiseapprovedby LESSOR.
2. 5. 1 Lesseeshall take out and maintain the following insurance:
2. 5. 1. 1.
2. 5. 1.2.
2. 5. 1.3.
2. 5. 2 Endorsements: The policies of liability insurance provided for in Paragraphs
2.5.1.2 and 2.5.1.3 shall specify that this specific Lease is insured and that coverage for injury to participants resulting from Lessee's activities is not excluded, and shall be in a form satisfactoryto LESSORandcontainthefollowing separateendorsements:
a) " The City of Anaheim, its officers, directors, employees, representatives and volunteers, are declared to be additional insureds on all of the above policies with respectsto the operations and activities of the named insured at or from the premises of the City of Anaheim. The coverage shall contain no 10 special limitations on the scopeof protection afforded to the City of Anaheim, its officers, directors, employees, representatives and volunteers." b) " This insurancepolicy shall not be suspended, voided, reduced in coverage or in limits, canceled, limited, non -renewed, or materially changed for any reasonuntil thirty ( 30) days after receipt by the City of Anaheim of a written notice of such cancellation, limitation or reduction of coverage." c) " This insurancepolicy is primary insurance and no insuranceheld or owned by the designatedadditional insureds shall be called upon or looked to cover a loss under said policy; the City of Anaheim shall not be liable for the paymentof premiumsor assessmentsonthis policy."
d) " Any failure to comply with reportingor other provisionsof the policiesincludingbreachesof warrantiesshallnot affectcoverageprovidedto the City of Anaheim, its officers, directors, employees, representatives, or volunteers."
e) " This insuranceshall apply separatelyto each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer' s liability."
2. 5. 3 Evidence of Coverage: Lessee shall at the time of the execution of the Lease presentto LESSORthe original policiesof insurancerequiredby this Paragraph2.5 or a certificate of the insurance, with separate endorsements ( Insurance Services Office Form CG 2026, or equivalent), showing the issuance of such insurance and the additional insured and other provisions and endorsements required herein and copies of all endorsements signed by the insurer's representative. All policies shall contain the Lessee's nameandlocationof thePremisesonthecertificate. At leastthirty (30) days prior to the expiration of any suchpolicy, a signed complete certificate of insurance, with all endorsementsprovided herein, showing that such insurancecoveragehas been renewed or extended, shall be filed with LESSOR. Lessee's insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respectto the limits of the insurer's liability.
2. 5. 4 Review of Coverage: LESSOR shall have the right at any time to review the coverage, form, and limits of insurance required under this Lease. If, in the sole and absolutediscretionof LESSOR, theinsuranceprovisionsin thisLeasedonotprovide adequateprotection for LESSOR, LESSOR shall have the right to require Lessee to obtaininsurancesufficientin coverage, form andlimits to provideadequateprotection andLesseeshall promptly comply with anysuchrequirement. LESSOR' s requirements shallnotbeunreasonable, butshallbeadequatein thesoleopinionof LESSORtoprotect 7-
against the kind and extent of risks which may exist at the time a change of insurance is required, or thereafter.
2. 5. 5 Deductibles: Any and all deductiblesmust be declaredand approvedby LESSOR prior to execution of this Lease.
2. 5. 6 Lease Contingent Upon Coverage: Notwithstanding any other provision of this Lease, this Lease shall be null and void at all times when the above -referenced original policies of insurance or Certificate of Insuranceor Renewal Certificates or Endorsements are not on file with LESSOR.
2. 6 Indemnification
2. 6. 1 LESSOR not Liable: LESSOR shall not be liable at any time for any loss, damageor injury whatsoeverto the person or property of any person or entity whatsoever, including but not limited to any employee, agent or contractor of Lessee, resultingfrom or arisingout of any actor omissionof Lesseeor of anypersonor entity holding underLessee, or theoccupancyor useof the Premisesor anypartthereofby or underLessee, or any act or omissionin the exerciseof any right or the performanceof any obligation under this Lease, or directly or indirectly from any stateor condition of the Premises, or any part thereof.
2. 6. 2 Indemnification.
2. 7 Improvements
2. 7. 1 Prior Consent for Improvements: Lessee shall not make any alteration of or improvement to the Premises, including installation of the Injection Well and any enclosurearoundthe FencedPremises, without theprior written approvalof LESSOR's City Manager or designee as further articulated in Section 2.7.1.1. Notwithstanding anythingto the contrary, Lesseeshall not commenceany constructionactivity on the Propertybetweenthe EffectiveDate and February2015 without the prior written approval of the City Manager or designee.
2. 7. 1. 1 In the eventthat Lesseedesiresto make any alteration, improvement, additionor utility installationin or aboutthe Premises, Lesseeshallpresentsuch requestin writing to LESSOR, together with detailedplans of the proposed alteration or improvement; and Lessee shall not commence such alteration or improvementunlessanduntil LESSOR's City Manageror designeehasgranted approval thereto in writing. LESSOR will not unreasonablywithhold said approval; provided, the alterations or improvements are consistent with the requirements of this Lease.
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2. 7. 1. 2 In the event that LESSOR's City Manager or designee grants written approval to any requested alteration of or improvement to the Premises, such approval shall be deemed conditioned upon Lessee acquiring all governmental leases, approvals and permits required therefor, and such alteration or improvement shall be constructed in strict conformance with the plans approved therefor by LESSOR' s City Manager or designee. Once approved by LESSOR' s City Manageror designee, no changesor alterationsshall be madeto the plans without the prior written approval by LESSOR' s City Manager or designee.
2. 7. 1. 3 In the eventthat LESSOR's City Manageror designeegrantswritten approval to any requested alteration of or improvement to the Premises, Lessee shall construct such alteration or improvement at Lessee's sole cost and expense.
Lesseeshall not commenceconstructionunlessLesseeprovidesLESSOR's City Manager or designee with written notice ninety ( 90) days prior to the commencement of the Injection Well construction or any other related construction. The Injection Well construction shall not exceed eighteen ( 18) months without the prior written approval of the LESSOR's City Manageror designee. Upon completion of the Injection Well construction, Lessee shall immediately restore any damaged permanent LESSOR improvements to their original conditionasreasonablyaspossible.
2. 7. 2 Ownership of Improvements.
2. 7. 3 " As - Built" Plans and Construction Costs: As a conditionto the approvalof any alteration of or improvement to the Premises, LESSOR shall have the right to require Lesseeto prepare and furnish to LESSOR, at Lessee's sole cost and expense, and within sixty ( 60) days following completion of such alteration or improvement, a complete setof reproducible " As -Built" plans for such alteration or improvement, and/or an itemized statement of the actual cost of the construction or installation of such alteration or improvement.
2. 7. 4 Compliance with Building Codes: Lesseeshall comply with all Building Codes in effectatthetimeof constructionor installationof animprovementof anykindonthe Premises. The applicableBuilding Codesshall be thosecodesasadoptedby the local permittingjurisdiction (i.e., city or county) in which thePremisesis located. In theevent that Lesseefails to conform to the Building Codes, LESSORmay require immediate compliance. If Lesseefails to comply, LESSOR, at its option, maymakesuchchangesto bringtheimprovementinto compliancewith theBuildingCodesandchargeLesseethe costof suchchangesplus ten percent (10%) to cover administrative costs. Lessee shall have ten ( 10) days from receipt of the invoice to reimburse LESSOR for the cost of making such changes.
12 2. 7. 5 Lessee' s Assurance of Construction Completion: Prior to commencement of construction of approved facilities, or any phasethereof, within the Premises by Lessee, Lessee shall furnish to LESSOR evidence that assures LESSOR that sufficient monies will be available to Lesseeto complete the proposed construction in accordancewith the plans approved by LESSOR. The amount of money available shall be at least the total estimatedconstruction cost. Suchevidencemay take one of the following forms:
a) Completionbond issuedto LESSORas oblige, and issuedby a surety acceptable to LESSOR.
b) Performancebond and labor and material bond (or performance bond containing the provisions of the labor and material bond), issuedby a surety acceptable to LESSOR and supplied by Lessee's contractor or contractors, providedsaidbond(s) areissuedjointly to LesseeandLESSORasobligees. c) Irrevocable letter of credit issued to LESSOR from a financial institution acceptable to LESSOR to remain in effect until LESSOR acknowledges, in writing, satisfactory completion of construction. d) Cash.
e) Any combination of the above.
2. 7. 6 Mechanics Liens or Stop -Notices: Lessee shall at all times indemnify and save LESSOR harmless from all claims, losses, demands, damages, costs, expenses, or liability costs for labor or materials in connection with construction, repair, alteration, or installation of structures, improvements, equipment, or facilities within the Premises, and from thecostof defendingagainstsuchclaims, includingattorneys' feesandcosts.
In the event a lien or stop -notice is imposed upon the Premises as a result of such construction, repair, alteration, or installation, Lessee shall either:
a) Record a valid Release of Lien, or
b) Procure and record a bond in accordance with Section 3143 of the Civil Code, which frees the Premises from the claim of the lien or stop -notice and from any action brought to foreclose the lien.
Should Lesseefail to accomplish either of the two optional actions above within fifteen 15) daysafterthefiling of sucha lien or stop -notice, this Licenseshallbe in defaultand shall be subject to immediate termination.
2. 8 Maintenance and Repair of Premises.
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2. 9 Legal Relations and Responsibilities
2. 9. 1 Nature of Relationship: LESSORandLesseeunderstandandagreethat the only relationship between them createdby this Lease is that of landlord and tenant, and that this Leasedoesnot create, andshall not beconstruedto create, any agency, partnership, joint venture, or other relationship between LESSOR andLessee.
2. 9. 2 Compliance with Laws: Lesseeshallkeepitself fully informedof all existingand future stateandfederallaws andall countyandcity ordinancesandregulationswhich in any manner affect the activities of Lesseeunder this Lease, or the possessionor useof the Premisesby Lessee, andof all suchordersanddecreesof bodiesor tribunalshavingany jurisdiction or authorityoverthesame. Lesseeshallat all timesobserveandcomplywith all such existing and future laws, ordinances, regulations, orders and decrees, and shall protect and indemnify, asrequired herein, LESSOR, its officers, directors, employeesand agentsagainstany claim or liability arisingfrom or basedon the violation of any such law, ordinance, regulation, orderor decree, whetherby Lesseeor anypersonor entity holding under Lessee.
2. 9. 3 Assignment and Sublease.
2. 9. 4 Acknowledgment of LESSOR' s Title: Lesseehereby acknowledges the title of LESSORin andto the Premises, including the real propertyfixtures andimprovements existing or erectedthereon, and Lesseeherebycovenantsandpromisesneverto assail, contest or resist LESSOR' s title to the Premises.
2. 9. 5 Liens: Lesseeshall maintain the Premisesfree from and clear of any claims, obligations, liabilities, liens, encumbrancesandcharges, includingbutnotlimitedto any claims, liensorchargesarisingoutof or in connectionwiththefurnishingof materialsor the performance of labor on the Premises. Lesseefurther shall protect and indemnify LESSORandthePremisesfromandholdthem, andeachof them, harmlessagainstany and all suchclaims, obligations, liabilities, liens, encumbrancesand charges.
2. 9. 6 Possessory Interest Taxation: A possessoryinterest subject to property taxation may be created by this Lease. It is understoodand agreedthat if such a possessory interestis created, Lesseeshallberesponsiblefor thepaymentof all propertytaxeslevied on suchinterest, andthatLESSORshallhavenoresponsibilitytherefor.
2. 9. 7 LESSOR' s Reservations:
2. 9. 7. 1.
2. 9. 7. 2.
2. 9. 8 Condemnation.
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2. 9. 9 Waiver of Claims.
2. 9. 10 Surrender of Possession: At the expirationor terminationof this Lease, for any reason whatsoever:
2.9.10.1 Lesseeshall execute, acknowledge and deliver to LESSOR a quitclaim deed conveying to LESSOR all rights, title and interest of Lesseeto the Premises, both land and improvements.
2.9.10.2 Lesseeshall promptly quit and surrenderthe Premises in a good state of repair.
2.9.10.3 Lesseeshall, at its solecostandexpense, removeall portablebuildings, equipment and personal property placed on the Premisesby Lessee, and clear the Premisesof all debris; andthe Premisesshallbesurrenderedto LESSORin good order and clean condition.
2. 9. 11 Disposition of Abandoned Property: If Lesseeabandonsor quits the Premises or is dispossessedthereofby processof law or otherwise, title to any personalproperty left on the Premises for thirty ( 30) or more days after the notice to remove shall at LESSOR' s opinion, be deemed to have been abandoned and transferred to LESSOR.
LESSORshallhavetheright to removeanddisposeof anyandall suchpropertywithout liability therefor to Lesseeor to any person or entity claiming under Lessee, and LESSORshall haveno duty to accountfor suchproperty. Lessee agrees to reimburse LESSORfor any and all costsassociatedwith LESSORtransferringor disposingof Lessee's personalproperty pursuant to this Paragraph.
2. 9. 12 Broker' s Commission.
2. 9. 13 Disputes: In the eventthat any actionis commencedby a party to this Lease againstthe otherto enforceits rightsor obligationsarisingfrom this Leaseor seekingto interpretthis Lease, theprevailingpartyin suchaction, in additionto anyotherrelief and recovery orderedby the court, shall be entitled to recover all statutory costs, plus reasonable attorneys' fees. ShouldLESSORbe namedin any suit broughtby anythird partyagainstLesseein connectionwith or in anywayarisingoutof Lessee'soccupancy or use of the Premisesunder this Lease, Lesseeshall pay to LESSOR its costs and expensesincurred in such suit, including reasonableattorneys' fees.
2. 9. 14 Security Measures.
2. 9. 15 No Obligation to Third Parties: Execution and issuance of this Lease shall not be deemedto confer any rights upon, directly, indirectly or by way of subrogation, nor obligate either of the partiesheretoto, any personor entity other than LESSORand Lessee.
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2. 9. 16 Waiver: Any waiver by any party of a breach of any provision of this Lease shall not be deemeda continuing waiver or a waiver of any subsequentbreachwhether of the sameor of anotherprovision hereof.
2. 9. 17 LESSOR's Liability on Termination.
2. 9. 18 Prior Leases: It is mutually agreedthat, on and from the CommencementDate, this Leaseshall terminate and supersedeany prior licenses, leasesor agreementsbetween the parties hereto covering all or any portion of the Premises.
2. 10 Default and Termination
2. 10. 1 Term and Prior Termination.
2. 10. 2 Default by Lessee: Each and every covenant and agreement contained in this Leaseis declaredto be a condition to this Lease, and to the term herebydemisedto Lessee. Lesseeshall be consideredto have materially breachedthis Lease, giving LESSORthe remediesspecifiedin Paragraph2.10.3 below, in the eventthat anyoneor more of the following occur:
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b) Lesseedefaults in the performance of or breachesany covenant, condition or provision contained in this Leaseother than as set forth in Paragraph2.10.2(a) hereinabove, and such default or breach is not cured within thirty ( 30) days after written notice thereof is servedby LESSOR on Lessee; or c)
d) Lessee becomes insolvent; for purposes of this Lease, Lessee shall be conclusively presumedto have becomeinsolvent if-
i) A receiveris appointedto takepossessionof all or substantiallyall of Lessee's property becauseof insolvency; or
ii) Lesseemakes a generalassignmentfor the benefit of creditors; or iii)
iv) An attachment or execution is levied upon or against any or all of Lessee's right, title or interest in or under this Lease, and the same shall not have beenreleasedwithin thirty ( 30) daysfrom the datethereof; or v) Proceedingsin receivershipor bankruptcyhavebeenor areabout to be instituted against Lessee; or
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vi) Lessee is adjudicated a bankrupt.
2. 10. 3 Remedies on Lessee' s Default: Should Lessee breach this Lease, or should Lesseebreach this Lease and abandonthe Premisesprior to the natural expiration of the term of this Lease, LESSOR may, in addition to any other remedy given LESSOR by law or in equity:
a) Continue this Lease in effect by not terminating Lessee's right to possessionof the Premises, in which event LESSOR shall be entitled to enforce all of LESSOR's rights and remedies under this Lease, including the right to recover the rent specified in Paragraph 1.3 above, as such rent becomes due under this Lease; or
b) Terminatethis LeaseandLessee's right to possessionof thePremises, and recover from Lessee:
i) The worth at the time of award of the unpaid rent which had been earned at the time of termination of the Lease; and
ii) Theworth atthetime of awardof theamountby which the unpaid rent which would have been earned after termination of the Lease until the time of awardexceedsthe amountof rental loss that Lesseeproves could have beenreasonably avoided; and
iii) Theworth at thetime of awardof theamountby which theunpaid rent for the balance of the term after the time of award exceeds the amount of rental loss that Lesseeproves could be reasonablyavoided; and iv) Any other amount necessary to compensate LESSOR for all detrimentproximatelycausedby Lessee's failureto performits obligations under the Lease; or
c) Terminate this Leaseand Lessee's right to possessionof the Premises, and in addition to any recoveriesthat Lesseemay seekunder Paragraph2.10.3(b) hereinabove, bring an actionto reenterandregainpossessionof thePremisesin the manner provided by the laws of unlawful detainer of the State of California then in effect; or
d)
2. 10. 4 Waiver of Breach: The waiver by LESSOR of any breach of any term, covenant, or conditionof this Leaseshallbe in writing signedby LESSOR, andshallnot be deemedto be a continuing waiver of such term, covenant or condition, or a waiver of any subsequentbreachof the sameor anyotherterm, covenantor conditioncontainedin 14-
this Lease. The acceptanceof rent by LESSOR under this Lease shall not be deemedto be a waiver of any preceding breachby Lesseeof any term, covenant, or condition of this Lease, other than the failure of Lesseeto pay the particular rent so acceptedby LESSOR, regardlessof LESSOR's knowledge of suchpreceding breachat the time of acceptanceof such rent.
2. 10. 5 Cumulative Remedies: The remedies given to LESSOR in Paragraphs2.10.2 and2.10.3 aboveshall not be exclusive, but shallbe cumulativeandin additionto any and all other remedies now or hereafter allowed by law or otherwise authorized elsewhereby this Lease; and the exerciseof one or more of said rights, powers, elections or remediesshallnot impair LESSOR's right to exerciseany otherright, power, election or remedy.
2. 10. 6 Re - Entry: No entry or re-entry into the Premises by LESSOR shall be construedas an election to terminatethis Lease, unlessprior theretoor concurrently therewith written notice of intent to terminate is given by LESSOR to Lessee. LESSOR's entry into possession of the Premises without having elected to terminate shall not prevent LESSOR from making such an election and giving Lesseenotice thereof.
2. 11 Miscellaneous
2. 11. 1 Notices: Any notice, paymentor instrumentrequiredor permittedto begivenor deliveredby this Leasemay be givenor deliveredby personaldelivery or by depositing the samein any United Statesmail depository, first classpostageprepaid, andaddressed as follows:
If to LESSOR:
City of Anaheim
Attention: City Clerk
200 S. Anaheim Blvd., Suite 217
Anaheim, CA 92805
With Copy to: City of Anaheim
Attention: City Manager
200 S. Anaheim Blvd., 7th Floor
Anaheim, CA 92805
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If to Lessee:
If by mail: ORANGE COUNTY WATER DISTRICT
P. O. Box 8300
Fountain Valley, CA 92728-8300
Attn: Property Management
If by personaldelivery: ORANGE COUNTY WATER DISTRICT
18700 Ward Street
Fountain Valley, CA 92708
Attn: Property Management
or such other person or addressas either party may direct in writing to the other; provided, however, that such new or different person or addressshall not become effective until acknowledgedin writing by the party to who directed. Except where serviceis by personaldeliveryor by registeredor certifiedmail, returnreceiptrequested, serviceof any instrumentor writing shall be deemedcompletedforty-eight (48) hours afterdepositin aUnitedStatesmail depository.
2.11.2 Warranty of Authority: Eachofficer of LESSORandLesseeaffixing his or her signature to this Lease warrants and representsby such signature that he or she has the full legal authorityto bind his or her respectivepartyto all of the terms, conditionsand provisionsof thisLease, thathisor herrespectivepartyhasthe full legalright, power, capacityand authority to enter into this Leaseand perform all of its provisions and obligations, and that no other approvalsor consentsare necessaryin connection therewith.
2. 11. 3 Headines: The titles and headings of Parts, Sections and Paragraphs of this Lease, ashereinsetforth, havebeeninsertedfor thesakeof convenienceonly, andare not to betaken, deemedor construedto beanypartof theterms, covenantsor conditions of this Lease, or to control, limit or modify any of the terms, covenantsor conditions hereof.
2. 11. 4 Time of Essence: Time is of the essence of this Lease. Failureto comply with any requirement, including but not limited to any time requirement, of this Leaseshall constitute a material breach of this Lease.
2. 11. 5 Construction and Amendment: This Lease shall be construed, interpreted, governedandenforcedin all respectsaccordingto thelawsof the Stateof Californiaand as if drafted by both LESSOR and Lessee. No amendment, change or modification of 16-
this document shall be valid unlessin writing, stating that it amends, changesor modifies this Lease, and signed by all of the partieshereto.
2. 11. 6 Successors: Subject to the provisions of Paragraph2.9.3 above, this Lease, and all of the terms, conditions and provisions herein, shall inure to the benefit of, and be binding upon, LESSOR, Lessee, and their respective successorsand assigns.
2. 11. 7 Partial Invalidity: If any term, covenant, condition or provision of this Lease is held by a court of competentjurisdiction to be invalid, void, illegal, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way affect, impair, or invalidate any other term, covenant, condition or provision contained in this Lease.
2. 11. 8 Further Assurances: Eachof thepartiesheretoshallexecuteanddeliveranyand all additionalpapers, documentsandotherassurancesandshall do any andall actsand things reasonably necessary in connection with the performance of their obligations hereunderand to carry out the intent of the parties hereto.
2. 11. 9 Precedence.
END GENERAL LEASE PROVISIONS]
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PART III
SPECIAL LEASE PROVISIONS
3. 1 Paragraph 2. 1.4 ( Proration) is deleted from this Lease.
3. 2 Paragraph 2. 2. ( Chargesfor Late Payment) of this Leaseis replacedwith the following:
2. 2 Charges for Late Payments: If any Lease Rental Payment or any other sum due LESSOR is not received by LESSOR within thirty ( 30) days after the due date, Lessee shallbedeemeddelinquentin its paymentanda latechargeof oneandone-half percent
1. 5%) of the delinquent amount, plus the sum of One Hundred Dollars ($ 100. 00), shall becomeimmediately due andpayable to LESSOR. An additional charge of one and one- half percent (1.5%) of such delinquent payment (excluding late charges) shall be added for each additional calendar month (or portion thereof) that the delinquent sum remains unpaid. In this regard:
3. 3 Paragraphs 2. 4. 1.2, 2. 4. 1.3, 2.4. 1.4, 2. 4. 1.5, and 2. 4.2 of this Lease are replaced with the following:
2.4.1.2 Lesseeshall at all times during the term of this Leaseand any extensionor renewalthereof, maintain proper and adequatepolicing of the FencedPremisesand during construction or maintenance activities maintain the Appurtenant Premises and Construction and MaintenanceArea in order to assureorderly use of the Fenced Premises, AppurtenantPremisesandConstructionandMaintenanceAreaandto prevent intrusion from trespassers, playing children and vandals.
2.4. 1.3 Lessee shall, to the satisfaction of LESSOR, maintain the Fenced Premises and all improvementsof anykind thereinin a stateof goodrepair, excepttheLesseeshallnot be obligated to repair damage or other degradation caused by LESSOR or other lessees/invitees of the Premises. During constructionor maintenanceactivities, Lessee shall not damage the Appurtenant Premises and Construction and Maintenance Area and all improvements of any kind therein. If Lesseedamagesor causessuch damage, Lessee shall promptly repair the property or improvement to LESSOR' s satisfaction.
2.4. 1.4 Lessee shall not disturb or expose hazardous materials or hazardous chemicals, or otherwise act to expose persons or the Premises to an increased risk from hazardous materialsor hazardouschemicalsthantherisk that existedprior to Lessee's disturbance, exposure or other acts. As used herein, " hazardous materials" or " hazardous chemicals" shall have that meaning contained in CERCLA ( 42 U.S.C. § 9601( 14)) or SARA ( 42 U. S. C. § 110211( e)) or any similar Federal, State, or local law, statute, ordinance, regulation or order.
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2.4.1.5 Lesseeshall not maintain, commit or permit the maintenance or commission of any waste or any nuisance (as defined in California Civil Code section 3479) within the Fenced Premises at any time. Lessee shall not maintain, commit or permit the maintenance or commission of any waste or any nuisance within the Appurtenant Premises or the Construction and Maintenance Area at any time during Lessee's construction and maintenance activities within the Appurtenant Premises and Construction and Maintenance Area. Lesseeshall not use or permit the use of any portion the Premisesfor any unlawful purpose.
2. 4. 2 Utilities and Services: Lesseeshall be solely responsiblefor obtainingall of its utility serviceandfor thepaymentof all of its utility charges, includingbut not limited to water and power, supplied to the Premises. All utilities shall be in the name of Lessee, unless LESSOR elects otherwise. All utility installations shall be subject to the provisions of Paragraph2.7 below.
3. 4 The following provisions are addedto Paragraph2.4.1 (Conditions of Use) of this Lease:
2.4. 1.7 At its expense, Lessee shall erect and maintain an enclosure around the Fenced Premises to hide and protect the Injection Well. This enclosure shall match the architecture and landscaping used for LESSOR' S Anaheim Regional Transportation Intermodal Center Project. Prior to construction or installation of such enclosure, the plansandspecificationsfor saidenclosuremustbe submittedto andexpresslyapproved by LESSOR' s City Manager or designee.
2. 4. 1. 8 Should any damage or injury to LESSOR's facilities occur, either through the acts of agents, servantsor employeesof Lesseeor by any independentcontractorof Lesseein the exerciseof the rights grantedin this Lease, Lesseeagreesto immediately, upon the written demand of LESSOR, restore such facilities, at Lessee' s sole cost and expense, to theconditionof sameonthedateof thedamageor injury.
2.4.1.9 If at any time LESSOR determines in, its sole discretion, that the Injection Well installed by Lessee, as provided herein, must be modified, improved or extendedto protectLESSOR's real propertyor facilities andLESSOR's useof saidrealpropertyor facilities, or in the event that said Injection Well needs to be modified, improved or extendedto improveor correctthe functioningthereof, suchmodification, improvement or extensionshallbemadeby Lessee, within a reasonableperiodof time, andat Lessee's sole cost and expense; provided, however, that LESSOR covenants to exercise in a reasonablemannerits discretionto require Lesseeto modify, improve or extendthe InjectionWell installedby Lesseeandto exercisesuchdiscretiononlyasnecessaryto reasonablyprotect LESSOR's real propertyor facilities or usethereofor to reasonably improve or correct the functioning of the Injection Well installed by Lessee.
Notwithstanding the foregoing, Lesseereserves the right to terminate this Leasewith a thirty (30) dayswritten noticeto LESSORif Lesseedeterminesthe forgoingobligations are cost prohibitive.
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2.4.1.10 At the expiration or termination of this Lease, Lesseeshall destroy the Injection Well on the Premises, and remove all appurtenants to the Injection Well, that is the subject of this Lease in accordance with all applicable federal, state and local laws, rules, regulations or ordinances governing the destruction of Injection Wells, unless LESSOR delivers to Lessee a written notice that LESSOR, at no cost or expense to LESSOR, will assumeownershipandresponsibilityof the Injection Well, in which caseLesseeshall have no further obligation or liability for the Injection Well. Through the deliverance of such written notice, LESSOR further agreesthat it will acceptownership of the Injection Well in an " as -is" condition.
2.4.1.11Lesseeshall notify LESSOR of any maintenanceactivity that requires the useof awell development/pumprig at leastthirty (30) daysin advanceof suchmaintenance activity.
2.4.1.14 LESSOR owns Lot B as shown in Exhibit B, for, among other things, the parking of vehicles. Lesseeshall not interferewith this activity and shall scheduleany useallowedunderthis Leaseso asnot to interferewith the parkingof vehicleson such lot, shall cover all trenches or open excavations to withstand the weight of vehicles, and shall protect all vehicles from damage due to Lessee's activities. Prior to use of the Construction and Maintenance Area for those authorized activities set forth herein, Lessee shall submit plans which ( i) outline the area to be used by Lessee for the authorizedactivity and (ii) thelevelof use. Theseplansshallbesubjectto thereviewand approval of LESSOR's City Manageror designee. The LESSOR's City Manageror designeemay modify the plans as he or she may be deemsnecessaryto avoid interferencewith LESSOR'suseof theProperty.
2.4. 1.15 Laydown areas for construction or maintenance materials shall be as approved by LESSOR' s City Manager or designeebut shall under no circumstancesinterfere with accessto or the parking of vehicles in the Lot B parking lot asshown in Exhibit B.
2.4. 1.16 Lessee has constructed and operates the " Groundwater Replenishment System", comprisinga 70million gallonperdaycapacityadvancedwastewaterreclamationfacility that treatssecondarilytreatedwastewaterreceivedfrom the OrangeCounty Sanitation District by means of microfiltration, reverse osmosis and ultraviolet light advanced oxidation, and pipelines and incidental facilities to transmit the recycled water ( the GWRS Water") for groundwaterreplenishmentand seawaterintrusionprevention.
Lessee desires to divert and distribute GWRS Water into the Injection Well for the purposesdescribedin Paragraph1.1.2. Any andall liabilities arisingfrom the diversion anddeliveryof GWRSWaterto the InjectionWell shallbethe full responsibilityof Lessee.
2.4.1.17TheInjectionWell shallnotaffect (i) existingpotablewaterproductionwells, and (ii) any future potablewaterproductionwells to be locatedoutsidea onethousand andfive hundred (1,500) foot radiusof the Injection Well. Lessee, at its solecostsand expense, shallprovidemodeling, monitoringandtracerstudiesof the Injection Well and nearby potable water production wells to establish that the Injection Well has no such 20-
effect. Lesseeshall provide such modeling, monitoring and studies in the manner required by the applicable regulatory agencies. If Injection Well contaminates any potable production well, Lesseeshall provide a replacementsite and replace it with a new oneof samesizeandqualityprior to contamination.
3. 5 The following provisions in Paragraph2.5 of this License arereplaced with the following:
2.5.1.1 Workers' Compensation Insurance and Employers' Liabilfty Insurance. Pursuant to Section 3700 of the California Labor Code, the Lessee, and each contractor or consultantretainedby Lesseein connectionwith anyportionof Lessee's activitiesunder this Lease, shallprocure, pay for andkeepin full forceandeffect, at all timesduringthe term of the Lease, workers' compensationinsurancein the amountsrequiredby law and employers' liability insurance in an amount equal to at least One Million Dollars 1,000, 000); provided, however, that Lesseeshall be deemedto be in compliance with this Paragraph ( 2. 5. 1. 1) througha combinationof (i) a funded, actuarially -soundself- insuranceprogram, and (ii) coveragethrough a joint powersinsuranceauthority duly formedandoperatedunderthelawsof the Stateof California. Evidenceof suchprograms shall beprovidedby way of a certificationby Lessee's Risk Manageranda copy of the Lessee's consentto self -insure, issuedby the Stateof California.
2.5.1.2 Commercial General Liability Insurance. The Lessee, and each contractor or consultant retained by the Lesseein connection with any portion of Lessee's activities underthis Lease, shallprocure, pay for andkeepin full forceandeffect andat all times during the term of this Lease, commercialgeneralliability insuranceinsuring against liability for personalinjury, bodily injury, death, anddamageto property, in an amount equal to at least Two Million Dollars ($ 2,000,000) per occurrence, with the exception that any consultant retained by the Lesseeshall provide said insurancein an amount equal to at least One Million Dollars ($ 1,000,000) per occurrence; provided, however, that Lessee shall be deemed to be in compliance with this Paragraph (2.5.1.2) through a combination of (i) a funded, actuarially -soundself-insuranceprogram, and (ii) coveragethrough a joint powersinsuranceauthorityduly formedandoperatedunderthelaws of theStateof California. Evidenceof suchprogramsshallbeprovidedby way of a certificationby the Lessee's Risk Manageranda copy of Lessee's consentto self -insure, issuedby the State of California.
2.5. 1.3 Comprehensive Automobile Liability Insurance. Lessee shall be allowed to self - insurein satisfactionof its financialresponsibilityasrequiredby the Stateof California Departmentof Motor Vehicles, with a funded, actuarially -soundself-insuranceprogram which provides for no less than One Million Dollars ($ 1, 000, 000) per occurrence.
Evidenceof suchprogramshallbe by way of a certificationby Lessee's Risk Manager.
Eachcontractoror consultantretainedby theLesseein connectionwith anyportionof Lessee's activitiesunderthis Lease, shallprovide, payfor andkeepin full forceand effect comprehensiveautomobile liability insuranceincluding owners, non - owners, leased, hired, andborrowedautomobilesand similarvehicles, providinga combined single minimum limit of One Million Dollars ($ 1,000,000) per occurrencefor bodily 21-
injury or deathandpropertydamage. Coverageshall be at leastas broad as Insurance Services Office ( ISO) Business and Auto Coverage ( Form CA 001) covering any automobile.
2. 5. 1.4 Deductibles and Self - Insurance: Lessee, and each contractor or consultant retainedby Lesseein connectionwith anyportionof Lessee's activitiesunderthis Lease, shallbe solely responsiblefor any deductiblesand/or self -insuredretentionswhich may be applicable to insurance coverage or self- insurance required under this Lease.
3. 6 Paragraph2.6.2 of this Leaseis replacedwith the following:
2.6.2 Indemnification. Lesseeshall indemnify, defend, and hold harmless LESSOR, its officers, officials, employees, and representatives, ( the " Indemnified Parties") from and against any and all claims, actions, damages, liability, defensecosts, including reasonable attorneys' fees, in connectionwith lossof life, personalinjury and/or damageto property the " Claims") arising from or out of Lessee's acts, errors, omissions, or use of the Premisespursuantto this Lease, or arisingfrom or outof Lessee's failure to comply with any provision of this Lease, except to the extent that such Claims arise out of the sole active negligence or willful misconduct of the Indemnified Parties. In case LESSOR shall be madea partyto any litigation commencedby or againstLessee, Lesseeshall accepta tender of the defenseand handling of such litigation by LESSOR, and Lesseeshall, notwithstandingany allegationof negligenceor fault on the part of LESSOR, defend LESSOR, hold LESSORharmless, andpay all costs, expensesandreasonableattorneys' fees incurred or paid by LESSOR in connectionwith any such litigation; provided, however, to the extentLESSORis ultimately determined, by verdict or settlement, to be liable for all or part of such loss, damage or injury due to its sole active negligence or willful misconduct, then LESSORshall reimburseLesseeits proportionateshareof the costof anyexpensesandattorneys' feesincurredby Lesseein defendingsuchClaims. All of the indemnity obligations of Lesseeunder this Paragraph2.6.2, or as otherwise set forth in this Lease, shall survive the expiration or earlier termination of this Lease.
3. 7 Paragraph2.7.2 of this Leaseis replacedwith thefollowing:
2. 7. 2 Ownership of Improvements: All buildings, improvements, fixtures and facilities exclusive of trade fixtures, portable buildings, vehicles and antennas), constructed or placedwithin the Premisesby Lessee, including but not limited to electrical and other utilities, listed or not, shall, upon the completion of construction, installation or placementwithin the Premises, be free and clear of all liens, claims and liability for payment for labor and material. Such buildings, improvements, fixtures and facilities exclusive of trade fixtures, motors, pumps, motor control centersand switchgear, control panels, fiber optic equipment, portablebuildings, vehiclesandantennas), shall become and remain the property of LESSOR at the expiration of this Leaseor earlier termination hereof. Upon the expiration or earlier termination of this Lease, LESSOR retains the right, in its soleandabsolutediscretion, andby written noticeto Lessee, to require (or, if requestedby Lessee, to allow) Lessee, at Lessee's sole cost and expense, to remove all such buildings, improvements, fixtures and facilities located on the Premises. In the 50M
event LESSOR either requires or grants permission to Lessee, such removal by Lessee shall include leveling the Premises, restoring any berms removed, removing any underground obstructions, filling any excavations, and compacting such filled excavationsto ninety percent (90%) compaction.
3. 8 Paragraphs2.8 of this Leaseis replacedwith the following:
2. 8 Maintenance and Repair of Premises
2. 8. 1 Lessee' s Obligation to Maintain Premises: Lesseeshall at all times during the term of this Lease, and any extension or renewals thereof, at its sole cost and expense, remove all trash and debris from the Fenced Premises. Lessee shall also keep and maintain in good condition and in substantialrepair (all to the satisfaction of LESSOR in its sole discretion), the FencedPremisesand all appurtenancesand every part thereof, including improvements of any kind erected, installed or made on or within the Fenced Premises. Lessee shall at all times in the maintenance and use of the Fenced Premises and the buildings, structures, facilities, improvementsand equipmentthereon, comply with all laws, ordinancesand regulationspertainingthereto, and all conditions and restrictions set forth herein. Lesseeexpressly agreesto maintain the Fenced Premisesin a safe, clean, wholesome, and sanitary condition and free of trash and debris, to the satisfactionof LESSORandin compliancewith all applicablelaws. During maintenance or construction activities, Lessee is to maintain the Appurtenant Premises and Construction and Maintenance Area in the same manner as stated for the Fenced Premises in this Paragraph. When no maintenance or construction activities occur, LESSOR hereby waives the maintenancerequirement asstatedin this Paragraph.
2. 8. 2 Lessee' s Default of its Maintenance Duties: In the event that Lessee fails, neglects or refuses to remove trash or debris deposited by Lesseeor its invitees on the Premisesor to maintain or make repairs or replacementsas required by this Lease, LESSOR shall notify Lesseein writing of such failure or refusal. Should Lessee fail or refuse to correct such default within thirty ( 30) days of receipt of such written notice from LESSOR, LESSOR may, but shall not be required to, itself or by contract, undertake the necessary maintenance, repair or replacements; and the cost thereof, including but not limited to the costof labor, materialsandequipmentandprocurement of insurance, plusanadministrativefeein theamountof fifteenpercent (15%) of the sum of suchcosts, shall be paid by Lesseeto LESSORwithin thirty (30) days of Lessee's receipt of a statement of such costs from LESSOR. Any such maintenance, repair or replacement by or on behalf of LESSOR shall not be deemedto be a waiver of Lessee's default underthis Lease, and shall not in any way impair, preventor restrict LESSOR fromexercisinganyof itsrightsorremediessetforthin thisLeaseor otherwiseprovided at law.
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3. 9 Paragraphs 2. 9. 3, 2. 9. 8, 2. 9. 9, 2. 9. 14, and 2. 9. 17 and Subparagraphs 2. 9. 7. 1 and 2. 9. 7. 2 of this Lease are replaced as follows; and Paragraph 2. 9. 12 of this Lease is deleted:
2. 9. 3 Assignment and Sublease: Lesseemay not assign, convey, hypothecate, encumber, mortgage, or otherwisetransferthis Leaseor anypartthereof, or subleaseany portion or all of the Premises, without the prior written consent of LESSOR, which LESSOR may withhold in its absolute discretion for any reason, or for no reason at all.
Any such assignmentor subleaseby Lessee, whether voluntarily or by operation of law, without the prior written consent of LESSOR shall be void and shall, at the option of LESSOR, terminate this Leaseupon written notice to Lessee. A consent by LESSOR to one assignment or one sublease shall not be deemed a consent to any subsequent assignment or sublease.
2. 9. 7. 1 LESSORherebyreservestheright to granteasementsandrights -of -way for poleor towerlinesfor transmissionof electricity, andeasements, leasesandrights -of - way for telephone, telegraph, telecommunicationfacilities, gas, water, sewer and oil lines, for roads and highways, and for other similar uses over and across the Premises at any location or locations within the Premises. LESSOR agrees to give Lessee written notice of such a grant after thirty ( 30) days of its occurrence. In the event Lessee determinesthat the grantingor exerciseof any sucheasement, lease, or right-of-way significantly interfereswith Lessee's possessionor useof the Premises, Lessee's only remedy shall be to terminate this Leaseupon thirty ( 30) days written notice to LESSOR.
Lesseeshall not interferewith any easementsor rights -of -way pertainingto or affecting the Premises, however, if Lessee terminates this Lease for a reason as stated in this paragraph during the first 20 years of this Lease, Lessee shall be reimbursed the depreciated cost of the Injection Well as stated in Paragraph 1.2 of this Lease.
2. 9. 7. 2 LESSOR hereby reserves the right to sell, transfer, lease or otherwise disposeof any portion of the Premisesat any time. In the event of such sale, transfer, leaseor disposition, and notwithstandingany otherprovision of this Lease, this Lease shall, uponthe closeof escrowor the conveyanceof title, terminateasto theportionsof the Premises sold, transferred, leased or disposed of, and Lessee shall release the same from the terms of this Lease and from any encumbrancewhich results from this Lease.
LESSOR agreesto give Lesseethirty ( 30) days notice of the sale, transfer or disposition of thePremises, exceptthatif suchsale, transferor dispositionoccursduring thefirst 20 years of this Lease, Lessee shall be reimbursed the depreciated cost of the Injection Well as stated in Paragraph 1.2 of this Lease.
2. 9. 8 Condemnation: If any portion of the Premisesis takenor acquiredby eminent domain or otherwisefor a public or quasi -public use, and any part of the Premises remains which is susceptible of occupation under this Lease, this Lease shall, as to the part or parts so taken, terminate as of the date title or possession shall vest in the condemnor. In the eventall of the Premisesor suchpartthereof so that theredoesnot remain a portion susceptible of occupation under this Lease, are taken or acquired, this Leaseshall thereuponterminate. LESSORshallbeentitledto any andall compensation 24-
awardedupon suchcondemnation, and Lesseeherebydisclaimsany right to any such compensation. If such condemnation occurs during the first twenty ( 20) years of this Lease, Lessee shall be reimbursed the cost of the Injection Well as stated in Paragraph
1.2 of this Lease.
2. 9. 9 Waiver of Claims: As a material part of the consideration to LESSOR under the Lease, Lesseeherebywaivesanyandall claimsthatit mayhaveagainstLESSORduring the term of this Lease, or any extensionor renewalthereof, for any damageto goods, wares and merchandise upon or about the Premises, and for any injury to Lessee, its employees, agents, invitees, or to third partiesin or aboutthe Premises, from anycause arising at any time, except for acts arising out of LESSOR' s sole active negligence or willful misconduct.
2. 9. 12 ( Broker' s Commission) — Deleted.
2. 9. 14 Security Measures: Lessee acknowledges that the Premises are leased to and accepted by Lessee in an " as -is" condition, and that the rent payable from Lesseeto LESSORhereunderdoesnot include the cost of securityguard or any other security services or measures. Lessee further acknowledges that LESSOR makes no representationor warranty, expressor implied, regardingthe securityof the Premisesor the need for or propriety of any security measuresat the Premises; and Lesseefurther acknowledgesthatLESSORshallhaveno obligationwhatsoeverto provideguardservice or any other security measures. Lessee expressly assumes all responsibility for the protection and security of the Fenced Premises, Lessee, its agents, employees, invitees andpropertywithin theFencedPremisesfrom anyandall actsof anythird party.
2. 9. 17 LESSOR's Liability on Termination: Lessee hereby waives all damages or claims for damagethat may be causedby any action of LESSOR in terminatingthis Lease ( either with or without cause), or taking possessionof the Premises as provided in this Leaseor at law, andLesseewaivesall claimsfor damagesto or lossof suchproperty of Lesseeasmay be in or upon the Premisesupon the termination of this Lease, however, if LESSORterminatesthis Leasefor anyreasonotherthannonpaymentof rentor Lessee beingin defaultof thetermsandconditionsof this Lease, duringthefirst 20yearsof this Lease, Lessee shall be reimbursed the depreciated cost of the Injection Well as stated in Paragraph 1.2 of this Lease.
3. 10 Paragraphs 2. 10. 1, 2. 10. 2( a), 2. 10. 2( c), 2. 10.2( d)( iii), and 2. 10. 3( d) of this Lease are replaced as follows; and Paragraphs 2. 10.7 and 2. 10.8 are added to Section 10 (Default & Termination) as follows:
2. 10. 1 Term and Prior Termination: This Lease shall continue for the term set forth in Paragraph1.2, unlessterminatedearlier in accordancewith anotherprovision of this Lease.
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2.10.2(a) Lesseefails or refusesto payto LESSORanyportion of the RentalPaymentor other sum due hereunder when due, and such sum remains unpaid for thirty ( 30) days after written notice to pay rent or surrender possession of the Premises is served on Lesseeby LESSOR; or
2.10.2(c) Lessee abandons or vacates the Premises; provided however, that LESSOR provides a thirty ( 30) days written notice to Lessee of its belief of abandonment or vacationandLessee (a) fails to respond; or (b) confirmsin writing that it hasabandoned or vacated the Premises; or
2. 10. 2( d) ( iii) Lessee allows any judgment against Lessee to remain unsatisfied or unbondedfor a period of ninety (90) daysor longer; or
2.10.3(d)In the event Lesseebecomesinsolvent, LESSORmay, by giving thirty ( 30) days notice to Lesseeor to the personappointedto manageLessee's affairs at the address for suchpersonappearingin theofficialrecordsof thecourtthatappointedsuchperson, terminatethis Leaseandforfeit Lessee'sinterestin thePremisesandin anyimprovements or facilities on or appurtenant to the Premises.
2. 10. 7 This Lease shall automatically be revoked if Lessee has not completed the constructionof the Injection Well, as shownin the constructionplans for this injection well, on or before the eighteen (18) month period described in Part II, Section 2.7.1.3 of this Lease. This period may be extendedasset forth therein.
2.10.8 ThisLeaseandits useshallbeautomaticallyrevokeduponLessee's abandonment or destruction of said Injection Well.
3. 11 Paragraph 2. 11. 9 of this Lease is replaced as follows:
2. 11. 9 Precedence: In the event of any conflict between Parts of this Lease, Part I shall prevailoverExhibitsA andB andExhibitsA andB shallprevailoverPartII andIII, and Part III shall prevail over Part II.
85593. 6
END SPECIAL LEASE PROVISIONS)
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EXHIBIT " A"
PREMISESWITH ACCESSPREMISES, FENCEDPREMISES, AND
APPURTENANT PREMISES
ATTACHED BEHIND THIS PAGE]
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EXHIBIT " AV
LEGAL DESCRIPTION
OCWD WELL MBI- 2
PREMISES
THAT PORTION OF PARCEL 1 OF PARCEL MAP NO. 98- 105 IN THE CITY OF ANAHEIM,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON THE MAP RECORDED IN BOOK 303, PAGES 34 THROUGH 38, INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 1 AS SHOWN ON SAID PARCEL MAP; THENCE ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL 1, NORTH 23° 15' 41" WEST
47. 35 FEET; THENCE LEAVING THE SOUTHWESTERLY LINE OF SAID PARCEL 1, NORTH 20° 55' 07" EAST 35. 57 FEET; THENCE NORTH 22" 47' 10" WEST 25. 00 FEET; THENCE NORTH 66' 42' 20" EAST 17. 09 FEET; THENCE SOUTH 69° 04' 48" EAST 38. 00 FEETTO A POINT ON THE SOUTHEASTERLY LINE OF SAID PARCEL 1; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL 1, SOUTH 20. 55' 12" WEST 99. 50' TO THE POINT OF BEGINNING.
THE AREA OF THE ABOVE DESCRIBED PARCEL IS 0.07 ACRES (3011. 65 SQUARE FEET), MORE OR LESS.
THIS DESCRIPTION WAS PREPARED BY ME OR UNDER MY SUPERVISION.
RICHARD WAYNE HILL PLS 8588
op 0
14 SOUTHWESTERLY
UNE OF PARCEL 1
P. M. 98- 105 `+
EXHIBIT W
CCWD / WELL 10161.2
PrAlmFSt3 SOUTHEASTERLY
LINE OF PARCEL 1
P. M. W105
POINT OF BEGINNING
MOST SOUTHERLY CORNER
PARCEL 1, P.M. 98- 105
CityofAnaheim _ SKETCH OF OMWELL MBI-2
Survey Division PREMISES
Drwnby. RW4REFERENCEMAP SHEET 1 of 1
ZICHARD W HILL Pis 85M e: W3 i P. M. 98, 105
EXHIBIT " A"
PREMISES
CONSTRUCTION AND MAINTENANCE AREA
ATTACHED BEHIND THIS PAGE]
EXHIBIT ` A'
LEGAL DESCRIPTION
OCWD WELL MBI- 2
CONSTRUCTION AND MAINTENANCE AREA
THAT PORTION OF PARCEL 1 OF PARCEL MAP NO. 98- 105 IN THE CITY OF ANAHEIM,
COUNTY OF ORANGE, STATE OF CALIFORNIA, AS SHOWN ON THE MAP RECORDED IN BOOK 303, PAGES 34 THROUGH 38, INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY CORNER OF SAID PARCEL 1 AS SHOWN ON SAID PARCEL MAP; THENCE ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL 1 NORTH 23° 15' 41" WEST
47. 35 FEET; THENCE LEAVING THE SOUTHWESTERLY LINE OF SAID PARCEL 1, NORTH 200 55' 07" EAST 35. 57 FEET; THENCE NORTH 22° 47' 10" WEST 25. 00 FEET; THENCE SOUTH 66" 49' 20" WEST 25. 00 FEET TO A POINT ON THE SOUTHWESTERLY LINE OF SAID PARCEL 1; THENCE ALONG THE SOUTHWESTERLY LINE OF SAID PARCEL 1, NORTH 23" 15' 41" WEST 13. 30 FEET; THENCE LEAVING THE SOUTHWESTERLY LINE OF SAID PARCEL 1, NORTH 20° 55' 12" EAST 61. 15 FEET; THENCE SOUTH 69' 04' 48" EAST 77. 50 FEET TO A POINT ON THE SOUTHEASTERLY LINE OF SAID PARCEL 1; THENCE ALONG THE SOUTHEASTERLY LINE OF SAID PARCEL 1, SOUTH 20° 55' 12" WEST 140. 90 FEETTO THE POINT OF BEGINNING.
THE AREA OF THE ABOVE DESCRIBED PARCEL IS 0. 160 ACRES ( 6890. 42 SQUARE FEET), MORE OR LESS.
THIS DESCRIPTION WAS PREPARED BY ME OR UNDER MY SUPERVISION.
RICHARD WAYNE HILL PUS 8588
EXHIBIT' N
OCWD / WELL MBI- 2 ;
CONSTRUCTION AND MAINTENANCE AREA
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SOUTHWESTERLY \\
LINE OF PARCEL 1 \\ ryR M. 98- 105
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J' a NO. 8588
NOT TO SCALE
t5660 0
2 CONSTRUCTION
AND MAINTENANCEAREA 0.
16ACRESj6890. 42 SO. FT.) AnaheimCity
ofSurvey
Divisionr
SOUTHEASTERLY
LINE
OF PARCEL1 P.
M. 98- 105 690 ;
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POINT
OF BEGINNINGMOST
SOUTHERLYCORNER PARCEL
1, P. M. 98-105SKETCH
OF OCWDWELL MBI- 2 CONSTP
JCTION AND MAINTENANCEAREA by:
RVvHjREFERENCEMAP SHEET
1 OF1 5/
3 I P. M. 98-105
EXHIBIT " B"
LOT B
ATTACHED BEHIND THIS PAGE]
EXHIBIT "' B"
ARTIC PARKMG LOT B