SPECIAL MEETING AGENDA
OF THE
ARVIN CITY COUNCIL / SUCCESSOR AGENCY TO THE
ARVIN COMMUNITY REDEVELOPMENT AGENCY / ARVIN HOUSING
AUTHORITY / ARVIN PUBLIC FINANCING AUTHORITY
TUESDAY AUGUST 29, 2023 4:00p.m.
CITY HALL COUNCIL CHAMBERS
200 CAMPUS DRIVE, ARVIN
CALL TO ORDER Mayor Olivia Trujillo
PLEDGE OF ALLEGIANCE
INVOCATION
*******************************************
ROLL CALL Olivia Trujillo Mayor
Daniel Borreli Mayor Pro Tem
Donny Horton Councilmember
Susana Reyes Councilmember
Juan Murillo Councilmember
******************************************
STAFF Jeff Jones City Manager / Finance Director
Nathan Hodges City Attorney – Hodges Law Group
Cecilia Vela City Clerk
I pledge allegiance to the flag of the United States of America and to the Republic for which it stands, one nation, under God, indivisible, with liberty and justice for all.
PUBLIC COMMENTS:
The meetings of the City Council and all municipal entities, commissions, and boards (“the City”) are open to the public. At regularly scheduled meetings, members of the public may address the City on any item listed on the agenda, or on any non-listed matter over which the City has jurisdiction. At special or emergency meetings, members of the public may only address the City on items listed on the agenda. Such comments shall be made in person and before the City during the meeting as prescribed below. There is a time limitation of two (2) minutes per person. However, the City shall allow a speaker using a translator four (4) minutes to ensure that non-English speakers receive the same opportunity to directly address the City. Sixteen Minutes (16) total (plus additional time based on use of a translator, if any) will be allowed for any one subject. For any item that is not on the agenda and within the jurisdiction or interest of the City, please come to the podium at this time. The Brown Act does not permit any action or discussion on items not listed on the agenda. If you wish to speak regarding a scheduled agenda item, please come to the podium when the item number and subject matter are announced, and the Mayor or Chair opens Public Comment on the item. When recognized, please begin by providing your name and address for the record (optional). Anyone wishing to submit written information at the meeting needs to furnish ten (10) copies to the City Clerk in advance to allow for distribution to City Council, staff and the media. Willful disruption of the meeting shall not be permitted. If the Mayor finds that there is in fact willful disruption of any City Council Meeting, he/she may order the disrupting parties out of the room and subsequently conduct the City’s business without them present.
In accordance with the Brown Act, all matters to be acted on by the City must be posted at least 72 hours prior to a regular meeting. In cases of an emergency, or when a subject matter needs immediate action or comes to the attention of the City subsequent to the agenda being posted, upon making certain findings, the City may act on an item that was not on the posted agenda.
AGENDA STAFF REPORTS AND HANDOUTS:
Staff reports and other disclosable public records related to open session agenda items are available at City Hall, 200 Campus Drive, Arvin, CA 93203 during regular business hours.
CONDUCT IN THE CITY COUNCIL CHAMBERS:
Rules of Decorum for the Public
Members of the audience shall not engage in disorderly or boisterous conduct, including the utterance of loud, threatening or abusive language, clapping, whistling, stamping of feet or other acts which disturb, disrupt, impede or otherwise render the orderly conduct of the City meeting infeasible. A member of the audience engaging in any such conduct shall, at the discretion of the presiding officer or a majority of the City, be subject to ejection from the meeting per Gov. Code Sect. 54954.3(c).
Removal from the Council Chambers:
Any person who commits the following acts in respect to a meeting of the City shall be removed from the Council Chambers per Gov. Code Sect. 54954.3(c).
(a) Disorderly, contemptuous or insolent behavior toward the City or any member thereof, tending to interrupt the due and orderly course of said meeting;
(b) A breach of the peace, boisterous conduct or violent disturbance, tending to interrupt the due and orderly course of said meeting;
(c) Disobedience of any lawful order of the Mayor, which shall include an order to be seated or to refrain from addressing the City; and
(d) Any other unlawful interference with the due and orderly course of said meeting.
AMERICANS with DISABILITIES ACT:
In compliance with the ADA, if you need special assistance to participate in a City meeting or other services offered by the City, please contact the City Clerk’s office, (661) 854-3134. Notification of at least 48 hours prior to the meeting or time when services are needed will assist the City staff in assuring that reasonable arrangements can be made to provide accessibility to the meeting or service.
Special Arvin City Council Meeting Agenda – August 29, 2023
1. APPROVAL OF AGENDA AS TO FORM.
Motion __________ Second __________ Vote __________
Roll Call: CM Murillo ___ CM Reyes ___ CM Horton ___ MPT Borreli ___ Mayor Trujillo ___
2. SUCCESSOR AGENCY ACTION ITEM(S)
A. Consideration and Approval of (1) Solar Power Land Lease between the Successor Agency to the City of Arvin Redevelopment Agency and the Arvin Community Services District, and (2) the Easement Agreement between the Successor Agency to the City of Arvin Redevelopment Agency and Arvin Community Services District related to the Solar Power Land Lease.
Staff recommends approval of the Solar Power Land Lease and the Easement Agreement.
Motion __________ Second __________ Vote __________
Roll Call: AM/CM Murillo ___ AM/CM Reyes ___ AM/CM Horton ___ AM/MPT Borreli ___ Chair/Mayor Trujillo ___
3. ACTION ITEM(S)
A. Consideration and Approval of the Easement Agreement between the City of Arvin and Arvin Community Services District related to the Solar Power Land Lease between the Successor Agency to the City of Arvin Redevelopment Agency and the Arvin Community Services District.
Staff recommends approval of the Easement Agreement.
Motion __________ Second __________ Vote __________
Roll Call: CM Murillo ___ CM Reyes ___ CM Horton ___ MPT Borreli ___ Mayor Trujillo ___
4. ADJOURNMENT
I hereby certify under penalty of perjury under the laws of the State of California that the foregoing agenda was posted on the Arvin City Council Chambers Bulletin Board not less than 24 hours prior to the meeting. Dated August 28, 2023.
Cecilia Vela, City Clerk
CITY OF ARVIN
Staff Report
Special Meeting Date: August 29, 2023
TO: Arvin City Council
FROM: Jeff Jones, City Manager
SUBJECT: SOLAR LEASE AND EASEMENT AGREEMENT WITH ARVIN
COMMUNITY SERVICES DISTRICT
BACKGROUND:
Over the past several years, the Arvin Community Services District (ACSD) has considered new innovative energy efficiency projects to try and find ways to lower ACSD’s carbon footprint, while also reducing its costs for more efficient municipal operations.
ACSD recently awarded a project to SitelogIQ, Inc. in order to build a solar project that seeks to save approximately $603,000 (gross) per year. Over the life of the project (approx. 30 years) those savings are estimated to total $35MM (net.), while also offsetting the additional rate increases expected by PG&E. As part of the finalization of the project, at the August 21st ACSD Board Meeting, the ACSD Board of Directors made findings to approve the contractual agreement with Sitelogiq Inc. for the construction of the solar array.
ACSD’s solar construction contract is contingent upon the successful approval of (1) a land lease agreement and easement agreement with the Successor Agency to the City of Arvin Redevelopment Agency, and (2) an easement agreement with the City of Arvin.
The proposed agreements relate to the certain Real Property in the City of Arvin, County of Kern, State of California, situated in Section 35, Township 31 South, Range 29 East, M.B.D.&M. more particularly described as follows:
Beginning at the Southeast Corner of the Southwest Quarter of said section 35; thence North 00° 12' 29" East 1,356.27 feet, on the East Line of said Southwest Quarter, said East Line also being the centerline of Meyer Street; thence departing said East Line at right angles, North 89° 47'3 I" West, 55.00 feet, to the west right-of-way line of said Meyer Street, and the True Point of Beginning; thence North 00° 12' 29" East, 528.06 feet on said west right-of-way line, to the south right-of-way line of Celestial Way; thence North 89° 47' 31" West, 428.16 feet; thence South 00° 12' 29" West, 223.00 feet; thence North 89° 47' 31" West, 235.00 feet; thence South 00° 12'29" West, 305.06 feet; thence South 89° 47' 31" East, 663.16 feet, more or less, to the True Point of Beginning and the end of this description.
Containing 6.84 acres, more or less
2.A.1
Attachment: Staff Report - ACSD Solar Lease Agreement_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with The proposed term of the Agreements is a two (2) year option, and if exercised, a thirty (30) year lease, with two (2) successive options to extend for five (5) years each.
Because the Subject Property is owned by the Successor Agency, the Agreements may require approval by the Kern County Oversight Board. Should such approval be required, the Parties will work together during the option period to obtain such approval as none of the Agreements will become effective until such approval, if required, is obtained.
STAFF RECOMMENDATION: It is recommended that the Board and/or City Council (1) Discuss the Solar Land Lease Agreement and related Easement Agreements; and (2) Approve the Solar Land Lease Agreement and related Easement Agreements.
FISCAL IMPACT
The following table outlines the rent payable by the ACSD pursuant to the Lease Agreement per acre leased.
Annual Option Payment
Year Payment
1 $100.00
2 $100.00
TOTAL $200.00
Quarterly Payment ($/Acre)
Year Quarter 1 Quarter 2 Quarter 3 Quarter 4 Total
1 $250.00 $250.00 $250.00 $250.00 $1,000.00
2 $256.25 $256.25 $256.25 $256.25 $1,025.00
3 $262.66 $262.66 $262.66 $262.66 $1,050.63
4 $269.22 $269.22 $269.22 $269.22 $1,076.89
5 $275.95 $275.95 $275.95 $275.95 $1,103.81
6 $282.85 $282.85 $282.85 $282.85 $1,131.41
7 $289.92 $289.92 $289.92 $289.92 $1,159.69
8 $297.17 $297.17 $297.17 $297.17 $1,188.69
9 $304.60 $304.60 $304.60 $304.60 $1,218.40
10 $312.22 $312.22 $312.22 $312.22 $1,248.86
11 $320.02 $320.02 $320.02 $320.02 $1,280.08
12 $328.02 $328.02 $328.02 $328.02 $1,312.09
13 $336.22 $336.22 $336.22 $336.22 $1,344.89
14 $344.63 $344.63 $344.63 $344.63 $1,378.51
15 $353.24 $353.24 $353.24 $353.24 $1,412.97
16 $362.07 $362.07 $362.07 $362.07 $1,448.30
17 $371.13 $371.13 $371.13 $371.13 $1,484.51
18 $380.40 $380.40 $380.40 $380.40 $1,521.62
19 $389.91 $389.91 $389.91 $389.91 $1,559.66
20 $399.66 $399.66 $399.66 $399.66 $1,598.65
21 $409.65 $409.65 $409.65 $409.65 $1,638.62
2.A.1
Attachment: Staff Report - ACSD Solar Lease Agreement_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with 22 $419.90 $419.90 $419.90 $419.90 $1,679.58
23 $430.39 $430.39 $430.39 $430.39 $1,721.57
24 $441.15 $441.15 $441.15 $441.15 $1,764.61
25 $452.18 $452.18 $452.18 $452.18 $1,808.73
26 $463.49 $463.49 $463.49 $463.49 $1,853.94
27 $475.07 $475.07 $475.07 $475.07 $1,900.29
28 $486.95 $486.95 $486.95 $486.95 $1,947.80
29 $499.12 $499.12 $499.12 $499.12 $1,996.50
30 $511.60 $511.60 $511.60 $511.60 $2,046.41
TOTAL $43,902.71
Optional Renewal Term Quarterly Payment ($/Acre)
Year Quarter 1 Quarter 2 Quarter 3 Quarter 4 Total
31 $524.39 $524.39 $524.39 $524.39 $2,097.57
32 $537.50 $537.50 $537.50 $537.50 $2,150.01
33 $550.94 $550.94 $550.94 $550.94 $2,203.76
34 $564.71 $564.71 $564.71 $564.71 $2,258.85
35 $578.83 $578.83 $578.83 $578.83 $2,315.32
36 $593.30 $593.30 $593.30 $593.30 $2,373.21
37 $608.13 $608.13 $608.13 $608.13 $2,432.54
38 $623.34 $623.34 $623.34 $623.34 $2,493.35
39 $638.92 $638.92 $638.92 $638.92 $2,555.68
40 $654.89 $654.89 $654.89 $654.89 $2,619.57
TOTAL $23,499.86
ATTACHMENTS:
- Solar Land Lease Agreement
- Easement Agreement – Successor Agency to the City of Arvin Redevelopment Agency - Easement Agreement – City of Arvin
2.A.1
Attachment: Staff Report - ACSD Solar Lease Agreement_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with -
1-
AGREEMENT NO. ____________
SOLAR POWER LAND LEASE
by and between
Successor Agency to the City of Arvin Redevelopment Agency as Lessor
and
Arvin Community Services District
as Lessee
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin
TABLE OF CONTENTS
Page
-i1. Definitions.......................................................................................................................... 1
2. Option to Lease .................................................................................................................. 1
3. Lease of Premises .............................................................................................................. 3
3.1 Premises; Title ....................................................................................................... 3
3.2 Ancillary Equipment; Other Rights....................................................................... 4
4. Lease Provisions ................................................................................................................ 4
4.1 Permitted Use; Compliance with Legal Requirements.......................................... 4
4.2 Term....................................................................................................................... 5
4.2.1 Initial Term ................................................................................................ 5
4.2.2 Option to Extend........................................................................................ 5
4.2.3 Expiration; No Holdover............................................................................ 5
4.2.4 Early Termination ...................................................................................... 5
4.3 Permits ................................................................................................................... 5
4.4 Rent........................................................................................................................ 6
4.4.1 Late Payment ............................................................................................. 6
4.4.2 Ownership of Renewable Energy and Environmental Attributes; Tax Credits and Incentives......................................................................... 6
4.5 Operating Expenses ............................................................................................... 6
4.6 Alterations.............................................................................................................. 7
4.7 Lessee Insurance .................................................................................................... 7
4.8 Lessor Insurance .................................................................................................... 7
4.9 Indemnification ...................................................................................................... 7
4.10 Limit of Liability.................................................................................................... 7
4.11 Consequential Damages......................................................................................... 7
4.12 Assignment and Sublease; Non-Disturbance......................................................... 8
4.12.1 Assignment and Subleases by Lessee ........................................................ 8
4.12.2 Additional Permitted Lessee Transaction .................................................. 8
4.12.3 Assignments by Lessor .............................................................................. 8
4.12.4 Non-Disturbance Lease-Future Lenders.................................................... 9
4.13 Inspection and Access............................................................................................ 9
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin
TABLE OF CONTENTS
(continued)
Page
-ii4.14 Surrender of Premises.......................................................................................... 10
4.15 Hazardous Materials ............................................................................................ 10
4.16 Events of Default ................................................................................................. 12
4.16.1 Lessee Event of Default........................................................................... 12
4.16.2 Lessor Event of Default ........................................................................... 12
4.17 Actions in Case of Default................................................................................... 12
4.17.1 For Lessor ................................................................................................ 12
4.17.2 For Lessee ................................................................................................ 13
5. Installation of Solar Facilities and Ancillary Equipment................................................. 13
5.1 Installation............................................................................................................ 13
5.2 Completion........................................................................................................... 14
5.3 No Lessor Liability .............................................................................................. 14
5.4 Ownership of Solar Facilities and Ancillary Equipment ..................................... 14
6. Miscellaneous .................................................................................................................. 15
6.1 Construction of Certain Terms and Phrases......................................................... 15
6.2 Amendments........................................................................................................ 15
6.3 Taxes.................................................................................................................... 15
6.4 Headings .............................................................................................................. 16
6.5 Binding Effect...................................................................................................... 16
6.6 Memorandum of Lease; Fixture Filing................................................................ 16
6.7 No Brokers........................................................................................................... 16
6.8 Waiver.................................................................................................................. 16
6.9 Remedies Cumulative .......................................................................................... 17
6.10 Notices ................................................................................................................. 17
6.11 Severability .......................................................................................................... 17
6.12 No Third Party Beneficiary.................................................................................. 18
6.13 Quiet Enjoyment .................................................................................................. 18
6.14 Choice of Law...................................................................................................... 18
6.15 Dispute Resolution............................................................................................... 18
6.16 Further Assurance ................................................................................................ 18
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin
TABLE OF CONTENTS
(continued)
Page
-iii6.17 Counterparts......................................................................................................... 19
6.18 Entire Lease ......................................................................................................... 19
6.19 No Merger............................................................................................................ 19
6.20 Time ..................................................................................................................... 19
6.21 Business Day........................................................................................................ 19
6.22 Accord & Satisfaction.......................................................................................... 20
6.23 No Partnership ..................................................................................................... 20
6.24 Survival................................................................................................................ 20
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -1-
AGREEMENT NO. ____________
SOLAR POWER LAND LEASE
This SOLAR POWER LAND LEASE (the "Lease") is made and entered into as of September 1, 2023 (the "Effective Date"), by and between Arvin Community Services District, a Community Services District organized and existing under the laws of the State of California ("Lessee"), and Successor Agency to the City of Arvin Redevelopment Agency organized and existing under the laws of the State of California, ("Lessor"). Lessee and Lessor are sometimes hereinafter individually referred to as a "Party" and collectively as the "Parties". The lease transaction contemplated by this Lease is hereinafter referred to as the "Transaction".
RECITALS
A. Lessor is the owner of that certain real property commonly known as APN #189- 353-07, and more particularly described on Exhibit A attached hereto (the "Property").
B. Lessor desires to lease to Lessee a portion of the Property, more particularly described on Exhibit B attached hereto (the "Premises"), and Lessee desires to lease the Premises from Lessor for the purpose of installing and operating Solar Facilities (defined below) and Ancillary Equipment (defined below) on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and Leases herein contained, the Parties hereto agree upon the following terms and conditions.
LEASE
1. Definitions. Unless otherwise required by the context in which any term appears, capitalized terms used in this Lease shall have the respective meanings set forth in Exhibit C – GLOSSARY OF TERMS, attached hereto.
2. Option to Lease. In consideration of the Option Period Payments payable by Lessee to Lessor described on Exhibit D attached hereto, Lessor hereby grants to Lessee an exclusive and irrevocable option ("Option") to lease the Premises during the Option Period. The terms and conditions for such Option are set forth below.
(a) The Option Period shall commence on the Effective Date and shall end on the earlier of: (a) the Commercial Operations Date, or (b) the last day of the twenty-fourth (24th) month following the month in which the Effective Date occurs, subject to extensions granted due to Force Majeure events or Permitting Delays. (b) During the Option Period, Lessee shall neither (i) hold any leasehold interest in the Property, (ii) deemed to be a lessee of the Property, (iii) nor liable or obligated to perform any of the obligations of Lessee hereunder, but shall have the right to enter the Property (but not the right to occupy or possess the Property) to investigate and determine the feasibility of
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -2-
obtaining entitlements, Permits, utility meters, and interconnection points, as well as to make arrangements for and to execute a Power Purchase Agreement and other agreements for the development, construction and operation of Lessee’s proposed Solar Facilities. Within fifteen (15) days following the Effective Date, Lessor shall make available to Lessee copies of Lessor's Due Diligence Materials.
(c) During the Option Period, Lessee shall be permitted to conduct whatever inspection or investigation Lessee deems appropriate in order to evaluate and inspect the Property including, but not limited to, taking such measurements, recordings and photographs as Lessee shall reasonably require to assess the suitability of the Property and Premises. Such investigation may also include review of permits, reports and other documentation maintained by Lessor with respect to the Property, interviews of employees or other representatives of Lessor and environmental and safety review and assessment of the Property, including sampling of materials as reasonably necessary to assess the presence of Hazardous Materials. (d) Lessor shall assist and fully cooperate with Lessee, at no cost to Lessor, in complying with or obtaining any Permits and approvals, tax-incentive or tax-abatement program approvals, or any other approvals required or deemed desirable by Lessee in connection with the development, financing, construction, installation, replacement, maintenance, operation or removal of Solar Facilities, including, without limitation, the execution of applications for such approvals and delivery of information and documentation related thereto, and execution, if required, of any orders or conditions of approval.
(e) Lessee shall obtain all of such Permits and approvals at Lessee's sole cost and expense; and, in addition thereto, Lessee shall reimburse Lessor for all reasonable and actual out-of-pocket expenses directly incurred by Lessor in connection with such cooperation, to the extent Lessee has approved such expenses in advance. Lessor has already approved reimbursement for Lessee’s legal fees related to this Lease. (f) If Lessee determines during the Option Period in its sole absolute and arbitrary discretion, that the Property is not adequate for the proposed Solar Facilities or that Lessee will not be able to timely obtain the necessary entitlements, utility meters, interconnection points, Power Purchase Agreement and other agreements for Lessee’s proposed solar power development, or that Lessee no longer desires to lease the Property, Lessee may elect to terminate this Lease by providing written notice to Lessor on or at any time prior to the expiration of the Option Period. Upon such termination, Lessee shall return all Lessor's Due Diligence Materials to Lessor, and Lessor shall have the right to retain all Option Period Payments previously paid by Lessee to Lessor, and, with the exception for rights and obligations that expressly survive termination as set forth herein, neither Lessor nor Lessee shall have any further obligation or liability under this Lease.
(g) During the Option Period, because the Lease involves Successor Agency Land, the Parties shall cooperate to determine whether this lease must be approved by the Kern County Oversight Board. If it is determined such approval is required, the Parties shall cooperate to obtain such approval as the Parties acknowledge that the Lease shall not become effective until approved by the County of Kern Oversight Board.
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -3-
(h) In order to keep this Lease in effect during the Option Period, Lessee shall pay the Option Period Payments as set forth on Exhibit D attached hereto. All Option Period Payments shall be non-refundable once paid to Lessor except upon the occurrence of a Lessor Event of Default under this Lease. Notwithstanding any provision contained herein to the contrary, Lessee shall not be in default in failing to make any option Period Payment unless Lessee fails to cure such non payment following ten (10) days prior written notice to Lessee by Lessor.
3. Lease of Premises.
3.1 Premises; Title.
(a) If Lessee has not exercised its right to terminate this Lease on or before the expiration of the Option Period, then upon the expiration of the Option Period, the lease of the Premises to Lessee for the Permitted Use shall commence in accordance with the Rent requirements set forth in Section 4.4 and Section 5.2. Such lease shall be automatically deemed effective without the need to execute any further documentation or Lease between Lessor and Lessee. Lessor further grants to Lessee, during the period commencing on the Effective Date of this Lease and ending upon the expiration or earlier termination of the Term of the leasing contemplated hereby:
(i) a non-exclusive easement for access to the Premises across or through the external portion of the Property and any surrounding or adjacent area owned or leased by Lessor which is necessary or convenient to gain access to the Solar Facilities, Ancillary Equipment or the Premises, and in and to any common areas of the Property; and (ii) the exclusive use of, and right to install and operate, the Solar Facilities and Ancillary Equipment on the Premises depicted on Exhibit B, attached hereto, and the exclusive right to maintain, repair and replace such Solar Facilities and Ancillary Equipment throughout the Term of this Lease (and, in connection with the foregoing, Lessor confirms that it has the ability to allow Lessee to install and operate the Solar Facilities and Ancillary Equipment in such manner and locations).
(b) So long as Lessee is not in default of its obligations hereunder, beyond the expiration of any applicable notice and cure period, Lessee shall have quiet and peaceful possession of the Premises and easements described in Section 3.1(a), the exclusive right of occupancy of the Premises and the right to use the easements described in Section 3.1(a)(i) in common with Lessor, except as otherwise provided in this Lease; and Lessee shall be permitted to access the Premises twenty-four (24) hours a day, seven (7) days a week throughout the Term of this Lease.
(c) Lessor represents that as of the date hereof:
(i) Lessor has lawful title to the Property and full right to enter into this Lease;
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -4-
(ii) Lessor is an organized and existing under the laws of the State of California and has all requisite powers and all authorizations required to own and operate the Property;
(iii) Subject to 2(g) above, Lessor has obtained all third-party approvals and consents (if any) required to enter into this Lease and perform its obligations hereunder;
(iv) Property is free from any mortgages, liens and encumbrances and rights of third parties that could materially and adversely affect Lessee's right to use and occupy the Premises, other than (1) no other Lessees have any right to enter, occupy or use the Premises without Lessor's prior approval (which approval shall be exercised in a manner consistent with the rights of Lessee under this Lease so as to avoid any interference with or disturbance of Lessee’s operation of the Solar Facilities and/or Ancillary Equipment and to safeguard the Solar Facilities and Ancillary Equipment), and (2) the rights of [__________________] (the "Existing Lender") under _______________, which rights are subject to the provisions of this Lease; and
(v) Lessor is not a party to, or bound as a successor-in-interest to, or assignee of, a party to, any covenants, conditions, encumbrances, leases, Leases, or use restrictions that prevent or materially restrict the construction, installation or operation of the Solar facilities in the Premises or the Ancillary Equipment on the parts of the Property on which it is to be located except as included in Lessor's Due Diligence Materials provided to Lessee during the Option Period; and Lessor warrants there are no existing covenants, conditions, encumbrances, leases, Leases, or use restrictions to which it is not a party or bound by except as included in Lessor's Due Diligence Materials provided to Lessee during the Option Period.
3.2 Ancillary Equipment; Other Rights. Lessor grants Lessee the exclusive use and right to install and operate during the Term of this Lease the Ancillary Equipment in the locations depicted on Exhibit B attached hereto. Lessor also grants Lessee the right to use electric service for construction, installation, repairs and maintenance work, and water service for cleaning the Solar Facilities. Lessee shall pay for any electricity consumed by Lessee during the construction and installation period.
4. Lease Provisions.
4.1 Permitted Use; Compliance with Legal Requirements.
(a) Lessee shall use the Premises solely for the Permitted Use and shall not use or permit the Premises to be used for any other use or purpose whatsoever without Lessor’s prior written (which approval shall not be unreasonably withheld, delayed or conditioned).
(b) Lessee shall procure, at its sole cost and expense, any and all permits required for Lessee’s use and occupancy of the Premises.
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -5-
4.2 Term.
4.2.1 Initial Term. The initial Term of this Lease shall begin upon the Commercial Operations Date and shall expire on the last day of the month in which the Thirty (30) year anniversary of the Commercial Operations Date shall occur.
4.2.2 Option to Extend. Lessor hereby grants to Lessee the right, exercisable at Lessee’s option, to renew the Term of this Lease for up to two (2) successive terms of five (5) years each (each, a "Renewal Term" and, collectively, the "Renewal Terms"). Lessee may exercise its options to extend the Term of this Lease for one or more Renewal Terms at any one time. If Lessee elects to extend this Lease for one or more such Renewal Terms, Lessee shall provide Lessor with written notice of its election no later than the 180th day immediately preceding the expiration of the initial Term of this Lease (with respect to Lessee's exercise of the first such Renewal Term(s)) and no later than the 180th day immediately preceding the expiration of then-current Renewal Term (with respect to Lessee's exercise of any subsequent Renewal Term(s)); provided, however, that Lessee's option rights to renew this Lease shall not expire until after Lessee has received ten (10) days prior written notice and opportunity to cure.
If Lessee elects to extend this Lease for one or more such Renewal Terms, the first renewal of the Lease Term (the "First Renewal Term") shall commence immediately following the end of the initial Term provided in Section 4.2.1 of this Lease. Each successive Renewal Term shall commence immediately following the end of the immediately previous Renewal Term. All terms and conditions of this Lease, including without limitation, all provisions governing the payment of Rent, shall remain in full force and effect during the Renewal Terms.
4.2.3 Expiration; No Holdover. Subject to Section 4.2.2, the Parties hereby agree that the initial Term plus all Renewal Terms, if any, shall not exceed a term of FIVE (5) years. Upon the expiration of the initial Term and all applicable Renewal Terms, this Lease shall automatically expire and Lessee shall vacate the Premises and the Property pursuant to the terms set forth in Section 4.14.
4.2.4 Early Termination. Lessee, at its sole and absolute discretion, shall have the right to terminate this Lease at any time and for any reason during the Term, effective upon six (6) months’ prior written notice to Lessor. Upon such termination, except for rights and obligations that expressly survive termination as set forth herein, neither party shall have any further liability under this Lease.
4.3 Permits. Lessee hereby agrees to obtain and keep in full force and effect for the duration of this Lease all Permits necessary for the installation, operation and maintenance of the Solar Facilities and Ancillary Equipment at its own cost and expense. Lessor hereby consents to any action taken by Lessee in applying for any and all such Permits, and to the extent necessary or convenient, agrees to join or otherwise acknowledge any application or filing for the same.
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -6-
4.4 Rent. Commencing on the Commercial Operations Date, and, in accordance with the Rent Schedule attached hereto as Exhibit E, Lessee agrees to pay Rent to Lessor, in advance, on the first day of the Calendar Quarter during the Term; provided, however, that the first payment of Rent shall be due and payable on the first day of the Calendar Quarter following the Calendar Quarter in which the Commercial Operations Date occurs and shall include the Rent for the ensuing Calendar Quarter and the prorated Rent for the period from the Commercial Operations Date through the last day of the preceding Calendar Quarter. Each subsequent payment of Rent shall be made on the first day of each Calendar Quarter thereafter. The Rent for the Calendar Quarter in which the expiration of the Term or the early termination of this Lease (pursuant to the terms hereof) shall occur shall be a portion of the normal quarterly amount based on the period from the first day of the then current Calendar Quarter through the Effective Date of expiration or termination of this Lease. For the purposes of this Lease, a "Calendar Quarter" shall mean January 1 through March 31, April 1 through June 30, July 1 through September 30 and October 1 through December 31.
4.4.1 Late Payment. If Lessee is delinquent by ten (10) or more calendar days after the date such payment of Rent or any other amount was due and payable under this Lease, Lessee shall pay to Lessor on demand a late payment charge equal to two (2%) of such delinquent sum.
4.4.2 Ownership of Renewable Energy and Environmental Attributes; Tax Credits and Incentives. Lessor hereby acknowledges and agrees that Lessee is the exclusive owner of all environmental attributes produced from the Solar Facilities, including, without limitation, any and all federal, state and/or local benefits and credits (including tax credits, investment credits, carbon credits, renewable energy credits), real property tax rebates or abatements, other rebates, incentives, benefits, emissions reductions, entitlements, reporting rights, deductions, depreciation, offsets and allowances of any kind, howsoever entitled, attributable to the Solar Facilities or the electric energy, capacity or other generator-based products produced therefrom, whether in effect as of the date of this Lease or as may come into effect in the future (collectively, the "Renewable Energy Benefits and Incentives"). If any Renewable Energy Benefits and Incentives must, under applicable law, accrue to the benefit of Lessor, Lessee shall be entitled to an equivalent credit or offset against the Rent payable under this Lease so as to transfer to Lessee the economic equivalent of the Renewable Energy Benefits and Incentives accruing to Lessor.
4.5 Operating Expenses. Lessee shall not be required to pay any amount or expense other than Rent under this Lease; provided, however, Lessee is required to maintain and pay all of operation, maintenance, repair and replacement costs with respect to the Solar Facilities and Ancillary Equipment. Lessee shall have the right and assume all costs and expenses incurred to control growth of foliage or brush on the Premises that blocks or interferes with the access of the Solar Facilities to sunlight or casts shadows on the Solar Facilities, except in those limited instances in which the trimming or control of foliage is prohibited by governing agencies.
4.6 Alterations. Lessor shall not construct or install, or knowingly permit to be constructed or installed, any alterations, modifications or improvements to the Property, or improvements owned by Lessor within the same area or development owned by Lessor, that may
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -7-
interfere with or blocks the access of the Solar Facilities to sunlight or that shade or cast shadows on the Solar Facilities.
4.7 Lessee Insurance. Lessee shall, at Lessee’s sole cost and expense, maintain during the Term, beginning with the Commencement of Construction, the insurance coverage described on Exhibit F attached hereto.
4.8 Lessor Insurance. Lessor shall, at Lessor’s sole cost and expense, maintain during the Term and beginning with any Commencement of Construction, the insurance coverage described on Exhibit F attached hereto.
4.9 Indemnification. Lessor and Lessee hereto agree to indemnify, defend, and hold the other harmless from and against any and all liability, loss, expense, attorneys’ fees, or claims for injury and/or damages arising from or in any way connected to the performance of this Lease but only in proportion and to the extent such liability, loss, expenses, attorneys’ fees, or claims for injury or damages caused by or result from the negligent or intentional acts or omissions of the indemnifying Party, its officers, agents or employees in or about the Property. The duties described in this Section 4.9 apply as of the Effective Date of this Lease and survive the termination thereof.
This indemnity does not cover claims arising from the presence or release of Hazardous Materials subject to Section 4.15 of this Lease.
4.10 Limit of Liability. To the maximum extent permitted by law, Lessor agrees to limit the Lessee’s liability for any and all claims, losses, costs, damages of any nature whatsoever or claims expenses from any cause or causes, including attorneys’ fees and costs and expert-witness fees and costs, so the total aggregate liability of the Lessee to the Lessor shall not exceed the outstanding amounts of the Rent due under the Term of the Lease. This limitation shall apply regardless of the cause of action or legal theory pled or asserted. The duties described in this Section 4.10 apply as of the Effective Date of this Lease and survive the termination thereof.
4.11 Consequential Damages. Notwithstanding any other provision of this Lease, and to the fullest extent permitted by law, neither the Lessor nor the Lessee, their respective officers, directors, partners, employees, contractors or subcontractors shall be liable to the other or shall make any claim for any incidental, indirect or consequential damages arising out of or connected in any way to this Lease. This mutual waiver of consequential damages shall include, but is not limited to, loss of use, loss of profit, loss of business, loss of income, loss of reputation or any other consequential damages that either Party may have incurred from any cause of action including negligence, strict liability, breach of contract and breach of strict or implied warrantee.
The duties described in this Section 4.11 apply as of the Effective Date of this Lease and survive the termination thereof.
4.12 Assignment and Sublease; Non-Disturbance.
4.12.1 Assignment and Subleases by Lessee. Except as provided below, Lessee may assign this Lease and its rights and obligations under this Lease or sublet the Premises
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -8-
leased by Lessee, only with the prior written consent of Lessor, which consent may not be unreasonably withheld, conditioned or delayed.
Notwithstanding the foregoing, Lessee may assign this Lease or any of its rights and obligations under this Lease, or sublet the Premises leased by Lessee (provided, however, that any such assignee or sublease pursuant to clause (i) through clause (iv) below shall agree to accept the terms and conditions of this Lease and that any sublease shall be subject to the provisions of this Lease):
(a) to one or more of its Affiliates (including, without limitation, a special–purpose entity which is an Affiliate of the Lessee; (b) to any entity acquiring or succeeding to all or substantially all of the assets of Lessee;
(c) to a successor entity in a merger, consolidation or acquisition transaction with Lessee; or
(d) to one or more lenders or other third parties in connection with a financing and/or sale-leaseback or lease-sublease back transaction.
Lessee shall notify Lessor of any assignment of this Lease or of its rights or obligations under this Lease and of any sublease. Except in the event of sublease, the assigning Lessee shall be released and discharged from all obligations of Lessee as of the date of assignment of this Lease.
4.12.2 Additional Permitted Lessee Transaction. In addition to the permitted assignments set forth in Section 4.12 above, Lessee may assign its interest under this Lease or sublet all or a portion of the Premises without the consent of Lessor to any Person to whom Lessee also transfers ownership of the Solar Facilities and Ancillary Equipment, provided that:
(a) in the case of an assignment, such assignee assumes this Lease in writing; and
(b) Lessee shall have given Lessor not less than thirty (30) days prior written notice of any such transaction, describing the transaction in reasonable detail and provided reasonable documentation of such buyers tangible net worth.
4.12.3 Assignments by Lessor. All obligations of Lessor under this Lease will be binding upon Lessor only during the period of its ownership of the Property and not thereafter. The term "Lessor" in this Lease shall mean only the current owner of the Property. In the event of a transfer by such owner of its interest in the Property and the assumption of this Lease by a subsequent owner of the Property, such transferring owner shall thereupon be released and discharged from all obligations of Lessor hereunder thereafter accruing, but such obligations shall be binding during the Term upon each new owner for the duration of such owner’s ownership of the Property. Lessor shall not assign its interest under this Lease separately from its ownership of the Property. Any purchaser or other transferee of Lessor’s interest in the Property shall acquire such interest and by acquiring Lessor’s interest in the
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -9-
Property, shall be deemed to have accepted and assumed all of the rights and obligations of Lessor under this Lease.
4.12.4 Non-Disturbance Lease-Future Lenders. The Parties intend that this Lease, and the rights of Lessee hereunder (including, without limitation, Lessee's rights under this Lease, and all rights of Lessee with respect to the Security) shall be superior, and not subject or subordinate, to any future lien, charge, mortgage or security interest in or on the Property.
Notwithstanding the foregoing, if this Lease and the rights of Lessee hereunder shall be subject and subordinate to any such future lien, charge, mortgage or security interest in or on the Property by operation of law, or if the holder of any such future lien, charge, mortgage or security interest in or on the Property (each a "Future Lender") shall require the subordination of this Lease to the lien of such future lien, charge, mortgage or security interest in or on the Property, Lessee shall not be obligated to subordinate its rights and interests hereunder unless such Future Lender enters into a non-disturbance Lease with Lessee. Lessee agrees to use good faith efforts to agree upon a non-disturbance Lease with any such Future Lender.
4.13 Inspection and Access.
(a) In the event of an emergency, Lessor and its agents, representatives, contractor or designees, shall be allowed full and immediate access to the Premises without being subject to the notification and other limitations referenced in Section 4.13(b) below. (b) Lessor and its agents, representatives, contractors or designees, shall, upon at least twenty-four (24) hours prior written notice to the Lessee (which written notice may be made by email to Lessee), be permitted to access the Premises at any time to inspect and maintain the Premises for any business purpose (including, but not limited to, security); provided that Lessor be accompanied by a Lessee Representative at all times; and, will avoid interference with Lessee’s operation of the Solar Facilities and/or Ancillary Equipment (except to an immaterial degree, and then only to the minimum extent necessary), and agrees to cooperate with and assist Lessee in preventing such interference by such other Persons. Lessor and such other Persons shall use all reasonable efforts to not disturb Lessee’s operation of the Solar Facilities and/or Ancillary Equipment during such access. Lessor shall be responsible for any damage to Lessee’s operation of the Solar Facilities and/or Ancillary Equipment, and for any material interference with Lessee’s operation of the Solar Facilities and/or Ancillary Equipment, as a result of any access by Lessor and its agents, representatives, contractors or designees. (c) To the extent any amendments to leases with the other Lessees are necessary in order for Lessor to provide Lessee the access, occupancy and other rights provided herein, the Parties shall coordinate with each other in contacting the other Lessees to arrange for necessary access, to establish safety procedures regarding the Solar Facilities and Ancillary Equipment, and to make such other arrangements as may be necessary to provide Lessee the access, occupancy and other rights described in this Lease.
4.14 Surrender of Premises. Upon the expiration or termination of this Lease pursuant to the provisions hereof, Lessee shall quit and surrender the Premises to Lessor in good order, condition and repair in accordance with the provisions of this Section 4.14. Provided Lessor is not in default under this Lease beyond any applicable cure, such surrender of the
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -10-
Premises and removal of the Solar Facility shall be accomplished at Lessee’s sole cost and expense. If Lessor is in default under this Lease beyond any applicable cure period, the Lessee’s expenses incurred in the surrender of the Premises including damages and removal of the Solar Facility shall be a recoverable expenses. On a mutually convenient date, but in no case later than one hundred and eight (180) days after the termination or expiration of this Lease, Lessee shall remove from the Premises the Solar Facilities and Ancillary Equipment (including all additions, alterations, and improvement thereto or replacements thereof and all appurtenance fixtures, machinery and equipment installed therein, and shall make commercially reasonable efforts to restore the Premises to substantially the condition in which it existed upon start of construction, reasonable wear and tear and loss by casualty or other causes beyond Lessee’s reasonable control excepted.
4.15 Hazardous Materials. Except for Hazardous Materials contained in products used by Lessee in de minimis quantities for ordinary cleaning purposes, and those contained in the make-up of the Solar facilities and Ancillary Equipment (all of which shall be used, stored and disposed of in compliance with applicable Legal Requirements), Lessee agrees not to cause or permit any Hazardous Materials to be brought upon, stored, used, handled, generated, released or disposed of on, in, under or about the Premises, or any other portion of the Property by Lessee, its agents, officers, directors, shareholders, members, managers, partners, employees, subleases, assignees, licensees, contractors or invitees (collectively, "Lessee’s Parties"), without the prior written consent of Lessor, which consent Lessor may withhold in its sole and absolute discretion.
Upon the expiration or earlier termination of this Lease, Lessee agrees to promptly remove from the Premises, and the Property, at its sole cost and expense, any and all Hazardous Materials, including any equipment or systems containing Hazardous Materials which are installed, brought upon, stored, used, generated or released upon, in, under or about the Premises, and/or the Property or any portion thereof by Lessee or any of Lessee's Parties. To the fullest extent permitted by law, Lessee agrees to promptly indemnify, protect, defend and hold harmless Lessor and Lessor's members, shareholders, partners, officers, directors, managers, employees, agents, contractors, successors and assigns (collectively, "Lessor Parties") from and against any and all claims, damages, judgments, suits, causes of action, losses, liabilities, penalties, fines, expenses and costs (including, without limitation, clean-up, removal, remediation and restoration costs, sums paid in settlement of claims, attorneys' fees, consultant fees and expert fees and court costs) which arise or result from the presence of Hazardous Materials on, in, under or about the Premises, or any other portion of the Property and which are caused or permitted by Lessee or any of Lessee's Parties. The provisions of this Section 4.15 will survive the expiration or earlier termination of this Lease.
Lessor shall indemnify, defend, and hold Lessee harmless from and against any and all losses, claims, demands, actions, suits, damages, expenses (including, without limitation, remediation, removal, repair, corrective action, or cleanup expenses), and costs (including, without limitation, actual attorneys' fees and consultant fees) which are brought or recoverable against, or suffered or incurred by Lessee as a result of the presence of Hazardous Materials on, in, under or about the Premises, or any other portion of the Property and which are caused or permitted by Lessor or any Lessor Parties. The obligations of Lessor under this Section 4.15 shall survive any termination of this Lease.
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -11-
Notwithstanding anything to the contrary in this Section 4.15, Lessee shall have no liability of any kind to Lessor as to Hazardous Materials on, under or about the Property caused, released or permitted by:
(a) Lessor, its agents, employees, contractors or invitees; (b) any other Person or entity located outside of the Property; or (c) in existence as of the Effective Date whether or not caused by Lessor, its agents, employees, contractors or invitees.
Lessor represents that, to its knowledge, as of the date hereof there are no Hazardous Materials that are in violation of Environmental Requirements on the Property. If Hazardous Materials are hereafter discovered on the Property, and the presence of such Hazardous Materials is not created by Lessee, its agents, employees, contractors, subleases or invitees, and the presence of such Hazardous Materials results in any contamination, damages, or injury to the Premises or otherwise adversely affects Lessee's occupancy or use of the Premises or human health, Lessor shall promptly take all actions at its sole expense as are necessary to remediate such Hazardous Materials and as may be required by Environmental Requirements. Actual or threatened action or litigation by any governmental authority is not a condition prerequisite to Lessor's obligations under this paragraph. As soon as reasonably possible, and in all events no later than thirty (30) days following Lessor’s receipt of notification from Lessee supported by reasonable documentation setting forth such presence or release of Hazardous Materials, Lessor shall commence and, within a reasonable period of time, complete its own investigation to confirm such presence or release of Hazardous Materials. Lessor shall commence to remediate such Hazardous Materials as soon as reasonably possible, and in all events within thirty (30) days after the completion of Lessor's investigation and thereafter diligently prosecute such remediation to completion. If Lessor commences remediation pursuant to this paragraph, the Rent shall be equitably adjusted if and to the extent and during the period the Premises are unsuitable for Lessee's business. However, if the time involved or delays in Lessor’s investigation or remediation of the presence or release of Hazardous Materials or the nature of such investigation or remediation could reasonably be expected to cause Lessee to be unable to meet its obligations under any Power Purchase Lease or other Lease relating to the Solar Facilities, Lessee shall have the right to terminate this Lease without any further liability or payment to Lessor upon ten (10) days notice to Lessor. In such case, Lessor and Lessee will also cooperate to attempt to find an alternative location for the Solar Facilities and Ancillary Equipment that is suitable for Lessee’s purposes, either on the Property or on other property owned or controlled by Lessor or its Affiliates, but Lessor makes no representation and does not provide any assurance that any such alternative location can be found or will be available.
Lessor and Lessee agree that the inability to locate or agree on an alternative location will not affect the Parties’ other rights and obligations under this Lease, including Lessee’s right to terminate as provided in the previous sentence.
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Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -12-
4.16 Events of Default.
4.16.1 Lessee Event of Default. Each of the situations set forth below shall constitute a breach of this Lease by Lessee (each a "Lessee Event of Default"), and shall entitle Lessor to exercise the remedies set forth in this Lease:
(a) Failure by Lessee to pay any installment of Rent or any other payment due hereunder, where such failure to pay continues for a period of ten (10) days after written notice of such non-payment from Lessor.
(b) Failure by Lessee to comply with any of the material provisions of this Lease and, unless otherwise expressly provided for hereunder, such failure to comply continues for more than thirty (30) days from the date on which Lessor provides written notice of such breach to Lessee; provided that such thirty (30) day period shall be extended by such longer period of time as may be reasonably necessary for Lessee to cure such breach if such breach cannot reasonably be cured within a thirty (30) day period so long as Lessee is diligently pursuing such cure.
4.16.2 Lessor Event of Default. The failure by Lessor to comply with any of the material provisions of this Lease and, unless otherwise expressly provided for hereunder, such failure to comply continues for more than thirty (30) days from the date on which Lessee provides written notice of such breach to Lessor; provided that such thirty (30) day period shall be extended by such longer period of time as may be reasonably necessary for Lessor to cure such breach if such breach cannot reasonably be cured within a thirty (30) day period so long as Lessor is diligently pursuing such cure shall constitute a breach of this Lease by Lessor (each a "Lessor Event of Default"), and shall entitle Lessee to exercise the remedies set forth in this Lease.
4.17 Actions in Case of Default.
4.17.1 For Lessor. Upon each occurrence of a Lessee Event of Default, and after expiration of all applicable notice and cure periods, Lessor may at any time subsequent to such breach and at its discretion exercise its rights and remedies under California Civil Code section 1951.2 or any successor statute thereto.
4.17.2 For Lessee. Upon the occurrence of a Lessor Event of Default, and after expiration of all applicable notice and cure periods, Lessee may at any time subsequent to such breach and at its discretion:
(a) terminate this Lease;
(b) specifically enforce this Lease and compel compliance by Lessor with its obligations under this Lease; and/or
(c) take such action and recover such damages as provided for at law or in equity.
5. Installation of Solar Facilities and Ancillary Equipment.
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Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -13-
5.1 Installation.
(a) Lessee shall be responsible for obtaining all Permits before the Deadline, at Lessee’s sole cost and expense; provided, however, that the Deadline shall be extended due to events of Force Majeure.
(b) Lessee shall be allowed access to the Premises for the installation of the Solar Facilities and Ancillary Equipment commencing with Commencement of Construction and prior to the Commercial Operations Date (the "Construction Period"); provided that any such access or occupation of the Premises by Lessee prior to the Commercial Operations Date shall be subject to all obligations and liabilities of Lessee under this Lease, except for the payment of Rent. During such Construction Period, Lessee shall have the non-exclusive use of the ground area on the Property identified on Exhibit B attached hereto as the "Staging Area" (the "Staging Area"), for the storage of Lessee’s equipment and materials necessary for the construction and installation of the Solar Facilities and Ancillary Equipment; provided that Lessee waives all liability of Lessor for any damage to such property located in the Staging Area not resulting from Lessor’s acts, and Lessee uses all commercially reasonable efforts to insure that its activities in the Staging Area do not interfere with or cause a nuisance to the other Lessees or block access to or from the Property. Lessee and Lessor will work with all other Lessees in advance of construction to define a Staging Area that will not interfere with the quiet enjoyment of the Property by any other Lessees.
Upon the Completion of the construction and installation of the Solar Facilities and Ancillary Equipment as provided herein, Lessee shall surrender those portions of the Property used solely for construction, including the Staging Area, in a clean condition, and will repair any damage caused by Lessee's use thereof during construction and installation activities.
5.2 Completion. Following Commencement of Construction, Lessee agrees that the installation of the Solar Facilities and Ancillary Equipment shall be completed and the Commercial Operations Date shall be achieved on or before the last day of the Option Period subject to extensions granted due to Force Majeure events or Permitting Delays (the "Deadline"); provided, however, that the failure to complete the installation and to achieve the Commercial Operations Date by the Deadline shall not be a Lessee Event of Default hereunder so long as Lessee pays to Lessor after the Deadline an amount equal to fifty percent (50%) of the Rent that would have been due and payable for the period from and after the Deadline until the Commercial Operations Date is achieved. This shall be the total liability of Lessee during this period.
5.3 No Lessor Liability. The installation of the Solar Facilities and Ancillary Equipment is an exclusive obligation of Lessee. The Parties hereby agree that Lessor shall be released from any liability arising out of the installation of the Solar Facilities and Ancillary Equipment at the Premises by Lessee, its contractors, suppliers, subcontractors, designers, architects, engineers, external consultants and, in general, any other person or entity acting on behalf of Lessee in the installation of the Solar Facilities and Ancillary Equipment (except for any work or action directly performed by Lessor or by Lessor’s representatives, contractors or subcontractors).
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Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -14-
5.4 Ownership of Solar Facilities and Ancillary Equipment. Lessor agrees that all Solar Facilities and Ancillary Equipment installed or placed on any portion of the Property by Lessee and its successors or assigns, whether real, personal or mixed, shall remain the property of Lessee and shall be removable by Lessee at any time, subject to Section 4.14.
Lessor further acknowledges and agrees that notwithstanding that the Solar Facilities and Ancillary Equipment may be fixtures and notwithstanding the manner of installation of the Solar Facilities and Ancillary Equipment, the Solar Facilities and Ancillary Equipment shall not become a part of the real property comprising the Property, and Lessor shall have no ownership interest in the Solar Facilities and Ancillary Equipment.
The Solar Facilities and Ancillary Equipment may not be sold, leased, assigned, mortgaged, pledged or otherwise alienated or encumbered by Lessor with Lessor’s fee or leasehold interest in the Property. Without limiting the generality of the foregoing, Lessor hereby waives any statutory or common law lien that it might otherwise have in or to the Solar Facilities and Ancillary Equipment or any part thereof and agrees that, notwithstanding the occurrence of a Lessee Event of Default under this Lease beyond all applicable notice and cure periods (including those granted to Lessee's lender(s)), Lessee or Lessee's lender(s) (or its designee) may remove the Solar Facilities and Ancillary Equipment from the Property.
The Lessee may at any time and from time to time, in its sole discretion and at its own expense, install or permit to be installed other items of equipment or other personal property in or upon the Property. All such items shall remain the sole property of the Lessee, in which the Lessor shall not have any interest, and may be modified or removed by the Lessee at any time, provided that the Lessee shall repair and restore any and all damage to the Property resulting from the installation, modification or removal of any such items. Nothing in this Lease shall prevent the Lessee from purchasing or leasing items to be installed pursuant to this Section under a lease or conditional sale agreement, or subject to a vendor's lien or security agreement, as security for the unpaid portion of the purchase price thereof, provided that no such lien or security interest shall attach to any part of the Property. The Lessee intends to finance the acquisition of certain equipment, including but not limited to solar panels, under an Installment Sale Agreement (as amended or supplemented, the 'Financing Agreement") with Banc of America Public Capital Corp (with its successors and assigns, the "Equipment Lender") and the Financing Agreement shall finance certain equipment and other personal property and goods, including but not limited to solar panels that are or will be located upon or affixed to the Premises (the "Financed Equipment”).—Notwithstanding the means by which the Financed Equipment may be located upon, attached or affixed to the Property, the Financed Equipment shall be and remain equipment or other personal property and shall not be considered part of the Property. Title to and the personal property nature of the Financed Equipment will vest in the Lessee and be subject only to the first priority security interest of the Equipment Lender and be controlled by the terms of the Financing Agreement. The Lessor shall not have any interest in, liability with respect to, right or claim to and lien on the Financed Equipment. The Lessee and the Equipment Lender may operate, repair, replace, maintain, remove or modify such Financed Equipment or other personal property at any time. Pursuant to the Financing Agreement the Equipment Lender is entitled to exercise certain rights and remedies with respect to the Financed Equipment and the Financing Agreement permits the Lessee and the Equipment Lender to take certain actions with respect to the Financed Equipment.
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Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -15-
6. Miscellaneous.
6.1 Construction of Certain Terms and Phrases. Unless the express usage or the context of this Lease otherwise requires: (a) words of either gender include the other gender; (b) words using the singular or plural also include the plural or singular, respectively; (c) the terms "hereof," "herein," "hereby," "hereto" and similar words refer to this entire Lease and not to any particular Article, Section, Clause, Exhibit, or Exhibit or any other subdivision of this Lease; (d) references to "Article," "Section," "Clause," or "Exhibit" are to the Articles, Sections, Clauses, and Exhibits, respectively, of this Lease; (e) the words "include" or "including" shall be deemed to be followed by "without limitation" or "but not limited to" whether or not they are followed by such phrases or words of like import; (f) references to "this Lease" or any other Lease or document shall be construed as a reference to such Lease or document, including any exhibits, appendices and schedules thereto, as amended, modified or supplemented and in effect from time to time; (g) reference to a law, regulation or ordinance includes any amendment or modification thereof; and (h) a reference to a person includes its successors and assigns. In the event of a conflict between the Exhibit and the provisions of this Lease, the latter shall prevail.
6.2 Amendments. This Lease, including all Exhibits attached hereto, contains all of the covenants, provisions, Leases, conditions and understandings between Lessor and Lessee concerning the Premises and any other matter covered or mentioned in this Lease, and no prior Lease or understanding, oral or written, express or implied, pertaining to the Premises or any such other matter shall be effective for any purpose. No provision of this Lease may be amended or added to except by an Lease in writing signed by the parties hereto or their respective successors in interest. The parties acknowledge that all prior Leases, representations and negotiations are deemed superseded by the execution of this Lease to the extent they are not expressly incorporated herein.
6.3 Taxes. Lessee shall pay all personal property taxes, business or license taxes or fees, excises, assessments, levies, fees or other charges which are assessed, levied, charged or imposed by any public authority against Lessee in connection with Lessee’s occupancy and use of the Premises or the construction, installation, operation, maintenance, repair or replacement of the Solar Facilities.
Lessor shall be responsible for all real property taxes and assessments relating to the Property, all taxes and assessments computed upon the basis of the net income of Lessor or payments derived from the Premises by Lessor, and all business or license taxes or fees, excises, assessments, levies, fees or other charges which are assessed, levied, charged or imposed by any public authority against Lessor in connection with Lessor’s lease of the Premises to Lessee.
When possible, Lessee shall cause the Solar Facilities to be assessed and billed separately from all real property taxes payable by Lessor. If the Solar Facilities shall be assessed together with Lessor's real property, Lessee shall pay Lessor any taxes attributable to the Solar Facilities Lessee within thirty (30) days after receipt of a written statement setting forth the taxes applicable to such Solar Facilities. Lessor and Lessee agree to reasonably cooperate with each other to reduce any taxes, assessments and charges that may be levied or assessed with respect to
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Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -16-
the Solar Facilities. Lessor and Lessee shall each have the right to contest the legal validity or amount of any taxes for which either party is responsible under this Lease, and may institute such proceedings as it considers necessary with the reasonable cooperation of the other party.
6.4 Headings. The headings in this Lease are solely for convenience and ease of reference and shall have no effect in interpreting the meaning of any provision of this Lease.
6.5 Binding Effect. This Lease and its rights, privileges, duties and obligations shall inure to the benefit of and be binding upon each of the Parties hereto, together with their respective successors and permitted assigns.
6.6 Memorandum of Lease; Fixture Filing. Lessor hereby agrees to execute within ten (10) days after receipt of Lessee's request and authorizes Lessee to record a memorandum of this Lease in the land registry or title records of the county where the Property is located or other applicable government office. Lessee (or Lessee's lender) shall be entitled to, and is hereby authorized to, file one or more precautionary UCC financing statements or fixture filings in such jurisdictions as it deems appropriate with respect to the Solar Facilities and Ancillary Equipment in order to provide notice of its ownership of the Solar Facilities and Ancillary Equipment.
6.7 No Brokers. Each party represents and warrants to the other that it has dealt with no broker, agent or other Person in connection with this Lease and that no broker, agent or other Person brought about this Lease, and each party agrees to indemnify and hold the other harmless from and against any claims by any other broker, agent or other Person claiming a commission or other form of compensation by virtue of having dealt with the indemnifying party with regard to this Lease.
6.8 Waiver. The failure, delay or forbearance by either Party to exercise any of its rights or remedies under this Lease or to provide written notice of any default to a defaulting party will not constitute a waiver of such rights or remedies. No Party will be deemed to have waived any right or remedy resulting unless it has made such waiver specifically in writing. The waiver by either Party of any default or breach of any term, condition or provision herein contained shall not be deemed to be a waiver of any subsequent breach of the same term, condition or provision, or any other term, condition or provision contained herein.
6.9 Remedies Cumulative. No remedy herein conferred upon or reserved to Lessor or Lessee shall exclude any other remedy herein or at law, but each such remedy shall be cumulative and in addition to every other remedy given hereunder or now or hereafter existing at law or in equity or by statute.
6.10 Notices. All Rent and other sums payable by Lessee to Lessor hereunder shall be paid to Lessor at the address set forth below, or to such other Persons and/or at such other places as Lessor may hereafter designate in writing. Any notice required or permitted to be given hereunder must be in writing and may be given by personal delivery (including delivery by nationally recognized overnight courier or express mailing service), or by registered or certified mail, postage prepaid, return receipt requested, addressed to Lessee at the address(es) or to Lessor at the address(es) designated below. Either party may, by written notice to the other, specify a different address for notice purposes. Notice given in the foregoing manner shall be
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Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -17-
deemed given (i) upon confirmed transmission if sent by facsimile transmission, provided such transmission is prior to 5:00 p.m. on a Business Day (if such transmission is after 5:00 p.m. on a Business Day or is on a non-business day, such notice will be deemed given on the following Business Day), (ii) when actually received or refused by the party to whom sent if delivered by a carrier or personally served or (iii) if mailed, on the day of actual delivery or refusal as shown by the certified mail return receipt or the expiration of three (3) Business Days after the day of mailing, whichever first occurs.
To Lessor: Name: Successor Agency to the City of Arvin
Redevelopment Agency
Address: 200 Campus Drive
Arvin, CA 93203
Attention: Executive Director
Telephone: 661-854-3134
Email:
With a copy: Hodges Law Group
Attn: Nathan M. Hodges
1925 G Street
Bakersfield, CA 93301
To Lessee: Name: Arvin Community Services District
Address: 309 Campus Drive, Arvin, CA 93203
Attention: Raul Barraza, Jr., General Manager
Telephone: (661) 854-2127
Email: [email protected]
With a copy to: Name: Wall Wall and Peake
Address: 1920 20th Street, Bakersfield, CA 93301
Telephone: (661) 324-8461
Email: [email protected]
Lessee shall have the right to add any lender providing financing to Lessee as a party entitled to receive copies of any Notices delivered under this Lease.
6.11 Severability. If one or more provisions of this Lease are found by a court of competent jurisdiction over the Parties hereto to be illegal, invalid or unenforceable, in whole or in part, the remaining terms and provisions of this Lease shall remain in full force and effect disregarding such illegal, invalid or unenforceable portion and such court shall be empowered to modify such illegal, invalid or unenforceable provision to the extent necessary to make this Lease enforceable in accordance with the intent or purposes of the Parties expressed in this Lease to the fullest extent practicable and as permitted by applicable by law.
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -18-
6.12 No Third Party Beneficiary. This Lease is solely for the benefit of the Parties hereto and no right or cause of action shall accrue by reason hereof for the benefit of any third party not a party hereto.
6.13 Quiet Enjoyment. Lessor warrants that Lessee shall peaceably hold and enjoy the Premises and any and all other rights granted by this Lease for the entire Term without hindrance, interruption, suit, trouble or interference of any kind by Lessor or any other Person or entity claiming (whether at law or in equity) by, through or under Lessor. Lessor shall protect and defend the right, title and interest of Lessee hereunder from any other rights, interests, title and claims.
6.14 Choice of Law. This Lease shall be construed in accordance with the laws of the State of California.
6.15 Dispute Resolution. The Parties shall negotiate in good faith and attempt to resolve any dispute, controversy or claim arising out of or relating to this Lease ("Dispute") within 30 days after the date that a Party gives written notice of such Dispute to the other Party.
If, after such negotiation in accordance with Section 6.15, the Dispute remains unresolved, either Party may require that a non-binding mediation take place. In such mediation, representative of the Parties with authority to resolve the dispute shall meet with a mutually agreed upon mediator. If the Parties are unable to agree upon a mediator, then either Party is hereby empowered to request the American Arbitration Association to appoint a mediator. The mediator’s fee and expenses shall be paid one-half by each Party. If mediation is not successful, either part may allege any legal remedy available to it under this lease.
6.16 Further Assurance. Upon the receipt of a written request from the other Party, each Party shall execute such additional documents, instruments, estoppels and assurances and take such additional actions as are reasonably necessary and desirable to carry out the terms and intent hereof, including, but not limited to, an interconnection agreement. Neither Party shall unreasonably withhold, condition or delay its compliance with any reasonable request made pursuant to this Section 6.16.
In furtherance of the foregoing, each Party agrees that it shall, at any time and from time to time during the Term of this Lease and within (10) days after a written request by the other Party, execute, acknowledge and deliver to the requesting Party a written statement certifying that this Lease is unmodified and in full force and effect (or modified and stating the modifications), the dates to which the payments and any other charges have been paid, and that there are no defaults existing (or that defaults exist and stating the nature of such defaults), and stating such other facts as the requesting Party may reasonably provide. The failure of a Party to deliver any such certificate within such time shall be conclusive upon such Party that this Lease is unmodified and in full force and effect, all payments to such Party are current, there are no defaults existing, and such other facts are true and correct.
6.17 Counterparts. This Lease may be executed in counterparts, which shall together constitute one and the same Lease. Facsimile signatures shall have the same effect as original
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -19-
signatures and each Party consents to the admission in evidence of a facsimile or photocopy of this Lease in any court or arbitration proceedings between the Parties.
6.18 Entire Lease. This instrument represents the full and complete Lease between the Parties hereto with respect to the subject matter contained herein and supersedes all prior written or oral Leases between said Parties with respect to said subject matter. The exhibits attached hereto are made a part of this Lease.
6.19 No Merger. The voluntary or other surrender of this Lease by Lessee or a mutual termination thereof shall not work as a merger and shall, at the option of Lessor, either (a) terminate all or any existing subleases, or (b) operate as an assignment to Lessor of Lessee's interest under any or all such subleases.
6.20 Time. Time is of the essence with respect to performance of every provision of this Lease in which time or performance is a factor.
6.21 Business Day. A "Business Day" is Monday through Friday, excluding holidays observed by the United States Postal Service and reference to 5:00 p.m. is to the time zone of the recipient. Whenever action must be taken (including the giving of notice or the delivery of documents) under this Lease during a certain period of time (or by a particular date) that ends (or occurs) on a non-business day, then such period (or date) shall be extended until the immediately following Business Day.
6.22 Accord & Satisfaction. No payment by Lessee or receipt by Lessor of a lesser amount than the Rent payment herein stipulated shall be deemed to be other than on account of the Rent, nor shall any endorsement or statement on any check or any letter accompanying any check or payment as Rent be deemed an accord and satisfaction, and Lessor may accept such check or payment without prejudice to Lessor's right to recover the balance of such Rent or pursue any other remedy provided in this Lease. Lessee agrees that each of the foregoing covenants and Leases shall be applicable to any covenant or Lease either expressly contained in this Lease or imposed by any statute or at common law.
6.23 No Partnership. Lessor does not, in any way or for any purpose, become a partner of Lessee in the conduct of its business, or otherwise, or joint venturer or a member of a joint enterprise with Lessee by reason of this Lease.
6.24 Survival. It is expressly agreed that the rights, duties and obligations contained in Sections 4.9, 4.10, 4.11, and 4.14 shall survive the completion or any termination of this Lease and shall remain in full force and effect.
[Signatures on Following Page]
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -20-
IN WITNESS WHEREOF, the parties have executed this Lease as of the date first above written.
LESSOR: LESSEE:
Successor Agency to the City of Arvin Community Services District Arvin Redevelopment Agency
By: By:
Title: Title:
Date: Date:
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -
1-
EXHIBIT A
APN #189-353-07
6'-0" CYCLONE
FENCING FENCED
AREA = 6.8 ACRES
..... _
STEP-UP/STEP-DOWN
TRANSFORMERS (TYPICAL)
CONDUIT & CONDUCTORS IN
TRENCH THRU ARVIN CSD
EASEMENT '
POINT OF
INTERCONNECTION
WELL 11
480Y/277V
1200A )
POINT OF
INTERCONNECTION
WELL 16
480Y/277V
800A
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -1-
EXHIBIT B
Legal Description of Solar Field
The certain real Property in the City of Arvin, County of Kern, State of California, situated in Section 35, Township 31 South, Range 29 East, M.B.D.&M. more particularly described as follows:
Beginning at the Southeast Corner of the Southwest Quarter of said section 35; thence North 00° 12’ 29” East 1,356.27 feet, on the East Line of said Southwest Quarter, said East Line also being the centerline of Meyer Street; thence departing said East Line at right angles, North 89° 47’31” West, 55.00 feet, to the west right-of-way line of said Meyer Street, and the True Point of Beginning; thence North 00° 12’ 29” East, 528.06 feet on said west right-of-way line, to the south right-of-way line of Celestial Way; thence North 89° 47’ 31” West, 428.16 feet; thence South 00° 12’ 29” West, 223.00 feet; thence North 89° 47’ 31” West, 235.00 feet; thence South 00° 12’29” West, 305.06 feet; thence South 89° 47’ 31” East, 663.16 feet, more or less, to the True Point of Beginning and the end of this description.
Containing 6.84 acres, more or less
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -1-
EXHIBIT C
Glossary of Terms
"Affiliate" of a specified Person means any Person that directly or indirectly through one or more intermediaries controls, is controlled by, or is under common control with, such specified Person. As used in this definition of Affiliate, the term "control", "controlled by" and "under common control with," means (a) the ownership, directly or indirectly, of 50% or more of the equity interest in a Person, or (b) the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise.
"Lease" means this Lease, in its entirety, together with its Exhibits, which are hereby incorporated by reference.
"Ancillary Equipment" means the inverters, the connection facilities of the panels and the inverters, transformers and all other equipment installed on the Premises, which shall remain the personal property of Lessee at all times.
"Business Day" shall have the meaning set forth in Section 6.22 of this Lease. "Calendar Quarter" shall have the meaning set forth in Section 4.4 of this Lease. "Commencement of Construction" means the date on which: (i) Lessee's plans for the installation and construction of the Solar Facilities have been approved by all applicable governmental authorities, (ii) all applicable Permits to commence actual construction of the Solar Facilities have been issued to and accepted by Lessee and the corresponding permit fees have been paid by Lessee, and (iii) Lessee shall have commenced the installation and construction of the Solar Facilities.
"Commercial Operations Date" means the date on which Lessee shall have completed the installation, construction and initial testing of the Solar Facilities and commenced the sale of electricity to the Energy Purchaser under the Power Purchase Agreement. "Construction Period" shall have the meaning set forth in Section 5.1(b) of this Lease. "Deadline" shall mean the last day of the Option Period subject to Section 2 of this Lease.
"Effective Date" shall have the meaning set forth in the preamble to this Lease. "Energy Purchaser" means, initially, the third party purchaser of electricity produced by the Solar Facilities.
"Environmental Requirements" means all applicable present and future federal, state and local laws, statutes, rules, ordinances, codes and regulations relating to environmental
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -2-
protection, public health and safety on, under, or about the Premises, including, without limitation, the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq., the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42 U.S.C. § 9600 et seq., the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq., the Clean Air Act, 42 U.S.C. § 7401 et seq., the Emergency Planning and Community Right to Know Act, 42 U.S.C. § 11000 et seq., and the Clean Water Act, 33 U.S.C. § 1251 et seq., and each of their state and local counterparts presently in effect or amended or promulgated in the future. "Existing Lender" shall have the meaning set forth in Section 3.1(c) of this Lease. "Force Majeure" means events beyond the reasonable control of the affected Party, and which could not reasonably be prevented or avoided by the affected Party, which prevent or delay the effected Party from performing its obligations under or related to this Lease, including, without limitation, acts of God, fire, floods, storms, earthquake, unusually severe weather, wars, riots, sabotage, civil disturbance, acts of civil or military authorities, terrorist acts affecting the Property, labor disputes, or the act or inaction by any governmental authority which delays, prevents or prohibits the effected Party from carrying out its respective obligations under this Lease; provided that the definition of Force Majeure shall in no event include the inability of a Party to meet its financial obligations under this Lease. Any force majeure delay shall automatically extend the date for performance under this Lease by one (1) day for every one (1) day of delay.
"Future Lender" shall have the meaning set forth in Section 4.12.4 of this Lease. "Hazardous Materials" means and includes any substance, material, waste, pollutant, or contaminant listed or defined as hazardous or toxic under any Environmental Requirements, asbestos and petroleum, including crude oil or any fraction thereof, natural gas liquids, liquefied natural gas, or synthetic gas usable for fuel (or mixtures of natural gas and such synthetic gas). "Lessee" shall have the meaning set forth in the preamble to this Lease. "Lessee Event of Default" shall have the meaning set forth in Section 4.15(a) of this Lease.
"Lessor" shall have the meaning set forth in the preamble to this Lease. "Lessor Event of Default" shall have the meaning set forth in Section 4.16.2 of this Lease.
"Lessor's Due Diligence Materials" means copies of all environmental, engineering and other site assessments, reports, surveys, studies, plans and other such records of Lessor pertaining to the Property.
"Legal Requirements" All laws, statutes, orders, judgments, ordinances, regulations, codes or directives of any governmental authorities now or hereafter applicable to the Premises and this Lease.
"Notices" shall have the meaning set forth in Section 6.10 of this Lease.
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -3-
"Option Period" means a period beginning on the Effective Date and ending on the earlier of: (a) the date Commencement of Construction occurs, or (b) the last day of the twentyfourth (24th) month next following the month in which the Effective Date occurs, plus any automatic extension of the Option Period for events of Force Majeure. "Option Period Payments" means the amounts payable by Lessee for the periods set forth on Exhibit D attached hereto.
"Permits" means any and all approvals, permits, permissions, licenses, authorizations, consents, certifications, orders, waivers, exemptions, variances, franchises, filings, declarations, rulings and registrations from or issued by a government authority required under applicable Legal Requirements for Lessee to install, operate and maintain the Solar Facilities and Ancillary Equipment on the Premises.
"Permitted Use" means the use of the Premises for the installation, maintenance, operation, repair and replacement of the Solar Facilities and Ancillary Equipment for the production, delivery and sale of electricity produced by the Solar Facilities and Ancillary Equipment.
“Permitting Delays” means an unexpected and unreasonable delay outside the control of the Lessee to obtain Utility Interconnection Agreement, Applicable Permits, CEQA/NEPA approval or approval of a Governmental Authority having jurisdiction over the Property, Premises, or Solar Facilities. The extension of the date for performance under this Lease shall be mutually agreed upon by both Parties.
"Person" means any corporation, limited liability company, any form of partnership, any joint venture, trust, estate, governmental authority or other legal or commercial entity or any natural person.
"Power Purchase Agreement" means any electricity purchase contract entered into by Lessee and an Energy Purchaser for the purchase by Energy Purchaser of energy, renewable energy credits or other products from the Solar Facilities. "Premises" shall have the meaning set forth in the recitals of this Lease and shall include the area set forth on Exhibit B attached hereto.
"Property" shall have the meaning set forth in the recitals to this Lease. "Renewal Term" or “Renewal Terms” means any extension of the Term pursuant to Section 4.2.2.
"Rent" means, commencing on the Commercial Operations Date, an annual amount calculated at the rate in dollars per net usable acre of the Premises per year including annual escalation. The exact net usable square footage of the Premises shall be mutually determined by Lessor and Lessee during the Option Period and prior to Commencement of Construction based on the total square footage of Premises enclosed by the final perimeter layout of the Solar Facilities. Rent shall be paid in accordance with Exhibit E of this Lease.
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -4-
"Solar Facilities" means the photovoltaic energy capture systems to be installed by Lessee on the Premises prior to the Commercial Operations Date, which shall remain the property of Lessee at all times.
"Staging Area" shall have the meaning set forth in Section 5.1(b) of this Lease. "Term" means a term beginning on the Commercial Operations Date and ending on the last day of the calendar month in which the thirty (30) year anniversary of the Commercial Operations Date shall occur, subject to any Renewal Terms, if applicable. The Term may be extended in accordance with the terms and conditions set forth in this Lease. "Transaction" shall have the meaning set forth in the recitals to this Lease.
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -1-
EXHIBIT D
Option Period Payments
Lessee shall make the following Option Period Payments with respect to the Premises, provided this Lease is still in effect at the time the Option Period Payment is due:
First year Option Period Payment: One Hundred Dollars ($100.00) shall be due to Lessor on the Effective Date and shall grant a twelve-month Option Period ending the last day of the twelfth (12th) month following the month in which the Effective Date occurs.
Second year Option Period Payment: One Hundred Dollars ($100.00) shall be paid to Lessor on the first day of the thirteenth (13th) month next following the month in which the Effective Date occurs and shall grant an additional twelve-month Option Period.
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -
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EXHIBIT E
Rent Schedule
Quarterly Payment ($/Acre)
Year Quarter 1 Quarter 2 Quarter 3 Quarter 4 Total 1 $250.00 $250.00 $250.00 $250.00 $1,000.00 2 $256.25 $256.25 $256.25 $256.25 $1,025.00 3 $262.66 $262.66 $262.66 $262.66 $1,050.63 4 $269.22 $269.22 $269.22 $269.22 $1,076.89 5 $275.95 $275.95 $275.95 $275.95 $1,103.81 6 $282.85 $282.85 $282.85 $282.85 $1,131.41 7 $289.92 $289.92 $289.92 $289.92 $1,159.69 8 $297.17 $297.17 $297.17 $297.17 $1,188.69 9 $304.60 $304.60 $304.60 $304.60 $1,218.40 10 $312.22 $312.22 $312.22 $312.22 $1,248.86
11 $320.02 $320.02 $320.02 $320.02 $1,280.08
12 $328.02 $328.02 $328.02 $328.02 $1,312.09
13 $336.22 $336.22 $336.22 $336.22 $1,344.89
14 $344.63 $344.63 $344.63 $344.63 $1,378.51
15 $353.24 $353.24 $353.24 $353.24 $1,412.97
16 $362.07 $362.07 $362.07 $362.07 $1,448.30
17 $371.13 $371.13 $371.13 $371.13 $1,484.51
18 $380.40 $380.40 $380.40 $380.40 $1,521.62
19 $389.91 $389.91 $389.91 $389.91 $1,559.66
20 $399.66 $399.66 $399.66 $399.66 $1,598.65
21 $409.65 $409.65 $409.65 $409.65 $1,638.62
22 $419.90 $419.90 $419.90 $419.90 $1,679.58
23 $430.39 $430.39 $430.39 $430.39 $1,721.57
24 $441.15 $441.15 $441.15 $441.15 $1,764.61
25 $452.18 $452.18 $452.18 $452.18 $1,808.73
26 $463.49 $463.49 $463.49 $463.49 $1,853.94
27 $475.07 $475.07 $475.07 $475.07 $1,900.29
28 $486.95 $486.95 $486.95 $486.95 $1,947.80
29 $499.12 $499.12 $499.12 $499.12 $1,996.50
30 $511.60 $511.60 $511.60 $511.60 $2,046.41
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -
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Optional Renewal Term Quarterly Payment ($/Acre)
Year Quarter 1 Quarter 2 Quarter 3 Quarter 4 Total
31 $524.39 $524.39 $524.39 $524.39 $2,097.57
32 $537.50 $537.50 $537.50 $537.50 $2,150.01
33 $550.94 $550.94 $550.94 $550.94 $2,203.76
34 $564.71 $564.71 $564.71 $564.71 $2,258.85
35 $578.83 $578.83 $578.83 $578.83 $2,315.32
36 $593.30 $593.30 $593.30 $593.30 $2,373.21
37 $608.13 $608.13 $608.13 $608.13 $2,432.54
38 $623.34 $623.34 $623.34 $623.34 $2,493.35
39 $638.92 $638.92 $638.92 $638.92 $2,555.68
40 $654.89 $654.89 $654.89 $654.89 $2,619.57
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -1-
EXHIBIT F
Insurance Coverage
1. Lessee Insurance Requirements.
1.1 Lessee Required Coverages. Lessee shall carry and maintain with carriers or self insurance, as a minimum, the following insurance coverages:
(a) Workers Compensation Insurance and Employers Liability. In accordance with the laws of the state of where work may be done with limits for employers liability in the minimum amount of $1,000,000 for each occurrence and $1,000,000 for each occurrence of disease on a per employee basis;
(b) Commercial General Liability. One million dollars ($1,000,000) per occurrence/two million ($2,000,000) in the aggregate for bodily injury, personal injury and property damage, products and completed operations:
(i) $300,000 for damage to rented premises, per occurrence; (ii) $10,000 for medical expenses, per person;
(iii) $1,000,000 for personal and advertising injury; and (iv) $2,000,000 for product and completion aggregate
(c) Commercial Automobile Liability, Any Auto. One million dollars ($1,000,000_ per accident/two million dollars ($2,000,000) aggregate for bodily injury and property damage. scheduled, non-owned and hired automobiles. (d) Professional Liability Insurance. The insurance shall cover Lessee and its design consultant(s) for one million dollars ($1,000,000) per claim and $2,000,000 in the aggregate; and
1.2 Policy Endorsements. Insurance coverages required to be maintained by Lessee under this Lease shall:
(a) provide a severability of interests or cross liability clause for Commercial General Liability Insurance;
(b) except in the case of worker’s compensation insurance and other statutory insurances where it would be inappropriate, name Lessor and, as additional insured’s.
2. Lessor Insurance Coverage.
2.1 Lessor Required Coverages. Lessor shall carry and maintain with carriers or self insurance, as a minimum, the following insurance coverages:
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin -2-
(a) Lessor shall, at Lessor’s sole cost and expense, maintain during the Term and beginning with any Commencement of Construction, a minimum level of commercial general liability insurance of one million dollars($1,000,000) per occurrence and two million dollars ($2,000,000) in the aggregate for property damage, personal injury or deaths of persons occurring in or about the Property during the Term (including loss of use thereof arising out of Lessor’s operations and contractual liabilities), and Lessor shall carry property insurance written on an “all risks” basis covering the Premises. Such coverage shall from such companies and on such other terms and conditions as Lessor may from time to time reasonably determine.
2.A.2
Attachment: Solar Power Land Lease ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Arvin AGREEMENT NO. _________
Easement Agreement
This EASEMENT AGREEMENT (this “Agreement”) is made and entered into this September 1, 2023 (the “Effective Date”), by and between Successor Agency to the City of Arvin Redevelopment Agency (“Grantor”), and Arvin Community Services District (“Grantee”).
Recitals
A. Grantor is the owner of those certain parcels of property located in the City of Arvin, and more particularly described in Exhibit A attached hereto and incorporated herein (all of which parcels or tracts of ground are referred to herein as the “Premises”).
B. Grantor and Grantee entered into a certain Lease Agreement, Leasing Property contiguous to the Premises, (the “Lease Agreement”), dated September 1, 2023, pursuant to which the Grantee will design, construct, install, operate, and maintain a certain solar photovoltaic system on a portion of the Premises (the “System”) for the purpose of providing electric energy to its facilities and other improvements (the “Improvements”) located on the Premises.
C. Grantor desires to grant to Grantee the rights described herein for the purposes of designing, constructing, installing, operating, maintaining, and removing the System on and from the Premises.
Agreement
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements set forth below, and other good and valuable consideration, receipt, and sufficiency of which is hereby acknowledged and confirmed by Grantor, Grantor and Grantee hereby agree as follows:
1. Grant of Easement. Grantor hereby grants and conveys unto Grantee, its successors and assigns, a nonexclusive easement for term set forth in Section 2 below, across, over, under, and above the Premises and the Improvements in order to construct, install, alter, protect, repair, maintain, replace, operate, maintain, and remove the System, including any related interconnection equipment and any facilities or equipment appurtenant thereto as Grantee may from time to time require. Grantor also hereby grants and conveys unto Grantee all other easements across, over, under and above the Premises and the Improvements as reasonably necessary to provide access to and services reasonably required for Grantee’s performance under the Lease Agreement. The easements granted hereunder shall run with and burden the Premises and the Improvements for the term of this Agreement. Only the following parcels as set forth in Exhibit B will have infrastructure improvements located thereon. The Parties acknowledge that this Grant of Easement due to its connection to Successor Agency Land will not come into effect until approved by the County of Kern Oversight Board.
2. Term. This Agreement shall be for a period commencing on the Effective Date and expiring on the date that is the earlier of (a) the thirtieth (30th) anniversary of the Effective Date, and (b) one hundred twenty (120) days following expiration or earlier termination of the term of the Lease Agreement. No delay or interruption by Grantee in the use or enjoyment of any right or easement hereby granted shall result in the loss, limitation, or abandonment of any of the right, title, interest, easement, or estate granted hereby.
3. Obstructions. In addition to the rights afforded Grantee under the Lease Agreement, Grantee may from time to time remove structures, trees, bushes, or other obstructions within such portions of the Premises, and may level and grade such portions of the Premises as set forth in Section (1), to the extent reasonably necessary to carry out the purposes set forth herein. Grantor covenants for itself, its heirs, successors and assigns that:
a. Grantor will not build or place, or allow to be built or placed, any structure or obstruction of any kind within such portions of the Premises as set forth in Section (1) or the Improvements
2.A.3
Attachment: Easement Agreement Sucessor Agency__Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with on which any portion of the System is located, including any related interconnection equipment; and
b. If such a structure or obstruction is built or placed within any portion of the Premises as set forth in Section (1) or the Improvements on which any portion of the System is located, including any related interconnection equipment, Grantor will remove the same at the request of the Grantee at no cost to the Grantee. Grantor shall, at Grantor’s expense, erect a fence satisfactory to Grantee on such portions of the Premises or the Improvements on which any portion of the System is located in order to exclude Grantor and others from accessing such areas.
4. Insolation. Grantor shall not in any way cause, and where possible, shall not in any way permit, any interference with the System’s unobstructed access to sunlight (“Insolation”). Vegetation on the Premises can be regularly pruned or otherwise maintained to prevent interference with the System’s Insolation by Grantee. If Grantor discovers any activity or condition that could diminish the Insolation of the System, Grantor shall immediately notify Grantee and cooperate with Grantee in preserving and restoring the System’s Insolation levels as they existed on the commercial operation date of the System.
5. Reservation of Rights. Grantor reserves the right to use or authorize others to use the Premises and the Improvements in any manner not inconsistent with or which will not unreasonably interfere with the rights granted herein, provided, however, that Grantor shall not, nor shall permit others to, disturb the System, including any related interconnection equipment, in any way without prior written approval of the Grantee.
6. Title. Grantor represents and warrants to Grantee that Grantor holds fee simple title to the Premises, free and clear of all liens and any other encumbrances other than any lien or other encumbrance that could not reasonably be expected to adversely impact Grantee’s rights hereunder or under the Lease Agreement. Grantor further represents and warrants to Grantee that Grantor has the right to execute and deliver this Agreement and to grant to Grantee the easements and other rights hereunder, and that such grant does not, and will not, violate or breach Grantor’s organizational documents, any law, rule or regulation, or any contract, agreement or arrangement to which Grantor is a party or by or to which any of Grantor’s assets or properties, including the Premises or the Improvements, is bound or subject. In the event that, after the date of this Agreement, Grantor duly grants a mortgage or other lien or encumbrance on all or any portion of the Premises or the Improvements (the “Subsequent Mortgage”), Grantor shall, prior to and as a condition to the effectiveness of the grant of such Subsequent Mortgage, cause the mortgagee or lienholder under the Subsequent Mortgage to execute and deliver to the Grantee an agreement, in customary form and in form and substance reasonably acceptable to Grantee, acknowledging the subordination of the Subsequent Mortgage to the grant of the easement pursuant to this Agreement and granting such other waivers as Grantee may reasonably require (the “Subordination Agreement”).
7. Recordation; Possession. This Agreement may be recorded against the Premises and the Improvements by Grantee at Grantee’s sole cost and expense. Grantor covenants and agrees, for itself and its assigns and successors, that the Grantee shall be entitled to exercise its rights under this Agreement upon execution and delivery of this Agreement by the Parties hereto, whether or not this Agreement is recorded.
8. Governing Law. This Agreement shall be governed by, and interpreted and construed in accordance with, the laws of the state in which the Premises and the Improvements are located, without regard to conflicts of law principles.
9. Severability. All provisions of this Agreement are severable and the invalidity or unenforceability of any provision shall not affect or impair the validity or enforceability of the remaining provisions.
10. Binding Effect; Successors and Assigns. Grantor may not assign this Agreement in whole or in part without the prior written consent of Grantee, which consent may not be unreasonably withheld,
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Attachment: Easement Agreement Sucessor Agency__Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with conditioned, or delayed. Grantee may, without the prior written consent of Grantor, assign, mortgage, pledge or otherwise directly or indirectly assign its interests in this Agreement in connection with an assignment of the Lease Agreement. Without limiting the generality of the foregoing, the rights and obligations of the Parties shall inure to the benefit of and be binding upon their respective successors and assigns. This Agreement may be amended, modified, or terminated only by written instrument, executed, and acknowledged by the Parties hereto.
11. Headings. The headings used herein are for convenience only and are not to be used in interpreting this Agreement.
12. Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereto and supersedes any prior written or oral agreements with respect to the matters described herein.
13. Amendments. Grantor shall cooperate in amending this Agreement from time to time to include any provision that may be reasonably requested by Grantee or any assignee of Grantee’s rights under this Agreement.
14. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed the original, but which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties enter into this Agreement as of the Effective Date.
GRANTOR: Successor Agency to the City of GRANTEE: Arvin Community Services District Arvin Redevelopment Agency
By: ___________________________________ By: ___________________________________ Name: Name:
Title: Title:
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Attachment: Easement Agreement Sucessor Agency__Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with Exhibit A
Legal Description of Premises
[Provide Legal Description of Each P
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Attachment: Easement Agreement Sucessor Agency__Special CC Mtg 082923 (Successor Agency: Solar Lease & Easement Agreement with 55' 55' 55' 55' 2.A.4
Attachment: Solar R-W Easements Plats ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease 55' 45' 35' 45' 45' 55' 35' 55' 2.A.4
Attachment: Solar R-W Easements Plats ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease 55' 55' 45' 55' 55' 45' 55' 2.A.4
Attachment: Solar R-W Easements Plats ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease 55' 55' 45' 55' 45' 55' 55' 2.A.4
Attachment: Solar R-W Easements Plats ACSD_Special CC Mtg 082923 (Successor Agency: Solar Lease AGREEMENT NO. __________
Easement Agreement
This EASEMENT AGREEMENT (this “Agreement”) is made and entered into this, September 1, 2023 (the “Effective Date”), by and between The City of Arvin (“Grantor”), and Arvin Community Services District (“Grantee”).
Recitals
A. Grantor is the owner of those certain parcels of property located in the City of Arvin, and more particularly described in Exhibit A attached hereto and incorporated herein (all of which parcels or tracts of ground are referred to herein as the “Premises”).
B. Grantee and Successor Agency to the City of Arvin Redevelopment Agency have entered into a certain Lease Agreement, Leasing Property contingent to the Premises, (the “Lease Agreement”), dated March 28, 2023, pursuant to which the Grantee will design, construct, install, operate, and maintain a certain solar photovoltaic system on a portion of the Premises (the “System”) for the purpose of providing electric energy to its facilities and other improvements (the “Improvements”).
C. Grantor desires to grant to Grantee the rights described herein for the purposes of designing, constructing, installing, operating, maintaining, and removing the Solar Equipment on and from the Premises.
Agreement
NOW, THEREFORE, in consideration of the foregoing, the mutual covenants and agreements set forth below, and other good and valuable consideration, receipt, and sufficiency of which is hereby acknowledged and confirmed by Grantor, Grantor and Grantee hereby agree as follows:
1. Grant of Easement. Grantor hereby grants and conveys unto Grantee, its successors and assigns, a nonexclusive easement for term set forth in Section 2 below, across, over, under, and above the Premises in order to construct, install, alter, protect, repair, maintain, replace, operate, maintain, and remove Solar Equipment, including any related interconnection equipment and any facilities or equipment appurtenant thereto as Grantee may from time to time require. Grantor also hereby grants and conveys unto Grantee all other easements across, over, under and above the Premises and the Improvements as reasonably necessary to provide access to and services reasonably required for Grantee’s performance under the Lease Agreement. The easements granted hereunder shall run with and burden the Premises and the Improvements for the term of this Agreement. Only the following parcels as set forth in Exhibit B will have infrastructure improvements located thereon. The parties acknowledge that this Grant of Easement due to its connection to Successor Agency land will not come into effect until the Successor Agency Easement has been approved by the County of Kern Oversight Board.
2. Term. This Agreement shall be for a period commencing on the Effective Date and expiring on the date that is the earlier of (a) the thirtieth (30th) anniversary of the Effective Date, and (b) one hundred twenty (120) days following expiration or earlier termination of the term of the Lease Agreement. No delay or interruption by Grantee in the use or enjoyment of any right or easement hereby granted shall result in the loss, limitation, or abandonment of any of the right, title, interest, easement, or estate granted hereby.
3. Obstructions. Grantee may from time to time remove structures, trees, bushes, or other obstructions within such portions of the Premises, and may level and grade such portions of the Premises as set forth in Section (1), to the extent reasonably necessary to carry out the purposes set forth herein. Grantor covenants for itself, its heirs, successors and assigns that:
a. Grantor will not build or place, or allow to be built or placed, any structure or obstruction of any kind within such portions of the Premises as set forth in Section (1) on which any portion of the Solar Equipment is located, including any related interconnection equipment; and
3.A.1
Attachment: Easement Agreement City of Arvin_Special CC Mtg 082923 (City Easement Agreement with Arvin Community Services) b. If such a structure or obstruction is built or placed within any portion of the Premises as set forth in Section (1) including any related interconnection equipment, Grantor will remove the same at the request of the Grantee at no cost to the Grantee. Grantor shall, at Grantor’s expense, erect a fence satisfactory to Grantee on such portions of the Premises on which any portion of the Solar Equipment is located in order to exclude Grantor and others from accessing such areas.
4. Insolation. Grantor shall not in any way cause, and where possible, shall not in any way permit, any interference with the Solar Equipment unobstructed access to sunlight (“Insolation”). Vegetation on the Premises can be regularly pruned or otherwise maintained to prevent interference with the System’s Insolation by Grantee. If Grantor discovers any activity or condition that could diminish the Insolation of the System, Grantor shall immediately notify Grantee and cooperate with Grantee in preserving and restoring the Solar Equipment Insolation levels as they existed on the Commercial Operation Date.
5. Reservation of Rights. Grantor reserves the right to use or authorize others to use the Premises and the Improvements in any manner not inconsistent with or which will not unreasonably interfere with the rights granted herein, provided, however, that Grantor shall not, nor shall permit others to, disturb the Solar Equipment, including any related interconnection equipment, in any way without prior written approval of the Grantee.
6. Title. Grantor represents and warrants to Grantee that Grantor holds fee simple title to the Premises, free and clear of all liens and any other encumbrances other than any lien or other encumbrance that could not reasonably be expected to adversely impact Grantee’s rights hereunder or under the Lease Agreement. Grantor further represents and warrants to Grantee that Grantor has the right to execute and deliver this Agreement and to grant to Grantee the easements and other rights hereunder, and that such grant does not, and will not, violate or breach Grantor’s organizational documents, any law, rule or regulation, or any contract, agreement or arrangement to which Grantor is a party or by or to which any of Grantor’s assets or properties, including the Premises or the Improvements, is bound or subject. In the event that, after the date of this Agreement, Grantor duly grants a mortgage or other lien or encumbrance on all or any portion of the Premises or the Improvements (the “Subsequent Mortgage”), Grantor shall, prior to and as a condition to the effectiveness of the grant of such Subsequent Mortgage, cause the mortgagee or lienholder under the Subsequent Mortgage to execute and deliver to the Grantee an agreement, in customary form and in form and substance reasonably acceptable to Grantee, acknowledging the subordination of the Subsequent Mortgage to the grant of the easement pursuant to this Agreement and granting such other waivers as Grantee may reasonably require (the “Subordination Agreement”).
7. Recordation; Possession. This Agreement may be recorded against the Premises and the Improvements by Grantee at Grantee’s sole cost and expense. Grantor covenants and agrees, for itself and its assigns and successors, that the Grantee shall be entitled to exercise its rights under this Agreement upon execution and delivery of this Agreement by the Parties hereto, whether or not this Agreement is recorded.
8. Governing Law. This Agreement shall be governed by, and interpreted and construed in accordance with, the laws of the state in which the Premises and the Improvements are located, without regard to conflicts of law principles.
9. Severability. All provisions of this Agreement are severable and the invalidity or unenforceability of any provision shall not affect or impair the validity or enforceability of the remaining provisions.
10. Binding Effect; Successors and Assigns. Grantor may not assign this Agreement in whole or in part without the prior written consent of Grantee, which consent may not be unreasonably withheld, conditioned, or delayed. Grantee may, without the prior written consent of Grantor, assign, mortgage, pledge or otherwise directly or indirectly assign its interests in this Agreement in connection with an assignment of the Lease Agreement. Without limiting the generality of the foregoing, the rights and
3.A.1
Attachment: Easement Agreement City of Arvin_Special CC Mtg 082923 (City Easement Agreement with Arvin Community Services) obligations of the Parties shall inure to the benefit of and be binding upon their respective successors and assigns. This Agreement may be amended, modified, or terminated only by written instrument, executed, and acknowledged by the Parties hereto.
11. Headings. The headings used herein are for convenience only and are not to be used in interpreting this Agreement.
12. Entire Agreement. This Agreement contains the entire agreement of the Parties with respect to the subject matter hereto and supersedes any prior written or oral agreements with respect to the matters described herein.
13. Amendments. Grantor shall cooperate in amending this Agreement from time to time to include any provision that may be reasonably requested by Grantee or any assignee of Grantee’s rights under this Agreement.
14. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed the original, but which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties enter into this Agreement as of the Effective Date.
GRANTOR: The City of Arvin GRANTEE: Arvin Community Services District By: ___________________________________ By: ___________________________________ Name: Name:
Title: Title:
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Attachment: Easement Agreement City of Arvin_Special CC Mtg 082923 (City Easement Agreement with Arvin Community Services) Exhibit A & Exhibit B
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Attachment: Easement Agreement City of Arvin_Special CC Mtg 082923 (City Easement Agreement with Arvin Community Services)