AGENDA
ITEM
16 AGENDA
CALEXICO California ITEM
16 CITY COUNCIL
AGENDA STAFF REPORT
DATE: November 1, 2023
TO: City Council
APPROVED BY: Esperanza Colio Warren, City Manager
PREPARED BY: Francisco Barba, Contract Planner, The Holt Group: Inc. Mb REVIEWED BY: Jeorge Galvan, AICP, Principal Planner, The Holt Group, Inc.
SUBJECT: Approval of a draft lease agreement between the City of Calexico and Marco Parking for a Portion of West 6" Street located west of the intersection of Emerson Avenue and West 6'h Street.
BACKGROUND
On July 26, 2022, Marco A. Madrigal, Applicant, submitted a uniform application to the City of Calexico Development Services Department for the vacation of a portion of West 6th Street approximately 120 feet west of the intersection at Emerson Avenue and east of the railroad tracks (Refer to Attachment A). Discussions on the requested vacation date back to 2018 with the Applicant purchasing the adjoining properties and submitting a vacation request to the City of Calexico in early 2019 for the development of a private parking lot for the Applicant's business.
While previous administrations communicated and issued conditions for the proposed vacation, these conditions and/or agreements were given verbally without first consulting with the City Council. The Applicant then proceeded to develop the location per the verbal agreements to which the City of Calexico issued an encroachment permit and grading permit for the development of the property and portion of West 6t Street.
The item was presented to the City Council during a regularly scheduled meeting on October 5, 2023, where upon opening the floor for public comments, the City Council motioned to table the item for the next regularly scheduled City Council meeting to be held on October 18, 2023, so that the Applicant can provide copies of the approved permits, payment receipts, and email communications given by the City for the project.
City of Calexico City Council Meeting
West 6th Street Lease Agreement - November 1, 2023 Page 1 of 3 The item was once again presented to the City Council during a regularly scheduled meeting held on October 18, 2023, where upon reviewing a 79-page timeline, submitted by the Applicant, documenting the project's events, the City Council voted to proceed with a lease agreement of 4 years or less with the Applicant for the subject road segment.
RECOMMENDATION
The purpose of this item is to present a draft lease agreement for the subject roadway to the Council so that they may review and consider executing an agreement for the lease of a portion of West 6th Street to the Applicant. Due to the lack of records of the project within the City database, a short- term lease of 4 years was deemed optimal by the City Council as it would provide sufficient time to carefully analyze all city records for the project in order to make an accurate and efficient ruling on the vacation request after or before completion of the 4-year lease.
It is important to note that the draft lease agreement is for a period of 4 years, with a yearly rent of $1.00. Furthermore, the draft lease states that the City of Calexico shall proceed with the requirements of the Surplus Land Act prior to or upon completion of the lease. The City may then elect to either vacate, sell, or lease the subject roadway to affordable home developers and certain other entities before selling, or leasing the site for a period greater than four (4) years to any other individual or entity.
Upon reviewing all relevant information, the City Council should consider the following action:
1. Upon reviewing and considering all relevant facts for the item, the City Council of the City of Calexico motions to execute the draft lease agreement, attached hereto as Attachment B, for a portion of west 6* Street, between the City of Calexico and Marco A. Madrigal, Applicant.
DISCUSSION AND ANALYSIS
Site Conditions. The subject road portion is located approximately 120 feet west of the intersection at Emerson Avenue and east of the railroad tracks. The site, along with the abutting properties, is located within an Industrial (I) zone. The properties directly abutting the segment to be leased are currently undeveloped and owned by the Applicant. The road segment was previously an undeveloped dirt road as far back as 1960 but was recently paved by the Applicant in 2022. While the Applicant paved the subject portion of West 6"* Street in 2022, the roadway is still property of the City of Calexico. Furthermore, the subject road portion is not a through street and is primarily utilized for ingress and egress to the abutting properties, all owned by the Applicant. The purpose of the Applicant's initial vacation request is for the development of a private commercial parking business on the premises.
As previously discussed in the October 5 and October 18 City Council meeting, this item has been ongoing as far back as 2018 when the Applicant began discussing the possibility of a street vacation with the City of Calexico. Due to the lack of records of the project within the City database, a short-term lease of 4 years was deemed optimal by the City Council as it would provide City of Calexico City Council Meeting
West 6th Street Lease Agreement - November 1, 2023 Page 2 of 3 sufficient time to carefully analyze all city records for the project in order to make an accurate and efficient ruling on the vacation request after or before completion of the 4-year lease. Therefore, the city staff recommendation is to proceed with the draft lease agreement.
ENVIRONMENTAL
CEQA (California Environmental Quality Act) is a statute that requires state and local agencies to identify the significant environmental impacts of their actions and to avoid or mitigate those impacts, if feasible. A public agency must comply with CEQA when a project "receives some discretionary approval from a government agency which may cause either a direct physical change in the environment or a reasonably foreseeable indirect change in the environment." Compliance can be met by determining whether a project is exempt from CEQA or preparing an environmental analysis, typically a negative declaration (ND), mitigated negative declaration (MND) or environmental impact report (EIR).
The lease agreement is exempt from CEQA review via Section 15061(b)(3) of the CEQA Guidelines for Implementation in the California Code of Regulations which states the following:
"The activity is covered by the common sense exemption that CEQA applies only to projects which have the potential for causing a significant effect on the environment.
Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA." (California Code of Regulations).
As a lease agreement, it can be seen with certainty that there is no possibility that it may have a significant effect on the environment.
FISCAL IMPACT
The revenue generated by the lease agreement, while miniscule, will be gained by the City of Calexico. Furthermore, the lease would facilitate the development of a new business which will generate additional tax revenue for the City.
COORDINATED WITH
City Manager's Office.
ATTACHMENTS
Attachment A - Project Location Map
Attachment B - Draft Lease Agreement
City of Calexico City Council Meeting
West 6th Street Lease Agreement - November 1, 2023 Page 3 of 3 Attachment A - Project Location Map
7TH STREET
058-411-0097
CESAR CHAVEZ BLVD.
6TH STREET
EMERSON AVENUE
058-431-001
058-431-002
Southern California Railroad
ng.
5TH STREET
LEGEND:
APPLICANTS PROPERTY PORTION PROPOSED FOR VACATION
The Holt Group, Inc. VICINITY MAP
CITY OF CALEXICO
ENGINEERING • PLANNING • SURVEYING N
PROJECT No. 176.037
1601 N. Imperial Ave. El Centro, California 92243 (760)337-3883
NOT TO SCALE
DATE: 9/20/2023
Attachment B - Draft Lease Agreement
LEASE AGREEMENT
1. PARTIES: This Lease ("Lease") is made and entered into as of this day of 2023 ("Effective Date") by and between City of Calexico, a municipal corporation ("Landlord"), and → ("Tenant"). The Landlord and Tenant are sometimes referred to individually as a "Party" and collectively as the "Parties."
2. PREMISES: Landlord hereby leases to Tenant, and Tenant hereby leases from Landlord, on the terms and conditions hereinafter set forth, that certain that certain real property more particularly described in Exhibit "A" and depicted on Exhibit "B" attached hereto and incorporated herewith ("Premises").
3. TERM: The term of this Lease shall be for a period of four (4) years commencing from and after the Effective Date of this Lease, and shall terminate on , 2027 (the "Term").
EXPIRATION OF TERM: Upon the expiration of the Term, or termination of this Lease, Tenant shall immediately vacate the Premise and deliver possession to Landlord. Upon the expiration and/or termination of the Lease, Landlord reserves the right to use, sell, or lease the Premises in its sole discretion.
RENT: Tenant shall pay to Landlord, as rent for the Premises, the sum of One Dollar ($1.00) per year ("Lease Payment"). Tenant shall pay the first rental payment to Landlord upon execution of this Lease. Tenant shall pay each yearly rental on each anniversary of the Effective Date.
6. USE: Tenant shall use and occupy the Premises only for (the "Agreed Use"), or any other legal use which is reasonably comparable thereto, and for no other purpose. Tenant shall not use or permit the use of the Premises in a manner that is unlawful, creates damage, waste or a nuisance, or that disturbs owners and/or occupants of, or causes damage to neighboring properties. Tenant has inspected the Premises and agrees to lease the Premises as is. Landlord shall have no obligation or responsibility, actual or implied, to install, construct, accommodate, or make any improvements to the Premises prior to, or as a condition of, Tenant's occupation of the Premises. Tenant agrees to keep the Premises, including all improvements thereon clean, neat, and otherwise reasonably maintained.
7. CASp INSPECTION: Landlord discloses that the Premises have not undergone inspection by a Certified Access Specialist (CASp) as referenced in California Civil Code Section 1938 subsection (e). Tenant acknowledges and agrees that, if Tenant wishes to have the Premises inspected by a CASp: (i) Tenant must notify Landlord on or before the date when Tenant executes this Lease pursuant to the election below; (ii) the inspection will be at Tenant's sole cost and expense; (iii) the inspection must be scheduled through Landlord; (iv) any repairs or modifications necessary to correct any violation of construction-related accessibility standards that is noted in the CASp report shall be Tenant's responsibility; and (v) Tenant must provide a copy of the CASp report to Landlord on completion. By initialing below, Tenant represents that:
81211.0011541755495.1
Tenant wishes to have a CASp inspection of Premises Initials:
Tenant waives its right to have a CASp inspection of Premises Initials:
8. ACCESS: Except for emergencies such as fire, water intrusion, and the like which may be at any time, Landlord and its agents shall have the right to enter the Premises at reasonable times for the purpose of inspecting the facility as to its maintenance and repair and to show the Premises to prospective tenants, buyers or lenders.
9. TAXES: Landlord will be and remain responsible for all property taxes and assessments, if any, which may be due or levied against the real property. telephone, trash disposal and other utties and allie supll yate pars, hises, toget, power, any taxes thereon.
11. COMPLIANCE WITH LAWS: Tenant hereby agrees to comply with all City, County, State, and Federal ordinances and statutes that are applicable to this Lease.
12. PREVAILING WAGE: Tenant acknowledges that the Landlord has made no representation, express or implied, to Tenant or any person associated with Tenant regarding whether or not laborers employed relative to the construction and installation of improvements on the Premises, if any, must be paid the prevailing per diem wage rate for their labor classification, as determined by the State of California, pursuant to California Labor Code Sections 1720, et seq.
Tenant agrees with the Landlord that Tenant shall assume the responsibility and be solely responsible for determining whether or not laborers employed relative to any construction of capital improvements on the Premises must be paid the prevailing per diem wage rate for their labor classification, as determined by the State of California, pursuant to California Labor Code Sections 1720, et seq. If Civil Code sections 9550 et seq. require contractors to procure a payment bond, then Tenant shall ensure that its contractors deliver the required bond.
13. RELEASE: Tenant, on behalf of itself, its successors, and assigns, waives and releases the Landlord from any right of action that may be available to any of them pursuant to California Labor Code Sections 1726 and 1781. Tenant acknowledge the protections of California Civil Code Section 1542 relative to the waiver and release contained in this Section 13, which reads as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR
RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR
AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER,
WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.
2 81211.00115\41755495.1
BY INITIALING BELOW, TENANT KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 12:
Tenant Initial
14. INSURANCE: Tenant shall provide (1) General Liability insurance in an amount of not less than Two Million Dollars ($2,000,000.00) per occurrence and $5,000,000.00 general aggregate for bodily injury, personal injury, and property damage; (2) Automobile Liability in an amount not less than $2,000,000.00 per accident for bodily injury and property damage; and (3) Workers' Compensation and Employer's Liability as required by the Labor Code of the State of California. Employer's Liability limits of $1,000,000.00 each accident policy limit bodily injury or disease, and each employee bodily injury or disease. Defense costs shall be available in addition to the limits. Notwithstanding the minimum limits specified herein, any available coverage shall be provided to the Landlord required to be named as additional insured pursuant to this Lease.
INDEMNIFICATION BY TENANT: Tenant shall defend, indemnify and hold Landlord, its directors, officials, officers, employees, consultants, agents and volunteers free and harmless from claims, demands, causes of action, costs, expenses, liability, loss, damage or injury, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, omissions or willful misconduct of Tenant, its officials, officers, employees, agents, consultants and contractors arising out of or in connection with the Tenant's use of the Premises, including without limitation the payment of reasonable attorneys' fees and other related costs and expenses. Tenant shall defend, at Tenant's own cost, expense and risk, any and all such aforesaid suits, actions or other legal proceedings that may be brought or instituted against Landlord or its directors, officials, officers, employees, consultants, agents and volunteers due to the negligent performance of services. Tenant shall pay and satisfy any judgment, award or decree that may be rendered against Landlord or its directors, officials, officers, employees, consultants, agents and volunteers, in any such suit, action or other legal proceeding. Tenant shall reimburse Landlord and its directors, officials, officers, employees, consultants, agents and/or volunteers, for legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Additionally, Tenant shall indemnify, defend with counsel acceptable to the Landlord and hold harmless the Landlord against any claims pursuant to California Labor Code Section 1781 arising from this Agreement or the construction or installation of any improvements on the Property, in accordance with the terms of Section 12 of this Agreement.
ATTORNEY'S FEES AND COURT COSTS: In the event of any legal action arising out of or concerning this Lease or any performance or nonperformance hereunder, the prevailing party shall be entitled to recover reasonable attorney's fees and all other costs incurred in connection therewith or as a result thereof.
BINDING ON SUCCESSORS AND ASSIGNS: The terms and
conditions of this Lease shall be binding upon and shall inure to the benefit of each of the parties hereto, their heirs, personal representatives, successors and assigns. 3 81211.00115\41755495.1
18. ASSIGNMENT AND SUBLET: Tenant shall not sublet the Premises or any part thereof, nor assign this Lease, or any rights therein, without first obtaining the written consent of the Landlord, which may be withheld in its sole discretion. Any sublease or assignment of this Lease without first obtaining the written consent of the Landlord shall allow the Landlord the option of cancelling this Lease immediately.
19. TIME OF ESSENCE: Time is of the essence with respect to the performance of all obligations to be performed or observed by the Parties under this Lease.
20. NOTICE: All notices, statements, demands, requests, consents, approvals, authorizations, appointments or designations hereunder by either party to the other shall be in writing and shall be sufficiently given and served upon the other party, if sent by United States registered mail, return receipt requested, postage prepaid and addressed as follows:
TO TENANT:
_ CA
TO LANDLORD: City of Calexico
Attn: City Manager's Office
608 Heber Avenue
Calexico, CA 92231
Any Party may change its address by giving notice to the other Party in the manner provided for in this Section.
WAIVERS: No waiver by Landlord or Tenant of any breach hereof or of any provisions hereof shall be deemed a waiver of any subsequent breach or provision (even if the subsequent breach is the same as said previous breach or provision).
22. DELIVERY OF RELATED DOCUMENTS: Tenant will execute or provide, as requested by Landlord, such other documents and information as may be reasonably necessary to carry out the purpose of this Lease.
23. NO RIGHT TO HOLDOVER: Tenant has no right to retain possession of the Premises or any part thereof beyond the expiration or termination of this Lease. In the event that Tenant holds over, then the Lease Payment shall be increased to one hundred fifty percent (150%) of the Fair Rental Value and payable each month Tenant holds over. Nothing contained herein shall be construed as consent by Landlord to any holding over by Tenant.
24. DEFAULT: If Tenant, after notice from Landlord, fails to remedy within five (5) days and default in the payment of any sum due under this lease or in the keeping of any other term, covenant or condition of this lease, then the Landlord or its agents may enter upon the premises, take possession thereof, and remove all persons therefrom and at Landlord's option, either terminate this lease and all the Tenant's rights herein, or rent said premises for the account of the Tenant, or follow any other remedy provided by law. Any holding over beyond the term prescribed herein shall be constructed as a day-to-day tenancy. 4 81211.00115\41755495.1
25. CUMULATIVE REMEDIES: No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
COVENANTS AND CONDITIONS; CONSTRUCTION OF
AGREEMENT: All provisions of this Lease to be observed or performed by Tenant are both covenants and conditions. In construing this Lease, all headings and titles are for the convenience of the parties only and shall not be considered a part of this Lease. Whenever required by the context, the singular shall include the plural and vice versa. This Lease shall not be construed as if prepared by one of the parties, but rather according to its fair meaning as a whole, as if both parties had prepared it.
BINDING EFFECT; CHOICE OF LAW: This Lease shall be binding upon the parties, their personal representatives, successors and assigns and be governed by the laws of the State in which the Premises are located. Any litigation between the Parties hereto concerning this Lease shall be initiated in the county in which the Premises are located.
28. SURPLUS LAND ACT MEMORANDUM: A short-form Memorandum pertaining to Landlord's obligation to comply with the Surplus Land Act is attached hereto in the form as depicted in Exhibit "C" and is incorporated herewith.
29. ENTIRE AGREEMENT; AMENDMENT: This Lease constitutes the entire agreement between the Parties with respect to the lease of the Premises, and this Lease shall not be modified, amended, altered, or changed except with the written consent of Landlord and Tenant. Any provision of this Lease found to be prohibited by law shall be ineffective to the extent of such prohibition without invalidating the remainder of this Lease. [SIGNATURES ON FOLLOWING PAGE]
81211.00115141755495.1
IN WITNESS WHEREOF, the Parties hereto have caused this Lease to be executed and attested to by their proper officers hereunto duly authorized and their official seals to be hereto affixed, on the day and year first set forth above.
TENANT ATTEST
By:
Its:
APPROVED AS TO LEGAL FORM:
By:
Tenant's Counsel
LANDLORD
CITY OF CALEXICO ATTEST
a California municipal corporation
By:
Esperanza Colio-Warren
City Manager
Date:
APPROVED AS TO LEGAL FORM:
BEST, BEST & KRIEGER LLP
By:
District Counsel
6 81211.00115\41755495.1
EXHIBIT "A"
LEGAL DESCRIPTION
A PORTION OF BIH STREET, TOWNSITE OF CALEXICO, IN THE CITY OF CALEXICO, COUNTY OF IMPERIAL, STATE OF CALIFORNIA, ACCORDING TO MAP NO. 911, ON FILE IN BOOK 1, PAGE 14 OF OFFICIAL MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO. A COPY OF SAID MAP BEING ON FILE IN THE
OFFICE OF THE COUNTY RECORDER OF IMPERIAL COUNTY, DESCRIBED AS FOLLOWS BEGINNING AT THE NORTHEAST CORNER OF LOT 3 OF BLOCK 32 OF SAID MAP NO. 911, WHICH IS THE TRUE POINT OF BEGINNING (TPOB):
THENCE WEST 257.80 FEET ALONG THE NORTH LINE OF SAID BLOCK 32 TO THE EASTERLY LINE OF THE SOUTHERN PACIFIC COMPANY'S RIGHT OF WAY AS SHOWN ON SAID MAP NO. S11;
HENCE EXTENDING NORTHWESTERLY ALONG THE EASTERLY LINE CF SAID SOUTHERN PACIFI OMPANY'S RIGHE OF WAY, 84.50 FEET, MORE OR LESS, TO THE SOUTHWESTERLY CORNER OF LOT 1 OF BLOCK 20 OF SAID MAP NO. 911:
THENCE EAST 285.00 FEET ALONG THE SOUTH LINE OF SAID BLOCK 20 TO THE SOLTHEASTERLY CORNER OF LOT 10 OF BLOCK 20 OF SAID MAP NO. 911;
THENCE SOUTH 80.00 FEET ALONG THE SOUTHERLY EXTENSION OF THE EAST LINE OF LOT 10 OF BLOCK 20 OF SAD MAP NO. 911 TO THE THE TRUE POINT OF BEGINNING.
THE ABOVE LAND DESCRIBED AREA CONTAINS 21,712 SQ. FT. (0.50 AC.), MORE OR LESS.
SUB/ECT TO ALL. COVENANTS, EASEMENTS, AND AGREEMENTS OF RECORDS.
SHOWN ON EXHIBIT "B' ATTACHED HERETO, AND BY THIS REFERENCE MADE A PART HEREOF Exhibit "A"
81211.00115\41755495.1
EXHIBIT B"
PREMISES
ABANDONMENT OFA PORTION OF 6th STREET
14 AVENUE
07 1059
00 820
(3) (3) 17 16 72
500
5th
- ТРОЯ
BEAT
(0) EMERSON 15
2 J0
LEGEND
COP COE
M 7818 115 Or 0 20 0 100 20 00%
SWAM MORON MO COM
MOTE
/ M 2 ANON= 20/02 56 1230 AS J00 ON 1255
PAGE 1 OF T
Exhibit "B"
812110011541755495.1
EXHIBIT "C"
Upon Recording Return to:
City of Calexico
City Manager's Office
608 Heber Avenue, CA 92231
(Above 3" Space for Recorder's Use Only)
MEMORANDUM OF LEASE
This Memorandum of Option to Lease ("Memorandum") evidences the Lease Agreement (the "Lease") between City of Calexico, California, a Municipal Corporation ("Landlord"), whose address is 608 Heber Avenue Calexico CA 92231, and - whose mailing address is ("Tenant"), dated → 2023 (the
"Effective Date"), for a portion (the "Premises") of the real property (the "Property") described and depicted in Exhibit A and Exhibit B to the Lease.
1. Pursuant to the Lease, Landlord has agreed to lease to Tenant the Premises.
The lease term shall commence as of the Effective Date of the Lease and shall continue in effect for a period of four (4) years from the Effective Date.
2. Landlord ratifies, restates and confirms the Lease, subject to the terms and conditions of the Lease.
3. Prior to or upon the termination or completion of the Lease, Landlord shall proceed with the requirements of the Surplus Land Act and may elect, in its sole discretion, to either vacate, sell, or lease the Premises to affordable home developers and certain other entities before selling, or leasing the Premises for a period greater than four (4) years to any other individual or entity.
Landlord and Tenant agree and acknowledge that all information and documents related to the Lease and this Memorandum are subject to disclosure pursuant to the California Public Records Act, California Government Code Section 6250 et seq.
5. This Memorandum is not intended to amend or modify, and shall not be deemed or construed as amending or modifying, any of the terms, conditions or provisions of the Lease. In the event of a conflict between the provisions of this Memorandum and the provisions of the Lease, the provisions of the Lease shall control. The Lease shall be binding upon and inure to the benefit of Landlord and Tenant and shall inure to the benefit of their respective heirs, successors, and assigns, subject to the provisions of the Lease.
Exhibit "C"
81211 00115141755495.1
IN WITNESS WHEREOF, the parties hereto have executed this MEMORANDUM OF LEASE as of the date last signed by a party hereto.
TENANT ATTEST
By:
Its:
Date:
APPROVED AS TO LEGAL FORM:
By:
Tenant's Counsel
LANDLORD
CITY OF CALEXICO ATTEST
a California municipal corporation
By:
Esperanza Colio-Warren
City Manager
Date:
APPROVED AS TO LEGAL FORM:
BEST, BEST & KRIEGER LLP
By:
City Attorney
Exhibit "C"
81211.00115\41755495.1
CALIFORNIA ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document
STATE OF CALIFORNIA
COUNTY OF
On_ _ 20_ _ before me, Notary
Public, personally appeared → who proved to me on
the basis of satisfactory evidence to be the person(s) whose names) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Seal)
Signature
Exhibit "C"
81211.00115\41755495.1