AGENDA
Garden Grove City Council
Tuesday, February 27, 2024
6:30 PM
Community Meeting Center
11300 Stanford Avenue
Garden Grove, California 92840
Steve Jones
Mayor
Cindy Tran
Mayor Pro Tem –District 3
George S. Brietigam
Council Member – District 1
John R. O’Neill
Council Member – District 2
Joe DoVinh
Council Member – District 4
Stephanie Klopfenstein
Council Member – District 5
Kim B. Nguyen-Penaloza
Council Member – District 6
Meeting Assistance: Any person requiring auxiliary aids and services, due to a disability, to address the City Council, should contact the City Clerk's Office 72 hours prior to the meeting to arrange for accommodations. Phone: (714) 741-5040.
Agenda Item Descriptions: Are intended to give a brief, general description of the item. The City Council may take legislative action deemed appropriate with respect to the item and is not limited to the recommended action indicated in staff reports or the agenda.
Documents/Writings: Any revised or additional documents/writings related to an item on the agenda distributed to all or a majority of the Council Members within 72 hours of a meeting, are made available for public inspection at the same time (1) in the City Clerk's Office at 11222 Acacia Parkway, Garden Grove, CA 92840, during normal business hours; (2) on the City's website as an attachment to the City Council meeting agenda; and (3) at the Council Chamber at the time of the meeting.
Public Comments: Members of the public who attend the meeting in -person and would like to address the City Council are requested to complete a pink speaker card indicating their name and address, and identifying the subject matter they wish to address. This card should be given to the City Clerk before the meeting begins. General comments are made during "Oral Communications" and should be limited to matters under consideration and/or what the City Council has jurisdiction over. Persons wishing to address the City Council regarding a Public Hear ing matter will be called to the podium at the time the matter is being considered.
Manner of Addressing the City Council: After being called by the Mayor, you may approach the podium, it is requested that you state your name for the record, and proceed to address the City Council. All remarks and questions should be addressed to the City Council as a whole and not to individual Council Members or staff members. Any person making impertinent, slanderous, or profane remarks or who becomes boisterous while addressing the City Council shall be called to order by the Mayor. If such conduct continues, the Mayor may order the person barred from addressing the City Council any further during that meeting.
Time Limitation: When any group of persons wishes to address the City Council on the same subject matter, the Mayor may request a spokesperson be chosen to represent the group, so as to avoid unnecessary repetition. At the City Council's discretion, a limit on the total amount of time for public comments during Oral Communications and/or a further limit on the time allotted to each speaker during Oral Communications may be set.
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PLEASE SILENCE YOUR CELL PHONES DURING THE MEETING.
AGENDA
ROLL CALL: COUNCIL MEMBER BRIETIGAM, COUNCIL MEMBER O'NEILL, COUNCIL MEMBER DOVINH, COUNCIL MEMBER KLOPFENSTEIN, COUNCIL MEMBER K. NGUYEN -
PENALOZA, MAYOR PRO TEM TRAN, MAYOR JONES
INVOCATION
PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA
1. PRESENTATIONS
1.a. Information on the 49th Annual Americana Awards as presented by Howard Kummerman, Executive Director of Cypress College Foundation.
2. ORAL COMMUNICATIONS (TO BE HELD SIMULTANEOUSLY WITH OTHER
LEGISLATIVE BODIES)
RECESS
CONDUCT OTHER LEGISLATIVE BODIES' BUSINESS
RECONVENE
3. CONSENT ITEMS (CONSENT ITEMS WILL BE ACTED ON SIMULTANEOUSLY
WITH ONE MOTION UNLESS SEPARATE DISCUSSION AND/OR ACTION IS
REQUESTED BY A COUNCIL MEMBER)
3.a. Acceptance of Project No. CP1205000 – Magnolia Reservoirs and Booster Pump Station Rehabilitation Project as complete. (Action Item)
3.b. Approval of the First Amendment to the Lease Agreement with Strive Health for office space located at 12966 Euclid Street, Garden Grove. (Action Item)
3.c. Approval of the proposed Fiscal Year 2024-25 West Orange County Water Board Cost Sharing Budget and Amendment to the Joint Powers Authority Agreement. (Action Item)
3.d. Approval of Amendment No. 1 to the agreement with Parkwood Landscape Maintenance, Inc. to provide median landscaping services. (Cost: $250,000) (Action Item)
3.e. Receive and file minutes from the meeting held on January 23, 2024. (Action Item)
3.f. Approval to waive full reading of ordinances listed. (Action Item)
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3.g. Receive and file warrants. (Action Item)
4. ITEMS FOR CONSIDERATION
4.a. Approval of a Cooperative agreement for Euclid Street Corridor Traffic Signal Synchronization Project (CP1325000). (Cost: $286,377) (Action Item)
5. ORDINANCES PRESENTED FOR SECOND READING AND ADOPTION
5.a. Second Reading and Adoption of Ordinance No. 2952
Entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GARDEN GROVE APPROVING ZONING AMENDMENT NO. A-036-2023 TO AMEND THE CITY'S
OFFICIAL ZONING MAP TO CHANGE THE ZONING DESIGNATION OF PROPERTIES LOCATED AT 13252 BROOKHURST STREET AND 10052 CENTRAL AVENUE AND IDENTIFIED AS ASSESSOR'S PARCEL NOS. 099-031-01, 099- 031-02, 099-031-008, AND 099-0310-09 FROM C-1 (NEIGHBORHOOD COMMERCIAL) AND R-2 (LIMITED MULTIPLE RESIDENTIAL) TO R-3 (MULTIPLE- FAMILY RESIDENTIAL). (Action Item)
6. MATTERS FROM THE MAYOR, CITY COUNCIL MEMBERS, AND CITY
MANAGER
6.a. Update on the Civic Center Revitalization Project as requested by City Manager Kim.
7. ADJOURNMENT
The next Regular City Council Meeting is scheduled for Tuesday, March 12, 2024, at 5:30 p.m. in the Community Meeting Center, 11300 Stanford Avenue, Garden Grove, California 92840. 3 City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To:
Lisa L. Kim From: William E. Murray
Dept:
City Manager Dept: Public Works
Date: 2/27/2024
Subject: Acceptance of Project No. CP1205000 – Magnolia Reservoirs and Booster Pump Station Rehabilitation Project as complete. (Action Item)
OBJECTIVE
For the Garden Grove City Council to accept Project No. CP1205000 – Magnolia Reservoirs and Booster Pump Station Rehabilitation Project as complete, and authorize the City Manager to execute the Notice of Completion of Public Improvements and Work.
BACKGROUND
The Magnolia Reservoir and Booster Pump Station Rehabilitation Project consists of the repair work for the buried pre-stressed concrete reservoir and the booster pump station located at Magnolia Park. The extent of the work is as follows: The reservoir repairs consist of crack, spall, and joint repair, construction of seismic curb, roof waterproofing, rust spo t repair, and the addition of a fall protection system. Site Improvements include rerouting the existing sub -drain sump pump piping, replacement of the sump hatch and sump vault lid and hatch, repair of the overflow flap gate, construction of a new parking lot and ADA ramp, installation of bollards and a mow strip around the reservoir, and replacement of the meter vault and piping.
The repair work for the pump station consists of replacement of the existing engine and booster pump, replacement of the existing exhaust system, replacement of the existing catalytic converter, replacement of two 10 -inch butterfly valves, replacement of the 10 -inch check valve, refurbishment of the existing flow control valve, and replacement of the roof and existing removable dormer.
DISCUSSION
The contractor, Pacific Hydrotech Corporation, has completed this project in accordance with the plans, specifications and other contract documents.
FINANCIAL IMPACT
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The project was funded with Water Funds. The retention payment will be released after recordation of the Notice of Completion with the County of Orange.
RECOMMENDATION
It is recommended that the City Council:
Accept Project No. CP1205000 - Magnolia Reservoirs and Booster Pump Station Rehabilitation Project as complete, and authorize the City Manager to execute the Notice of Completion of Public Improvement and Work; and Authorize the Finance Director to release the retention payment when appropriate to do so.
By: Rebecca Li, Senior Civil Engineer
ATTACHMENT(S):
1. Notice of Completion
5 RECORDING REQUESTED BY
When Recorded Mail To:
City Clerk
City of Garden Grove
P. 0. Box 3070
Garden Grove, CA 92842
NOTICE OF COMPLETION
OF PUBLIC IMPROVEMENT AND WORK
NOTICE IS HEREBY GIVEN that the Garden Grove City Council, Orange County, California, has caused a public improvement, to wit:
PROJECT NO. CP1205000
MAGNOLIA RESERVOIRS AND BOOSTER PUMP STATION REHABILITATION
PROJECT
to be constructed upon the property hereinafter described. The contract for furnishing of all plant, labor, services, materials, and equipment, and all utilities and transportation, including power, fuel, and water, and performing all work necessary to construct and complete, in a good and workmanlike manner in strict accordance with the specifications, plans, and drawings therefore on file in the office of the City Clerk of the City of Garden Grove, for the construction, installation and completion of the above-described public improvement and work, was heretofore made and entered into with PACIFIC HYDROTECH CORPORATION, on the 24th day of November, 2020, and filed for record in the office of the City Clerk of the City of Garden Grove; that the work upon said public improvement has been completed, and that the City Engineer has notified the City Council that he has made and completed a final inspection of the materials furnished and installed and the work performed in the construction, installation, and completion of said public improvement hereinabove more particularly described and set forth, and has certified in writing to the City Council that all the provisions of the contract and contract documents for the furnishing of all plant, labor, services, materials, and equipment, and the performing of all work necessary for the construction, installation, and completion of said public improvement above described have been fully complied with to his satisfaction as required by the contract document; that final acceptance of the construction, installation, and completion of said public improvement above described was made on the 27th day of February 2024; that the nature of the title to said property of said City Council is as follows: That is to say, it owns said public improvement in fee except the right-of-way upon which it is constructed, and that it owns an easement upon, over, and along said right-of-way for the purpose of the construction, installation, and completion of said public improvement hereinabove described and the use thereof after said completion; that the property hereinabove referred to and on which said public improvement is situated is described as follows, to wit:
PROJECT NO. CP1205000
MAGNOLIA RESERVOIRS AND BOOSTER PUMP STATION REHABILITATIQN_
PROJECT
6 NOTICE OF COMPLETION
PROJECT NO CP1205000 - MAGNOLIA RESERVOIRS AND BOOSTER PUMP STATION
REHABILITATION PROJECT
February 27, 2024
NAME OF SURETY on Labor and Material Bond is:
DATED this
Liberty Mutual Insurance Company
790 The City Drive South, Suite 200,
Orange, CA 92868
Tel No. (714)238-1828
day of20
GARDEN GROVE CITY COUNCIL
ATTEST:
By
City Manager of the Garden Grove
City Council
Secretary of Garden Grove City Council
STATE OF CALIFORNIA
COUNTY OF ORANGE
I am the Public Works Director of the Citv of Garden Grove.
I have read the foregoing Notice of Completion of Public Improvement and Work, and know the contents thereof; and I certify that the same is true of my own knowledge, except as to those matters, which are therein stated upon my information or belief, and as to those matters I believe to be true.
I certify (or declare), under penalty of perjury, that the foregoing is true and correct.
Executed on•z7/ 5V -^ ^z?1^1
atGarden Grove
T(Date)(Place)
/William E Murray E-'E-.'
PubljpWorks(6frector
, California
7 City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To:
Lisa L. Kim From: Ursula Luna-Reynosa
Dept:
City Manager Dept: Economic Development and
Housing
Date: 2/27/2024
Subject: Approval of the First Amendment to the Lease Agreement with Strive Health for office space located at 12966 Euclid Street, Garden Grove. (Action Item)
OBJECTIVE
For City Council to consider an Amendment with Strive Health for the lease of office space in the Garden Office Plaza located at 12966 Euclid Street, Garden Grove.
BACKGROUND
On November 30, 2023, the City acquired the office building located at 12966 Euclid Street (the “Property”) from LT Properties Company (the “Original Lessor”). The Property is improved with a five-story office building containing 64,402 rental square feet. The office building was originally constructed in 1985, with an onsite surface parking lot. Upon acquisition the building was configured with 25 tenant suites of which 8 are unoccupied suites for a total vacancy rate of 32% (total unoccupied square footage).
Strive Health is located on the first (ground) floor in suite 110 and utilizes the space for administrative functions. Strive Health entered into their original lease agreement with the Original Lessor on December 8, 2022 to lease Suite 110 (1,035 square feet) (See Original Lease). The term of the original lease expired on December 31, 2023 and they are now in a holding over period.
DISCUSSION
Strive Health desires to amend their lease (the “First Amendment”) to relocate from Suite 110 to Suite 525 (554 square feet) (See Office Stacking Chart) for a one year term scheduled to expire on February 28, 2025. The rental rate will be $2.25 per square foot which is the same rate for Suite 110; however, ground floor space is more valuable than upper floor space. Suite 525 is smaller than Suite 110 so this move results in an increase of total vacancy from 32% to 37%; however, 8
the entire first floor will be available for lease which could provide flexibility for prospective tenants.
LEASE AMENDMENT DETAILS
The lease follows a modified Gross Lease structure, with the tenant responsible for operational costs such as electricity, gas, water, and building maintenance.
Effective February 27, 2024.
Lease term extended to February 28, 2025.
Monthly base rent set at $2.25 Per Square Foot or $1,246.50 from March 1, 2024, until the expiration date.
Agreed Use modified, designating Suite 525 on the 5th floor, comprising approximately 554 rentable square feet, as the new premises. Lessee gains access to Suite 525 on February 28, 2024, for installation purposes and must vacate Suite 110 by March 15, 2024, leaving it in "broom clean" condition.
The amendment addresses property taxes and brokerage representation by CBRE for the Landlord and Cresa Global, Inc. for the Tenant, with mutual consent.
FINANCIAL IMPACT
The City will receive lease revenues of $1,246.50 monthly or annual revenue of $14,985.00. Based on the proportionate share of the building's 10-year average of expenses, the City anticipates one-year expenses for Suite 525 to be around $5,069.00.
RECOMMENDATION
It is recommended that the City Council:
Approve the First Amendment to the Strive Health Lease; and Authorize the City Manager to execute the First Amendment, including any minor modifications as appropriate, and any other pertinent documents necessary to effectuate and/or implement the First Amendment, on behalf of the City.
ATTACHMENT(S):
1. Original Strive Health Lease
2. Office Stacking Chart
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3. Strive Health Lease Amendment
10 AIRCRS
contracts
STANDARD MULTI-TENANT OFFICE LEASE - GROSS
1. Basic Provisions ("Basic Provisions").
1.1 Parties. This Lease ("Lease"), dated for reference purposes only December 8, 2022 , is made by and between LT Properties Company, a California Limited Partnership ("Lessor") and Strive Health, LLC ("Lessee"), (collectivelv the "Parties", or individually a "Party").
1.2(a) Premises: That certain Portion of the Project (as defined below), commonly known as (street address, suite, city, state): 12966 Euclid Street, Suite 110, Garden Grove, CA 92840 ("Premises"). The Premises are located in the County of Orange , and consist of approximately 1,035 rentable square feet and approximately _ useable square feet. In addition to Lessee's rights to use and occupy the Premises as hereinafter specified, Lessee shall have non-exclusive rights to the Common Areas (as defined in Paragraph 2.7 below) as hereinafter specified, but shall not have any rights to the roof, the exterior walls, the area above the dropped ceilings, or the utility raceways of the building containing the Premises ("Building") or to any other buildings in the Project. The Premises, the Building, the Common Areas, the land upon which they are located, along with all other buildings and improvements thereon, are herein collectively referred to as the "Project." The Project consists of approximately 64 , 602 rentable square feet. (See also Paragraph 2)
1.2(b) Parking; 4 _ unreserved and 0 _ reserved vehicle parking spaces at a monthly cost of_per unreserved space and per reserved space. (See Paragraph 2.6)
1.3 Term: Zero (0) years and Twelve (12) full calendar months ("Original Term") commencing January 1, 2023 ("Commencement Date") and ending December 31, 2023 ("Expiration Date"). (See also Paragraph 3)
1.4 Early Possession: If the Premises are available Lessee may have non-exclusive possession of the Premises commencing followincf mutual execution of this Lease, payment of the amount due in section 1.7 below and fulfilling all obligations of this Lease ("Early Possession Date"). (See also Paragraphs 3.2 and 3.3)
1.5 Base Rent: $2,328.75 per month ("Base Rent"), payable on the first day of each month commencing on the Commencement Date . (See also Paragraph 4)
If this box is checked, there are provisions in this Lease for the Base Rent to be adjusted. See Paragraph
1.6 Lessee's Share of Operating Expense Increase, one and sixty-one hundredths percent ( 1.61 %) ("Lessee's Share"). In the event that the size of the Premises and/or the Project are modified during the term of this Lease, Lessor shall recalculate Lessee's Share to reflect such modification.
1.7 Base Rent and Other Monies Paid Upon Execution:
(a) Base Rent: $2,328.75 for the period first full calendar month of the Lease Term . (b) Security Deposit: $3,493.13 ("Security Deposit"). (See also Paragraph 5) (c) Parking: $0.00 for the period _.
(d) Other: _ for _ .
(e) Total Due Upon Execution of this Lease: $5, 821 .88 .
1.8 Agreed Use: General Office Use . (See also Paragraph 6)
1.9 Base Year; Insuring Party. The Base Year is 2023 Lessor is the "Insuring Party". (See also Paragraphs 4.2 and 8)
1.10 Real Estate Brokers. (See also Paragraphs 15 and 25) (a) Representation: Each Party acknowledges receiving a Disclosure Regarding Real Estate Agency Relationship, confirms and consents to the following agency relationships in this Lease with the following real estate brokers ("Broker(s)") and/or their agents ("Agent(s)"):
r
Lessor's Brokerage Firm CBRE, Inc. License No. 00409987 Is the broker of (check one): ^.-1 the Lessor; or 1--J both the Lessee and Lessor (dual agent).
Lessor's Agent
the Lessee's Agent and the Lessor's Agent (dual agent).
Lessee's Brokerage Firm
Lessee and Lessor (dual agent).
Lessee's Agent Blake Martin License No. 02080666 is (check one): !v the Lessee's Agent (salesperson or broker associate); or ^ both the Lessee's Agent and the Lessor's Agent (dual agent). f^\ DamMont_tTiJlmLar& llny-in ^va/lA^^n in^ rlal;i,an< ^f_J-klcJ a-»ca hw kAl-b^arl-ioi- I Qcc^rch^ll ni« 1-rt thfl Rrnl/Qrc t-ha hml/araCTQ fao •aoraarl 1-^ in l EQparato written agrQomontfor ifthorQ is no cuch ogroomont,thQ cum of or % ofthQ total BasQ Ront) fortho brokorago GQrvicas rQndorod h,,tha Ornl^arc
1.11 Guarantor. The obligations of the Lessee under this Lease are to be guaranteed by N/A ("Guarantor"). (See also Paragraph 37)
1.12 Business Hours for the Building: 8:00 a.m. to 6:00 p.m., Mondays through Fridays (except Building Holidays) and ----- a.m. to p.m. on Saturdays (except Building Holidays). "Building Holidays" shall mean the dates of observation of New Year's Day, President's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day, and
1.13 Lessor Supplied Services. Notwithstanding the provisions of Paragraph 11.1, Lessor is NOT obligated to provide the following within the Premises:
•DS—1 - - /-^DS
i. /\ I
Lessor's Agent Peter Wells License No. 01718361 is (check one): •w- the Lessor's Agent (salesperson or broker associate); or L- - both I."/1
Lessee's Brokerage Firm Cresa Global, Inc. License No. 00857710 Is the broker of (check one): lv I the Lessee; or ' both the
INITIALS INITIALS
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11 J Electricity
Other (specify):
1.14 Attachments. Attached hereto are the following, all of which constitute a part of this Lease:
an Addendum consisting of Paragraphs 50 _ through 54 _; a plot plan depicting the Premises;
]
a current set of the Rules and Regulations;
a Work Letter;
ajanitorial schedule;
;s/lother (specify): Paragraph 55 - Option to Extend
2. Premises.
2.1 Letting. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Premises, for the term, at the rental, and upon all of the terms, covenants and conditions set forth in this Lease. While the approximate square footage of the Premises may have been used in the marketing of the Premises for purposes of comparison, the Base Rent stated herein is NOT tied to square footage and is not subject to adjustment should the actual size be determined to be different. NOTE: Lessee is advised to verify the actual size prior to executing this Lease.
2.2 Condition. Lessor shall deliver the Premises to Lessee in a clean condition on the Commencement Date or the Early Possession Date, whichever first occurs ("Start Date"), and warrants that the existing electrical, plumbing, fire sprinkler, lighting, heating, ventilating and air conditioning systems ("HVAC"), and all other items which the Lessor is obligated to construct pursuant to the Work Letter attached hereto, If any, other than those constructed by Lessee, shall be in good operating condition on said date, that the structural elements of the roof, bearing walls and foundation of the Unit shall be free of material defects, and that the Premises do not contain hazardous levels of any mold or fungi defined as toxic under applicable state or federal law. Lessor also warrants, that unless otherwise specified in writing, Lessor is unaware of (i) any recorded Notices of Default affecting the Premise; (ii) any delinquent amounts due under any loan secured by the Premises; and (ill) any bankruptcy proceeding affecting the Premises.
2.3 Compliance. Lessor warrants that to the best of its knowledge the improvements on the Premises and the Common Areas corn ply with the building codes, applicable laws, covenants or restrictions of record, regulations, and ordinances ("Applicable Requirements") that were in effect at the time that each improvement, or portion thereof, was constructed. Said warranty does not apply to the use to which Lessee will put the Premises, modifications which may be required by the Americans with Disabilities Act or any similar laws as a result of Lessee's use (see Paragraph 49), or to any Alterations or Utility Installations (as defined in Paragraph
7.3(a)) made or to be made by Lessee. NOTE: Lessee is responsible for determining whether or not the zoning and other Applicable Requirements are appropriate for Lessee's intended use, and acknowledges that past uses of the Premises may no longer be allowed. If the Premises do not comply with said warranty, Lessor shall, except as otherwise provided, promptly after receipt of written notice from Lessee setting forthwith specificity the nature and extent of such non-compliance, rectify the same. If the Applicable Requirements are hereafter changed so as to require during the term of this Lease the construction of an addition to or an alteration of the Premises, the remediation of any Hazardous Substance, or the reinforcement or other physical modification of the Premises ("Capital Expenditure"), Lessor and Lessee shall allocate the cost of such work as follows:
(a) Subject to Paragraph 2.3(c) below, if such Capital Expenditures are required as a result of the specific and unique use of the Premises by Lessee as compared with uses by tenants in general, Lessee shall be fully responsible for the cost thereof, provided, however, that if such Capital Expenditure is required during the last 2 years of this Lease and the cost thereof exceeds 6 months' Base Rent, Lessee may instead terminate this Lease unless Lessor notifies Lessee, in writing, within 10 days after receipt of Lessee's termination notice that Lessor has elected to pay the difference between the actual cost thereof and the amount equal to 6 months' Base Rent. If Lessee elects termination, Lessee shall immediately cease the use of the Premises which requires such Capital Expenditure and deliver to Lessor written notice specifying a termination date at least 90 days thereafter. Such termination date shall, however, in no event be earlier than the last day that Lessee could legally utilize the Premises without commencing such Capital Expenditure. (b) If such Capital Expenditure Is not the result of the specific and unique use of the Premises by Lessee (such as, governmentally mandated seismic modifications), then Lessor shall pay for such Capital Expenditure and Lessee shall only be obligated to pay, each month during the remainder of the term of this Lease or any extension thereof, on the date that on which the Base Rent is due, an amount equal to 1,144th of the portion of such costs reasonably attributable to the Premises. Lessee shall pay Interest on the balance but may prepay its obligation at any time. If, however, such Capital Expenditure is required during the last 2 years of this Lease or if Lessor reasonably determines that it is not economically feasible to pay its share thereof, Lessor shall have the option to terminate this Lease upon 90 days prior written notice to Lessee unless Lessee notifies Lessor, in writing, within 10 days after receipt of Lessor's termination notice that Lessee will pay for such Capital Expenditure. If Lessor does not elect to terminate, and fails to tender its share of any such Capital Expenditure, Lessee may advance such funds and deduct same, with Interest, from Rent until Lessor's share of such costs have been fully paid. If Lessee is unable to finance Lessor's share, or if the balance of the Rent due and payable for the remainder of this Lease is not sufficient to fully reimburse Lessee on an offset basis. Lessee shall have the right to terminate this Lease upon 30 days written notice to Lessor.
(c) Notwithstanding the above, the provisions concerning Capital Expenditures are intended to apply only to non-voluntary, unexpected, and new Applicable Requirements. If the Capital Expenditures are instead triggered by Lessee as a result of an actual or proposed change in use, change In intensity of use, or modification to the Premises then, and in that event, Lessee shall either: (i) immediately cease such changed use or intensity of use and/ortake such other steps as maybe necessary to eliminate the requirement for such Capital Expenditure, or (ii) complete such Capital Expenditure at its own expense. Lessee shall not have any right to terminate this Lease.
2.4 Acknowledgements. Lessee acknowledges that: (a) it has been given an opportunity to inspect and measure the Premises, (b) Lessee has been advised by Lessor and/or Brokers to satisfy itself with respect to the size and condition of the Premises (including but not limited to the electrical, HVAC and fire sprinkler systems, security, environmental aspects, and compliance with Applicable Requirements), and their suitability for Lessee's intended use, (c) Lessee has made such investigation as it deems necessary with reference to such matters and assumes all responsibility therefor as the same rela
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12 was the owner or occupant of the Premises. In such event, Lessee shall be responsible for any necessary corrective work.
2.6 Vehicle Parking. So long as Lessee is not in default, and subject to the Rules and Regulations attached hereto, and as established by Lessor from time to time, Lessee shall be entitled to rent and use the number of parking spaces specified in Paragraph 1.2(b) at the rental rate applicable from time to time for monthly parking as set by Lessor and/or its licensee.
(a) If Lessee commits, permits or allows any of the prohibited activities described in the Lease or the rules then in effect, then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove or tow away the vehicle involved and charge the cost to Lessee, which cost shall be Immediately payable upon demand by Lessor.
(b) The monthly rent per parking space specified in Paragraph 1.2(b) is subject to change upon 30 days prior written notice to Lessee. The rent for the parking Is payable one month in advance prior to the first day of each calendar month.
2.7 Common Areas - Definition. The term "Common Areas" is defined as all areas and facilities outside the Premises and within the exterior boundary line of the Project and interior utility raceways and installations within the Premises that are provided and designated by the Lessor from time to time for the general non-exclusive use of Lessor, Lessee and other tenants of the Project and their respective employees, suppliers, shippers, customers, contractors and invitees, including parking areas, loading and unloading areas, trash areas, roofs, roadways, walkways, driveways and landscaped areas.
2.8 Common Areas- Lessee's Rights. Lessor grants to Lessee, for the benefit of Lessee and its employees, suppliers, shippers, contractors, customers and invitees, during the term of this Lease, the non-exclusive right to use, in common with others entitled to such use, the Common Areas as they exist from time to time, subject to any rights, powers, and privileges reserved by Lessor under the terms hereof or under the terms of any rules and regulations or restrictions governing the use of the Project. Under no circumstances shall the right herein granted to use the Common Areas be deemed to include the right to store any property, temporarily or permanently, in the Common Areas. Any such storage shall be permitted only by the prior written consent of Lessor or Lessor's designated agent, which consent maybe revoked at anytime. In the event that any unauthorized storage shall occur, then Lessor shall have the right, without notice, in addition to such other rights and remedies that it may have, to remove the property and charge the cost to Lessee, which cost shall be immediately payable upon demand by Lessor.
2.9 Common Areas- Rules and Regulations. Lessor or such other person(s) as Lessor may appoint shall have the exclusive control and management of the Common Areas and shall have the right, from time to time, to adopt, modify, amend and enforce reasonable rules and regulations ("Rules and Regulations") for the management, safety, care, and cleanliness of the grounds, the parking and unloading of vehicles and the preservation of good order, as well as for the convenience of other occupants or tenants of the Building and the Project and their invitees. The Lessee agrees to abide by and conform to all such Rules and Regulations, and shall use Its best efforts to cause Its employees, suppliers, shippers, customers, contractors and invitees to so abide and conform. Lessor shall not be responsible to Lessee for the noncompliance with said Rules and Regulations by other tenants of the Project.
2.10 Common Areas - Changes. Lessor shall have the right, in Lessor's sole discretion, from time to time:
(a) To make changes to the Common Areasjncluding, without limitation, changes in the location, size, shape and number of the lobbies, windows, stairways, air shafts, elevators, escalators, restrooms, driveways, entrances, parking spaces, parking areas, loading and unloading areas, ingress, egress, direction of traffic, landscaped areas, walkways and utility raceways; (b) To close temporarily any of the Common Areas for maintenance purposes so long as reasonable access to the Premises remains available; (c) To designate other land outside the boundaries of the Project to be a part of the Common Areas; (d) To add additional buildings and improvements to the Common Areas; (e) To use the Common Areas while engaged in making additional improvements, repairs or alterations to the Project, or any portion thereof; and (f) To do and perform such other acts and make such other changes in, to or with respect to the Common Areas and Project as Lessor may, in the exercise of sound business judgment, deem to be appropriate.
3. Term.
3.1 Term. The Commencement Date, Expiration Date and Original Term of this Lease are as specified in Paragraph 1.3.
3.2 Early Possession. Any provision herein granting Lessee Early Possession of the Premises is subject to and conditioned upon the Premises being available for such possession prior to the Commencement Date. Any grant of Early Possession only conveys a non-excluslve right to occupy the Premises. If Lessee totally or partially occupies the Premises prior to the Commencement Date, the obligation to pay Base Rent shall be abated for the period of such Early Possession. All other terms of this Lease (including but not limited to the obligations to pay Lessee's Share of the Operating Expense Increase) shall be In effect during such period. Any such Early Possession shall not affect the Expiration Date.
3.3 Delay In Possession. Lessor agrees to use commercially reasonable efforts to deliver exclusive possession of the Premises to Lessee by the Commencement Date. If, despite said efforts, Lessor is unable to deliver possession by such date, Lessor shall not be subject to any liability therefor, nor shall such failure affect the validity of this Lease or change the Expiration Date. Lessee shall not, however, be obligated to pay Rent or perform its other obligations until Lessoi delivers possession of the Premises and any period of rent abatement that Lessee would otherwise have enjoyed shall run from the date of delivery of possession and continue for a period equal to what Lessee would otherwise have enjoyed under the terms hereof, but minus any days of delay caused by the acts or omissions of Lessee. If possession is not delivered within 60 days after the Commencement Date, as the same may be extended under the terms of any Work Letter executed by Parties, Lessee may, at its option, by notice in writing within 10 days after the end of such 60 day period, cancel this Lease, in which event the Parties shall be discharged from all obligations hereunder. If such written notice is not received by Lessorwithin said 10 day period, Lessee's right to cancel shall terminate. If possession of
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13 governmental authority, as to which government mandated expenses Lessee shall pay Lessee's Share, notwithstanding they occur during the first twelve (12) months).
Lessee's Share of the Operating Expense Increase for the first and last Comparison Years of the Lease Term shall be prorated according to that portion of such Comparison Year as to which Lessee is responsible for a share of such increase. (c) The following costs relating to the ownership and operation of the Project, calculated as if the Project was at least 95% occupied, are defined as "Operating Expenses":
(i) Costs relating to the operation, repair, and maintenance in neat, clean, safe, good order and condition, but not the replacement (see subparagraph (g)), of the following:
(aa) The Common Areas, including their surfaces, coverings, decorative items, carpets, drapes and window coverings, and including parking areas, loading and unloading areas, trash areas, roadways, sidewalks, walkways, stairways, parkways, driveways, landscaped areas, striping, bumpers, irrigation systems. Common Area lighting facilities, building exteriors and roofs, fences and gates; (bb) All heating, air conditioning, plumbing, electrical systems, life safety equipment, communication systems and other equipment used in common by, or for the benefit of, tenants or occupants of the Project, including elevators and escalators, tenant directories, fire detection systems including sprinkler system maintenance and repair.
(ec) All other areas and Improvements that are within the exterior boundaries of the Project but outside of the Premises and/or any other space occupied by a tenant.
(il) The cost of trash disposal, Janitorial and security services, pest control services, and the costs of any environmental inspections; (iii) The costof any other service to be provided by Lessor that is elsewhere in this Lease stated to be an "Operating Expense"; (iv) The cost of the premiumsfor the insurance policies maintained by Lessor pursuant to paragraph 8 and any deductible portion of an insured loss concerning the Building or the Common Areas;
(v) The amount of the Real Property Taxes payable by Lessor pursuant to paragraph 10; (vi) The cost of water, sewer, gas, electricity, and other publicly mandated services not separately metered; (vii) Labor, salaries, and applicable fringe benefits and costs, materials, supplies and tools, used in maintaining and/or cleaning the Project and accounting and management fees attributable to the operation of the Project; (viii) The cost of any capital Improvement to the Building or the Project not covered under the provisions of Paragraph 2.3 provided; however, that Lessor shall allocate the cost of any such capital improvement over a 12 year period and Lessee shall not be required to pay more than Lessee's Share of 1,144th of the cost of such Capital Expenditure in any given month; (ix) The cost to replace equipment or improvements that have a useful life for accounting purposes of 5 years or less. (x) Reserves set aside for maintenance, repair and/or replacement of Common Area improvements and equipment. (d) Any item of Operating Expense that is specifically attributable to the Premises, the Building or to any other building in the Project or to the operation, repair and maintenance thereof, shall be allocated entirely to such Premises, Building, or other building. However, any such item that is not specifically attributable to the Building or to any other building or to the operation, repair and maintenance thereof, shall be equitably allocated by Lessor to all buildings in the Project. (e) The inclusion of the improvements, facilities and services set forth in Subparagraph 4.2(c) shall not be deemed to impose an obligation upon Lessor to either have said improvements or facilities or to provide those services unless the Project already has the same. Lessor already provides the services, or Lessor has agreed elsewhere in this Lease to provide the same or some of them. (f) Lessee's Share of Operating Expense Increase is payable monthly on the same day as the Base Rent is due hereunder. The amount of such payments shall be based on Lessor's estimate of the Operating Expenses. Within 60 days after written request (but not more than once each year) Lessor shall deliver to Lessee a reasonably detailed statement showing Lessee's Share of the actual Common Area Operating Expenses for the preceding year. If Lessee's payments during such Year exceed Lessee's Share, Lessee shall credit the amount of such over-payment against Lessee's future payments. If Lessee's payments during such Year were less than Lessee's Share, Lessee shall pay to Lessor the amount of the deficiency within 10 days after delivery by Lessor to Lessee of said statement. Lessor and Lessee shall forthwith adjust between them by cash payment any balance determined to exist with respect to that portion of the last Comparison Year for which Lessee is responsible as to Operating Expense Increases, notwithstanding that the Lease term may have terminated before the end of such Comparison Year. (g) Operating Expenses shall not include the costs of replacement for equipment or capital components such as the roof, foundations, exterior walls or a Common Area capital improvement, such as the parking lot paving, elevators, fences that have a useful life for accounting purposes of 5 years or more. (h) Operating Expenses shall not include any expenses paid by any tenant directly to third parties, or as to which Lessor is otherwise reimbursed by any third party, other tenant, or by insurance proceeds.
4.3 Payment. Lessee shall cause payment of Rent to be received by Lessor in lawful money of the United States on or before the day on which it is due, without offset or deduction (except as specifically permitted in this Lease). All monetary amounts shall be rounded to the nearest whole dollar. In the event that any invoice prepared by Lessor is inaccurate such inaccuracy shall not constitute a waiver and Lessee shall be obligated to pay the amount set forth in this Lease. Rent for any period during the term hereof which is for less than one full calendar month shall be prorated based upon the actual number of days of said month. Payment of Rent shall be made to Lessor at its address stated herein or to such other persons or place as Lessor may from time to time designate in writing. Acceptance of a payment which is less than the amount then due shall not be a waiver of Lessor's rights to the balance of such Rent, regardless of Lessor's endorsement of any check so stating. In the event that any check, draft, or other instrument of payment given by Lessee to Lessor is dishonored for any reason, Lessee agrees to pay to Lessor the sum of $25 in addition to any Late Charge and Lessor, at its option, may require all future Rent be paid by cashier's check. Payments will be applied first to accrued late charges and attorney's fees, second to accrued interest, then to Bas
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14 this Lease, Lessor shall return that portion of the Security Deposit not used or applied by Lessor. Lessor shall upon written request provide Lessee with an accounting showing how that portion of the Security Deposit that was not returned was applied. No part of the Security Deposit shall be considered to be held in trust, to bear interest or to be prepayment for any monies to be paid by Lessee under this Lease. THE SECURITY DEPOSITSHALL NOT BE USED BY LESSEE IN LIEU OF PAYMENT OF THE LAST MONTH'S RENT.
6. Use.
6.1 Use. Lessee 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. Lessee 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 occupants of or causes damage to neighboring premises or properties. Other than guide, signal and seeing eye dogs, Lessee shall not keep or allow in the Premises any pets, animals, birds, fish, or reptiles. Lessor shall not unreasonably withhold or delay its consent to any written request for a modification of the Agreed Use, so long as the same wil not impair the structural integrity of the improvements of the Building, will not adversely affect the mechanical, electrical, HVAC, and other systems of the Building, and/orwill not affect the exterior appearance of the Building. If Lessor elects to withhold consent, Lessor shall within 7 days after such request give written notification of same, which notice shall Include an explanation of Lessor's objections to the change in the Agreed Use.
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term "Hazardous Substance" as used in this Lease shall mean any product, substance, or waste whose presence, use, manufacture, disposal, transportation, or release, either by itself or in combination with other materials expected to be on the Premises, is either: (i) potentially injurious to the public health, safety or welfare, the environment or the Premises, (ii) regulated or monitored by any governmental authority, or(iii) a basis for potential liability of Lessor to any governmental agency or third party under any applicable statute or common law theory. Hazardous Substances shall include, but not be limited to, hydrocarbons, petroleum, gasoline, and/or crude oil or any products, byproducts or fractions thereof. Lessee shall not engage in any activity in or on the Premises which constitutes a Reportable Use of Hazardous Substances without the express prior written consent of Lessor and timely compliance (at Lessee's expense) with all Applicable Requirements. "Reportable Use" shall mean (i) the installation or use of any above or below ground storage tank, (ii) the generation, possession, storage, use, transportation, or disposal of a Hazardous Substance that requires a permit from, or with respect to which a report:, notice, registration or business plan is required to be filed with, any governmental authority, and/or (iii) the presence at the Premises of a Hazardous Substance with respect to which any Applicable Requirements requires that a notice be given to persons entering or occupying the Premises or neighboring properties. Notwithstanding the foregoing, Lessee may use any ordinary and customary materials reasonably required to be used in the normal course of the Agreed Use such as ordinary office supplies (copier toner, liquid paper, glue, etc.) and common household cleaning materials, so long as such use is in compliance with all Applicable Requirements, is not a Reportable Use, and does not expose the Premises or neighboring property to any meaningful risk of contamination or damage or expose Lessor to any liability therefor. In addition, Lessor may condition its consent to anyReportable Use upon receiving such additional assurances as Lessor reasonably deems necessary to protect Itself, the public, the Premises and/or the environment against damage, contamination, injury and/or liability, including, but not limited to, the installation (and removal on or before Lease expiration or termination) of protective modifications (such as concrete encasements) and/or increasing the Security Deposit. (b) Duty to Inform Lessor. If Lessee knows, or has reasonable cause to believe, that a Hazardous Substance has come to be located in, on, under or about the Premises, other than as previously consented to by Lessor, Lessee shall immediately give written notice of such fact to Lessor, and provide Lessor with a copy of any report, notice, claim or other documentation which it has concerning the presence of such Hazardous Substance. (c) Lessee Remediation. Lessee shall not cause or permit any Hazardous Substance to be spilled or released in, on, under, or aboutthe Premises (including through the plumbing or sanitary sewer system) and shall promptly, at Lessee's expense, comply with all Applicable Requirements and take all investigatory and/or remedial action reasonably recommended, whether or not formally ordered or required, for the cleanup of any contamination of, and for the maintenance, security and/or monitoring of the Premises or neighboring properties, that was caused or materially contributed to by Lessee, or pertaining to or involving any Hazardous Substance brought onto the Premises during the term of this Lease, by or for Lessee, or any third party. (d) Lessee Indemnification. Lessee shall indemnify, defend and hold Lessor, its agents, employees, lenders and ground lessor, if any, harmless from and against any and all loss of rents and/or damages, liabilities, judgments, claims, expenses, penalties, and attorneys' and consultants' fees arising out of or involving any Hazardous Substance brought onto the Premises by or for Lessee, or any third party (provided, however, that Lessee shall have no liability under this Lease with respect to underground migration of any Hazardous Substance under the Premises from areas outside of the Project not caused or contributed to by Lessee). Lessee's obligations shall include, but not be limited to, the effects of any contamination or injury to person, property or the environment created or suffered by Lessee, and the cost of investigation, removal, remediation, restoration and/or abatement, and shall survive the expiration or termination of this Lease. No termination, cancellation or release agreement entered into by Lessor and Lessee shall release Lessee from its obligations under this Lease with respect to Hazardous Substances, unless specifically so agreed by Lessor In writing at the time of such agreement. (e) Lessor Indemnification. Except as otherwise provided in paragraph 8.7, Lessor and its successors and assigns shall indemnify, defend, reimburse and hold Lessee, its employees and lenders, harmless from and against any and all environmental damages, including the cost of remediation, which result from Hazardous Substances which existed on the Premises prior to
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15 6.3 Lessee's Compliance with Applicable Requirements. Except as otherwise provided in this Lease, Lessee shall, at Lessee's sole expense, fully, diligently and in a timely manner, materially comply with all Applicable Requirements, the requirements of any applicable fire insurance underwriter or rating bureau, and the recommendations of Lessor's engineers and/or consultants which relate in any manner to the Premises, without regard to whether said Applicable Requirements are now in effect or become effective after the Start Date. Lessee shall, within 10 days after receipt of Lessor's written request, provide Lessor with copies of all permits and other documents, and other information evidencing Lessee's compliance with any Applicable Requirements specified by Lessor, and shall immediately upon receipt, notify Lessor In writing (with copies of any documents involved) of any threatened or actual claim, notice, citation, warning, complaint or report pertaining to or involving the failure of Lessee or the Premises to comply with any Applicable Requirements. Likewise, Lessee shall immediately give written notice to Lessor of: (i) any water damage to the Premises and any suspected seepage, pooling, dampness or other condition conducive to the production of mold; or (ii) any mustinessor other odors that might indicate the presence of mold in the Premises.
6.4 Inspection; Compliance. Lessor and Lessor's "Lender" (as defined in Paragraph 30) and consultants authorized by Lessor shall have the right to enter into Premises at anytime, in the case of an emergency, and otherwise at reasonable times, after reasonable notice, for the purpose of inspecting and/or testing the condition of the Premises and/or for verifying compliance by Lessee with this Lease. The cost of any such inspections shall be paid by Lessor, unless aviolation of Applicable Requirements, ora Hazardous Substance Condition (see Paragraph 9.l(e)) is found to exist or be imminent, or the inspection is requested or ordered bya governmental authority. In such case. Lessee shall upon request reimburse Lessor for the cost of such inspection, so long as such inspection is reasonably related to the violation or contamination. In addition, Lessee shall provide copies of all relevant material safety data sheets (MSDS) to Lessor within 10 days of the receipt of written request therefor. Lessee acknowledges that any failure on its part to allow such inspections or testing will expose Lessor to risks and potentially cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, should the Lessee fail to allow such inspections and/or testing in a timely fashion the Base Rent shall be automatically increased, without any requirement for notice to Lessee, by an amount equal to 10% of the then existing Base Rent or $100, whichever is greater for the remainder to the Lease. The Parties agree that such increase in Base Rent represents fair and reasonable compensation for the additional risk/costs that Lessor will incur by reason of Lessee's failure to allow such inspection and/or testing. Such increase in Base Rent shall in no event constitute a waiver of Lessee's Default or Breach with respect to such failure nor prevent the exercise of any of the other rights and remedies granted hereunder.
7. Maintenance; Repairs; Utility Installations; Trade Fixtures and Alterations.
7.1 Lessee's Obligations. Notwithstanding Lessor's obligation to keep the Premises in good condition and repair, Lessee shall be responsible for payment of the cost thereof to Lessor as additional rent for that portion of the cost of any maintenance and repair of the Premises, or any equipment (wherever located) that serves only Lessee or the Premises, to the extent such cost is attributable to abuse or misuse. In addition, Lessee rather than the Lessor shall be responsible for the cost of painting, repairing or replacing wall coverings, and to repair or replace any similar improvements within the Premises. Lessor may, at its option, upon reasonable notice, elect to have Lessee perform any particular such maintenance or repairs the cost of which is otherwise Lessee's responsibility hereunder."
7.2 Lessor's Obligations. Subject to the provisions of Paragraphs 2.2 (Condition), 2.3 (Compliance), 4.2 (Operating Expenses), 6 (Use), 7.1 (Lessee's Obligations), 9 (Damage or Destruction) and 14 (Condemnation), Lessor, subject to reimbursement pursuantto Paragraph 4.2, shall keep in good order, condition and repair the foundations, exterior walls, structural condition of interior bearing walls, exterior roof, fire sprinkler system, fire alarm and/or smoke detection systems, fire hydrants, and the Common Areas.
7.3 Utility Installations; Trade Fixtures; Alterations. (a) Definitions. The term "Utility Installations" refers to all floor and window coverings, air lines, vacuum lines, power panels, electrical distribution, security and fire protection systems, communication cabling, lighting fixtures, HVAC equipment, and plumbing in or on the Premises. The term "Trade Fixtures" shall mean Lessee's machinery and equipment that can be removed without doing material damage to the Premises. The term "Alterations" shall mean any modification of the improvements, other than Utility Installations orTrade Fixtures, whether by addition or deletion. "Lessee Owned Alterations and/or Utility Installations" are defined as Alterations and/or Utility Installations made by Lessee that are notyet owned by Lessor pursuant to Paragraph 7.4(a). (b) Consent. Lessee shall not make any Alterations or Utility Installations to the Premises without Lessor's prior written consent. Lessee may, however, make non-structural Alterations or Utility Installations to the interior of the Premises (excluding the roof) without such consent but upon notice to Lessor, as long as they are not visible from the outside, do not involve puncturing, relocating or removing the roof, ceilings, floors or any existing walls, will not affect the electrical, plumbing, HVAC, and/orlife safety systems, do not trigger the requirement for additional modifications and/or improvements to the Premises resulting from Applicable Requirements, such as compliance with Title 24, and the cumulative cost thereof during this Lease as extended does not exceed $2000. Notwithstanding the foregoing. Lessee shall not make or permit any roof penetrations and/or install anything on the roof without the prior written approval of Lessor. Lessor may, as a precondition to granting such approval, require Lessee to utilize a contractor chosen and/or approved by Lessor. Any Alterations or Utility Installations that Lessee shall desire to make and which require the consent of the Lessor shall be presented to Lessor in written form with detailed plans. Consent shall be deemed conditioned upon Lessee's: (i) acquiring all applicable governmental permits, (ii) furnishing Lessorwith copies o
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16 (c) Surrender; Restoration. Lessee shall surrenderthe Premises by the Expiration Date orany earlier termination date, with all ofthe improvements, parts and surfaces thereof clean and free of debris, and in good operating order, condition and state of repair, ordinary wear and tearexcepted. "Ordinary wear and tear" shall not include any damage or deterioration that would have been prevented by good maintenance practice. Notwithstanding the foregoing and the provisions of Paragraph 7.1(a), if the Lessee occupies the Premises for 12 months or less, then Lessee shall surrender the Premises in the same condition as delivered to Lessee on the Start Date with NO allowance for ordinary wear and tear. Lessee shall repair any damage occasioned by the installation, maintenance or removal of Trade Fixtures, Lessee owned Alterations and/or Utility Installations, furnishings, and equipment as well as the removal of any storage tank installed by or for Lessee. Lessee shall also remove from the Premises any and all Hazardous Substances brought onto the Premises by or for Lessee, or any third party (except Hazardous Substances which were deposited via underground migration from areas outside of the Premises) to the level specified in Applicable Requirements. Trade Fixtures shall remain the property of Lessee and shall be removed by Lessee. Any personal property of Lessee not removed on or before the Expiration Date or any earliertermination date shall be deemed to have been abandoned by Lessee and may be disposed of or retained by Lessor as Lessor may desire. The failure by Lessee to timely vacate the Premises pursuant to this Paragraph 7.4(c) without the express written consent of Lessor shall constitute a holdover under the provisions of Paragraph 26 below.
8. Insurance; Indemnity.
8.1 Insurance Premiums. The cost ofthe premiums forthe insurance policies maintained by Lessor pursuant to paragraph Bare included as Operating Expenses (see paragraph 4.2 (c)(iv)). Said costs shall include increases in the premiums resulting from additional coverage related to requirements of the holder of a mortgage or deed of trust covering the Premises, Building and/or Project, increased valuation of the Premises, Building and/or Project, and/ora general premium rate Increase. Said costs shall not, however, include any premium increases resulting from the nature of the occupancy of any other tenant of the Building. If the Project was not insured for the entirety of the Base Year, then the base premium shall be the lowest annual premium reasonably obtainable for the required insurance as of the Start Date, assuming the most nominal use possible of the Building and/or Project. In no event, however, shall Lessee be responsible for any portion of the premium cost attributable to liability insurance coverage in excess of $2,000,000 procured under Paragraph 8.2(b).
8.2 Liability Insurance.
(a) Carried by Lessee. Lessee shall obtain and keep in force a Commercial General Liability policy of Insurance protecting Lessee and Lessor as an additional insured against claims for bodily injury, personal injury and property damage based upon or arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $1,000,000 per occurrence with an annual aggregate of not less than $2,000,000. Lessee shall add Lessor as an additional insured by means of an endorsement at least as broad as the Insurance Service Organization's "Additional Insured-Managers or Lessors of Premises" Endorsement and coverage shall also be extended to include damage caused by heat, smoke or fumes from a hostile fire. The policy shall not contain anyintra-insured exclusions as between insured persons or organizations, but shall include coverage for liability assumed under this Lease as an "insured contract" for the performance of Lessee's indemnity obligations under this Lease. The limits of said insurance shall not, however, limit the liability of Lessee nor relieve Lessee of any obligation hereunder. Lessee shall provide an endorsement on its liability policy(ies) which provides that its insurance shall be primary to and not contributory with any similar insurance carried by Lessor, whose insurance shall be considered excess insurance only.
(b) Carried by Lessor. Lessor shall maintain liability insurance as described in Paragraph 8.2(a), in addition to, and not in lieu of, the insurance required to be maintained by Lessee. Lessee shall not be named as an additional insured therein.
8.3 Property Insurance - Building, Improvements and Rental Value. (a) Building and Improvements. Lessor shall obtain and keep in force a policy or policies of insurance in the name of Lessor, with loss payable to Lessor, any ground-lessor, and to any Lender insuring loss or damage to the Building and/or Project. The amount of such insurance shall be equal to the full insurable replacement cost of the Building and/or Project, as the same shall exist from time to time, or the amount required by any Lender, but in no event more than the commercially reasonable and available insurable value thereof. Lessee Owned Alterations and Utility Installations, Trade Fixtures, and Lessee's personal property shall be insured by Lessee not by Lessor. If the coverage is available and commercially appropriate, such policy or policies shall insure against all risks of direct physical loss or damage (except the perils of flood and/or earthquake unless required by a Lender), including coverage for debris removal and the enforcement of any Applicable Requirements requiring the upgrading, demolition, reconstruction or replacement of any portion of the Premises as the result of a covered loss. Said policy or policies shall also contain an agreed valuation provision in lieu of any coinsurance clause, waiver ofsubrogation, and inflation guard protection causing an increase in the annual property insurance coverage amount by a factor of not less than the adjusted U.S. Department of Labor Consumer Price Index for All Urban Consumers for the city nearest to where the Premises are located. If such insurance coverage has a deductible clause, the deductible amount shall not exceed $5,000 per occurrence. (b) Rental Value. Lessor shall also obtain and keep in force a policy or policies in the name of Lessor with loss payable to Lessor and any Lender, insuring the loss of the full Rentfor one year with an extended period of indemnity for an additional 180 days ("Rental Value Insurance"). Said insurance shall contain an agreed valuation provision in lieu of any coinsurance clause, and the amount of coverage shall be adjusted annually to reflect the projected Rent otherwise payable by Lessee, for the next 12 month period.
(c) Adjacent Premises. Lessee shall pay for any increase in the premiums for the property insurance of the Building and for the Common A
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17 to modification except after 10 days prior written notice to Lessor. Lessee shall, at least 30 days prior to the expiration of such policies, furnish Lessor with evidence of renewals or "insurance binders" evidencing renewal thereof, or Lessor may increase his liability insurance coverage and charge the cost thereof to Lessee, which amount shall be payable by Lessee to Lessor upon demand. Such policies shall be for a term of at least one year, or the length of the remaining term of this Lease, whichever Is less. If either Party shall fail to procure and maintain the insurance required to be carried by it, the other Party may, but shall not be required to, procure and maintain the same.
8.6 Waiver of Subrogation. Without affecting any other rights or remedies. Lessee and Lessor each hereby release and relieve the other, and waive their entire right to recover damages against the other, for loss of or damage to its property arising out of or incident to the perils required to be insured against herein. The effect of such releases and waivers is not limited by the amount of insurance carried or required, or by anydeductibles applicable hereto. The Parties agree to have their respective property damage insurance carriers waive any right to subrogation that such companies may have against Lessor or Lessee, as the case may be, so long as the insurance is not invalidated thereby.
8.7 Indemnity. Except for Lessor's gross negligence or willful misconduct, Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessor and its agents, Lessor's master or ground lessor, partners and Lenders, from and against any and all claims, loss of rents and/or damages, liens, judgments, penalties, attorneys'and consultants'fees, expenses and/or liabilities arising out of, involving, or in connection with, a Breach of the Lease by Lessee and/or the useand/or occupancy of the Premises a nd/or Project by Lessee and/or by Lessee's employees, contractors or invitees. If any action or proceeding is brought against Lessor by reason of any of the foregoing matters. Lessee shall upon notice defend the same at Lessee's expense by counsel reasonably satisfactory to Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not have first paid any such claim in order to be defended or indemnified.
8.8 Exemption of Lessor and its Agents from Liability. Notwithstanding the negligence or breach of this Lease by Lessor or its agents, neither Lessor nor its agents shall be liable under any circumstances for: (i) injury or damage to the person or goods, wares, merchandise or other property of Lessee, Lessee's employees, contractors, invitees, customers, or any other person in or about the Premises, whether such damage or injury is caused by or results from fire, steam, electricity, gas, water or rain, indoor air quality, the presence of mold or from the breakage, leakage, obstruction or other defects of pipes, fire sprinklers, wires, appliances, plumbing, HVACor lighting fixtures, or from any other cause, whether the said Injury or damage results from conditions arising upon the Premises or upon other portions of the Building, or from other sources or places, (li) any damages arising from any act or neglect of any other tenant of Lessor or from the failure of Lessor or its agents to enforce the provisions of any other lease in the Project, or (iii) injury to Lessee's business or for any loss of income or profit therefrom. Instead, it is intended that Lessee's sole recourse in the event of such damages or injury be to file a claim on the insurance policy(ies) that Lessee Is required to maintain pursuant to the provisions of paragraph 8.
8.9 Failure to Provide Insurance. Lessee acknowledges that any failure on its part to obtain or maintain the insurance required herein will expose Lessor to risks and potentially cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, for any month or portion thereof that Lessee does not maintain the required insurance and/or does not provide Lessor with the required binders or certificates evidencing the existence of the required insurance, the Base Rent shall be automatically increased, without any requirement for notice to Lessee, by an amount equal to 10% of the then existing Base Rent or $100, whichever is greater. The parties agree that such increase in Base Rent represents fair and reasonable compensation for the additional risk/costs that Lessor will incur by reason of Lessee's failure to maintain the required insurance. Such increase In Base Rent shall in no event constitute a waiver of Lessee's Default or Breach with respect to the failure to maintain such insurance, prevent the exercise of any of the other rights and remedies granted hereunder, nor relieve Lessee of its obligation to maintain the insurance specified in this Lease.
9. Damage or Destruction.
9.1 Definitions.
(a) "Premises Partial Damage" shall mean damage or destruction to the improvements on the Premises, other than Lessee Owned Alterations and Utility Installations, which can reasonably be repaired in 3 months or less from the date of the damage or destruction, and the cost thereof does not exceed a sum equal to 6 month's Base Rent. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total. (b) "Premises Total Destruction" shall mean damage or destruction to the improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which cannot reasonably be repaired in 3 months or less from the date of the damage or destruction and/or the cost thereof exceeds a sum equal to 6 month's Base Rent. Lessor shall notify Lessee in writing within 30 days from the date of the damage or destruction as to whether or not the damage is Partial or Total.
(c) "Insured Loss" shall mean damage or destruction to improvements on the Premises, other than Lessee Owned Alterations and Utility Installations and Trade Fixtures, which was caused by an event required to be covered by the insurance described in Paragraph 8.3(a), irrespective of any deductible amounts or coverage limits involved.
(d) "Replacement Cost" shall mean the cost to repair or rebuild the improvements owned by Lessor at the time of the occurrence to their condition existing immediately priorthereto, including demolition, debris removal and upgrading required by the operation of Applicable Requirements, and without deduction for depreciation.
(e) "Hazardous Substance Condition" shall mean the occurrence or discovery of a condition involving the presence of, or a contamination by, a Hazardous Substance, in, on, or under the Premises which requires restoration.
9.2 Partial Damage- Insured Loss. If a Premises Partial Damage that is an Insured Loss occurs, then Lessor shall, at Lessor's expense, repair such damage (but
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18 to reimbursement pursuant to Paragraph 4.2), in which event this Lease shall continue in full force and effect, or (li) terminate this Lease by giving written notice to Lessee within 30 days after receipt by Lessor of knowledge of the occurrence of such damage. Such termination shall be effective 60 days following the date of such notice. In the event Lessor elects to terminate this Lease, Lessee shall have the right within 10 days after receipt of the termination notice to give written notice to Lessor of Lessee's commitment to pay for the repair of such damage without reimbursement from Lessor. Lessee shall provide Lessor with said funds or satisfactory assurance thereof within 30 days after making such commitment. In such event this Lease shall continue in full force and effect, and Lessor shall proceed to make such repairs as soon as reasonably possible after the required funds are available. If Lessee does not make the required commitment, this Lease shall terminate as of the date specified in the termination notice.
9.4 Total Destruction. Notwithstanding any other provision hereof, if a Premises Total Destruction occurs, this Lease shall terminate 60 days following such Destruction. If the damage or destruction was caused bythe gross negligence or willful misconduct of Lessee, Lessor shall have the right to recover Lessor's damages from Lessee, except as provided in Paragraph 8.6.
9.5 Damage Near End of Term. If at anytime during the last 6 months of this Lease there is damage for which the cost to repair exceeds one month's Base Rent, whether or not an Insured Loss, Lessor may terminate this Lease effective 60 days following the date of occurrence of such damage by giving a written termination notice to Lessee within 30 days after the date of occurrence of such damage. Notwithstanding the foregoing, if Lessee at that time has an exercisable option to extend this Lease or to purchase the Premises, then Lessee may preserve this Lease by, (a) exercising such option and (b) providing Lessor with any shortage in insurance proceeds (or adequate assurance thereof) needed to make the repairs on or before the earlier of (i) the date which is 10 days after Lessee's receipt of Lessor's written notice purporting to terminate this Lease, or (ii) the day prior to the date upon which such option expires. If Lessee duly exercises such option during such period and provides Lessor with funds (or adequate assurance thereof) to cover any shortage in insurance proceeds, Lessor shall, at Lessor's commercially reasonable expense, repair such damage as soon as reasonably possible and this Lease shall continue in full force and effect. If Lessee fails to exercise such option and provide such funds or assurance during such period, then this Lease shall terminate on the date specified in the termination notice and Lessee's option shall be extinguished.
9.6 Abatement of Rent; Lessee's Remedies.
(a) Abatement. In the event of Premises Partial Damage or Premises Total Destruction or a Hazardous Substance Condition for which Lessee is not responsible under this Lease, the Rent payable by Lessee for the period required for the repair, remediation or restoration of such damage shall be abated in proportion to the degree to which Lessee's use of the Premises is impaired, but not to exceed the proceeds received from the Rental Value insurance. All other obligations of Lessee hereunder shall be performed by Lessee, and Lessor shall have no liability for any such damage, destruction, remediation, repair or restoration except as provided herein.
(b) Remedies. If Lessor is obligated to repair or restore the Premises and does not commence, in a substantial and meaningful way, such repair or restoration within 90 days after such obligation shall accrue, Lessee may, at any time prior to the commencement of such repair or restoration, give written notice to Lessor and to any Lenders of which Lessee has actual notice, of Lessee's election to terminate this Lease on a date not less than 60 days following the giving of such notice. If Lessee gives such notice and such repair or restoration is not commenced within 30 days thereafter, this Lease shall terminate as of the date specified in said notice. Ifthe repair or restoration is commenced within such 30 days, this Lease shall continue in full force and effect. "Commence" shall mean either the unconditional authorization of the preparation of the required plans, or the beginning of the actual work on the Premises, whichever first occurs.
9.7 Termination; Advance Payments. Upon termination of this Lease pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment shall be made concerning advance Base Rent and any other advance payments made by Lessee to Lessor. Lessor shall, in addition, return to Lessee so much of Lessee's Security Deposit as has not been, or is not then required to be, used by Lessor.
10. Real Property Taxes.
10.1 Definitions. As used herein, the term "Real Property Taxes" shall include anyform of assessment; real estate, gen era I, special, ordinary or extraordinary, or rental levy or tax (other than inheritance, personal income or estate taxes); improvement bond; and/or license fee imposed upon or levied against any legal or equitable interest of Lessor in the Project, Lessor's right to other Income therefrom, and/or Lessor's business of leasing, by any authority having the direct or indirect power to tax and where the funds are generated with reference to the Project address. "Real Property Taxes" shall also include any tax, fee, levy, assessment or charge, or any increase therein: (i) imposed by reason of events occurring during the term of this Lease, including but not limited to, a change in the ownership of the Project, (ii) achange In the improvements thereon, and/or (iii) levied orassessedon machinery or equipment provided by Lessorto Lessee pursuant to this Lease.
10.2 Payment of Taxes. Except as otherwise provided in Paragraph 10.3, Lessor shall pay the Real Property Taxes applicable to the Project, and said payments shall be included in the calculation of Operating Expenses in accordance with the provisions of Paragraph 4.2.
10.3 Additional Improvements. Operating Expenses shall not include Real Property Taxes specified in the tax assessor's records and work sheets as being caused by additional improvements placed upon the Project by other lessees or by Lessor for the exclusive enjoyment of such other lessees. Notwithstanding Paragraph 10.2 hereof, Lessee shall, however, pay to Lessor at the time Operating Expenses are payable under Paragraph 4.2, the entirety of any increase in Real Property Taxes if assessed solely by reason of Alterations, Trade Fixtures or Utility Installations placed upon the Premises by Lessee or at Lessee's request or by reason of any alterations or improvements to the Premises made by Lessor subsequent to the execution of this Lease by the Parties.
10.4 Joint Assessment. If the Building is no
rtiljtj^s.and services specially or exclusively supplied and/ormetered exclusively to t\ewises or to Lessee, together with any taxes thereon. Notwithstanding the
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19 provisions of Paragraph 4.2(vi), if a service is deleted by Paragraph 1.13 and such service is not separately metered to the Premises, Lessee shall pay at Lessor's option, either Lessee's Share or a reasonable proportion to be determined by Lessor of all charges for such jointly metered service.
11.3 Hours of Service. Said services and utilities shall be provided during times set forth in Paragraph 1.12. Utilities and services required at other times shall be subject to advance request and reimbursement by Lessee to Lessor of the cost thereof.
11.4 Excess Usage by Lessee. Lessee shall not make connection to the utilities except by or through existing outlets and shall not Install or use machinery or equipment in or about the Premises that uses excess water, lighting or power, or suffer or permit any act that causes extra burden upon the utilities or services, including but not limited to security and trash services, over standard office usage for the Project. Lessor shall require Lessee to reimburse Lessor for any excess expenses or costs that may arise out of a breach of this subparagraph by Lessee. Lessor may, in Its sole discretion, install at Lessee's expense supplemental equipment and/or separate metering applicable to Lessee's excess usage or loading.
11.5 Interruptions. There shall be no abatement of rent and Lessor shall not be liable in any respect whatsoever for the inadequacy, stoppage, interruption or discontinuance of any utility or service due to riot, strike, labor dispute, breakdown, accident, repair or other cause beyond Lessor's reasonable control or in cooperation with governmental request or directions.
11.6 Within fifteen days of Lessor's written request. Lessee agrees to deliver to Lessor such information, documents and/or authorization as Lessor needs in order for Lessor to comply with new or existing Applicable Requirements relating to commercial building energy usage, ratings, and/orthe reporting thereof.
12. Assignment and Subletting.
12.1 Lessor's Consent Required.
(a) Lessee shall not voluntarily or by operation of law assign, transfer, mortgage or encumber (collectively, "assign or assignment") orsublet all or any part of Lessee's interest in this Lease or in the Premises without Lessor's prior written consent. (b) Unless Lessee is a corporation and its stock is publicly traded on a national stock exchange, a change in the control of Lessee shall constitute an assignment requiring consent. The transfer, on a cumulative basis, of 25% or more of the voting control of Lessee shall constitute a change in control for this purpose. (c) The involvement of Lessee or its assets in any transaction, or series of transactions (by way of merger, sale, acquisition, financing, transfer, leveraged buyout or otherwise), whether or not a formal assignment or hypothecation of this Lease or Lessee's assets occurs, which results or will result in a reduction of the Net Worth of Lessee by an amount greater than 25% of such Net Worth as it was represented at the time of the execution of this Lease or at the time of the most recent assignment to which Lessor has consented, or as it exists immediately prior to said transaction or transactions constituting such reduction, whichever was or is greater, shall be considered an assignment of this Lease to which Lessor may withhold its consent. "Net Worth of Lessee" shall mean the net worth of Lessee (excluding any guarantors) established under generally accepted accounting principles. (d) An assignment or subletting without consent shall, at Lessor's option, be a Default curable after notice per Paragraph 13.1(d), or a non-curable Breach without the necessity of any notice and grace period. If Lessor elects to treat such unapproved assignment or subletting as a non-curable Breach, Lessor may either:
(i) terminate this Lease, or (ii) upon 30 days written notice, increase the monthly Base Rent to 110% of the Base Rent then in effect. Further, in the event of such Breach and rental adjustment, (i) the purchase price of any option to purchase the Premises held by Lessee shall be subject to similar adjustment to 110% of the price previously in effect, and (ii) all fixed and non-fixed rental adjustments scheduled during the remainder of the Lease term shall be increased to 110% of the scheduled adjusted rent.
(e) Lessee's remedy for any breach of Paragraph 12.1 by Lessor shall be limited to compensatory damages and/orinjunctive relief. (f) Lessor may reasonably withhold consent to a proposed assignment or subletting if Lessee is in Default at the time consent is requested. (g) Notwithstanding the foregoing, allowing a de minimis portion of the Premises, i.e. 20 square feet or less, to be used by a third party vendor in connection with the installation of a vending machine or payphone shall not constitute a subletting.
12.2 Terms and Conditions Applicable to Assignment and Subletting. (a) Regardless of Lessor's consent, no assignment orsubletting shall: (i) be effective without the express written assumption by such assignee or sublessee of the obligations of Lessee under this Lease, (il) release Lessee of any obligations hereunder, or (iii) alter the primary liability of Lessee for the payment of Renter for the performance of any other obligations to be performed by Lessee. (b) Lessor may accept Rent or performance of Lessee's obligations from any person other than Lessee pending approval or disapproval of an assignment.
Neither a delay in the approval or disapproval of such assignment norths acceptance of Rent or performance shall constitute a waiver or estoppel of Lessor's right to exercise its remedies for Lessee's Default or Breach.
(c) Lessor's consent to any assignment or subletting shall not constitute a consent to any subsequent assignment orsubletting. (d) In the event of any Default or Breach by Lessee, Lessor may proceed directly against Lessee, any Guarantors or anyone else responsible for the performance of Lessee's obligations under this Lease, including any assignee or sublessee, without first exhausting Lessor's remedies against any other person or entity responsible therefor to Lessor, or any security held by Lessor. (e) Each request for consent to an assignment or subletting shall be In writing, accompanied by information relevant to Lessor's determination as to the financial and operational responsibility and appropriateness of the proposed assignee or sublessee, including but not limited to the intended use and/or required modification of the Premises, if any, together with a fee of $500 as consideration for Lessor's considering and processing said request. Lessee agrees to provide Lessor with such other or additional information and/or documentation as may be reasonably requested. (See also Paragraph 36) (f) Any assignee of, or sublessee under, this Lease shall, by reason of accepting such assignment, entering into such sublease, or entering into possession of the Premises or any portion thereof, be deem
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20 such Breach exists, notwithstanding any claim from Lessee to the contrary. (b) In the event of a Breach by Lessee, Lessor may, at its option, require sublessee to attorn to Lessor, in which event Lessor shall undertake the obligations of the sublessor under such sublease from the time of the exercise of said option to the expiration of such sublease; provided, however, Lessor shall not be liable for any prepaid rents or security deposit paid by such sublesseetosuch sublessor or for any prior Defaults or Breaches of such sublessor. (c) Any matter requiring the consent of the sublessor under asublease shall also require the consent of Lessor. (d) No sublessee shall further assign or sublet all or any part of the Premises without Lessor's prior written consent. (e) Lessor shall deliver a copy of any notice of Default or Breach by Lessee to the sublessee, who shall have the right to cure the Default of Lessee within the grace period, if any, specified in such notice. The sublessee shall have a right of reimbursement and offset from and against Lessee for any such Defaults cured by thesublessee.
13. Default; Breach; Remedies.
13.1 Default; Breach. A "Default" is defined as a failure by the Lessee to comply with or perform any of the terms, covenants, conditions or Rules and Regulations under this Lease. A "Breach" is defined as the occurrence of one or more of the following Defaults, and the failure of Lessee to cure such Default within any applicable grace period:
(a) The abandonment of the Premises; the vacating of the Premises prior to the expiration or termination of this Lease without providing a commercially reasonable level of security, or where the coverage of the property insurance described in Paragraph 8.3 is jeopardized as a result thereof, or without providing reasonable assurances to minimize potential vandalism; or failure to deliver to Lessor exclusive possession of the entire Premises in accordance herewith prior to the expiration or termination of this Lease.
(b) The failure of Lessee to make any payment of Rent or any Security Deposit required to be made by Lessee hereunder, whether to Lessor or to a third party, when due, to provide reasonable evidence of insurance or surety bond, or to fulfill any obligation under this Lease which endangers or threatens life or property, where such failure continues for a period of 3 business days following written notice to Lessee. THE ACCEPTANCE BY LESSOR OF A PARTIAL PAYMENT OF
RENT OR SECURITY DEPOSIT SHALL NOT CONSTITUTE A WAIVER OF ANY OF LESSOR'S RIGHTS, INCLUDING LESSOR'S RIGHTTO RECOVER POSSESSION OF THE PREMISES.
(c) The failure of Lessee to allow Lessor and/orits agents access to the Premises or the commission of waste, actor acts constituting public or private nuisance, and/or an illegal activity on the Premises by Lessee, where such actions continue fora period of 3 business days following written notice to Lessee. In the event that Lessee commits waste, a nuisance or an illegal activity a second time then, the Lessor may elect to treat such conduct as a non-curable Breach rather than a Default.
(d) The failure by Lessee to provide (i) reasonable written evidence of compliance with Applicable Requirements, (ii) the service contracts, (iii) the rescission of an unauthorized assignment or subletting, (iv)an Estoppel Certificate or financial statements, (v)a requested subordination, (vi) evidence concerning any guaranty and/or Guarantor, (vll) any document requested under Paragraph 41, (viii) material safety data sheets (MSDS), or (ix) any other documentation or information which Lessor may reasonably require of Lessee under the terms of this Lease, where any such failure continues fora period of 10 days following written notice to Lessee.
(e) A Default by Lessee as to the terms, covenants, conditions or provisions of this Lease, or of the rules adopted under Paragraph 2.9 hereof, other than those described in subparagraphs 13.1(a), (b) or (c), above, where such Default continues for a period of 30 days after written notice; provided, however, that if the nature of Lessee's Default is such that more than 30 days are reasonably required for its cure, then it shall not be deemed to be a Breach if Lessee commences such cure within said 30 day period and thereafter diligently prosecutes such cure to completion. (f) The occurrence of any of the following events: (i) the making of any general arrangement or assignment for the benefit of creditors; (ii) becoming a "debtor" as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, in the case of a petition filed against Lessee, the same is dismissed within 60 days); (lii) the appointment of a trustee or receiver to take possession of substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where possession is not restored to Lessee within 30 days; or (Iv) the attachment, execution or other judicial seizure of substantially all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where such seizure is not discharged within 30 days; provided, however, in the event that any provision of this subparagraph is contrary to any applicable law, such provision shall be of no force or effect, and not affect the validity of the remaining provisions. (g) The discovery that any financial statement of Lessee or of any Guarantor given to Lessor was materially false. (h) If the performance of Lessee's obligations under this Lease is guaranteed: (i) the death of a Guarantor, (ii) the termination of a Guarantor's liability with respect to this Lease other than in accordance with the terms of such guaranty, (iii) a Guarantor's becoming insolvent or the subject of a bankruptcy filing, (iv) a Guarantor's refusal to honor the guaranty, or (v)a Guarantor's breach of its guaranty obligation on ananticipatory basis, and Lessee's failure, within 60 days following written notice of any such event, to provide written alternative assurance or security, which, when coupled with the then existing resources of Lessee, equals or exceeds the combined financial resources of Lessee and the Guarantors that existed at the time of execution of this Lease.
13.2 Remedies. If Lessee fails to perform any of its affirmative duties or obligations, within 10 days after written notice (or in case of an emergency, without notice), Lessor may, at its option, perform such duty or obligation on Lessee's behalf, including but not limited to the obtaining of reasonably required bonds, insurance policies, or governmental licenses, permits or approvals. Lessee shall pay to Lessor an amount equal to 115% of the costs and expenses incurred by Lessor in such performance upon receipt of an invoice therefor. In the event of a Breach, Lessor may, with or without further notice or demand, and without limiting Lessor in the exercise of any right or remedy which Lessor may have by reason of such Breach:
(a) Terminate Lessee's right to possession
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21 detainer statute shall run concurrently, and the failure of Lessee to cure the Default within the greater of the two such grace periods shall constitute both an unlawful detainer and a Breach of this Lease entitling Lessor to the remedies provided for in this Lease and/or by said statute. (b) Continue the Lease and Lessee's right to possession and recover the Rent as it becomes due. In which event Lessee may sublet or assign, subject only to reasonable limitations. Acts of maintenance, efforts to relet, and/or the appointment of a receiver to protect the Lessor's interests, shall not constitute a termination of the Lessee's right to possession.
(c) Pursue any other remedy now or hereafter available under the laws or judicial decisions ofthe state wherein the Premises are located. The expiration ortermination of this Lease and/or the termination of Lessee's right to possession shall not relieve Lessee from liability under any indemnity provisions of this Lease as to matters occurring or accruing during the term hereof or by reason of Lessee's occupancy of the Premises.
13.3 Inducement Recapture. Any agreement for free or abated rent or other charges, the cost of tenant improvements for Lessee paid for or performed by Lessor, or for the giving or paying by Lessor to or for Lessee of any cash or other bonus, inducement or consideration for Lessee's entering into this Lease, all of which concessions are hereinafter referred to as "Inducement Provisions," shall be deemed conditioned upon Lessee's full and faithful performance of all of the terms, covenants and conditions of this Lease. Upon Breach of this Lease by Lessee, any such Inducement Provision shall automatically be deemed deleted from this Lease and of no further force or effect, and any rent, other charge, bonus, inducement or consideration theretofore abated, given or paid by Lessor under such an Inducement Provision shall be immediately due and payable by Lessee to Lessor, notwithstanding any subsequent cure of said Breach by Lessee. The acceptance by Lessor of rent or the cure of the Breach which initiated the operation of this paragraph shall not be deemed a waiver by Lessor of the provisions of this paragraph unless specifically so stated in writing by Lessor at the time of such acceptance.
13.4 Late Charges. Lessee hereby acknowledges that late payment by Lessee of Rent will cause Lessor to incur costs not contemplated bythis Lease,the exact amount of which will be extremely difficult to ascertain. Such costs include, but are not limited to, processing and accounting charges, and late charges which maybe imposed upon Lessor by any Lender. Accordingly, if any Rent shall not be received by Lessor within 5 days after such amount shall be due, then, without any requirement for notice to Lessee, Lessee shall immediately pay to Lessor a one-time late charge equal to 10% of each such overdue amount or $100, whichever is greater. The parties hereby agree that such late charge represents afairand reasonable estimate ofthe costs Lessor will incur by reason ofsuch late payment.
Acceptance of such late charge by Lessor shall in no event constitute a waiver of Lessee's Default or Breach with respect to such overdue amount, nor prevent the exercise of any of the other rights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for 3 consecutive installments of Base Rent, then notwithstanding any provision of this Lease to the contrary, Base Rent shall, at Lessor's option, become due and payable quarterly in advance.
13.5 Interest. Any monetary payment due Lessor hereunder, other than late charges, not received by Lessor, when due shall bear interest from the 31st day after it was due. The interest ("Interest") charged shall be computed at the rate of 10% per annum but shall not exceed the maximum rate allowed by law. Interest is payable in addition to the potential late charge provided for in Paragraph 13.4.
13.6 Breach by Lessor.
(a) Notice of Breach. Lessor shall not be deemed in breach of this Lease unless Lessor fails within a reasonable time to perform an obligation required to be performed by Lessor. For purposes of this Paragraph, a reasonable time shall in no event be less than 30 days after receipt by Lessor, and any Lender whose name and address shall have been furnished to Lessee in writing for such purpose, of written notice specifying wherein such obligation of Lessor has not been performed; provided, however, that if the nature of Lessor's obligation is such that more than 30 days are reasonably required for its performance, then Lessor shall not be in breach if performance is commenced within such 30 day period and thereafter diligently pursued to completion. (b) Performance by Lessee on Behalf of Lessor. In the event that neither Lessor nor Lender cures said breach within 30 days after receipt of said notice, or if having commenced said cure they do not diligently pursue it to completion, then Lessee may elect to cure said breach at Lessee's expense and offset from Rent the actual and reasonable cost to perform such cure, provided, however, that such offset shall not exceed an amount equal to the greater of one month's Base Rent or the Security Deposit, reserving Lessee's right to seek reimbursement from Lessor for any such expense in excess of such offset. Lessee shall document the cost of said cure and supply said documentation to Lessor.
14. Condemnation. If the Premises or any portion thereof are taken under the power of eminent domain or sold under the threat of the exercise of said power (collectively "Condemnation"), this Lease shall terminate as to the part taken as of the date the condemning authority takes title or possession, whichever first occurs.
If more than 10% of the rentable floor area of the Premises, or more than 25% of Lessee's Reserved Parking Spaces, if any, are taken by Condemnation, Lessee may, at Lessee's option, to be exercised in writing within 10 days after Lessor shall have given Lessee written notice of such taking (or in the absence of such notice, within 10 days after the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority takes such possession. If Lessee does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the portion of the Premises remaining, except that the Base Rent shall be reduced in proportion to the reduction In utility of the Premises caused by such Condemnation. Condemnation awards and/or payments shall be the property of Lessor, whether such award shall be made as compensation for diminution in value of the leasehold, the value of the part taken, or for severance damages; provided, however, that Lessee shall be entitled to any compensation paid by the condemnorfor Lessee's relocation expenses, loss of business goodwill and/or Trade Fixtures, without regard to whether or not this
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22 Agents is entitled to any commission or finder's fee in connection herewith. Lessee and Lessor do each hereby agree to indemnify, protect, defend and hold the other harmless from and against liability for compensation or charges which may be claimed by any such unnamed broker, finder or other similar party by reason of any dealings or actions of the indemnifying Party, including any costs, expenses, attorneys' fees reasonably incurred with respect thereto.
16. Estoppel Certificates.
(a) Each Party (as "Responding Party") shall within 10 days after written notice from the other Party (the "Requesting Party") execute, acknowledge and deliver to the Requesting Party a statement in writing inform similar to the then most current "Estoppel Certificate" form published by AIR CRE, plus such additional information, confirmation and/or statements as may be reasonably requested by the Requesting Party. (b) If the Responding Party shall fail to execute or deliver the Estoppel Certificate within such 10 day period, the Requesting Party may execute an Estoppel Certificate stating that: (i) the Lease is in full force and effect without modification except as may be represented by the Requesting Party, (ii) there are no uncured defaults in the Requesting Party's performance, and (iii) If Lessor is the Requesting Party, not more than one month's rent has been paid in advance.
Prospective purchasers and encumbrancers may rely upon the Requesting Party's Estoppel Certificate, and the Responding Party shall be estopped from denying the truth of the facts contained in said Certificate. In addition, Lessee acknowledges that any failure on its part to provide such an Estoppel Certificate will expose Lessor to risks and potentially cause Lessor to Incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, should the Lessee fail to execute and/or deliver a requested Estoppel Certificate in a timely fashion the monthly Base Rent shall be automatically increased, without any requirement for notice to Lessee, by an amount equal to 10% of the then existing Base Rent or $100, whichever is greater for remainder of the Lease. The Parties agree that such increase in Base Rent represents fair and reasonable compensation for the additional risk/costs that Lessor will incur by reason of Lessee's failure to provide the Estoppel Certificate. Such increase in Base Rent shall in no event constitute a waiver of Lessee's Default or Breach with respect to the failure to provide the Estoppel Certificate nor prevent the exercise of any of the other rights and remedies granted hereunder. (c) If Lessor desires to finance, refinance, or sell the Premises, or any part thereof, Lessee and all Guarantors shall within 10 days after written notice from Lessor deliver to any potential lender or purchaser designated by Lessor such financial statements as may be reasonably required by such lender or purchaser, including but not limited to Lessee's financial statements for the past 3 years. All such financial statements shall be received by Lessor and such lender or purchaser in confidence and shall be used only for the purposes herein set forth.
17. Definition of Lessor. The term "Lessor" as used herein shall mean the owner or owners at the time in question of the fee title to the Premises, or, if this is a sublease,ofthe Lessee's interest in the prior lease. In the event of a transfer of Lessor's title or interest in the Premises or this Lease, Lessor shall deliver to the transferee or assignee (in cash or by credit) any unused Security Deposit held by Lessor. Upon such transfer or assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor shall be relieved of all liability with respect to the obligations and/or covenants under this Lease thereafter to be performed by the Lessor.
Subject to the foregoing, the obligations and/or covenants in this Lease to be performed by the Lessor shall be binding only upon the Lessor as hereinabove defined.
18. Severability. The invalidity of any provision of this Lease, as determined by a court of competent jurisdiction, shall in no way affect the validity of any other provision hereof.
19. Days. Unless otherwise specifically Indicated to the contrary, the word "days" as used in this Lease shall mean and refer to calendar days.
20. Limitation on Liability. The obligations of Lessor under this Lease shall not constitute personal obligations of Lessor, or its partners, members, directors, officers or shareholders, and Lessee shall look to the Project, and to no other assets of Lessor, for the satisfaction of any liability of Lessor with respect to this Lease, and shall not seek recourse against Lessor's partners, members, directors, officers or shareholders, or any of their personal assets for such satisfaction.
21. 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.
22. No Prior or Other Agreements; Broker Disclaimer. This Lease contains all agreements between the Parties with respect to any matter mentioned herein, and no other prior or contemporaneous agreement or understanding shall be effective. Lessor and Lessee each represents and warrants to the Brokers that it has made,and is relying solely upon, its own investigation as to the nature, quality, character and financial responsibility of the other Party to this Lease and as to the use, nature, quality and character of the Premises. Brokers have no responsibility with respect thereto or with respect to any default or breach hereof by either Party.
23. Notices.
23.1 Notice Requirements. All notices required or permitted by this Lease or applicable law shall be in writing and maybe delivered in person (by hand or by courier) or maybe sent by regular, certified or registered mail or D.S. Postal Service Express Mail, with postage prepaid, or by facsimile transmission, or by email, and shall be deemed sufficiently given if served in a manner specified in this Paragraph 23. The addresses noted adjacent to a Party's signature on this Lease shall be that Party's ad dress for delivery or mailing of notices. Either Party may by written notice to the other specify a different address for notice, except that upon Lessee's taking possession of the Premises, the Premises shall constitute Lessee's address for notice. A copy of all notices to Lessor shall be concurrently transmitted to such party or parties at such addresses as Lessor may from time to time hereafter designate in writing.
23.2 Date of Notice. Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. If sent by regular mail the notice shall be deemed given 72 hours after the same is addressed as required herein and mailed with postage prepaid. Notices delivered
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23 PROVISIONS OF ANY PRESENT OR FUTURE STATUTE TOTHE EXTENTTHAT SUCH STATUTE IS INCONSISTENT WITH THIS LEASE.
25. Disclosures Regarding The Nature of a Real Estate Agency Relationship. (a) When entering into a discussion with a real estate agent regarding a real estate transaction, a Lessor or Lessee should from the outset understand what type of agency relationship or representation it has with the agent or agents in the transaction. Lessor and Lessee acknowledge being advised by the Brokers in this transaction, as follows:
(i) Lessor's Agent. A Lessor's agent under a listing agreement with the Lessor acts as the agent for the Lessor only. A Lessor's agent or subagent has the following affirmative obligations: To the Lessor: A fiduciarv duty of utmost care, integrity, honesty, and loyalty in dealings with the Lessor. To the Lessee and the Lessor: (a) Diligent exercise of reasonable skills and care in performance of the agent's duties, (b) A duty of honest and fair dealing and good faith, (c) A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the Parties. An agent is not obligated to reveal to either Party any confidential information obtained from the other Party which does not involve the affirmative duties set forth above.
(ii) Lessee's Agent. An agent can agree to act as agent for the Lessee only. In these situations, the agent is not the Lessor's agent, even if by agreement the agent may receive compensation for services rendered, either in full or in part from the Lessor. An agent acting only for a Lessee has the following affirmative obligations. To the Lessee: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Lessee. To the Lessee and the Lessor: (a) Diligent exercise of reasonable skills and care in performance of the agent's duties. (b)A duty of honest and fair dealing and good faith. (c)A duty to disclose all facts known to the agent materially affecting the value or desirability of the property that are not known to, or within the diligent attention and observation of, the Parties.
An agent is not obligated to reveal to either Party any confidential information obtained from the other Party which does not involve the affirmative duties set forth above.
(ili) Agent Reciresentina Both Lessor and Lessee. A real estate agent, either acting directly or through one or more associate licensees, can legally be the agent of both the Lessor and the Lessee in a transaction, but only with the knowledge and consent of both the Lessor and the Lessee. In a dual agency situation, the agent has the following affirmative obligations to both the Lessor and the Lessee: (a) A fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with either Lessor or the Lessee, (b) Other duties to the Lessor and the Lessee as stated above in subparagraphs (i) or (ii). In representing both Lessor and Lessee, the agent may not, without the express permission of the respective Party, disclose to the other Party confidential information, including, but not limited to, facts relating to either Lessee's or Lessor's financial position, motivations, bargaining position, or other personal information that may impact rent, including Lessor's willingness to accept a rent less than the listing rent or Lessee's willingness to pay rent greater than the rent offered. The above duties of the agent in a real estate transaction do not relieve a Lessor or Lessee from the responsibility to protect their own interests. Lessor and Lessee should carefully read all agreements to assure that they adequately express their understanding of the transaction. A real estate agent is a person qualified to advise about real estate. If legal or tax advice is desired, consult a competent professional. Both Lessor and Lessee should strongly consider obtaining tax advice from a competent professional because the federal and state tax consequences of a transaction can be complex and subject to change. (b) Brokers have no responsibility with respect to any default or breach hereof by either Party. The Parties agree that no lawsuit or other legal proceeding involving any breach of duty, error or omission relating to this Lease may be brought against Broker more than one year after the Start Date and that the liability (including court costs and attorneys'fees), of any Broker with respect to any such lawsuit and/or legal proceeding shall not exceed the fee received by such Broker pursuant to this Lease; provided, however, thatthe foregoing limitation on each Broker's liability shall not be applicable to any gross negligence or willful misconduct of such Broker.
(c) Lessor and Lessee agree to identify to Brokers as "Confidential" any communication or information given Brokers that is considered by such Party to be confidential.
26. No Right To Holdover. Lessee has no right to retain possession of the Premises or any part thereof beyond the expiration or termination of this Lease. At or prior to the expiration or termination of this Lease Lessee shall deliver exclusive possession of the Premises to Lessor. For purposes of this provision and Paragraph
13.l(a), exclusive possession shall mean that Lessee shall have vacated the Premises, removed all of its personal property therefrom and that the Premises have been returned in the condition specified in this Lease. In the event that Lessee does not deliver exclusive possession to Lessor as specified above, then Lessor's damages during any holdover period shall be computed at the amount of the Rent (as defined in Paragraph 4.1) due during the last full month before the expiration or termination of this Lease (disregarding any temporary abatement of Rent that may have been in effect), but with Base Rent being 150% of the Base Rent payable during such last full month. Nothing contained herein shall be construed as consent by Lessor to any holding over by Lessee.
27. 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.
28. Covenants and Conditions; Construction of Agreement. All provisions of this Lease to be observed or performed by Lessee 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.
29. 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 betwe
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24 prior lessor or with respect to events occurring prior to acquisition of ownership; (b) be subject to any offsets or defenses which Lessee might have against any prior lessor, (c) be bound byprepayment of more than one month's rent, or (d) be liable for the return of any security deposit paid to any prior lessor which was not paid or credited to such new owner.
30.3 Non-Disturbance. With respect to Security Devices entered into by Lessor afterthe execution of this Lease, Lessee's subordination of this Lease shall be subject to receiving a commercially reasonable non-disturbance agreement (a "Non-Disturbance Agreement") from the Lender which Non-Disturbance Agreement provides that Lessee's possession of the Premises, and this Lease, including any options to extend the term hereof, will not be disturbed so long as Lessee is not in Breach hereof andattorns to the record owner of the Premises. Further, within 60 days after the execution of this Lease, Lessor shall, if requested by Lessee, use its commercially reasonable efforts to obtains Non-Disturbance Agreement from the holder of any pre-existing Security Device which is secured by the Premises. In the event that Lessor is unable to provide the Non-Disturbance Agreement within said 60 days, then Lessee may, at Lessee's option, directly contact Lender and attempt to negotiate for the execution and delivery of a Non-Disturbance Agreement.
30.4 Self-Executing. The agreements contained in this Paragraph 30 shall be effective without the execution of any further documents; provided, however, that, upon written request from Lessor or a Lender in connection with a sale, financing or refinancing of the Premises, Lessee and Lessor shall execute such further writings as may be reasonably required to separately document any subordination, attornment and/or Non-Disturbance Agreement provided for herein.
31. Attorneys' Fees. If any Party or Broker brings an action or proceeding involving the Premises whether founded in tort, contractor equity, or to declare rights hereunder, the Prevailing Party (as hereafter defined) in any such proceeding, action, or appeal thereon, shall be entitled to reasonable attorneys' fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such action or proceeding is pursued to decision or judgment. The term, "Prevailing Party" shall include, without limitation, a Party or Broker who substantially obtains or defeats the relief sought, as the case may be, whether by compromise, settlement, judgment, or the abandonment by the other Party or Broker of its claim or defense. The attorneys' fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys' fees reasonably incurred. In addition, Lessor shall be entitled to attorneys' fees, costs and expenses incurred in the preparation and service of notices of Default and consultations in connection therewith, whether or not a legal action is subsequently commenced in connection with such Default or resulting Breach ($200 is a reasonable minimum per occurrence for such services and consultation).
32. Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's agents shall have the right to enter the Premises at any time, in the case of an emergency, and otherwise at reasonable times after reasonable prior notice for the purpose of showing the same to prospective purchasers, lenders, or tenants, and making such alterations, repairs, improvements or additions to the Premises as Lessor may deem necessary or desirable and the erecting, using and maintaining of utilities, services, pipes and conduits through the Premises and/or other premises as long as there is no material adverse effect on Lessee's use of the Premises. All such activities shall be without abatement of rent or liability to Lessee.
33. Auctions. Lessee shall not conduct, nor permit to be conducted, any auction upon the Premises without Lessor's prior written consent. Lessor shall not be obligated to exercise any standard of reasonableness in determining whether to permit an auction.
34. Signs. Lessor may place on the Premises ordinary "For Sale" signs at anytime and ordinary "For Lease" signs during the last 6 months of the term hereof. Lessor may not place any sign on the exterior of the Building that covers any of the windows of the Premises. Except for ordinary "ForSublease" signs which maybe placed only on the Premises, Lessee shall not place any sign upon the Project without Lessor's prior written consent. All signs must comply with all Applicable Requirements.
35. Termination; Merger. Unless specifically stated otherwise in writing by Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual termination or cancellation hereof, or a termination hereof by Lessor for Breach by Lessee, shall automatically terminate anysubleaseor lesser estate in the Premises; provided, however, that Lessor may elect to continue anyone or all existing subtenancies. Lessor's failure within 10 days following any such event to elect to the contrary by written notice to the holder of any such lesser interest, shall constitute Lessor's election to have such event constitute the termination of such interest.
36. Consents. All requests for consent shall be in writing. Except as otherwise provided herein, wherever in this Lease the consent of a Party is required to an act by or for the other Party, such consent shall not be unreasonably withheld or delayed. Lessor's actual reasonable costs and expenses (including but not limited to architects', attorneys', engineers' and other consultants' fees) incurred in the consideration of, or response to, a request by Lessee for any Lessor consent, including but not limited to consents to an assignment, a subletting or the presence or use of a Hazardous Substance, shall be paid by Lessee upon receipt of an invoice and supporting documentation therefor. Lessor's consent to any act, assignment or subletting shall not constitute an acknowledgment that no Default or Breach by Lessee of this Lease exists, nor shall such consent be deemed a waiver of any then existing Default or Breach, except as may be otherwise specifically stated in writing by Lessor at the time of such consent. The failure to specify herein any particular condition to Lessor's consent shall not preclude the imposition by Lessor at the time of consent of such further or other conditions as are then reasonable with reference to the particular matter for which consent Is being given. In the event that either Party disagrees with any determination made by the other hereunder and reasonably requests the reasons for such determination, the determining party shall furnish its reasons in writing and in reasonable detail within 10 business days following such request.
37. Guarantor.
37.1 Execution. The Guarantors, if any, shall each execute a guaranty in the form most recently published by AIR CRE.
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25 39.4 Effect of Default on Options.
(a) Lessee shall have no right to exercise an Option: (i) during the period commencing with the giving of any notice of Default and continuing until said Default is cured, (ii) during the period of time any Rent Is unpaid (without regard to whether notice thereof is given Lessee), (ill) during the time Lessee is in Breach of this Lease, or(iv) in the event that Lessee has been given 3 or more notices of separate Default, whether or not the Defaults are cured, during the 12 month period immediately preceding the exercise of the Option.
(b) The period of time within which an Option may be exercised shall not be extended or enlarged by reason of Lessee's inability to exercise an Option because of the provisions of Paragraph 39.4(a).
(c) An Option shall terminate and be of no further force or effect, notwithstanding Lessee's due and timely exercise of the Option, if, after such exercise and prior to the commencement of the extended term or completion of the purchase, (i) Lessee fails to pay Rent for a period of 30 days after such Rent becomes due (without any necessity of Lessortogive notice thereof), or(ii) if Lessee commits a Breach of this Lease.
40. Security Measures. Lessee hereby acknowledges that the Rent payable to Lessor hereunder does not include the cost of guard service or other security measures, and that Lessor shall have no obligation whatsoever to provide same. Lessee assumes all responsibility for the protection of the Premises, Lessee, its agents and inviteesand their property from the acts of third parties. In the event, however, that Lessor should elect to provide security services, then the cost thereof shall be an Operating Expense.
41. Reservations.
(a) Lessor reserves the right: (i) to grant, without the consent orjoinderof Lessee, such easements, rights and dedications that Lessor deems necessary, (ii)to cause the recordation of parcel maps and restrictions, (iii) to create and/or install new utility raceways,so long as such easements, rights, dedications, maps, restrictions, and utility raceways do not unreasonably interfere with the use of the Premises by Lessee. Lessor may also: change the name, address or title of the Building or Project upon at least 90 days prior written notice; provide and install, at Lessee's expense, Building standard graphics on the door of the Premises and such portions of the Common Areas as Lessor shall reasonably deem appropriate; grant to any lessee the exclusive right to conduct any business as long as such exclusive right does not conflict with any rights expressly given herein; and to place such signs, notices or displays as Lessor reasonably deems necessary or advisable upon the roof, exterior of the Building or the Projector on signs in the Common Areas. Lessee agrees to sign any documents reasonably requested by Lessor to effectuate such rights. The obstruction of Lessee's view, air, or light by any structure erected in the vicinity of the Building, whether by Lessor or third parties, shall in no way affect this Lease or impose any liability upon Lessor.
(b) Lessor also reserves the right to move Lessee to other space of comparable size in the Building or Project. Lessor must provide at least 45 days prior written notice of such move, and the new space must contain improvements of comparable quality to those contained within the Premises. Lessor shall pay the reasonable out of pocket costs that Lessee incurs with regard to such relocation. Including the expenses of moving and necessary stationary revision costs. In no event, however, shall Lessor be required to pay an amount in excess of two months Base Rent. Lessee may not be relocated more than once during the term of this Lease.
(c) Lessee shall not: (i) use a representation (photographic or otherwise) of the Building or Project ortheirname(s) in connection with Lessee's business; or(ii) suffer or permit anyone, except in emergency, to go upon the roof of the Building.
42. Performance Under Protest. If at anytime a dispute shall arise as to any amount or sum of money to be paid by one Party to the other under the provisions hereof, the Party against whom the obligation to pay the money is asserted shall have the right to make payment "under protest" and such payment shall not be regarded as a voluntary payment and there shall survive the right on the part of said Party to institute suit for recovery of such sum. If it shall beadjudged that there was no legal obligation on the part of said Party to pay such sum or any part thereof, said Party shall be entitled to recover such sum or so much thereof as it was not legally required to pay. A Party who does not initiate suit for the recovery of sums paid "under protest" within 6 months shall be deemed to have waived its right to protest such payment.
43. Authority; Multiple Parties; Execution.
(a) If either Party hereto Is a corporation, trust, limited liability company, partnership, or similar entity, each individual executing this Lease on behalf of such entity represents and warrants that he or she is duly authorized to execute and deliver this Lease on its behalf. Each Party shall, within 30 days after request, deliver to the other Party satisfactory evidence of such authority. (b) If this Lease is executed by more than one person or entity as "Lessee", each such person or entity shall be jointly and severally liable hereunder. It is agreed that anyone of the named Lessees shall be empowered to execute any amendment to this Lease, or other document ancillary thereto and bind all of the named Lessees, and Lessor may rely on the same as if all of the named Lessees had executed such document. (c) This Lease maybe executed by the Parties in counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
44. Conflict. Any conflict between the printed provisions of this Lease and the typewritten or handwritten provisions shall be controlled bythetypewritten or handwritten provisions.
45. Offer. Preparation of this Lease by either party or their agent and submission of same to the other Party shall not be deemed an offer to lease to the other Party. This Lease is not intended to be binding until executed and delivered by all Parties hereto.
46. Amendments. This Lease may be modified only in writing, signed by the Parties in interest at the time of the modification. As long as they do not materially change Lessee's obligations hereunder, Lessee agrees to make such reasonable non-monetary modifications to this Lease as may be reasonably required by a Lender in connection with the obtaining of normal financing or refinancing of the Premises.
47. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING THE PROPERT/ OR ARISING OUT OF THIS AGREEMENT.
48. Arbitration of Disputes. An Addendum requiring the Arbitration of all disputes between the Parties and/or Brokers arising out of this Lease attached to this Lease.
is '•' is not
49. Accessibility; Americans with Disabilities Act.
(a) The Premises:
•DS /—DS
]ave not undergone an inspection by a Certified Access Specialist (CASp). Note:|A C,e[tifiecl Access Specialist (CASp) can inspect the subject premises and
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26 determine whether the subject premises comply with all of the applicable construction-related accessibility standards understate law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations ofconstruction-related accessibility standards within the premises. i have undergone an inspection by a Certified Access Specialist (CASp)and it was determined that the Premises met all applicable construction-related accessibility standards pursuant to California Civil Code §55.51 etseq. Lessee acknowledges that it received a copy of the inspection report at least 48 hours prior to executing this Lease and agrees to keep such report confidential.
have undergone an inspection by a Certified Access Specialist (CASp) and it was determined that the Premises did not meet all applicable construction-related accessibility standards pursuant to California Civil Code §55.51etseq. Lessee acknowledges that it received a copy of the inspection report at least 48 hours priorto executing this Lease and agrees to keep such report confidential except as necessary to complete repairs and corrections of violations of construction related accessibility standards.
In the event that the Premises have been issued an inspection report by a CASpthe Lessor shall provide a copy of the disability access inspection certificate to Lessee within 7 days of the execution of this Lease.
(b) Since compliance with the Americans with Disabilities Act (ADA) and other state and local accessibility statutes are dependent upon Lessee's specific use of the Premises, Lessor makes no warranty or representation as to whether or not the Premises comply with ADA or any similar legislation. In the event that Lessee's use of the Premises requires modifications or additions to the Premises in order to be in compliance with ADA or other accessibility statutes. Lessee agrees to make any such necessary modifications and/or additions at Lessee's expense.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREETHAT, ATTHE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY AIR CRE OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING AND SIZE OFTHE PREMISES, THE STRUCTURAL INTEGRITY, THE CONDITION OF
THE ROOF AND OPERATING SYSTEMS, COMPLIANCE WITH THE AMERICANS WITH DISABILITIES ACT AND THE SUITABILITY OF THE PREMISES FOR LESSEE'S INTENDED USE.
WARNING: IF THE PREMISES ARE LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PREMISES ARE LOCATED.
The parties hereto have executed this Lease at the place and on the dates specified above their respective signatures.
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Executi
On:
By LESSOR:
LT Properties Company, a California
Execu.ted.at
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Limj^^j^^ership
By LESSEE:
st,u.^ute^>t-h.LLC
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By:
Name P7rntgij;D5D£WW"T S e n q
Title: General _Pa_rtner_
Phone:
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Email:
By:
Name Printed:
Title:
Phone:
Fax:
Email:
By:
Name'PnrTtSS^SPW-Mol it or
Title: President and COO
Phone:
Fax:
Email: amp l.it_or_@ s_tri_vehea_l th^com_
By:
Name Printed:
Title:
Phone:
Fax:
Email:
Address:
Federal ID No.:
Address:
Federal ID No.:
BROKER
INITIALS
©2019AIRCRE. All Rights Reserved.
OFG-21.30, Revised 10-22-2020
BROKER
IS
^Yesa Global, Inc
~w
INITIALS
Last Edited: 12/21/2022 8:14 AM
27 Attn: Peter Wells
Title: First Vice President
Address: 3501 Jamboree Road, Suite 100 Newport
Beach, CA 92660
Phone: , 949-413-5234
Fax:
Email: [email protected]
Federal ID No.:
Broker DRE License it: 00409987
Agent DRE License ff: 01718361
Attn:
Title:
Blake Martin
Advisor
Address: 515 S. Flower Street, Suite 300 Los
Angeles, CA 9007J,
Phone: 213.430.2452
Fax:
Email: [email protected]
Federal ID No.:
Broker DRE License tt: 00857710
Agent DRE Licenses: , 02080666
AIRCRE * https://www.aircre.com * 213-687-8777 * [email protected] NOTICE: No part of these works maybe reproduced in any form without permission in writing. -DS
Lt
•DS
fiH
INITIALS
©2019 AIR CRE. All Rights Reserved.
OFG-21.30, Revised 10-22-2020
INITIALS
Last Edited: 12/21/2022 8:14 AM
28 Prepared by:
Peter Wells 714.371.9220 [email protected]
Taylor Friend 714.371.9241 [email protected]
Garden Grove Plaza
Stacking Plan – February 1, 2024
12966 Euclid Street
Garden Grove, CA
VACANT
Suite 500
BOMA 3,337 SF
CA Medical
Evaluators
Suite 508
Lease 2,133 SF
Exp: 2/26/26
Start: 1/1/22
Ticor Title Co.
Suite 550
Lease 1,712 SF
Exp. 1/31/2024
Start: 11/20/20
Acute Data
Suite 530
Lease 803 SF
Exp: 1/1/26
Start:10/1/22
Tony H. Vu
Suite 520
Lease 1,615 SF
Exp: 11/30/26
Start: 9/1/23
VACANT
Suite 510
BOMA 1,550 SF
VACANT
Suite 525
BOMA 554 SF
VACANT
Suite 515
BOMA 2,371 SF
14,075 SF
Law Offices of Choi & Choi
Suite 400
Lease 2,068 SF
Exp: 5/31/27
Start: 4/1/12
VACANT
Suite 450
BOMA 920 SF
T&T Group
Suite 445
Lease 580 SF
Exp: 11/30/26
Start: 10/1/23
Orange County Asian Pacific Islander Community Alliance, Inc. (OCAPICA) Suite 495
Lease 7,859 SF
Exp. 8/31/26
Start: 7/1/23
OCAPICA
Suite 425
Lease 1,905 SF
Exp: 10/31/24
Start: 10/16/23
13,332 SF
Investel Resorts Management, LLC
Suite 300/320/330
Lease 13,272 SF
Exp: 11/30/25
Start: 6/1/17
13,272 SF
Paul Joo
Suite 210 (250
E&F)
Lease 1,573 SF
Exp: 4/30/28
Start: 12/01/12
Mgmt.
250C
220 SF
James Nguyen
250D
Lease 175 SF
Exp: MTM
Start: 4/1/18
Kitchen
CC
73 SF
Hung Nguyen
250A/B
Lease 430 SF
Exp: MTM
Start: 1/1/15
Western
International
Real Estate
Suite 270
Lease 696 SF
Exp: MTM
Start: 4/1/17
Andrew Pham
and Toan Tran
Suite 275
Lease 662 SF
Exp: MTM
Start: 4/1/14
VACANT
Suite 240
BOMA 1,074 SF
Pathways Community
Services, lLC
Suite 220
Lease 2,742 SF
Exp: 6/30/28
Start: 7/1/213
Pathways Community
Services LLC
Suite 200/280
Lease 3,956 SF
Exp: 6/30/28
Start: 7/1/23
11,601 SF
VACANT
Suite 100/120
BOMA 3,291 SF
Strive Health, LLC
Suite 110
Lease 1,035 SF
Exp: MTM
Start: 1/1/23
VACANT
Suite 130/150
BOMA 7,373 SF
11,699 SF
Total Square Footage – 63,979 SF
Vacant 32% (20,470 sf)
MTM 4.7% (2,998 sf)
2024 5.6% (3,617 sf)
2025 20.7% (13,272 sf)
2026 20.3% (12,990 sf)
2027 3.2% (2,068 sf)
2028 13% (8,271 sf)
Bldg Mgmt 0.5% (293 sf)
29 ________ ________
________ ________
INITIALS INITIALS
©2017AIRCRE. AllRightsReserved. LastEdited:2/16/202410:30AM ATL-1.02,Revised10-22-2020 Page1 of2
1st AMENDMENTTO LEASE
THISAMENDMENT TOLEASE ismadeand enteredinto asof Februray 27, 2024 ,byand between City of Garden Grove ("Lessor")assuccessor-in-interesttoLTPropertiesCompany,aCaliforniaLimitedPartnership("OriginalLessor") and Strive Health, LLC ("Lessee").
WHEREAS,on orabout December 8, 2022 aLease wasentered intoby andbetweenOriginal Lessor andLessee relaƟngtocertain realproperty commonlyknown as(street address,city,state, zip): 12966 Euclid Street, Suite 110, Garden Grove, CA 92840 (the "Premises"),and
WHEREAS,Lessor andLessee have have notpreviouslyamended saidLease, and WHEREAS,the Lessorand Lesseenowdesire toamend saidLease, NOW,THEREFORE, forpayment ofTENDOLLARS andother goodand valuable consideraƟonto Lessor,the receiptand sufficiency ofwhich isherebyacknowledged, the parƟes mutuallyagree tomakethe following addiƟons and modificaƟons totheLease:
TERM: The ExpiraƟon Dateishereby advanced extendedto February 28, 2025 (the "Expiration Date") .
AGREEDUSE: The AgreedUseis hereby modified to: .
BASERENT ADJUSTMENT: MonthlyBaseRentshallbe asfollows: Effective March 1, 2024 the monthly Base Rent due shall be $1,246.50 per month through the expiration date of February 28, 2025 .
OTHER: Premises: The Premises for the new Term shall be Suite 525, located on the 5th floor of the building consisting of approximately 554 rentable square feet in its current as-is condition. Lessee shall have access to suite 525 beginning February 28, 2024 for the purpose of installing furniture, fixtures and equipment. Lessee shall vacate suite 110 entirely no later than March 15, 2024 and leave it in “broom clean” condition free of any damage
Taxes: Lessor is a municipality exempt from property taxation. However, Revenue and Taxation Code 107 and 107.6 create a possessory tax assessed upon tenants based on the leasehold interest in Lessor’s property. Lessor will endeavor to have all tax bills delivered to Lessor and Lessor will pay tax bills assessed upon Tenant’s leasehold interest. In the event that the County Assessor delivers the tax bill to Tenant, Tenant agrees to remit the tax bill to Lessor for payment.
Brokerage Representation: Landlord and Tenant acknowledge that CBRE represents the Landlord ("Landlord's Broker") and Cresa Global, Inc. represents the Tenant ("Tenant's Broker")and both parties consent thereto .
ThisAmendment shallnot beconstruedagainst theparty preparingit, butshallbe construedas ifall parƟes jointlyprepared thisAmendmentand anyuncertainty and ambiguityshall notbe interpretedagainstany oneparty. Signatures tothisAmendment accomplishedby meansofelectronic signatureor similartechnologyshall be legaland binding.
Allother termsand condiƟons ofthis Leaseshall remainunchanged andshall conƟnue infull forceand effect exceptas specificallyamendedherein.
EXECUTEDas ofthe dayandyear firstabove wriƩen.
ByLessor:
City of Garden Grove
By:
NamePrinted:
Title:
Phone:
Fax:
ByLessee:
Strive Health, LLC
By:
NamePrinted: Aaron Molitor
Title: President and COO
Phone:
Fax:
30 ________ ________
________ ________
INITIALS INITIALS
©2017AIRCRE. AllRightsReserved. LastEdited:2/16/202410:30AM ATL-1.02,Revised10-22-2020 Page2 of2
Email:
By:
NamePrinted:
Title:
Phone:
Fax:
Email:
Address:
FederalID No.:
Email: [email protected]
By:
NamePrinted:
Title:
Phone:
Fax:
Email:
Address:
FederalID No.:
AIRCRE * hƩps://www.aircre.com * 213-687-8777 * [email protected] NOTICE: Nopart oftheseworks maybe reproducedin anyformwithout permissionin wriƟng. 31 City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To:
Lisa L. Kim From: William E. Murray
Dept:
City Manager Dept: Public Works
Date: 2/27/2024
Subject: Approval of the proposed Fiscal Year 2024-25 West Orange County Water Board Cost Sharing Budget and Amendment to the Joint Powers Authority Agreement. (Action Item)
OBJECTIVE
To receive City Council approval of the West Orange County Water Board Fiscal Year 2024-25 proposed cost sharing budget for operational expenses and cathodic protection system (CP) project cost.
BACKGROUND
The West Orange County Water Board (WOCWB) is a joint powers authority created in 1967 by the cities of Garden Grove, Huntington Beach, Seal Beach, and Westminster for the purpose of maintenance and operation of shared water transmission lines for imported water. One of the connections is located near Bolsa/Newland and is referred to as OC -9. The other connection is located near Westminster/Willow and is referred to as OC-35.
Of those shared water transmission lines, the OC -9 and OC -35 transmission lines require life extension, as each pipeline is 65 years and 57 years old respectively. The average lifespan of a cement lined and coat ed steel pipeline ranges between 70-80 years. The options to ensure that water service to member agencies would continue into the future would be to replace the pipelines in 10 to 20 years at a cost of $50 million or install a CP at a cost of $8 million. On March 18, 2020, the WOCWB voted to proceed with the installation of a CP, which is also the most cost effective solution.
DISCUSSION
The joint powers agreement requires that the WOCWB prepare a proposed annual budget and that each of the contracting pu blic agencies approve the budget before its adoption. The total WOCWB budget for fiscal year 2024 -25 is $1,665,300 for operational expenses and capital costs. A table showing the annual breakdown by 32
agency is included as an attachment. The OC -35 relocation project loan payment has been paid off by the City.
On September 12, 2023, City council approved the fifth amendment for the joint powers agreement with the WOCWB to permit alternate members to the board of directors. The WOCWB is proposing a sixth am endment to provide stipends up to a maximum of $200 for board members and alternate board members for the purpose of reimbursing traveling expenses.
FINANCIAL IMPACT
The City of Garden Grove Water Services Division share is set at 4.2 percent of the total operational expenses and CP project cost and amount for an annual total of $49,783. The funding is included in the Water Enterprise Fund's operating budget. There is no impact to the General Fund.
RECOMMENDATION
It is recommended that the City Council:
Approve the West Orange County Water Board Fiscal Year 2024/25 proposed cost sharing budget for operational expenses and cathodic protection system project cost;
Approve the sixth amendment for the joint powers agreement with the West Orange County Water Board to provide stipends up to a maximum of $200 for board members and alternate board members for the purpose of reimbursing traveling expenses; and
Authorize the Mayor to execute the Sixth Amendment to the Joint Powers Agreement, on behalf of the City.
By: Samuel Kim, P.E., Deputy Public Works Director/Water Service Manager
ATTACHMENT(S):
1. Budget
2. Sixth Amendment Agreement
33 WEST ORANGE COUNTY WATER BOARD
PROPOSED FISCAL YEAR 2024/25 BUDGET
FY 23/24
Approved
FY 24/25
Proposed
ACCOUNT NUMBER ACCOUNT DESCRIPTION
OPERATING EXPENSES
50885101.61200 Electricity $4,500 $4,500
50885101.64620 Contracts for Repairs and Maint enance $30,000 $35,000 PLC Design for SCADA $25,000 $70,000
Vault (2) Refurbishment $20,000 $0
50885101.69345 Auditing $5,500 $5,800
50885101.69375 Attorney Fees $2,500 $2,500
50885101.73010 General/Liability Insurance $9,500 $10,000 50885101.75400 Board Stipend Expense $2,500 $5,000 50885101.79100 Contingency $2,500 $2,500
50885101.82100 OC-35 Turnout Rehabilitation De sign $0 $50,000 50885101.82100 Cathodic Protection $1,000,000 $1 ,000,000 OPERATING EXPENSES $1,102,000 $1,185,300
NON OPERATING EXPENDITURES
50885102.88010 Debt Service
1 $475,000 $480,000
SUBTOTAL $1,577,000 $1,665,300
50885103.82100 Cathodic Protection Design 2 $300,000
50885103.82100 Cathodic Protection Construction $3,70 0,000 TOTAL $5,365,300
1Cities of Huntington Beach and Seal Beach for OC-35 realignment project loan 2 Cathodic Protection Project Funds will come from funds already collected for the project beginning in FY 2020-21, including the current request, and will not increase the total budget request.
January 10, 2024
34 FISCAL YEAR 2024/25 PROPOSED BUDGET
AGENCY CONTRIBUTIONS
ACCOUNT NUMBER AGENCY OWNERSHIP
PERENTAGE
FY 24/25 COST
50800508.46610 Huntington Beach 56.1 $664,953
50800508.46620 Garden Grove 4.2 $49,783
50800508.46630 Seal Beach 14.3 $169,498
50800508.46640 Westminster 25.4 $301,066
Totals 100.0 $1,185,300
50800508.46610 Huntington Beach 56.1 $382,512
50800508.46620 Garden Grove* 4.2 $0
50800508.46630 Seal Beach 14.3 $97,488
50800508.46640 Westminster* 25.4 $0
Totals 100.0 $480,000
50800508.46610 Huntington Beach 56.1 $1,047,465
50800508.46620 Garden Grove* 4.2 $49,783
50800508.46630 Seal Beach 14.3 $266,986
50800508.46640 Westminster* 25.4 $301,066
Total Budget $1,665,300
Operating Budget (Including Cathodic Protection)
Sixth Year OC-35 Relocation Project Loan Payment
Total Adopted Budget
*Garden Grove and Westminster have paid off their portions of the loan January 10, 2024
35 43424560.1
SIXTH AMENDMENT TO WEST ORANGE COUNTY WATER BOARD
JOINT POWERS AGREEMENT
This SIXTH AMENDMENT TO JOINT POWERS AGREEMENT (“Sixth Amendment”) is entered into this ___ day of __________, 2024, by and among the CITY OF GARDEN GROVE, the CITY OF HUNTINGTON BEACH, the CITY OF SEAL BEACH, and the CITY OF WESTMINSTER, collectively hereinafter sometimes referred to as the “Contracting Parties” or the “Parties,” all of which are municipal corporations formed under and existing pursuant to the laws of the State of California.
W I T N E S S E T H:
WHEREAS, the Parties hereto are all of the parties to that certain Joint Powers Agreement, executed on October 25, 1967, known as the “West Orange County Water Board Joint Powers Agreement” (“Joint Powers Agreement”); and
WHEREAS, the Joint Powers Agreement has been amended from time to time on December 15, 1969; December 1, 1993; July 15, 1994; October 17, 2005; and October 18, 2023, which prior amendments that are incorporated herein by reference; and WHEREAS, Section 8 of the Joint Powers Agreement provides that the terms and provisions of the Joint Powers Agreement may be amended with the unanimous consent of the Parties; and
WHEREAS, the Parties hereto desire to amend Section 6 of the Joint Powers Agreement to increase the compensation for each sitting member of the West Orange County Water Board (“Board”), which has not increased since 2005.
NOW, THEREFORE, THE CONTRACTING PUBLIC AGENCIES HEREBY DO AGREE AS FOLLOWS:
Section 1. Recitals. The foregoing recitals are true and correct and are incorporated herein by this reference.
Section 2. Authority for Amendment. The Parties hereto are authorized by law to contract with each other for the joint exercise of common powers under Article 1, Chapter 5, Division 7, Title 1 of the Government Code of the State of California, and are authorized to amend the Joint Powers Agreement pursuant to Section 8 thereof, by the unanimous consent of the governing bodies of each of the Parties.
Section 3. Amendment. Section 6 of the Joint Powers Agreement is hereby amended and superseded in its entirety to read as follows:
36 43424560.1
“SECTION 6
Directors shall be compensated for attending meetings of the Board of Directors in an amount fixed by the Board, which shall not be in excess of $200 per meeting of the Board. Additionally, the Board may provide for the reimbursement of traveling expenses for Directors between their place of residence and the location of the Board meeting. The Board may provide for the reimbursement of the expenses of a Director if such are directed by the Board to attend any meeting or other activity which it is determined by the Board to be in the best interest of the West Orange County Water Board and which relates to the accomplishment of the purposes herein provided for. The compensation herein provided for shall be in addition to any other fee or compensation to which the person entitled thereto might otherwise be entitled to receive by reason of some other office or position which they may hold.”
[Remainder of this page intentionally left blank]
37 43424560.1
Section 4. Remainder of Agreement. Except for the changes specifically set forth herein, all other terms of the Joint Powers Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Fifth Amendment as of the Effective Date.
ATTEST:
Name:
City Clerk,
City of Garden Grove
ATTEST:
Name:
City Clerk,
City of Huntington Beach
ATTEST:
Name:
City Clerk,
City of Seal Beach
ATTEST:
Name:
City Clerk,
City of Westminster
CITY OF GARDEN GROVE:
By
Name:
Mayor
CITY OF HUNTINGTON BEACH
By
Name:
Mayor
CITY OF SEAL BEACH
By
Name:
Mayor
CITY OF WESTMINSTER
By
Name:
Mayor
38 City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To:
Lisa L. Kim From: William E. Murray
Dept:
City Manager Dept: Public Works
Date: 2/27/2024
Subject: Approval of Amendment No. 1 to the agreement with Parkwood Landscape Maintenance, Inc. to provide median landscaping services. (Cost: $250,000) (Action Item)
OBJECTIVE
To seek City Council approval to amend an agreement with Parkwood Landscape Maintenance, Inc. (Parkwood) to include funding for the application of mulch to various city medians.
BACKGROUND
Senate Bill 1383 (SB 1383) mandates that the City needs to procure and use .08 tons of Recovered Organic Waste Products (ROWP) per resident, for a total of over 13,798 tons on a yearly basis. Assembly Bill 1985 (Rivas, 2022) allowed for a tiered approach to the purchase and use of ROWP, and in 2024, there is a 65% (8,968.8 tons) procurement mandate.
On July 25, 2023, the City Council approved a five (5) year agreement with Parkwood to provide median maintenance services, executed one (1) year at a time. Included in the Request for Proposal was an optional work item for application of mulch to city medians.
DISCUSSION
One of the many methods staff has identified to meet the ROWP mandate is to apply mulch to various locations such as parks and medians.
While not included in the initial agreement amount, staff would like to add $50,000 to the agreement with Parkwood for the application of mulch to city medians to assist in its ROWP requirements. The $50,000 would be on a yearly contract term basis, for a total of $250,000 added to the total amount of the 5 year agreement. Currently, the mulch can be obtained from Orange County Waste and Recycling at no charge.
The $50,000 is for the transportation and application of the mulch. 39
FINANCIAL IMPACT
In 2022, the City received SB 1383 Local Assistant Grant Funds from CalRecycle to assist with items related to SB 1383 implementation, includin g the purchase, use and application of ROWP. The initial round of grant funding needs to be expended by May 2, 2024, which would provide funding through the end of the first term of the agreement with Parkwood.
Staff has submitted an application to CalRecy cle for $298,847 in additional grant funding that, if awarded, would last through April or May 2026 and would be able to fund the program through the term of the grant. Funding for FY 27 - 28 and future years would be included in the Public Works budget if no grants are available.
RECOMMENDATION
It is recommended that City Council:
Approve the amendment to the agreement to add $50,000 per contract term ($250,000) to the agreement with Parkwood Landscape Maintenance, Inc. for a new total contract total of $1,200,753.93; and
Authorize the City Manager to execute the agreement on behalf of the City and make minor modifications as needed.
By: Mark Ladney, Senior Program Specialist
ATTACHMENT(S):
1. Attachment 1: Amedment No 1.
2. Attachment 2: Proposed Pricing per RFP
40 CITY OF GARDEN GROVE
AMENDMENT NO. 1
To: Furnish all Labor, Materials and Equipment to Provide Landscape Maintenance Services for the City of Garden Grove per RFP S-1304.
This Amendment No. 1 to Furnish all Labor, Materials and Equipment to Provide Landscape Maintenance Services for the City of Garden Grove per RFP S -1304, is made and entered into this ____ day of ___________ 2024, by and between the CITY OF GARDEN GROVE , hereinafter referred to as "CITY", and Parkwood Landscape Maintenance, Inc., hereinafter referred to as "CONTRACTOR".
WHEREAS, Contractor and CITY entered into Contract No. B240022 effective July 25, 2023.
WHEREAS, Contractor and CITY desire to amend the Existing Contract as provided herein.
Now, therefore, it is mutually agreed, by and between the parties as follows:
Section 3: Compensation - shall be revised as follows:
The contract price is hereby increased, for mulching services, from $180,758.39 to $230,758.39 through the current term of the contract which is June 30, 2024, per Attachment “E”.
Except as expressly amended hereby, the Existing Contract remains in full force and effect as originally executed.
41 IN WITNESS WHEREOF, the parties have caused this Amendment No. 1 to the Existing Contract to be executed by their respective officers duly authorized on the date first written above.
Date: _____________ "CITY"
CITY OF GARDEN GROVE
By: ____________________________
City Manager
ATTESTED:
____________________________
City Clerk
Date: _______________________
"CONTRACTOR"
Parkwood Landscape Maintenance, Inc.
By: ______________________________
Name: ___________________________
Title: ____________________________
Date: ____________________________
If CONTRACTOR is a corporation, a
Corporate Resolution and/or
Corporate Seal is required. If a
partnership, Statement of
Partnership must be submitted to
CITY.
APPROVED AS TO FORM:
____________________________
Garden Grove City Attorney
________________________
Date
42 ATTACHMENT “E”
PROPOSAL PRICING
MULCH & COMPOST PROCUREMENT REQUIREMENTS FOR LANDSCAPING SERVICE PROVIDERS (PAGE 1 OF 2)
1. Purchase of SB 1383 compliant mulch: $_______ per ton* (Purchase price only includes the purchase amount)
2. Application of SB 1383 compliant mulch: $_______ per ton** (Application includes cost of labor to apply)
3. Purchase of SB 1383 compliant compost: $_______ per ton* (Purchase price only includes the purchase amount)
4. Application of SB 1383 compliant compost: $_______ per ton (Application includes cost of labor to apply)
5. Cost of transportation per half hour: $_________per ton *City is aware that there options to obtain free compost, which is why this is a separate line item.
**Mulch application must be three (3) inches deep.
247.00
198.00
247.00
198.00
40.00 43
ATTACHMENT “E”
PROPOSAL PRICING
MULCH & COMPOST PROCUREMENT REQUIREMENTS FOR LANDSCAPING SERVICE PROVIDERS (PAGE 2 OF 2)
PLEASE EXPLAIN YOUR EXPERIENCE WITH SENATE BILL 1383 IN THE SPACE BELOW:
PLEASE PROVIDE THE NAMES OF ANY AGENCIES THAT YOUR COMPANY IS CURRENTLY PROVIDING THESE SERVICES TO IN THE SPACE BELOW:
• City of Irvine
• City of Anaheim
• City of Diamond Bar
• City of Huntington Beach
• City of Laguna Beach
• City of Del Mar
• City of Long Beach
Parkwood Landscape Maintenance, Inc. has the necessary experience and knowledge and has a working relationship with local vendors which supply mulch and compost which meets the guidelines of Senate Bill 1383
44 City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To:
Lisa L. Kim From: Teresa Pomeroy
Dept:
City Manager Dept: City Clerk
Date: 2/27/2024
Subject: Receive and file minutes from the meeting held on January 23, 2024. (Action Item)
Attached are the minutes from the meeting held on January 23, 2024, recommended to be received and filed as submitted or amended.
ATTACHMENT(S):
1. Minutes
45 -1- 01/23/24
MINUTES
GARDEN GROVE CITY COUNCIL
Regular Meeting
Tuesday, January 23, 2024
Community Meeting Center
11300 Stanford Avenue, Garden Grove, CA 92840
CONVENE MEETING
At 6:35 p.m., Mayor Jones convened the meeting.
ROLL CALL PRESENT: (7) Council Members O’Neill, Tran, DoVinh, Klopfenstein, Nguyen-Penaloza, Mayor Pro
Tem Brietigam, Mayor Jones
ABSENT: (0) None
INVOCATION
PLEDGE OF ALLEGIANCE TO THE FLAG OF THE UNITED STATES OF AMERICA
COMMUNITY SPOTLIGHT IN RECOGNITION OF GOODWILL AMBASSADORS REPRESENTING ANYANG, REPUBLIC OF KOREA, AS PART OF THE 35TH ANNUAL GARDEN GROVE SISTER CITY EXCHANGE PROGRAM (F: 83.1-2024)
UPDATE FROM THE ASSOCIATION OF CALIFORNIA CITIES – ORANGE COUNTY (ACC-OC) (F: 74.11B)
Kris Murray, Executive Director of ACC-OC, provided an update and PowerPoint presentation detailing the role of ACC-OC connecting member agencies including public agencies, businesses, non-profits, and higher education institutions for the purpose of collaborating and developing policies specific to Orange County.
REPORT FROM GROUNDSWELL FORMERLY KNOWN AS THE OC HUMAN RELATIONS COMMISSION AS PRESENTED BY CHRISTIAN LOPEZ (F: 23.17)
Christian Lopez, Secretary of the non-profit, GROUNDSWELL, provided an update and certificate to the City Council recognizing the City of Garden Grove’s efforts to eliminate intolerance and to embrace diversity.
46 -2- 01/23/24
ORAL COMMUNICATIONS
Speakers: Nicholas Dibs, Hung Nguyen, Maureen Blackmun, and Kurt.
Written Communications: Hung Nguyen
RECESS
At 7:22 p.m., Mayor Jones recessed the meeting.
RECONVENE
At 7:35 p.m., Mayor Jones reconvened the meeting with all City Council Members present.
ADOPTION OF A PROCLAMATION IN CELEBRATION OF THE UPCOMING LUNAR NEW YEAR COMMENCING SATURDAY, FEBRUARY 10, 2024 (F: 83.1-2024)
It was moved by Council Member Brietigam, seconded by Council Member DoVinh that:
A Proclamation be adopted in celebration of the upcoming Lunar New Year commencing Saturday, February 10, 2024.
The motion carried by a 7-0 vote as follows:
Ayes: (7) Brietigam, O’Neill, DoVinh, Klopfenstein,
Nguyen-Penaloza, Tran, Jones
Noes: (0) None
CONSIDERATION OF FINAL PARCEL MAP NO. PM 2022-167 FOR THE PROPERTY LOCATED AT 7390 AND 7440 LINCOLN WAY, GARDEN GROVE (F: 118.1)
It was moved by Council Member Brietigam, seconded by Council Member DoVinh that:
Final Parcel Map No. PM-2022-167 for the property located at 7390 and 7440 Lincoln Way, Garden Grove, be approved.
The motion carried by a 7-0 vote as follows:
Ayes: (7) Brietigam, O’Neill, DoVinh, Klopfenstein,
Nguyen-Penaloza, Tran, Jones
Noes: (0) None
47 -3- 01/23/24
CONSIDERATION OF FINAL PARCEL MAP NO. PM 2021-112 FOR THE PROPERTY LOCATED AT 9801 AND 9811 BEVERLY LANE, GARDEN GROVE (F: 118.1)
It was moved by Council Member Brietigam, seconded by Council Member DoVinh that:
Final Parcel Map No. PM-2021-112 for the property located at 9801 and 9811 Beverly Lane, Garden Grove, be approved.
The motion carried by a 7-0 vote as follows:
Ayes: (7) Brietigam, O’Neill, DoVinh, Klopfenstein,
Nguyen-Penaloza, Tran, Jones
Noes: (0) None
RECEIVE AND FILE THE HOUSING AUTHORITY ANNUAL REPORT FOR FISCAL YEAR 2022-23 (JOINT ACTION WITH THE GARDEN GROVE HOUSING AUTHORITY (F: 128.1)
CITY COUNCIL ACTION
It was moved by Council Member Brietigam, seconded by Council Member DoVinh that:
The Housing Authority Annual Report as Housing Authority and as Housing Successor for Fiscal Year 2022-23, be received and filed.
The motion carried by a 7-0 vote as follows:
Ayes: (7) Brietigam, O’Neill, DoVinh, Klopfenstein,
Nguyen-Penaloza, Tran, Jones
Noes: (0) None
HOUSING AUTHORITY ACTION
It was moved by Commissioner Jones, seconded by Commissioner O’Neill that:
The Housing Authority Annual Report as Housing Authority and as Housing Successor for Fiscal Year 2022-23, be received and filed.
The motion carried by an 8-0-1 vote as follows:
Ayes: (8) DoVinh, Jones, Klopfenstein, T. Nguyen,
O’Neill, Tran, Brietigam, Nguyen-Penaloza
Noes: (0) None
Absent: (1) Beckles
48 -4- 01/23/24
APPROVAL OF AN AGREEMENT WITH HORIZON UNDERGROUND, INC., TO PROVIDE
ON-CALL SAW CUTTING SERVICES FOR WATER AND SEWER PROJECTS (F: 55-HORIZON UNDERGROUND, INC.)
It was moved by Council Member Brietigam, seconded by Council Member DoVinh that:
The agreement with Horizon Underground, Inc., for on-call saw cutting services for water and sewer projects in the amount not to exceed $190,000 per fiscal year with an annual option to extend the terms, for a total of five (5) fiscal years, be approved; and
The City Manager be authorized to execute the agreement on behalf of the City and make minor modifications as appropriate thereto.
The motion carried by a 7-0 vote as follows:
Ayes: (7) Brietigam, O’Neill, DoVinh, Klopfenstein,
Nguyen-Penaloza, Tran, Jones
Noes: (0) None
APPROVAL OF A COST SHARING AGREEMENT WITH THE MUNICIPAL WATER
DISTRICT OF ORANGE COUNTY FOR ASSISTANCE WITH FEDERAL AND STATE COMPLIANCE TO DEVELOP A WATER SERVICE LINE INVENTORY (F: 55-MUNICIPAL
WATER DISTRICT OF ORANGE COUNTY)
It was moved by Council Member Brietigam, seconded by Council Member DoVinh that:
The agreement with the Municipal Water District of Orange County to assist the City in developing a water service line inventory to comply with federal and state regulations, in the amount not to exceed $235,580, be approved; and
The City Manager be authorized to execute the agreement on behalf of the City and to make minor modifications deemed appropriate.
The motion carried by a 7-0 vote as follows:
Ayes: (7) Brietigam, O’Neill, DoVinh, Klopfenstein,
Nguyen-Penaloza, Tran, Jones
Noes: (0) None
49 -5- 01/23/24
WARRANTS
It was moved by Council Member Brietigam, seconded by Council Member DoVinh that:
Demands covered by EFT numbers 00032364 through 00033008 and check numbers 00185623 through 00185633 inclusive as listed and have been verified by the Finance Division as properly issued and bear all proper signatures, be received and filed;
Demands covered by EFT numbers 00033009 through 00033650 and check numbers 00185634 through 00185641 inclusive as listed and have been verified by the Finance Division as properly issued and bear all proper signatures, be received and filed; and
Demands covered by EFT numbers 00033651 through 00034284 and check numbers 00185642 through 00185647 inclusive as listed and have been verified by the Finance Division as properly issued and bear all proper signatures, be received and filed.
The motion carried by a 7-0 vote as follows:
Ayes: (7) Brietigam, O’Neill, DoVinh, Klopfenstein,
Nguyen-Penaloza, Tran, Jones
Noes: (0) None
APPROVAL TO WAIVE FULL READING OF ORDINANCES LISTED
It was moved by Council Member Brietigam, seconded by Council Member DoVinh that:
Full reading of ordinances listed be waived.
The motion carried by a 7-0 vote as follows:
Ayes: (7) Brietigam, O’Neill, DoVinh, Klopfenstein,
Nguyen-Penaloza, Tran, Jones
Noes: (0) None
50 -6- 01/23/24
PUBLIC HEARING – ADOPTION OF URGENCY ORDINANCE NO. 2950, EXTENDING URGENCY ORDINANCE NO. 2949 IMPOSING A MORATORIUM ON THE APPROVAL OF
SUBSTANCE ABUSE TREATMENT CENTERS PURSUANT TO GOVERNMENT CODE SECTION 65858 (F: 112.1)
(It was moved earlier in the meeting by Council Member Brietigam, seconded by Council Member DoVinh and approved unanimously that full reading of the ordinances listed be waived.)
Following the introduction by City Attorney Sandoval, Mayor Jones declared the public hearing open.
Speakers: Paul Simons, Diana Wydo, Daniel Hymus, Marina Sanchez, Tom Windhausen, Nicholas Dibs, Maureen Blackmun.
With no further testimony from the audience, Mayor Jones closed the public hearing.
Following City Council discussion, it was moved by Council Member O’Neill, seconded by Council Member Brietigam that:
Urgency Ordinance No. 2950, entitled: An Urgency Interim Ordinance of the City Council of the City of Garden Grove authorizing a 10 month and 15 day extension of Urgency Ordinance No. 2949 imposing a moratorium on the approval of substance abuse treatment centers pursuant to California Government Code Section 65858, be adopted.
The motion carried by a 7-0 vote as follows:
Ayes: (7) Brietigam, O’Neill, DoVinh, Klopfenstein,
Nguyen-Penaloza, Tran, Jones
Noes: (0) None
AWARD A CONTRACT TO WILLDAN ENGINEERING TO PROVIDE CONSULTANT ENGINEERING SERVICES (F: 55-WILLDAN ENGINEERING)
Following staff introduction, it was moved by Council Member Brietigam, seconded by Council Member O’Neill that:
A contract be awarded to Willdan Engineering, in the amount not to exceed $300,000 for consultant engineering services to augment engineering staffing needs until the permanent Associate Engineer position has been filled; and
The City Manager be authorized to execute the contract and make minor modifications as appropriate on behalf of the City.
The motion carried by a 7-0 vote as follows:
51 -7- 01/23/24
Ayes: (7) Brietigam, O’Neill, DoVinh, Klopfenstein,
Nguyen-Penaloza, Tran, Jones
Noes: (0) None
AUTHORIZATION OF THE ISSUANCE OF A PURCHASE ORDER TO SUNROAD AUTO LLC DBA KEARNY MESA FORD FOR THE PURCHASE OF 15 POLICE PATROL VEHICLES
Following staff introduction, it was moved by Council Member Brietigam, seconded by Council Member Klopfenstein that:
The Finance Director be authorized to issue a purchase order in the amount of $813,766.20 to Sunroad Auto LLC dba Kearny Mesa Ford for the purchase of 15 Police patrol vehicles.
The motion carried by a 7-0 vote as follows:
Ayes: (7) Brietigam, O’Neill, DoVinh, Klopfenstein,
Nguyen-Penaloza, Tran, Jones
Noes: (0) None
FIRST READING OF AN ORDINANCE TO UPDATE THE GARDEN GROVE HOUSING
AUTHORITY COMPOSITION AND TENANT COMMISSIONERS APPOINTMENTS (F: 122.1)
(It was moved earlier in the meeting by Council Member Brietigam, seconded by Council Member DoVinh and approved unanimously that full reading of the ordinances listed be waived.)
Following introduction by City Attorney Sandoval, it was moved by Council Member O’Neill, seconded by Council Member Nguyen-Penaloza that:
Ordinance No. 2951 entitled: An Ordinance of the City Council of the City of Garden Grove amending Section 2.56.030 of Chapter 2.56 of Title 2 of the Garden Grove Municipal Code pertaining to the composition and appointment of tenant commissioners to the Garden Grove Housing Authority be moved to second reading.
The motion carried by a 7-0 vote as follows:
Ayes: (7) Brietigam, O’Neill, DoVinh, Klopfenstein,
Nguyen-Penaloza, Tran, Jones
Noes: (0) None
MATTERS FROM THE MAYOR, CITY COUNCIL MEMBERS, AND CITY MANAGER
52 -8- 01/23/24
DISCUSSION ON A PROPOSED TEMPORARY REGIONAL K9 SUPPORT TRAINING FACILITY AT PIONEER PARK AS REQUESTED BY THE CITY COUNCIL (F: 73.18) (F: 82.1C)
Following City Council discussion it was moved by Council Member Klopfenstein, seconded by Council Member Nguyen-Penaloza that:
Staff be directed to conduct a feasibility study for establishing a Police K9 Training Facility Program at Pioneer Park; and
Staff be directed to follow up at a future City Council meeting to report on the findings.
The motion carried by a 7-0 vote as follows:
Ayes: (7) Brietigam, O’Neill, DoVinh, Klopfenstein,
Nguyen-Penaloza, Tran, Jones
Noes: (0) None
MATTERS FROM THE MAYOR, CITY COUNCIL MEMBERS, AND CITY MANAGER (Continued)
Council Member Brietigam thanked Council Member Nguyen-Penaloza for bringing the idea of community clean-up days forward and he announced the first Bulky Item Clean-up Day in 2024 will be on January 27, 2024, between 9:00 a.m. through 11:00 a.m. at Pacifica High School.
Council Member O’Neill announced that following the Clean-Up Day on Saturday, there will be one in District 2 at Skylark Elementary School on March 16, 2024; and he encouraged residents to check the city’s website on the community clean up schedule.
Mayor Pro Tem Tran wished everyone a Happy Lunar New Year and announced the upcoming Flower Street Event on historic Main Street that will be held on February 10th and 11th and will feature artwork, lion dances, live musical performances, flower fashion show, games, and vendors; and the Tet Festival hosted by the VAUSA will be held at the OC Fairgrounds on February 9-11, 2024, and will include a variety of multicultural activities, and she will be coordinating with students at this event. She attended the Memorial Service for Mary Selz, founder of Thomas House, and expressed her admiration for Mary Selz who helped many less fortunate people by providing resources to become more independent. And, she gave a shout-out to the VAUSA who gathered hundreds of donations for people to enjoy the upcoming Tet Festival. She stated that she attended the Library Advisory Committee meeting where discussion was held regarding the Latinx Spanish Heritage Month and indicated that she puts thought into the kinds of cultural events that could be celebrated in Garden Grove.
53 -9- 01/23/24
Council Member DoVinh congratulated Council Member Brietigam on his retirement after serving LAPD for 38 years. He noted the recent clean up and fencing of the property on Brookhurst Street, formerly the Marie Calendar’s Restaurant; however, there is still some fencing that is open. As this is private property, it is the property owner’s responsibility for clearing and fencing. In response to the representatives from Acadia Healthcare who spoke during the public hearing that was held tonight on the urgency ordinance to impose a moratorium on substance abuse treatment centers, he stressed the importance that the City Council be provided with comprehensive and timely information on this subject. He wished everyone a Happy Lunar New Year and is looking forward to the Tet parade in Westminster.
Council Member Klopfenstein noted that several years ago her grandmother, who was born in Garden Grove, passed away and today would have been her 100th birthday. She commented on the number of people who were an integral part of Garden Grove have passed away in the last few years, including Mr. Ric Lerma who will have passed a year ago this Thursday. To honor Mr. Lerma’s memory and acknowledge everything he gave back, there will be a community blood drive held in his honor on Tuesday, February 13, 2024, from 11:30 a.m. to 6:00 p.m. at the Community Meeting Center.
Council Member Nguyen-Penaloza wished everyone a Happy Lunar New Year, and she wished Council Member DoVinh a belated happy birthday.
City Manager Kim announced the upcoming Garden Grove Chamber of Commerce Joint Mixer on Wednesday, January 24, 2024, from 5:30 p.m. – 7:30 p.m. at the Garden Grove Elks Lodge at 11551 Trask Avenue. She credited the Chamber CEO Claudette Baldemor with working towards promoting business in Garden Grove.
She announced that there will be a community engagement meeting hosted by the Garden Grove Police Department and the neighbors at Pioneer Park at 6:00 p.m. to 7:00 p.m. on Thursday, January 25, 2024.
Mayor Jones stated that tonight’s meeting will be adjourned in memory of Pam Macneil, a dedicated volunteer, a long time board member of the Garden Grove Chamber of Commerce and Chair of the Women’s Division Committee.
RECESS
At 8:50 p.m., Mayor Jones recessed the regular meeting to convene closed session to discuss the following:
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
Pursuant to Government Code Section 54956.9(d)(1): Marine Perez, et al. vs. City of Garden Grove, et al., OCSC Case No. 30-2022-01281816
CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION
54 -10- 01/23/24
Pursuant to Government Code Section 54956.9(d)(1): Johnson v. City of Grants Pass, USCA (9th Cir.) Case Nos. 20-35752 & 20-35881
ORAL COMMUNICATIONS FOR CLOSED SESSION
Speakers: Nicholas Dibs
ADJOURN CLOSED SESSION
At 9:02 p.m., Mayor Jones adjourned closed session and reconvened the regular meeting with all City Council Members present.
City Attorney Sandoval announced that there was no reportable action taken by the City Council on the existing litigation concerning Marine Perez, et al. vs. City of Garden Grove; and that the City Council unanimously authorized the City Attorney to join in litigation as an amicus participant with other cities in support of the City of Grants Pass, Oregon, in the United States Supreme Court review of the 9th Circuit decision in Johnson v. City of Grants Pass.
ADJOURNMENT
At 9:03 p.m., Mayor Jones adjourned the meeting in memory of Pam Macneil. The next Regular City Council Meeting is scheduled on Tuesday, February 13, 2024, at 5:30 p.m. at the Community Meeting Center, 11300 Stanford Avenue, Garden Grove, California.
Teresa Pomeroy
City Clerk
55 City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To:
Lisa L. Kim From: Patricia Song
Dept:
City Manager Dept: Finance
Date: 2/27/2024
Subject: Receive and file warrants. (Action Item)
Attached are the warrants recommended to be received and filed.
ATTACHMENT(S):
1. Warrants
56 57
58 59
60 61
62 63
64 65
66 67
68 69
70 71
72 73
74 75
76 City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To:
Lisa L. Kim From: William E. Murray
Dept:
City Manager Dept: Public Works
Date: 2/27/2024
Subject: Approval of a Cooperative agreement for Euclid Street Corridor Traffic Signal Synchronization Project (CP1325000). (Cost: $286,377) (Action Item)
OBJECTIVE
For City Council approval to enter into a Cooperative Agreement with the cities of La Habra, Fullerton, Anaheim, Santa Ana, and Fountain Valley for the Euclid Street Corridor Traffic Signal Synchronization Project (CP1325000).
BACKGROUND
On November 9, 2021, City Council adopted Resolution No. 9716-21 approving the submittal of Euclid Street Traffic Signal Synchronization Improvement Project to the Orange County Transportation Authority for funding under the competitive Measure M2 Regional Traffic Signal Synchronization Program.
DISCUSSION
The proposed Euclid Street project includes 67 traffic signals spanning across approximately 17 miles. It would begin at La Habra Boulevard in the City of La Habra and terminate at Ellis Avenue in the City of Fountain Valley (see attached map – Exhibit A ). The Euclid Street project cost is estimated at $6,201,266. The City currently has jurisdiction of the following eleven traffic signals along Euclid Street:
Orangewood Avenue, Chapman Avenue, Marian Drive, Lampson Avenue, Main Street, Stanford Avenue, A cacia Parkway, Garden Grove Boulevard, Century Boulevard, Trask Avenue and Westminster Avenue. The project subtotal for the City of Garden Grove is $1,431,883. The local match (@20%) is $286,377. The project will include the development and implementatio n of signal timing, traffic signal equipment upgrades, and 2 years of traffic signal timing maintenance. The project is anticipated to be completed October 2026.
FINANCIAL IMPACT
77
The City of Garden Grove’s financial responsibility towards the project is estimated at $286,377. Funding will be from the City's Red Light Camera fund, and is included in the FY 2022-23 adopted budget. There is no impact to the General Fund.
RECOMMENDATION
It is recommended that the City Council:
Approve the Cooperative Agreement with the City of La Habra as the lead agency and to include the cities of Fullerton, Anaheim, Santa Ana, and Fountain Valley for the Euclid Street Corridor Traffic Signal Synchronization Project (CP1325000).
Authorize the City Manager to execute the Cooperative Agreement on behalf of the City.
By: Juan Navarro, P.E., Associate Engineer
ATTACHMENT(S):
1. LOCATION MAP
2. COOP AGREEMENT
3. MINUTE EXCERPT
78 SECTION 1: KEY TECHNICAL INFORMATION EUCLID STREET CORRIDOR RTSSP m. Project Map Depicting the Project Limits and Offset Signals Euclid Street RTSSP Corridor
4 Exhibit A
79 Cooperative Agreement No. 2024-1
COOPERATIVE AGREEMENT No. 2024-1 1 BY AND BETWEEN 2 THE CITY OF LA HABRA 3 AND 4 THE CITIES OF FULLERTON, ANAHEIM, GARDEN GROVE, SANTA ANA, AND 5 FOUNTAIN VALLEY 6 FOR THE 7 EUCLID STREET CORRIDOR PROJECT 8 REGIONAL TRAFFIC SIGNAL SYNCHRONIZATION PROGRAM 9 THIS COOPERATIVE AGREEMENT, hereinafter referred to as “AGREEMENT” is effective 10 the day of , 2024, by and between the City of La Habra, hereinafter 11 referred to as “LA HABRA” and the Cities of Fullerton, Anaheim, Garden Grove, Santa Ana, and Fountain 12 Valley, hereinafter referred to as “FULLERTON”, “ANAHEIM”, “GARDEN GROVE”, “SANTA ANA” 13 and “FOUNTAIN VALLEY” respectively, jointly referred to as “AGENCIES” or severally as “AGENCY”. 14 Collectively, LA HABRA and AGENCIES may be referred to as the “PARTIES” or individually as a 15 “PARTY”. 16 RECITALS 17 WHEREAS, Euclid Street between La Habra Boulevard and Interstate 405 (I-405) Southbound 18 Ramps, geographically located in the Cities of La Habra, Fullerton, Anaheim, Garden Grove, Santa Ana, and 19 Fountain Valley, is part of the OCTA Master Plan of Arterial Highways (MPAH), and 20 WHEREAS, Euclid Street between La Habra Boulevard and Country Hills Drive is maintained by 21 LA HABRA; and 22 WHEREAS, Euclid Street between Lakeview Drive and State Route 91 WB Ramps is maintained 23 by FULLERTON; and 24 WHEREAS, Euclid Street between State Route 91 EB Ramps and Katella Avenue is maintained by 25 ANAHEIM; and 26 WHEREAS, Euclid Street between Orangewood Avenue and Westminster Boulevard is maintained 27 80 Cooperative Agreement No. 2024-1
by GARDEN GROVE; and 1 WHEREAS, Euclid Street between Emperor Quang Trung/Oakfield Avenue and McFadden Avenue 2 is maintained by SANTA ANA; and 3 WHEREAS, Euclid Street between Edinger Avenue and I-405 SB Ramps is maintained by 4 FOUNTAIN VALLEY; and 5 WHEREAS, the intersections of Euclid Street at Imperial Highway, Euclid Street at the SR-91 6 Interchange (EB and WB ramps), Euclid Street at I-5 (NB and SB ramps) Interchange, Euclid Street at SR-7 22 Interchange (EB and WB ramps), and Euclid Street at I-405 (NB and SB ramps) Interchange are 8 maintained by the State of California, hereinafter referred to as “STATE” or “CALTRANS”, and a separate 9 Cooperative Agreement is entered into between LA HABRA and CALTRANS for the STATE-maintained 10 traffic signals; and 11 WHEREAS, the Measure M2 Regional Traffic Signal Synchronization Program, hereinafter referred 12 to as “RTSSP”, targets over 2,000 signalized intersections across Orange County to maintain traffic signal 13 synchronization, improve traffic flow, and reduce congestion across jurisdictions; and 14 WHEREAS, LA HABRA and AGENCIES are committed to implementing multi-jurisdictional 15 signal synchronization to enhance countywide traffic flow, and reducing congestion; and 16 WHEREAS, the Orange County Transportation Authority, hereinafter referred to as “OCTA”, 17 approved funding for the Euclid Street Corridor RTSSP Project, hereinafter referred to as “PROJECT”; and 18 WHEREAS, the PARTIES will provide matching funds as required by the Orange County 19 Comprehensive Transportation Funding Programs; and 20 WHEREAS, LA HABRA agrees to act as the lead agency for design, construction, and management 21 of the PROJECT; and 22 WHEREAS, the PROJECT will include sixty-seven (67) signalized intersections along the Euclid 23 Street Corridor between La Habra Boulevard and I-405 SB Ramps, and geographically located in LA 24 HABRA, FULLERTON, ANAHEIM, GARDEN GROVE, SANTA ANA, and FOUNTAIN VALLEY; and 25 WHEREAS, the PROJECT will include sixty-nine (69) offset signalized intersections, defined as 26 signalized intersections situated within 2700 feet along the side streets of the PROJECT corridor signals 27 81 Cooperative Agreement No. 2024-1
between La Habra Boulevard and I-405 SB Ramps, and geographically located in LA HABRA, 1 FULLERTON, ANAHEIM, GARDEN GROVE, SANTA ANA, and FOUNTAIN VALLEY; the inclusion 2 of the offset signals will minimize the impacts of the signal synchronization of the PROJECT corridor signals 3 on said offset signals; and 4 WHEREAS, the PROJECT Scope of Work includes the procurement, construction, installation and 5 modification of existing traffic signal controllers and cabinets, foundation, countdown-type signal heads, 6 video detection systems, traffic surveillance cameras, emergency vehicle preemption, power supplies, pull 7 boxes, signal interconnect communication upgrades including but not limited to fiber optic cables, signal 8 performance measures, and central system upgrades at the respective PARTIES’ Traffic Management 9 Centers; and 10 WHEREAS, the PROJECT Scope of Work also includes development, implementation, and 11 fine-tuning of coordination signal timing plans for various peak periods, and the ongoing monitoring and 12 maintenance of the coordinated signal system’s operation, including signal timing coordination and system 13 communication/detection upkeep, for a period of no less than two years; and 14 WHEREAS, LA HABRA agrees to work with AGENCIES to coordinate the inclusion of other 15 traffic control elements that must be installed at the same time as the construction of the PROJECT that are 16 NOT a part of the PROJECT Scope of Work and that are the responsibility of each respective PARTY during 17 the course of the PROJECT; and 18 WHEREAS, the PARTIES acknowledge that other RTSSP corridor projects are currently underway 19 or completed which intersect the PROJECT, and that these other RTSSP corridor timing operations must be 20 incorporated into the design and completion of this PROJECT; and 21 WHEREAS, this AGREEMENT defines the roles, specific terms, conditions and responsibilities 22 between the PARTIES. 23 AGREEMENT 24 NOW THEREFORE, it is understood and agreed by the PARTIES as follows: 25 ARTICLE 1. COMPLETE AGREEMENT 26 This AGREEMENT constitutes the complete and exclusive statement of the terms and conditions of 27 82 Cooperative Agreement No. 2024-1
the agreement between the PARTIES concerning the PROJECT and supersedes all prior representations, 1 understandings, and communications between the PARTIES. The above-referenced Recitals are true and 2 correct and are incorporated by reference herein. 3 ARTICLE 2. RESPONSIBILITIES OF LA HABRA 4 LA HABRA agrees to the following responsibilities: 5 1. LA HABRA shall serve as lead agency for design, construction, and construction management of 6 the PROJECT and shall provide oversight by establishing PROJECT milestones and overseeing the 7 PROJECT development to ensure compliance with all standards and requirements set forth in this 8 AGREEMENT. 9 2. LA HABRA shall be responsible for completing the PROJECT in accordance with the funding 10 guidelines and any and all other federal, state, and OCTA requirements related to these funding programs, 11 as well as any and all applicable statutes and regulations including, but not limited to, bidding laws, prevailing 12 wage and other labor laws, provisions of the California Building Standards Code, and the California 13 Environmental Quality Act (CEQA) and the Guidelines thereunder. 14 3. LA HABRA shall be responsible for providing the required documentation and funding 15 commitments for project implementation on the CALTRANS portions of the PROJECT within LA 16 HABRA’S geographical jurisdictions. 17 4. LA HABRA shall provide AGENCIES a copy of all design documents for AGENCIES’ approval 18 of work to be performed in AGENCIES’ jurisdictions prior to LA HABRA advertising for bids. 19 5. LA HABRA shall enter into a separate Cooperative Agreement with the STATE for the 20 implementation of the STATE components of the PROJECT. 21 6. LA HABRA shall be responsible for obtaining all required permits for project implementation 22 from the STATE for the STATE components of the PROJECT. 23 7. LA HABRA shall provide staff, consultants, and contractors deemed necessary and appropriate to 24 manage, administer, coordinate, and oversee engineering design and construction management of the 25 PROJECT. LA HABRA shall require all such consultants, including architects and civil engineers, and 26 contractors to obtain and maintain comprehensive general liability, automobile liability, workers’ 27 83 Cooperative Agreement No. 2024-1
compensation and employers’ liability, and professional liability insurance policies meeting the applicable 1 requirements of the Consultant Contract and Bidders Specifications for the PROJECT and to indemnify, 2 defend, and hold each of the AGENCIES and their respective elected officials, officers, employees, agents 3 and volunteers (“Indemnitees”) free and harmless, including payment of attorneys’ and experts’ fees, with 4 respect to any and all claims and liabilities of any kind arising out of each such consultant’s and/or 5 contractor’s acts or omissions in the performance of work on the PROJECT, to the maximum extent 6 permitted by law. LA HABRA shall require all such contractors to name the Indemnitees as additional 7 insureds on all commercial general and automobile liability policies required by LA HABRA for the 8 PROJECT. 9 8. The budget for the PROJECT is Six Million, Two Hundred One Thousand, Two Hundred and 10 Sixty-Six Dollars ($6,201,266). Four Million, Nine Hundred Sixty-One Thousand, and Thirteen Dollars 11 ($4,961,013) is funded by OCTA through RTSSP (Project P). Minimum PROJECT matching funds of 12 twenty percent (20%) amount to One Million, Two Hundred Forty Thousand, Two Hundred and Fifty-Three 13 Dollars ($1,240,253). LA HABRA’s portion of the PROJECT cost is approximately Six Hundred Seventeen 14 Thousand Three Hundred and Seven Dollars ($617,307) with a corresponding 20% local agency match up 15 to One Hundred Twenty-Three Thousand, Four Hundred and Sixty-One Dollars ($123,461) including in-16 kind services. Documentation of LA HABRA’S in-kind services, such as administrative services, design 17 and construction-related services including equipment procurement and inspection, and City-furnished 18 PROJECT equipment, shall meet OCTA Comprehensive Transportation Funding Program (CTFP) 19 Guidelines. 20 9. LA HABRA shall maintain coordination with AGENCIES for construction of the PROJECT. 21 10. LA HABRA specifically shall coordinate construction activity for the PROJECT within 22 AGENCIES and provide a schedule of the construction activity for the PROJECT within AGENCIES that is 23 acceptable to AGENCIES. In the event of planned street closures, LA HABRA shall provide prior notice to, 24 and receive approval from, the responsible AGENCY, prior to the execution of the street closure. 25 11. LA HABRA shall require AGENCIES and its officers and employees to be named as additional 26 insured on the construction contractors’ liability insurance policies. 27 84 Cooperative Agreement No. 2024-1
12. At no cost to AGENCIES, LA HABRA shall be responsible for coordinating the construction 1 and/or installation of traffic control elements and other items within LA HABRA’s jurisdiction that are NOT 2 a part of the PROJECT Scope of Work but, by necessity, must be built concurrent with the PROJECT. 3 13. LA HABRA shall collect all data necessary for the analysis and optimization of traffic signal 4 timing along the PROJECT corridor. 5 14. LA HABRA shall develop new timing plans optimized for traffic signal synchronization. 6 15. LA HABRA shall provide on-site support to implement the timing plans as necessary. Timing 7 plans are subject to AGENCIES’ review and approval. 8 16. LA HABRA shall provide the new timing plans developed for the PROJECT and all relevant data 9 required for the signal timing analysis to AGENCIES upon request. 10 17. At the conclusion of the Primary Implementation Phase “PI PHASE” of the PROJECT, LA 11 HABRA shall submit all necessary documentation required by OCTA for the reimbursement of all PROJECT 12 eligible expenses of the PI Phase 13 18. Upon OCTA’s review and approval of the PROJECT eligible expenses of the PI Phase, LA 14 HABRA shall invoice the AGENCIES for their respective 20% local matches. 15 19. At the conclusion of the Ongoing Operation and Maintenance Phase “O&M PHASE” of the 16 PROJECT, LA HABRA shall submit all necessary documentation required by OCTA for the reimbursement 17 of all PROJECT eligible expenses of the O&M Phase. 18 20. Upon OCTA’s review and approval of the PROJECT eligible expenses of the O&M Phase, LA 19 HABRA shall invoice the AGENCIES for their respective 20% local matches. 20 ARTICLE 3. RESPONSIBILITIES OF AGENCIES 21 AGENCIES agree to the following responsibilities: 22 1. AGENCIES shall be responsible for providing the required documentation and funding 23 commitments for project implementation on the STATE portions of the PROJECT within AGENCIES’ 24 respective geographical jurisdictions. 25 2. AGENCIES shall remit to LA HABRA within thirty (30) calendar days of receipt of acceptable 26 invoices for the PI PHASE and the O&M PHASE, the PROJECT matching funds as required by the OCTA 27 85 Cooperative Agreement No. 2024-1
Comprehensive Transportation Funding Programs. Individual AGENCIES’ PROJECT cost allocations and 1 the corresponding local agency matches per OCTA’s approved grant are summarized below. 2 3 4 a. FULLERTON’s portion of the PROJECT cost is approximately One Million, Five Hundred 5 Sixty-One Thousand, Three Hundred and Fifty-Six Dollars ($1,561,356) with a corresponding 6 20% local agency match of up to Three Hundred Twelve Thousand, Two Hundred and Seventy-7 One Dollars ($ 312,271) including in-kind services. 8 b. ANAHEIM’s portion of the PROJECT cost is approximately One Million, One Hundred Fifty-9 One Thousand, One Hundred and Forty-Eight Dollars ($1,151,148) with a corresponding 20% 10 local agency match of up to Two Hundred Thirty Thousand, Two Hundred and Thirty Dollars 11 ($230,230) including in-kind services. 12 c. GARDEN GROVE’s portion of the PROJECT cost is approximately One Million, Four 13 Hundred Thirty-One Thousand, Eight Hundred and Eighty-Three Dollars ($1,431,883) with a 14 corresponding 20% local agency match of up to Two Hundred Eighty-Six Thousand, Three 15 Hundred and Seventy-Seven Dollars ($286,377) including in-kind services. 16 d. SANTA ANA’s portion of the PROJECT cost is approximately Five Hundred Sixty-Nine 17 Thousand, One Hundred and Thirty-Four Dollars (569,134) with a corresponding 20% local 18 PI O&M PI O&MLaHabra $584,307.42 $33,000.00 $116,861.48 $6,600.00Fullerton $1,496,555.76 $64,800.00 $299,311.15 $12,960.00Anaheim $1,070,747.72 $80,400.00 $214,149.54 $16,080.00Garden Grove $1,369,482.92 $62,400.00 $273,896.58 $12,480.00Santa Ana $543,334.10 $25,800.00 $108,666.82 $5,160.00Fountain Valley $814,038.09 $56,400.00 $162,807.62 $11,280.00Subtotal: $5,878,466.00 $322,800.00 $1,175,693.20 $64,560.00Total: $6,201,266.00 $1,240,253.20Euclid Street Corridor Project Cost SummaryAgencyProject Cost Local Agency In-Kind Match (@ 20%) 86 Cooperative Agreement No. 2024-1
agency match of up to One Hundred Thirteen Thousand, Eight Hundred and Twenty-Seven 1 Dollars ($113,827) including in-kind services. 2 e. FOUNTAIN VALLEY’s portion of the PROJECT cost is approximately Eight Hundred 3 Seventy Thousand, Four Hundred and Thirty-Eight Dollars ($870,438) with a corresponding 4 20% local agency match of up to One Hundred Seventy-Four Thousand and Eighty-Seven 5 Dollars ($174,087) including in-kind services. 6 Documentation of AGENCIES’ in-kind services, such as administrative services, design and construction- 7 related services including equipment procurement and inspection, shall meet OCTA CTFP Guidelines. 8 3. AGENCIES agree to implement the PROJECT based on the approved match funds above and 9 agree that final amount and corresponding match may vary and will be based on the 20% of actual cost of 10 implementing all timing, improvements, and maintenance, as identified in the PROJECT. 11 4. AGENCIES agree that unused PROJECT funds from one PARTY may be used by another 12 PARTY upon mutual written agreement of PARTIES. Receiving PARTY shall be responsible for the local 13 match of the additional PROJECT funds used. 14 5. At no cost to LA HABRA, AGENCIES shall provide LA HABRA with current intersection, local 15 field master and/or central system timing plans and related data no later than thirty (30) calendar days 16 subsequent to the execution of this AGREEMENT, and updates as they occur within seven (7) calendar days 17 of the event. 18 6. At no cost to LA HABRA, AGENCIES shall provide to LA HABRA appropriate documents to 19 utilize in the design and construction of infrastructure required to implement the desired coordinated and 20 synchronized system and operations no later than thirty (30) calendar days subsequent to the execution of 21 this AGREEMENT, and updates as they occur within seven (7) calendar days of the update. 22 7. AGENCIES shall waive all costs and fees related to any and all required encroachment and 23 inspection permits required by AGENCY for the construction phase of the PROJECT. 24 8. At no cost to LA HABRA, FULLERTON’s Construction Inspectors shall oversee all construction 25 work done in FULLERTON’s jurisdiction. 26 9. At no cost to LA HABRA, ANAHEIM’s Construction Inspectors shall oversee all construction 27 87 Cooperative Agreement No. 2024-1
work done in ANAHEIM’s jurisdiction. 1 10. At no cost to LA HABRA, SANTA ANA’s Construction Inspectors shall oversee all construction 2 work done in SANTA ANA’s jurisdiction. 3 11. At no cost to LA HABRA, GARDEN GROVE’s Construction Inspectors shall oversee all 4 construction work done in GARDEN GROVE’s jurisdiction. 5 12. At no cost to LA HABRA, FOUNTAIN VALLEY’s Construction Inspectors shall oversee all 6 construction work done in FOUNTAIN VALLEY’s jurisdiction. 7 13. At no cost to LA HABRA, AGENCY shall be responsible for coordinating the construction and/or 8 installation of traffic control elements and other items within AGENCIES’ jurisdiction that are NOT a part 9 of the PROJECT Scope of Work but, by necessity, must be built concurrent with the PROJECT. 10 14. In the event of an unanticipated cost overrun, LA HABRA shall meet with AGENCIES to 11 resolve the cost overrun. Should the PARTIES be unable to come to a resolution of the cost overrun, the 12 AGREEMENT will terminate. 13 ARTICLE 4. MUTUAL RESPONSIBILITIES OF THE PARTIES 14 The PARTIES agree to the following mutual responsibilities: 15 1. The PARTIES are responsible for the review, implementation and maintenance of the timing for 16 the corridor offset intersections as defined in the RECITALS. 17 2. The PARTIES shall cooperate and coordinate their staff, contractors and consultants, in providing 18 the services and responsibilities required under this AGREEMENT to the extent practicable with respect to 19 the performance of the PROJECT. 20 3. The PARTIES agree to work together in good faith, using reasonable efforts to resolve any 21 unforeseen issues and disputes arising out of the performance of this AGREEMENT. 22 4. The PARTIES shall be responsible for obtaining the required additional STATE permits for 23 additional STATE requested improvements that are NOT a part of the PROJECT Scope of Work on the 24 STATE portions of PROJECT within their respective geographic jurisdictions. 25 5. This AGREEMENT may only be modified or amended upon written agreement of all PARTIES. 26 All modifications, amendments, changes and revisions of this AGREEMENT in whole or in part, and from 27 88 Cooperative Agreement No. 2024-1
time to time, shall be binding upon the PARTIES, so long as the same shall be in writing and executed by 1 the PARTIES. No waiver of any term or conditions of this AGREEMENT shall be a continuing waiver 2 thereof. 3 6. Applicable Laws and Regulations: This AGREEMENT shall be governed by all applicable federal, 4 state and local laws and regulations. The PARTIES warrant that in the performance of this AGREEMENT, 5 each shall comply with all applicable federal, state and local laws, statutes and ordinances and all lawful 6 orders, rules and regulations promulgated there under. 7 7. Indemnitees: To the maximum extent permitted by law, each PARTY agrees to defend, indemnify 8 and hold harmless the other PARTIES, their officers, agents, elected officials and employees from all 9 liability, claims, losses and demands, including defense costs and reasonable attorneys’ fees, whether 10 resulting from court action or otherwise, to the extent arising out of the actual or alleged negligent acts or 11 omissions of, or violation of any statute or regulation by the defending PARTY, or any of its officers, agents, 12 or employees, in the performance of this AGREEMENT. When negligent acts or omissions of one PARTY 13 are directed by another PARTY, the PARTY directing the negligent acts or omissions shall owe this defense 14 and indemnity obligation to the PARTY following the directions. The provisions of this paragraph shall 15 survive the termination of this AGREEMENT. Notwithstanding, this AGREEMENT shall not be interpreted 16 to create any joint and several liability or any joint powers or joint venture between the PARTIES. 17 LA HABRA shall defend, indemnify and hold the AGENCIES free and harmless from any claim or liability 18 arising out of any failure or alleged failure to comply with the Prevailing Wage Laws. 19 8. Force Majeure: Each PARTY shall be excused from performing its obligations under this 20 AGREEMENT during the time and to the extent that it is prevented from performing by an unforeseeable 21 cause beyond its control, including but not limited to: any incidence of fire; flood; acts of God; 22 commandeering of material, products, plants or facilities by federal, state or local government; national fuel 23 shortage; labor strike or materials shortage provided satisfactory evidence of such cause is presented to the 24 other PARTIES, and provided further such nonperformance is unforeseeable, beyond the reasonable control 25 and not due to the fault or negligence of the PARTY not performing. 26 9. Any notice sent by first class mail, postage paid, to the address and addressee, shall be deemed to 27 89 Cooperative Agreement No. 2024-1
have been received three (3) business days after deposit in the U.S. Mail. The representatives of the 1 PARTIES who are primarily responsible for the administration of this AGREEMENT, and to whom notices, 2 demands and communications shall be given are as follows: 3 4 City of La Habra – LEAD AGENCY City of Fullerton 5 110 E. La Habra Boulevard 303 W. Commonwealth Avenue 6 La Habra, CA 90631 Fullerton, CA 92832 7 Attn: Michael Plotnik, P.E., T.E. Attn: Jeffrey Chinchilla, P.E. 8 Traffic Manager Associate Engineer - Traffic 9 (562) 383-4162 (714) 738-6899 10 [email protected] [email protected] 11 12 City of Anaheim City of Garden Grove 13 201 S. Anaheim Boulevard, Suite 502 11222 Acacia Parkway 14 Anaheim, CA 92805 Garden Grove, CA 92840 15 Attn: John Thai, E.E., T.E. Attn: Dai Vu, T.E. 16 Principal Traffic Engineer City Traffic Engineer 17 (714) 765-5294 (714) 741-5189 18 [email protected] [email protected] 19 20 City of Santa Ana City of Fountain Valley 21 20 Civic Center Plaza 10200 Slater Ave 22 Santa Ana, CA 92701 Fountain Valley, CA 92708 23 Attn: Cesar Rodriguez, P.E., T.E. Attn: Temo Galvez, P.E. 24 Senior Civil Engineer Deputy Public Works Director / City Engineer 25 (714) 647-5626 (714) 593-4517 26 [email protected] [email protected] 27 90 Cooperative Agreement No. 2024-1
10. This AGREEMENT shall continue in full force and effect through December 31, 2028, unless 1 terminated earlier by LA HABRA or AGENCIES. This AGREEMENT may be terminated by any AGENCY 2 providing the PARTIES with not less than thirty (30) day prior written notice. The terminating AGENCY is 3 fully responsible for paying their respective pro rata share of all costs and expenses incurred prior to delivery 4 of its notice of termination and all costs and damages relating to its termination. In the event of termination 5 without cause, and subject to any other reimbursement obligations of the PARTIES, if any, created by this 6 AGREEMENT or law, the PARTIES shall each be entitled to a pro rata refund of its share of costs expended 7 as to funds remaining, if any, after payment has been made for labor and/or materials actually provided in 8 the course of work performed pursuant to this AGREEMENT. 9 11. The terms of this AGREEMENT may only be extended upon written agreement by the10 PARTIES. 11 / 12 / 13 / 14 / 15 / 16 / 17 / 18 / 19 / 20 / 21 / 22 / 23 / 24 / 25 / 26 / 27 91 Cooperative Agreement No. 2024-1
IN WITNESS WHEREOF, the PARTIES hereto have caused this Cooperative Agreement No. 2024-1 to 1 be executed on the date first above written. 2 3 CITY OF LA HABRA 4 5 By: 6 Daren Nigsarian 7 Mayor 8 9 10 ATTEST: 11 12 By: 13 Rhonda J. Barone, CMC 14 City Clerk 15 16 17 APPROVED AS TO FORM: 18 19 By: 20 Richard D. Jones 21 City Attorney 22 / 23 / 24 / 25 / 26 /27 92 Cooperative Agreement No. 2024-1
IN WITNESS WHEREOF, the PARTIES hereto have caused this Cooperative Agreement No. 2024-1 to 1 be executed on the date first above written. 2 3 CITY OF FULLERTON 4 5 By: 6 Eric Levitt 7 City Manager 8 9 10 ATTEST: 11 12 By: 13 Lucinda Williams, MMC 14 City Clerk 15 16 17 APPROVED AS TO FORM: 18 19 By: 20 Betsy Martyn 21 City Attorney 22 / 23 / 24 / 25 / 26 / 27 93 Cooperative Agreement No. 2024-1
IN WITNESS WHEREOF, the PARTIES hereto have caused this Cooperative Agreement No. 2024-1 to 1 be executed on the date first above written. 2 3 CITY OF ANAHEIM 4 5 By: 6 7 Mayor of the City of Anaheim 8 9 10 ATTEST: 11 12 By: 13 14 City Clerk of the City of Anaheim 15 16 17 APPROVED AS TO FORM: 18 19 By: 20 21 City Attorney of the City of Anaheim 22 / 23 / 24 / 25 / 26 / 27 94 95
Cooperative Agreement No. 2024-1
IN WITNESS WHEREOF, the PARTIES hereto have caused this Cooperative Agreement No. 2024-1 to 1 be executed on the date first above written. 2 3 CITY OF SANTA ANA 4 5 By: 6 Tom Hatch 7 Interim City Manager 8 9 ATTEST: 10 11 By: 12 Jennifer L. Hall 13 City Clerk 14 15 APPROVED AS TO FORM: 16 17 By: 18 Jose Montoya 19 Assistant City Attorney 20 21 RECOMMENDED FOR APPROVAL 22 23 By: 24 Nabil Saba, PE 25 Executive Director 26 Public Works Agency 27 96 Cooperative Agreement No. 2024-1
IN WITNESS WHEREOF, the PARTIES hereto have caused this Cooperative Agreement No. 2024-1 to 1 be executed on the date first above written. 2 3 CITY OF FOUNTAIN VALLEY 4 5 By: 6 Glenn Grandis 7 Mayor 8 9 10 ATTEST: 11 12 By: 13 Rick Miller 14 City Clerk 15 16 17 APPROVED AS TO FORM: 18 19 By: 20 Colin Burns 21 City Attorney 22 / 23 / 24 / 25 / 26 / 27 97 EXCERPT FROM THE MINUTES
GARDEN GROVE CFTY COUNCIL REGULAR MEETING OF NOVEMBER 9, 2021 Community Meeting Center
11300 Stanford Avenue, Garden Grove, CA 92840
CONVENE MEETING
At 6:33 p.m., Mayor Jones convened the meeting.
ROLL CALL PRESENT: (6) Council Members Brietigam, O'Neill, D.
Nguyen, Klopfenstein, Mayor Pro Tem K.
Nguyen, Mayor Jones
ABSENT: (1) Council Member Bui
ADOPTION OF A RESOLUTION APPROVING THE SUBMITTAL OF THE EUCLID STREET
TRAFFIC SIGNAL SYNCHRONIZATION IMPROVEMENT PROJECT TO THE ORANGE
COUNT/TRANSPORTATION AUTHORITY FOR FUNDING UNDER THE COMPREHENSIVE TRANSPORTATION FUNDING PROGRAM (F: 100.3) (XR: 36.11)
Following staff introduction and City Council comments, it was moved by Council Member Klopfenstein, seconded by Mayor Pro Tem K. Nguyen that:
Resolution No. 9716-21 entitled: A Resolution of the City Council of the City of Garden Grove approving the submittal of Euclid Street Traffic Signal Synchronization Improvement Project to the Orange County Transportation Authority for funding under the competitive Measure M2 Regional Traffic Signal Synchronization Program, be adopted.
The motion carried by a 6-0-1 vote as follows:
Ayes: (6) Brietigam, O'Neill, D. Nguyen, Klopfenstein, K.
Nguyen,Jones
Noes: (0) None
Absent: (1) Bui
STATE OF CALIFORNIA )
COUNTS OF ORANGE ) SS:
CITY OF GARDEN GROVE )
I, LIZABETH VASQUEZ, Deputy City Clerk of the City of Garden Grove, California, do hereby certify that the foregoing is a true, full, and correct copy of the Minute Entry on record in this office.
IN WITNESS WHEREOF, I hereunto set my hand seal this 1st day of February 2024.
vw/
Lizabeth Vasquez
Deputy City Clerk
i ':"^"i \ -i-
98 City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To:
Lisa L. Kim From: Niki Wetzel
Dept:
City Manager Dept: Community Development
Date: 2/27/2024
Subject: Second Reading and Adoption of Ordinance No. 2952
Entitled:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GARDEN GROVE APPROVING ZONING AMENDMENT NO. A-036-2023 TO AMEND THE CITY'S
OFFICIAL ZONING MAP TO CHANGE THE ZONING DESIGNATION OF PROPERTIES LOCATED AT 13252 BROOKHURST STREET AND 10052 CENTRAL AVENUE AND IDENTIFIED AS ASSESSOR'S PARCEL NOS. 099-031-01, 099- 031-02, 099-031-008, AND 099-0310-09 FROM C-1 (NEIGHBORHOOD COMMERCIAL) AND R-2 (LIMITED MULTIPLE RESIDENTIAL) TO R-3 (MULTIPLE- FAMILY RESIDENTIAL). (Action Item)
Attached is Ordinance No. 2952 recommended for adoption.
ATTACHMENT(S):
1. Ordinance 2952
99 ORDINANCE NO. 2952
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF GARDEN GROVE APPROVING ZONING AMENDMENT NO. A-036-2023 TO AMEND THE CITY’S
OFFICIAL ZONING MAP TO CHANGE THE ZONING DESIGNATION OF PROPERTIES LOCATED AT 13252 BROOKHURST STREET AND 10052 CENTRAL AVENUE AND IDENTIFIED AS ASSESSOR'S PARCEL NOS. 099-031-01, 099-031-02, 099-031-08, and 099-031-09 FROM C-1 (NEIGHBORHOOD COMMERCIAL) AND R-2 (LIMITED MULTIPLE RESIDENTIAL) TO R-3 (MULTIPLE-FAMILY RESIDENTIAL)
CITY ATTORNEY SUMMARY
This Ordinance approves an amendment to the City’s official zoning map to change the zoning designation of four parcels located at 13252 Brookhurst Street and 10052 Central Avenue (Assessor's Parcel Nos. 099-031-01, 099- 031-02, 099 -031-08, and 099 -031-09) from C -1 (Neighborhood Commercial) and R-2 (Limited Multiple Residential) to R-3 (Multiple-Family Residential) to permit and facilitate a new multiple -family residential project consisting of thirty townhomes, along with associated site improvements.
THE CITY COUNCIL OF THE CITY OF GARDEN GROVE FINDS AND DETERMINES AS FOLLOWS:
WHEREAS, Melia Homes, Inc., the applicant, submitted a request to develop a
1.22-acre site with a new multiple -family residential project consisting of thirty townhomes, along with associated site improvements, on a property located at the southeast corner of Brookhurst Street and Central Avenue at 13252 Brookhurst Street and 10052 Central Avenue, Assessor’s Parcel No. 099 -031-01, 099-031-02, 099-031-08, and 099-031-09; and
WHEREAS, the applicant has requested the following approvals to facilitate the proposed development: (i) a General Plan Amendment to amend the General Plan Land Use Designations of the properties from Light Commercial (LC) and Low Medium Density Reside ntial (LMR) to Medium Density Residential (MDR) to facilitate the development of the residential project; (ii) a Zoning Amendment to change the zoning of the subject properties from C -1 (Neighborhood Commercial) and R -2 (Limited Multiple Residential) to R -3 (Multiple-Family Residential) to facilitate the development of the residential project; (iii) Site Plan approval to construct thirty (30) three-story townhomes along with associated site improvements; and (iv) Tentative Tract Map approval to create a one -lot subdivision for the purpose of selling each townhome as a condominium (collectively, the “Project”); and
WHEREAS, proposed Zoning Amendment No. A-036-2023 would amend the City of Garden Grove's Official Zoning Map (a) to modify the zoning designation of two adjoining parcels located at 13252 Brookhurst Street (Assessor’s Parcel Nos. 099 - 031-01 and 099 -031-02) from C-1 (Neighborhood Commercial) to R-3 (Multiple - 100
Garden Grove City Council
Ordinance No. 2952
Family Residential) and (b) to modify the zoning designation of two parcels located at located at 10052 Central Avenue (Assessor’s Parcel Nos. 099 -031-08 and 099 - 031-09) from R-2 (Limited Multiple Residential) to R-3 (Multiple-Family Residential); and
WHEREAS, following a public hearing held on December 7, 2023, the Garden Grove Planning Commission adopted Resolution No. 6077-23 recommending the Garden Grove City Council to approve General Plan Amendment No. GPA -001-2023 and Amendment No. A -036-2023 and Resolution No. 6079 -23 recommending the Garden Grove City Council adopt a Mitigated Negative Declaration and the associated Mitigation Monitoring and Reporting Program for the Project; and
WHEREAS, concurrently with the adoption of this Resolution, the City Council adopted (a) Resolution No. 9839-24, adopting a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program for the Project, and (b) Resolution No. 9840-24, approving General Plan Amendment No. GPA-001-2023, (i) modifying the General Plan Land Use Designation of the two parcels located at 13252 Brookhurst Street (Assessor’s Parcel Nos. 099-031-01 and 099-031-02) from Light Commercial (LC) to Medium Density Residential (MDR) and (b) modifying the General Plan Land Use Designation of the two parcels located at 10052 C entral Avenue (Assessor’s Parcel Nos. 099 -031-08 and 099 -031-09) from Low Medium Density Residential (LMR) to Medium Density Residential (MDR); and
WHEREAS, pursuant to a legal notice, a Public Hearing regarding the Project and the Mitigated Negative Declaration was held by the City Council on February 13, 2024, and all interested persons were given an opportunity to be heard; and
WHEREAS, the City Council gave due and careful consideration to the matte r during its meeting of February 13, 2024 , and cons idered all oral and written testimony presented.
WHEREAS, the City Council hereby incorporates by reference the findings and reasons set forth in Planning Commission Resolution No. 6077 -23 and makes the following findings regarding Zoning Amendment No. A-036-2023:
A. Amendment No. A -036-2021 is internally consistent with the goals, policies, and elements of the General Plan.
B. Amendment No. A -036-2021 is deemed to promote the public interest, health, safety and welfare.
C. The proposed zone change will ensure a degree of compatibility with surrounding properties and uses.
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Garden Grove City Council
Ordinance No. 2952
D. The parcels covered by the proposed amendment to the Zoning Map are physically suitable for the requested land use designation(s), compatible with the surrounding land uses, and consistent with the General Plan.
E. Approval of Amendment No. A -036-2023 is consistent with Government Code Section 66300 because it will increase the permitted residential density of the subject parcels and will not change the zoning of the subject parcels to a less intensive use or reduce the intensity of land use within a zoning district below what was allowed under zoning for the parcels in effect on January 1, 2018.
F. The “No Net Loss” provisions of Government Code Section 65863 and Section 9.60.030 of the Garden Grove Municipal Code do not apply because approval of Amendment No. A-036-2023 will not require or permit the reduction of the allowable residential density for any housing element parcel.
NOW, THEREFORE, THE CITY COUNCIL OF THE CIT Y OF GARDEN GROVE DOES ORDAIN AS FOLLOWS:
Section 1. The City Council finds that the above recitals are true and correct.
Section 2. Resolution No. 9839-24 adopting a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program for the Project is incorporated herein by reference with the same force and effect as if set forth in full herein.
Section 3. Zoning Amendment No. A-036-2023 is hereby approved pursuant to the findings set forth herein and the facts and reasons stated herein and in Planning Commission Resolution No. 6077 -23, a copy of which is on file in the City Clerk’s Office and incorporated herein by reference with the same force and effect as if set forth in full.
Section 4. The properties located at 13252 Brookhurst Street and 10052 Central Avenue, Assessor’s Parcel No. 099 -031-01, 099-031-02, 099-031-08, and 099-031-09, are hereby zoned to R-3 (Multiple Family Residential), as shown on the attached map (Exhibit “A”). Zone Map part N-14 is amended accordingly.
Section 5. Severability. If any section, subsection, subdivision, sentence, clause, phrase, word, or portion of this Ordinance is, for any reason, held to be invalid or unconstitutional by the decision of any court of competent j urisdiction, such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council hereby declares that it would have adopted this Ordinance and each 102
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Ordinance No. 2952
section, subsection, subdivision, sentence, clause, phrase, word, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, words, or portions thereof be declared invalid or unconstitutional.
Section 6. The Mayor shall sign and the City Clerk shall certify to the passage and adoption of this Ordinance and shall cause the same, or the summary thereof, to be published and posted pursuant to the provisions of law and this Ordinance shall take effect on the date that is thirty (30) days after adoption.
The foregoing Ordinance was passed by the City Council of the City of Garden Grove on the ___ day of ____________.
ATTEST:
MAYOR
_______________________________
CITY CLERK
STATE OF CALIFORNIA )
COUNTY OF ORANGE ) SS:
CITY OF GARDEN GROVE )
I, TERESA POMEROY, City Clerk of the City of Garden Grove, do hereby certify that the foregoing Ordinance was introduced for first reading and passed to second reading on February 13, 2024, with a vote as follows:
AYES: COUNCIL MEMBERS: (6) BRIETIGAM, O’NEILL, DOVINH, KLOPFENSTEIN,
NGUYEN-PENALOZA, TRAN
NOES: COUNCIL MEMBERS: (0) NONE
ABSENT: COUNCIL MEMBERS: (1) JONES
103
CITY OF GARDEN GROVE
COMMUNITY DEVELOPMENT DEPARTMENT
PLANNING DIVISION
FEBRUARY 2024
LEGEND
SUBJECT SITE(S)
099-031-01, 099-031-02, 099-031-08, and 099-031-09
NOTES
1. Site addresses – 13252 Brookhrust Street and 10052 Central Avenue
2. Current Zone: C -1 (Neighborhood Commercial) and R -2 (Limited Multiple Residential)
3. Proposed Zone: R-3 (Multiple-Family Residential)
Exhibit “A”
GPA-001-2023
A-036-2023, SP-127-2023, and
TT-19273
104
City of Garden Grove
INTER-DEPARTMENT MEMORANDUM
To:
Lisa L. Kim From: Ursula Luna-Reynosa
Dept:
City Manager Dept: Economic Development and
Housing
Date: 2/27/2024
Subject: Update on the Civic Center Revitalization Project as requested by City Manager Kim.
OBJECTIVE
To provide an update to the City Council on the Civic Center Revitalization Project (Project) regarding the progress of the design development phase.
BACKGROUND
On September 26, 2023, City Council directed staff to move forward with an Exclusive Negotiation Agreement (ENA) with the recommended development team of Edgemoor/Clark/AC Martin for the design and pre-development of the Project. A project update was provided on November 14, 2023, discussing the collective work efforts advancing the project and sharing conceptual designs of the Public Safety Facility.
DISCUSSION
The ENA was executed on October 2, 2023, initiating a six-month period where city staff and the development team work collectively to prepare design drawings, estimate the project cost, negotiate a contract, and structure a financial package to deliver the planned public safety building, parking garage and reimagined park. Work has progressed and it is anticipated the project agreement will be available for City Council consideration and approval in March 2024. With a project financing discussion in April 2024.
Over the past five months a significant amount of progress was realized and some significant project milestones achieved. The information below provides a brief summary of the work effort to date:
Technical (focusing primarily on architectural plans and construction logistics):
o Conceptual design drawings completed
105
o Initial project affordability review completed
o 50 percent design drawings completed
o Initial construction schedule drafted
o Developer initiated negotiation of a Project Labor Agreement with LA/OC Building Trades
Entitlements, Permitting & Engagement
o Completed preparation, review and certification of project environmental document - California Environmental Quality Act (CEQA) o Planning Commission reviewed and approved the project entitlements o A biologist has been retained and completed the Wildlife Mitigation Plan for Civic Center Pond
o Completed over 2,200 one-on-one engagements, providing information about the Project.
o Additional meetings are scheduled for Clementine Trolley on March 7th, and Art-in-the-Park on March 9th, 2024
Project Financing
o Hired Fieldman Rolapp & Associates as primary advisors for Project financing
o Discussed Market Strategies to maximize city’s investment o Reviewed initial project cost estimates of $152M and meeting affordability limits
o Financing includes $140M from Lease Revenue Bonds and $12M to fund pre-development work
Commercial/Legal
o Negotiated initial project terms
o Prepared and reviewed draft Project Agreement
o On schedule to complete by March 2024
Building Commissioning
o Reviewed lifecycle costs estimates for different mechanical systems o Reviewed sustainable building systems, including photovoltaic panels, to achieve desired LEED Silver standards
FINANCIAL IMPACT
There is no financial impact as this report is for information purposes and no action is required.
RECOMMENDATION
This report is for informational purposes and no action is required by the City Council.
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