LEASE AGREEMENT
by and among
WEST COUNTY WASTEWATER DISTRICT
("LANDLORD")
AND
THE CITY OF RICHMOND
&
THE RICHMOND MUNICIPAL SEWER DISTRICT
(Collectively, "TENANT")
Dated as of JANUARY 1, 2010
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TABLE OF CONTENTS
Page(s)
1. LEASE OF THE PROPERTY. 1
2. TERM; AS-IS...
2.1 Term... 1
2.2 Extension of Term....
2.2.1 First Extended Term....
2.2.2 Second Extended Term..
2.3 Right to Terminate...
2.4 AS IS.
3. RENT.
3.1 Payment..
3.2. Rent Commencement Date...
3.3 Annual Rental
3.4 Adjustments to Annual Rent.
3.5 Net Lease.
4. TAXES
4.1 Payment..
4.2 Payment by Landlord
5. USE OF THE PROPERTY țrn
5.1 Permitted Uses..
5.2 Permits
5.3 Utilities..
5.4 Refuse Disposal
5.5 Compliance with Encumbrances
5.6 Hazardous Substances
5.7 Compliance With Laws
6. CONSTRUCTION MATTERS
6.1 Notice of Nonresponsibility
6.2 Completion of Construction
6.3 Claims and Liens.
6.4 Indemnity.
6.5 Notice of Completion 8
6.6 Completion Bond..
6.7 Construction Contracts and Permits 9
6.8 Builder's Risk and Other Insurance.
6.9 Title to Improvements
6.10 Landlord's Approval. ..10
7. MAINTENANCE, REPAIRS, ALTERATIONS, RECONSTRUCTION. ..10
7.1 Duty to Maintain ..10
7.2 Casualty. ...10
8. INDEMNITY AND EXCULPATION; INSURANCE .10
8.1 Exculpation of Landlord ..10
8.2 Indemnity. ..10
8.3 Public Liability and Property Damage Insurance. ...11 -i-
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8.3 Fire and Extended Coverage Insurance.
8.4 Other Insurance Matters...
8.4.1 Rating..
8.4.2 Waiver of Subrogation...
8.5 Other
9. DEFAULT
...
9.1 Tenant's Default
9.1.1 Failure to Pay..
•..
9.1.2 Insurance...
9.1.3 Abandonment; Surrender...
9.1.4 Assignment...
9.1.5 Failure to Perform
9.1.6 Attachment, Etc
9.1.7 Bankruptcy, Etc ...13
9.1.8 Receivership ...13
9.2 Landlord's Obligations. ..13
9.3 Remedies.. ...13
9.3.1 Cumulative Nature of Remedies. ...13
9.3.2 Termination ..13
9.3.3 Reentry Without Termination ..14
9.3.4 Tenant's Personal Property Located on the Property .15
9.3.5 Landlord's Right to Cure Tenant's Default... .15
9.4 Landlord's Default. .15
9.5 Landlord's Liability.. .15
10. EXPIRATION OR TERMINATION.. ..16
10.1 Surrender. ..16
10.2 Holding Over. ..16
10.3 Existing Liabilities. ...16
11. NO TRANSFER WITHOUT LANDLORD'S CONSENT. ..16
11.1 No Transfer Without Landlord's Consent ....16
12. NO ENCUMBRANCE OF TENANT'S ESTATE ...17
13. NO SUBLEASES. ...17
Tenant shall have no right to sublease all or any portion of the Property. ... 17
14. LANDLORD CONSENT AND APPROVAL. ...17
14.1 Consent Not a Waiver.. ..17
14.2. Landlord Not Liable for Money Damages ..17
15. MISCELLANEOUS ..17
15.1 Notices. ...17
15.2 Estoppel Certificates ..18
15.3 Attorneys' Fees.. ...18
15.4 Interest on Past Due Obligations: Late Charges ..19
15.5 Waiver ..19
15.6 Time of Essence ..19
15.7 Brokers. ..19
15.8 Exhibits ..19
15.9 Entire Agreement; Modification.. ...19
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15.10 Severability ..19
15.11 Successors.. ..19
15.12 Enforcement. ..20
15.12.1 Joint and Several Liability ..20
15.12.2 No Non-Mandatory Counterclaim.. ..20
15.12.3 Civil Code Section 664.6 Enforcement ...20
15.13 Governing Law. ..20
15.14 Covenants ..20
15.15 Execution in Counterparts ..20
15.16 Construction... ..20
15.17 Force Majeure ..20
15.18 Landlord's Access ..21
15.19 Memorandum of Lease 21
15.20 No Partnership... ..21
EXHIBITS
Exhibit A - Legal Description of Property
Exhibit B - Memorandum of Lease
Exhibit C - October 15, 2002 Fugro West "Restoration Cost Estimate, etc." - iii -
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GROUND LEASE
THIS GROUND LEASE ("Lease") is made as of January 1, 2010 by and between West County Wastewater District, a public agency and sanitary district organized and existing pursuant to the provisions of California Health and Safety Code Section 6400 et. seq. ("Landlord"), on the one hand, and the City of Richmond, a municipal corporation and charter city duly organized and existing under a freeholder's charter in the State of California, and the Richmond Municipal Sewer District, a public corporation and sewer district organized and existing pursuant to the provisions of California Health and Safety Code Section 4600 et seq., on the other hand (the City of Richmond and the Richmond Municipal Sewer District will be referred to in this Lease collectively "Tenant").
RECITALS
A. Landlord is the owner of certain improved real property located at in Contra Costa County, California, as more particularly described and depicted in Exhibit A, commonly known as the Landlord's East Site Sludge Lagoons (a.k.a., Sludge Lagoons 1-4 & 11) ("Property").
B. Tenant has utilized and desires to continue to use the Property to which biosolids and other waste from Tenant's wastewater treatment facility are transported for solar drying and disposal (the "Project"), in accordance with a 1977 Joint Powers Agreement, amended and restated in 1984, and later amended on at least four separate occasions (the "JPA").
C. Landlord desires to lease the Property to Tenant for Tenant's use consistent with the Project while Tenant develops alternative facilities to dry and dispose of its biosolids and other waste, and Tenant desires to lease the Property from Landlord for that purpose, on the terms and conditions set forth herein.
NOW, THEREFORE, the Landlord and Tenant do hereby agree as follows:
AGREEMENT
LEASE OF THE PROPERTY. Upon and subject to the terms and conditions hereof, Landlord hereby leases the Property to Tenant and Tenant hereby hires the same from Landlord.
TERM; AS-IS
2.1 Term. The term of this Lease shall commence on January 1, 2010 ("Effective Date") and shall continue thereafter until December 31, 2012 (the "Initial Term"), unless sooner terminated in accordance with any of the provisions of this Lease or by mutual agreement of Landlord and Tenant, or extended as set forth in Section 2.2, below. As used herein, a "Lease Year" is defined as the twelve (12) full calendar months following the Effective Date, and each period of twelve (12) full calendar months thereafter. Tenant shall pay "Annual Rent" of One Hundred Fifty Three Thousand Dollars ($153.000) per Lease Year to Landlord. it equal quarterly payments, in advance, on or before January 1, April 1, July 1, and October 1 of each Lease Year. Tenant shall surrender and vacate the Premises not later than the last day of the Initial Term or the last day of an Extended Term, as the case may be.
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2.2 Extension of Term. Tenant shall the right, but not the obligation, to exercise either or both of two option terms for its use of the Property ("Extended Term(s)"), as follows:
2.2.1 First Extended Term. Upon Tenant providing written notice to the District that is received by the District on or before July 1, 2012 of Tenant's intent to exercise its option to extend the Ground Lease, and if Tenant is not in default of this Lease, Tenant will have the right to use the Property for an additional three (3) year term in accordance with this Lease (the "First Extended Term"). Annual Rent for the First Extended Term shall be paid to Landlord in advance as provided in Section 2.1 above and shall be calculated as follows:
2.2.1.1 First Extended Term Minimum Rent. If Tenant both (a) completes its design of a facility to replace Landlord's Property as a means to dry and dispose of Tenant's biosolids and other waste being treated at the Property, and (b) completes the Environmental Impact Report process, which includes, without limitation, the expiration of any challenge or contest periods and/or the final and full disposition of any legal or other challenge or contest to the EIR process (collectively, the "First Benchmark"), on or before the first (15) day of the First Extended Term, i.e., January 1, 2013, then the Annual Rent shall be increased for each year of the three (3) years of the First Extended Term by adding to it either (i) three percent (3%) of the Annual Rent or (ii) the annual percentage increase in the Consumer Price Index, All Urban Consumers, all items, for the San Francisco Bay Area, published by the United Stated Department of Labor, Bureau of Labor Statistics ("CPI") for the last annual reporting period, whichever is greater as of the first day of each successive Lease Year, i.e., January 1, 2013, January 1, 2014, and January 1, 2015. For example, if CPI is less than three percent (3%) and both criteria in the First Benchmark have been met by January 1, 2013, the minimum Annual Rent for each Lease Year in the First Extended Term would be: January 1, 2013 - December 31, 2013 = $157,590 ($153,000 (2012 Annual Rent) x 1.03); January 1, 2014 - December 31, 2014 = $162,318 ($157,590 (2013 Annual Rent) × 1.03); and January 1, 2015 - December 31, 2015 = $167,188 ($162,318 (2014 Annual Rent) x 1.03).
2.2.1.2 First Extended Term Maximum Rent. If Tenant does not complete both criteria in the First Benchmark on or before the first (1) day of the First Extended Term, i.e., January 1, 2013, then the Annual Rent shall be increased for each year of the three (3) years of the First Extended Term in which both criteria in the First Benchmark have not been met in the immediately preceding year by adding to the Annual Rent either (i) three percent (3%) of the Annual Rent or (ii) the annual percentage increase in the CPI for the last annual reporting period, whichever is greater as of the first day of each successive Lease Year, i.e., January 1, 2013, January 1, 2014, and January 1, 2015, plus Sixty Thousand Dollars ($60,000) for each such Lease Year in the First Extended Term, i.e., an additional Sixty Thousand Dollars ($60,000) on January 1, 2013 if both criteria in the First Benchmark are have not been met on or before December 31, 2012, and an additional Sixty Thousand Dollars ($60,000) on January 1, 2014 if both criteria in the First Benchmark are have not been met on or before December 31, 2013, and an additional Sixty Thousand Dollars ($60,000) on January 1, 2015 if both criteria in the First Benchmark are have not been met on or before December 31, 2014. For example, if CPI is less than three percent (3%), and if both criteria in the First Benchmark have not been met on or before second year of the First Extended Term, i.e., December 31, 2014, the maximum Annual Rent in that case for each Lease Year in the First Extended Term would be: January 1, 2013- December 31, 2013 = $217,590 ($153,000 (2012 Annual Rent) x 1.03 + $60,000); January 1, - 2 -
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2014 - December 31, 2014 = $284,118 ($217,590 (2013 Annual Rent) × 1.03 + $60,000); and January 1, 2015 - December 31, 2015 = $352,642 ($284,118 (2014 Annual Rent) x 1.03 + $60,000). As a second example, if CPI is less than three percent (3%), and if both criteria in the First Benchmark have been met on or before the end of the first year in the First Extended Term, i.e., December 31, 2013, then the maximum Annual Rent in that case for each Lease Year in the First Extended Term would be: January 1, 2013 - December 31, 2013 = $217,590 ($153,000 (2012 Annual Rent) x 1.03 + $60,000); January 1, 2014 - December 31, 2014 = $224,118 ($217,590 (2013 Annual Rent) × 1.03); and January 1, 2015 - December 31, 2015 = $230,842 ($224,178 (2014 Annual Rent) x 1.03).
In no case shall the Annual Rent be reduced.
2.2.2 Second Extended Term. Upon Tenant providing written notice to the District that is received by the District on or before July 1, 2015 of Tenant's intent to exercise its option to extend the Ground Lease, and upon Tenant's payment in advance of annual rent as set forth in this Subsection 2.2.2, Tenant will have the right to use the Property for an additional two (2) year term in accordance with this Lease (the "Second Extended Term"). Annual Rent for the Third Extended Term shall be paid to Landlord, in advance, on or before the first (15) day of each Lease Year, e.g., January 1, 2016, and shall be calculated as follows:
2.2.2.1 Second Extended Term Minimum Rent. If Tenant
materially begins construction of a facility to replace Landlord's Property as a means to dry and dispose of Tenant's biosolids and other waste being treated at the Property (the "Second Benchmark") on or before the first 154) day of the Second Extended Term, e.g., January 1, 2016, then the Annual Rent in effect during the immediately preceding Lease Year shall be increased for each year of the two (2) years of the Second Extended Term by adding to it either (i) three percent (3%) of the Annual Rent or (ii) the annual percentage increase in the CPI for the last annual reporting period, whichever is greater as of the first day of each successive Lease Year, i.e., January 1, 2016, and January 1, 2017. For example, if CPI is less than three percent (3%) and the Second Benchmark has been met by January 1, 2016, and assuming minimum Annual Rent was paid during the entire First Extended Term, the minimum Annual Rent for each Lease Year in the Second Extended Term would be: January 1, 2016 - December 31, 2016 = $172,204 ($167,188 (2015 Annual Rent) x 1.03); and January 1, 2017 - December 31, 2017 = $177,370 ($172,204 (2016 Annual Rent) × 1.03).
2.2.2.2 Second Extended Term Maximum Rent. If Tenant does not meet the Second Benchmark on or before the first (1) day of the Second Extended Term, then the Annual Rent in effect during the immediately preceding Lease Year shall be increased for each year of the two (2) years of the Second Extended Term in which the Second Benchmark has not been met in the immediately preceding year by adding to the Annual Rent either (i) three percent (3%) of the Annual Rent or (ii) the annual percentage increase in the CPI for the last annual reporting period, whichever is greater as of the first day of each successive Lease Year, i.e., January 1, 2016 and January 1, 2017, plus Sixty Thousand Dollars ($60,000) for each such Lease Year in the Second Extended Term, i.e., an additional Sixty Thousand Dollars ($60,000) on January 1, 2016 if the Second Benchmark has not been met on or before December 31, 2015, and an additional Sixty Thousand Dollars ($60,000) on January 1, 2017 if the Second Benchmark has not been met on or before December 31, 2016. For example, if CPI is less than three percent (3%), and if the Second Benchmark has not been met on or before second year of the Second - 3-
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Extended Term, i.e., December 31, 2016, and assuming maximum Annual Rent was paid during the entire First Extended Term, the maximum Annual Rent in that case for each Lease Year in the Second Extended Term would be: January 1, 2016 - December 31, 2016 = $423,221 ($352,642 (2015 Annual Rent) × 1.03 + $60,000); and January 1, 2017 - December 31, 2017 = $441,918 ($423,221 (2016 Annual Rent) x 1.03 + $60,000). As a second example, if CPI is less than three percent (3%), and if the Second Benchmark has been met on or before the end of the first year in the Second Extended Term, i.e., December 31, 2016, then the maximum Annual Rent in that case for each Lease Year in the First Extended Term would be: January 1, 2016 - December 31, 2016 = $423,221 ($352,642 (2015 Annual Rent) × 1.03 + $60,000); and January 1, 2017 - December 31, 2017 = $435.918 ($423,221 (2016 Annual Rent) × 1.03).
In no case shall the Annual Rent be reduced.
2.3 Right to Terminate. Intentionally omitted.
2.4 AS IS. Tenant has not relied upon, and Landlord and its agents, employees, representatives or attorneys have not made, any representations, inducements, promises, agreements, assurances, or warranties, oral or written, express or implied, with respect to: (i) the condition of the Property or any part thereof; (i) whether the Property may be suitable for any use or purpose now or hereafter intended by Tenant; or (ili) the effect upon Tenant's proposed or subsequent development of the Property of any laws, rules, regulations, orders, policies, ordinances, master plans, decisions, procedures, permits or maps. As material consideration for Landlord's entering into this Lease, Tenant will be leasing the Property in an "AS IS/WHERE IS" condition following Tenant's independent investigation of the physical condition of the Property, including, but not limited to, the environmental and soil condition of the Property. As a result, Tenant agrees and represents that its decision to lease the Property will be made solely in reliance upon the results of Tenant's independent environmental and other inspection, investigation and testing of the Property, Tenant's independent assessment of the suitability of the Property to or for the use and purposes intended by Tenant, and Tenant's independent determination of the effect upon Tenant's proposed development and any future use of the Property of all applicable federal, state, county and municipal laws, rules, regulations, orders, policies, ordinances, master plans, decisions, procedures, permits (obtained or not obtained, as well as the process relating thereto) and subdivision maps. Tenant acknowledges that the right to review any reports, plans or other documents provided by Landlord, and Landlord's delivery of such reports, plans or other documents, shall not constitute a representation by Landlord of the truth, accuracy or completeness of the contents of such reports, plans or other documents. Rather, such reports, plans and other documents have been provided to Tenant as a courtesy only and Tenant has reviewed such information and formed its own conclusions about the subject matter thereof.
Except with respect to any damages arising out of any breach by Landlord of any express representation, warranty or covenant set forth in this Lease, Tenant hereby waives, releases and forever discharges Landlord, Landlord's Affiliates, and their respective partners, members, officers, directors, staff, agents, attorneys, representatives, and employees, from any and all damages, losses, costs, expenses, claims or liabilities whether known or unknown, which Tenant has or may have in the future, arising out of or in connection with the Property, including without limitation the physical, environmental, governmental, economic or legal condition of the Property or the operation thereof, or any claims based in whole or in part on any violation of, or arising with respect to any federal, state, or local statute, ordinance, rule, or regulation relating thereto. - 4-
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For the foregoing purposes, Tenant hereby specifically waives the provisions of California Civil Code Section 1542, which reads as follows:
"A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."
As used in this Lease, "Affiliate" means any person or entity which (1) directly or indirectly hrough one or more intermediaries controls, or is controlled by, or is under common control with he Tenant or Landlord or (2) owns twenty-five percent (25%) or more of the equity interest of which is held beneficially or of record by the Tenant or Landlord, as the context may require. "Control" means the possession, directly or indirectly, of the power to cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract, family relationship or otherwise RENT
3.1 Payment. All amounts payable by Tenant hereunder, whether or not expressly designated as "rent" shall constitute "Rent." All Rent shall be payable to Landlord without abatement, deduction or offset except as expressly set forth herein, prior notice or demand, in lawful money of the United States of America, at Landlord's then current address for notices as furnished pursuant to Section 15.1 below or at such other place as Landlord may designate in writing from time to time.
3.2 Rent Commencement Date. Tenant's Annual Rent payable pursuant to Section 3.3 below shall commence to accrue on the Effective Date.
3.3 Annual Rental. As set forth in Section 2.1, above, and subject to Section 3.4, below, Tenant shall pay the "Annual Rent" of One Hundred Fifty Three Thousand Dollars ($153,000) per year to Landlord, in equal quarterly payments, in advance, as provided in Section 2.1 above.
Adjustments to Annual Rent. Notwithstanding Section 3.3, Annual Rent shall be increased for the First Extended Term and Second Extended Term, if applicable, pursuant to and in accordance with Subsections 2.2.1 and 2.2.2, above.
3.5 Net Lease. This Lease shall be deemed and construed to be a "net lease" with respect to the Property and Tenant shall pay to Landlord, absolutely net throughout the Term of this Lease, the Rent provided for in this Article 3, free of deductions of any kind and without abatement or offset. Tenant agrees that, except as herein otherwise expressly provided, Tenant shall pay all costs, charges, and expenses of every kind and nature whatsoever against or in connection with the Property which may arise or become due during the Term of this Lease, and which, except for the execution and delivery hereof, would or could have been payable by Landlord. Nothing in this Article 3 is intended to relieve Landlord of any liability specifically imposed on Landlord in any other provision of this Lease. Notwithstanding anything to the contrary stated or implied by this Section 3.5, the respective benefits and obligations set forth in the JPA remain in full force and effect and are not impacted by this Lease except with respect to - 5 -
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the terms of Tenant's right to use the Property and obligation to pay Landlord the Annual Rent payments required by this Lease.
TAXES
4.1 Payment. Landlord and Tenant are not taxpayers, so it is anticipated that no real property or other taxes will be payable or paid by Landlord or Tenant. In the event that any real property or other taxes, assessments or liens resulting from Tenant's use or occupancy of the Property are or become payable, then Tenant shall promptly pay when due all such taxes, assessments or liens.
4.2 Payment by Landlord. Landlord may, at any time after the date any tax or imposition is delinquent, give written notice to Tenant specifying same, and if Tenant continues to fail to pay such tax or imposition, then at any time after thirty (30) days from Tenant's receipt of such written notice, Landlord may pay the tax or imposition specified in said notice. Tenant covenants to reimburse and pay Landlord any amount so paid or expended in the payment of such Imposition upon demand therefor, with interest thereon at the Default Rate from the date of such payment by Landlord until repaid by Tenant.
USE OF THE PROPERTY
5.1 Permitted Uses. Tenant may use the Property for drying and disposal of its biosolids and other waste water only. Tenant shall not use or suffer to be used the Property, or any portion thereof, for any other purpose or purposes whatsoever. Tenant shall not use or permit the use of the Property or exercise any of its rights hereunder in any manner which creates a nuisance (public or private) or violates any applicable laws, rules, ordinances, orders, regulations or permits of federal, state, county, municipal, or other governmental agencies and bodies having jurisdiction; or will in any way increase the existing rate of or affect any fire or other insurance upon the Property, or any of its contents, or cause a cancellation of any insurance policy covering all or any part of the Property; or which would constitute a default under any encumbrance, mortgage or deed of trust encumbering the Property. Tenant shall not commit or allow to be committed any waste upon the Property.
5.2 Permits. Tenant shall pay for and obtain and/or maintain all necessary licenses, approvals, permits and certificates from all federal, state and local authorities required for Tenant's activities on the Property. Tenant is responsible for all future costs associated with the use of the Property arising or incurred after the date of this Lease. Tenant shall deliver copies of all Permits and Approvals, including grading and building permits and certificates of occupancy, if any, for the Project, including any conditions attendant thereto, to Landlord within five (5) days after the issuance of such permits by the City or other Governmental Authority.
5.3 Utilities. Tenant shall pay when due all fees and charges, including without limitation permit fees, water fees, meter fees, availability fees, and charges (including any taxes thereon) for water, power, telephone, garbage, sewer service and other utilities charged or attributable to the Property, and all other services or utilities used in, upon or about the Property by Tenant during the Term hereof.
5.4 Refuse Disposal. Tenant shall collect and store or cause to be stored all trash and garbage (other than biosolids and related waste water) from the Property, so as not to - 6-
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create or permit any health or fire hazard, and arrange for the prompt and regular removal thereof, all at Tenant's sole cost and expense.
5.5 Compliance with Encumbrances. Intentionally omitted.
5.6 Hazardous Substances. Tenant understands that there are many commonly used substances that are or may be regulated by federal, state or local statutes, laws, ordinances, rules or regulations intended in whole or in part to protect the environment. The principal federal statues include, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (CERCLA-42 USCS ' 9601 et seq.), the Resource Conservation and Recovery Act (42 USCS ' 6901 et seq.), the Clean Air Act (42 USCS ' 7401 et seq.), the Federal Water Pollution Control Act (33 USCS ' 1251 et seq.), the Safe Drinking Water Act of 1974 (42 USCS ' 300f et seq.), the Clean Water Act (33 USCS ' 1321 et seq.), the Marine Protection and Sanctuaries Act (33 USCS ' 1401 et seq.), and the Solid Waste Disposal Act (42 USCS ' 6921 et seq.). The principal California statutes include, without limitation, the Hazardous Waste Control Law (Health and Safety Code ' 25100 et seq.), the Porter-Cologne Water Quality Control Act (Water Code ' 13000 et seq.), the Hazardous Waste Management Act of 1986 (Health and Safety Code ' 25179.1 et seq.), the Toxic Pits Cleanup Act of 1984 (Health and Safety Code ' 25208 et seq.), the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65 - Health and Safety Code ' 25249.5 et seq.), Health and Safety Code ' 25280 et seq., and Health and Safety Code ' 25209 et seq. Tenant understands that there are other federal, state and local statutes, laws, ordinances, rules and regulations currently in effect or which will hereafter be enacted or amended which are intended in whole or in part to protect the environment. All of those statues, laws, rules, ordinances and regulations, whether currently in effect or hereafter amended or enacted, whether listed above or not, shall hereinafter referred to as "environmental protection laws". All substances regulated by or pursuant to environmental protection laws will hereinafter be referred to as "hazardous substances." Each party shall, at its sole cost and expense, defend, protect, indemnify and hold the other harmless from and against all claims, demands, actions, causes of actions, fines, levies, assessments, penalties, consequential damages, attorney's fees and costs to the extent arising out of the use, generation, storage or disposal of hazardous substances in, on or about the Property by such party, its agents or employees, provided that such indemnification obligations shall not apply to the any claims to the extent arising out of the negligent acts or omissions of the indemnified party. The defense, protection, indemnification and hold harmless provisions in this Section 5.6 shall continue and survive any end, termination or other conclusion of this Lease.
5.7 Compliance With Laws. Tenant shall, at Tenant's expense, observe and comply promptly with all conditions and requirements necessary to preserve and extend (and not permit to lapse or expire) any and all rights, licenses, permits (including, but not limited to, zoning variances, special exceptions and nonconforming uses), privileges, franchises and concessions which are applicable to the Property as of the date of this Lease or which have been granted to or contracted for by Tenant or Landlord in connection with any existing or presently contemplated use of the Property. Tenant shall comply, at Tenant's expense, with all laws, including environmental protection laws, rules, orders, ordinances, directions, regulations and requirements ("Law" or "Laws") of all governmental agencies, offices, departments, bureaus and boards ("Governmental Authority") having jurisdiction over the Property or Tenant's use thereof, and Tenant shall, at Tenant's sole cost, alter, maintain, and restore the Property and any improvements constructed or installed thereon in compliance and conformity with all Laws - 7-
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relating to the condition, use or occupancy thereof. Without limiting the foregoing, Tenant shall comply with all police, fire and sanitary regulations imposed by any Governmental Authority, or made by insurance underwriters, and shall observe and obey all other requirements governing the conduct of any business conducted in the Property, including, without limitation, the Americans with Disabilities Act and regulations promulgated thereunder.
6. CONSTRUCTION MATTERS. Tenant shall be permitted to install and construct on the Property only those improvements contemplated by the terms of this Lease and the JPA.
Tenant shall not make, construct or install any other improvements on the Property without Landlord's prior written consent, which shall not be unreasonably withheld, conditioned or delayed. Tenant shall comply with the terms and conditions of this Article 6 in connection with Tenant's construction activities on the Property.
6.1 Notice of Nonresponsibility. Tenant shall notify Landlord in writing of Tenant's intention to commence a work of improvement on the Property at least twenty (20) days before commencement of any such work or delivery of any materials. The notice shall specify the approximate location and nature of the intended improvements. Landlord shall have the right to post and maintain on the Property any notices of nonresponsibility provided for under applicable law.
6.2 Completion of Construction. Tenant shall perform all work in a good and workmanlike manner, and shall comply with any and all Laws and with all requirements of all insurance companies insuring all or any part of the Property.
6.3 Claims and Liens. Tenant shall pay or cause to be paid the total cost and expense of all works of improvement, as that phrase is defined in the applicable mechanics' lien law. No such payment shall be construed as Rent. Tenant shall not suffer or permit to be enforced against the Property or any improvements thereon or interest therein any mechanic's, materialman's, contractor's, or subcontractor's lien arising from any work of improvement or other judgment liens of any kind. However, Tenant may in good faith and at Tenant's own expense contest the validity of any such asserted lien, claim, or demand, provided Tenant has furnished to Landlord a lien release bond in an account equal to one hundred fifty percent (150%) of the amount of such lien, claim or demand, which Landlord may apply against any such lien, claim or demand upon completion of or failure to diligently prosecute such contest. Without limiting the foregoing, any bond with respect to a mechanics' or similar lien shall be in a form sufficient to obtain a court order releasing such lien. Tenant shall notify Landlord prior to commencement of any contest and shall keep Landlord apprised of the status thereof. Tenant will diligently prosecute any such contest to completion. If Tenant has not obtained the discharge of any lien within thirty (30) days after Tenant first becomes aware of such lien or provided Landlord in such thirty (30) day period with evidence that Tenant is contesting the same as provided herein or should Tenant at any time after commencing such contest fail to comply with the terms hereof regarding contests, Landlord may settle such claim and the costs thereof shall be payable upon demand as Additional Rent.
6.4 Indemnity. Intentionally omitted.
6.5 Notice of Completion. Upon completion of any work of improvement during the Term, Tenant shall record or cause to be recorded a notice of completion, if and to the extent required by applicable codes and regulations, in the Official Records of Contra Costa - 8-
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County. Tenant shall send a conformed copy of any recorded notice of completion to Landlord promptly after its recordation.
6.6 Completion Bond. Intentionally omitted.
6.7 Construction Contracts and Permits. Tenant shall obtain from Tenant's general contractor an executed recognition agreement in which such general contractor agrees to recognize Landlord as the owner of the improvements on the Property in the event this Lease is terminated pursuant to Section 11.3 hereof. Tenant shall obtain and maintain in full force and effect any and all permits, licenses and approvals necessary to do any work pursuant to this Article 6. Tenant shall provide Landlord with true and complete copies of all contracts, permits, licenses and approvals within five (5) days after commencing any such work on the Property. the greater of (i) the agreed construction costs for all works of improvement on the Property or (ii) ninety percent (90%) of the agreed replacement value of such improvements; (b) workers' compensation insurance covering all persons employed in connection with the work and with respect to whom death or bodily injury claims could be asserted against Landlord or the Property; (c) commercial general liability insurance on an occurrence basis in an amount not less than Two Million and No/100 Dollars ($2,000,000.00) inclusive of umbrella insurance coverage including Operations, Independent Contractors, Earthquake, Terrorism, Products and Completed Operations, Broad Form Property Damage, Severability of Interest and Cross-Liability clauses and Contractual Indemnity coverage; (d) automobile liability insurance in an amount not less than One Million and No/100 Dollars ($1,000,000.00) per occurrence; and evidence that Tenant has paid or caused to be paid all initial premiums for such coverage. Landlord and Landlord's Lenders (if any) shall be named as additional insureds with respect to all insurance Tenant maintains pursuant to this Section 6.8. All insurance shall be primary and non-contributing with respect to any other insurance Tenant or Landlord shall maintain.
6.9 Title to Improvements. All buildings, fixtures and other improvements constructed or installed upon the Property used by Tenant at any time prior to commencement of this Lease and prior to the expiration or earlier termination of this Lease shall be and thereafter remain the property of Tenant in proportion to its contribution to their construction or installation, as acknowledged in the JPA provided, however, that upon the expiration or earlier termination of this Lease other than as a result of the purchase of the Property by Tenant, Tenant's interest in title to all buildings, fixtures and/or improvements, shall vest in Landlord and the same shall become the property of Landlord. Notwithstanding anything to the contrary contained in this Section, Tenant hereby covenants and agrees to promptly execute and acknowledge at no cost or expense to Landlord) a quitclaim deed or any other documentation reasonably required by Landlord to effectuate the provisions of this Section; Tenant's covenant to do so shall survive the expiration or earlier termination of this Lease.
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6.10 Landlord's Approval. Landlord's approval of any plans, specifications or any other matter pursuant hereto shall not constitute the assumption by Landlord of any responsibility for the accuracy or sufficiency of the plans, specifications or other matters and Tenant shall be solely responsible therefor.
MAINTENANCE, REPAIRS, ALTERATIONS, RECONSTRUCTION
7.1 Duty to Mant. T te extent not already provided for in and through the JPA, or to the extent Tenant does not fulfill its obligations in this regard under the JPA, Tenant shall, throughout the Term, at Tenant's sole cost and expense, maintain the Property and any improvements thereon in accordance with all applicable federal, state and local laws, rules, ordinances, orders and regulations.
7.2 Casualty. To the extent not already provided for in and through the JPA, or to the extent Tenant does not fulfill its obligations in this regard under the JPA, in the event of any casualty to the Property during the Term, Tenant shall be required to promptly restore any improvements constructed or maintained by Tenant on the Property to the same condition as existed immediately prior to such casualty, regardless of whether insurance proceeds are available to Tenant for such purpose. Any such reconstruction or restoration shall begin promptly after such damage or destruction, shall comply with the requirements for construction of improvements set forth in Article 7, and shall be prosecuted to completion in a diligent and workman-like manner. No such casualty shall affect or abate Tenant's obligation to pay Rent, Impositions or any other amount herein payable by Tenant.
INDEMNITY AND EXCULPATION; INSURANCE
8.1 Exculpation of Landlord. Except for the sole negligence or intentionally wrongful acts of Landlord, Landlord shall not be liable to Tenant for any loss or damage to Tenant or Tenant's property from any cause whatsoever, and Tenant hereby releases Landlord, Landlord's Lenders, Landlord's Affiliates, its and their partners, officers, directors, agents, staff, attorneys, representatives, employees and servants from any and all claims except as expressly set forth in this Section 8.1.
8.2 Indemnity. Each party hereby covenants and agrees to indemnify, to the fullest extent permitted by law, defend (with counsel reasonably acceptable to the other) and hold the other, and each of their respective partners, officers, directors, agents, staff, attorneys, lenders, employees and contractors and the Property, free, clear and harmless from any and all liability, loss, penalties, damages, investigation and remediation costs, costs, expenses, including attorneys' fees, judgments, litigation, claims, liens and demands of any kind whatsoever arising from third party claims concerning (a) through (g) below but only to the extent such claims involve, arise from or relate to that party's actual or alleged conduct or errors), or that party's biosolids or other waste for the period that such was actually or allegedly delivered to the Property or to Sludge Lagoons 5-10 and 12-14: (a) any act, omission or negligence of the indemnifying party, its agents, employees, servants, contractors, consultants, licensees, and invitees, (b) any accident, injury or damage, howsoever caused, to any person or property whatsoever, occurring in, upon, about or in any way connected with the Property or any portion thereof after January 1, 2000, (c) any breach of this Lease by the indemnifying party, (d) any matter relating to the use, maintenance, operation, construction, leasing or management of the Property (specifically including construction defect claims relating to Tenant's or Landlord's - 10 -
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improvements on the Property) occurring from and after January 1, 2000, (e) any accident, injury or damage, howsoever caused, to any person or property whatsoever, occurring in, upon, about or in any way connected with Sludge Lagoons 5-10 and 12-14 or any portion thereof after January 1, 2000, (f) any matter relating to the use, maintenance, operation, construction, leasing or management or in any way connected with the Sludge Lagoons 5-10 and 12-14 or any portion thereof after January 1, 2000 (specifically including construction defect claims relating to Tenant's or Landlord's improvements on the property where Sludge Lagoons 5-10 and 12-14 are located) or (g) any matter otherwise related to the Property or this Lease, except that the above indemnity shall not apply to the extent that such claims, damages or liabilities arise out of the negligence or intentionally wrongful acts of the indemnified party. Without limiting the generality of the foregoing, the obligations hereunder shall apply to any liability arising from any contest of Impositions or utility charges relative to the operations conducted by Tenant pursuant to this Lease. The foregoing obligations shall include, but are not limited to, reasonable attorneys' fees, investigation costs and all other costs, expenses and liabilities reasonably incurred in connection therewith from the first notice that any claim or demand is to be made or may be made. The parties further agree that if the other party is made a party defendant in any legal proceeding concerning this Lease or the Property to the extent arising out of the acts or omissions of the indemnifying party, the indemnifying party shall defend (with counsel reasonably acceptable to the other) indemnify and hold the other harmless from all costs, expenses and liabilities (including reasonable attorneys' fees and court costs) it may incur by reason thereof.
The indemnification obligations under this Section 8.2, shall survive the expiration or sooner termination of this Lease. Notwithstanding anything to the contrary in this Section 8.2 or any other provision of this Lease, Landlord's actions and/or omissions in its capacity as the Manager or Management Agency of the West County Agency pursuant to the JPA shall not give rise to any obligations to Tenant under this Section 8.2 or this Lease.
8.3 Public Liability and Property Damage InsuranceTo the extent not already provided for in and through the JPA, or to the extent Tenant does not fulfill its obligations in this regard under the JPA, throughout the Term, Tenant, at its cost, shall procure and maintain comprehensive broad form public liability and property damage insurance (including contractual indemnity and garage keepers' liability coverage) providing coverage of not less than 2 Million and No/100 Dollars ($2,000,000.00) inclusive of umbrella coverage, insuring against all claims and liability for personal injury, death or property damage occurring from any cause whatsoever in connection with the Property or Tenant's use thereof. All such public liability insurance and property damage insurance shall insure performance by Tenant of the indemnity provisions of Section 8.2 above. Both Landlord and Tenant shall be named as co-insureds, and the policy shall contain cross-liability endorsements. In addition to the foregoing insurance requirements, Tenant shall maintain workers' compensation insurance and employees' liability and automobile liability insurance in commercially reasonable amounts.
8.3 Fire and Extended Coverage Insurance. Intentionally omitted.
8.4 Other Insurance Matters.
8.4.1 Rating. All insurance policies that Tenant is required to maintain under this Lease shall be issued by insurance companies authorized to do business in the State of California, with a financial rating of at least A-, X status as rated in the most recent edition of Best's Insurance Reports. All such policies shall be nonassessable and shall contain language to the effect that (i) any loss be payable notwithstanding any act or negligence of Landlord, its - 11 -
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affiliates or Tenant that might otherwise result in a forfeiture of the insurance, (ii) the insurer waives the right of subrogation against Landlord, its affiliates and their agents and representatives, (iii) the policies are primary and noncontributing with any insurance that may be carried by Landlord or its affiliates, (iv) the policies cannot be canceled or materially changed except after thirty (30) days' notice by the insurer to Landlord, and (v) they insure the interests of Landlord and its affiliates regardless of any breach or violation by Tenant or any other person of any warranties, declarations or conditions contained in such insurance policies or any action or inaction of Tenant or any other person. All insurance policies maintained by Tenant hereunder shall name Landlord, Landlord's Lender and such other persons as Landlord may designate as insureds thereunder, as their respective interests may appear. Tenant shall furnish Landlord with copies of all such policies promptly on receipt of them, in each case together with evidence of payment of the premiums therefor, prior to expiration of previous policies.
8.4.2 Waiver of Subrogation. Tenant hereby waives any and all rights of recovery against Landlord or against the partners, members, officers, employees, agents and representatives of Landlord, for loss of or damage to such waiving party or its property or the property of others under its control to the extent that such loss or damage is insured against under any insurance policy in force at the time of such loss or damages. Tenant, on behalf of its insurance companies insuring the Property and any buildings, fixtures and other improvements constructed or installed upon the Property against any such loss or damage, hereby waives any right of subrogation that any insurance company may have against Landlord. Tenant shall give notice to its insurance carrier or carriers that the foregoing waiver of subrogation is contained in this Lease.
8.5 Other. Tenant may effect for its own account any insurance not required under this Lease provided that such insurance does not adversely affect any of Landlord's rights under this Lease.
9. DEFAULT
9.1 Tenant's Default. The occurrence of any of the following shall constitute an Event of Default by Tenant:
to be made by Tenant hereunder, al undo Pen due, and such alure orany ots for ayest regired days after such amount was not received as and when due.
9.1.2 Insurance. Failure to obtain or maintain any insurance as required in this Lease.
9.1.3 Abandonment; Surrender. Abandonment or surrender of the Property or the leasehold estate by Tenant for thirty (30) consecutive days.
Assignment. The making of a purported assignment by Tenant Which is nor permited by the tens of this l The
9.1.5 Failure to Perform. Failure to perform any other express or implied covenant or provision of this Lease or any warranty contained herein, if the failure to perform is not cured within twenty (20) days after written notice from Landlord. If an Event of - 12-
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Default cannot reasonably be cured within twenty (20) days, then an Event of Detault shall not exist if Tenant commences to cure the Event of Default within such twenty (20) day period and thereafter diligently and in good faith prosecutes the cure of that Event of Default to completion.
Notwithstanding the immediately foregoing, an Event of Default will exist if that which gives rise to Landlord's written notice of default is not cured within thirty (30) days after Landlord's initial written notice.
9.1.6 Attachment, Etc. The subjection of any right or interest of Tenant under this Lease to attachment, execution, order, levy, or to seizure under legal process, if not released within thirty (30) days.
9.1.7 Bankruptcy, Etc. An assignment by Tenant for the benefit of or to prevent bankruptcy or insolvency; unless, in the case of an involuntary proceeding, Tenan commences a contest thereof within twenty (20) days, Tenant diligently and in good fait prosecutes such contest and the proceeding, and all consequent orders, adjudications, custodies, and supervisions are dismissed, vacated, or otherwise permanently stayed or terminated within sixty (60) days after the filing or other initial event.
9.1.8 Receivership. The appointment of a receiver, unless, in the case of an involuntary proceeding, Tenant commences a contest thereof within five (5) business days, Tenant diligently and in good faith prosecutes such contest and such receivership is terminated within sixty (60) days after the appointment of the receiver, to take possession of Tenant's interest in the Property or of Tenant's interest in the leasehold estate or of Tenant's operations on the Property for any reason, including but not limited to, assignment for benefit of creditors or voluntary or involuntary bankruptcy proceedings.
9.2 Landlord's Obligations. Landlord shall be under no obligation to observe or perform any covenant of this Lease on its part to be performed which accrues after the date of an Event of Default by Tenant hereunder until the Default has been cured by Tenant.
9.3 Remedies.
9.3.1 Cumulative Nature of Remedies. If any Event of Default shall occur, Landlord shall have the remedies described in this Section 9.3 in addition to all other rights and remedies provided by law or equity or elsewhere in this Lease, to which Landlord may resort cumulatively or in the alternative.
9.3.2 Termination. Before, after or concurrently with the exercise of any other remedy, Landlord may at Landlord's election terminate this Lease if any Event of Default shall occur. In the event Landlord terminates this Lease, Landlord may recover possession of the Property (which Tenant shall surrender and vacate upon demand) and remove all persons and property therefrom, and Landlord shall be entitled to recover as damages all of the following:
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9.3.2.1 The worth at the time of the award of any unpaid Rent or other charges or amounts due to Landlord which have been earned or accrued at the time of termination;
9.3.2.2 The worth at the time of the award of the amount by which the unpaid Rent, other charges and amounts which would have been earned or accrued for the balance of the Term exceeds the amount of the loss of such rental and other charges that Tenant proves could have been reasonably avoided;
9.3.2.3 Any other amount necessary to compensate Landlord for the detriment proximately caused by Tenant's failure to perform its obligations under this Lease or which in the ordinary course of things would be likely to result therefrom, including, without limitation, the direct, indirect and other costs and expenses incurred to remediate, clean, level and otherwise restore the Property; and
9.3.2.4 At Landlord's election, such other amounts in addition to or in lieu of the foregoing as may be permitted from time to time by applicable law.
As used in Section 9.3.2.1 above, the "worth at the time of the award" shall be computed by allowing interest at a rate equal to two percent (2%) in excess of the Prime Rate as the same may vary from time to time, or ten percent (10%) per annum, whichever is greater and allowed by the law. As used in this Lease, "Prime Rate" means the rate of interest per annum from time to time publicly announced by Wells Fargo National Bank (or, if such bank is no longer announcing such a rate such other comparable bank as Landlord may elect) as its prime or reference rate. As used in Section 9.3.2.2 above, the "worth at the time of the award" shall be computed by- discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of the award, plus one percent (1%). The amount recoverable by Landlord pursuant to Section 9.3.2.3 above shall include, but is not limited to, any costs or expenses incurred by or on behalf of Landlord in operating, maintaining or preserving the Property after such Default, accomplishing any repairs or alterations to the Property or rectifying any damage thereto occasioned by the act or omission of Tenant, and any and all costs and expenses, including, but not limited to, attorneys' fees, incurred by Landlord in enforcing its rights under this Lease.
9.3.3 Reentry Without Termination. Landlord may at its election exercise the remedy available to it pursuant to Section 1951.4 of the California Civil Code such that whether or not Tenant abandons the Property, Landlord may continue this Lease in effect until such time as Landlord elects to terminate Tenant's right to possession, reenter the Property, and, without terminating this Lease, at any time and from time to time, relet the Property and improvements or any part or parts of them for the account and in the name of Tenant or otherwise.
Landlord may at its election eject all persons or eject some and not others or eject none. Any reletting may be for the remainder of the Term or for a longer or shorter period, as determined by Landlord in its sole and absolute discretion. Landlord shall be entitled to all rents from the use, operation, or occupancy of the Property or improvements or both. In the event of any re-entry by Landlord, Tenant shall nevertheless pay to Landlord on the due dates specified in this Lease the equivalent of all sums required of Tenant under this Lease, plus Landlord's reasonable expenses, plus interest thereon from the date due at the Default Rate, less the proceeds of any reletting or attornment which shall be applied, when received, as follows: (1) to Landlord to the extent that the proceeds for the period covered do not exceed the amount due from and charged to Tenant for the same period, and (2) the balance to Tenant. No act by or on behalf of Landlord under this - 14 -
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provision shall constitute a termination of this Lease unless Landlord gives Tenant written notice of termination.
9.3.4 Tenant's Personal Property Located on the Property. Subject to any rights pursuant to the California Commercial Code of any secured creditor of Tenant holding a pertected security interest in Tenant's personal property, Landlord in its capacity as the Manager or Management Agency of the West County Agency pursuant to the JPA, may use Tenant's personal property and trade fixtures located on and used in connection with the management and operation of the Property and its improvements without compensation and without liability for use or damage.
9.3.5 Landlord's Right to Cure Tenant's Default. Without limiting the provisions of section 9.3.J
his Lease after notice and the expiration of any applicable cure period, Landlord tory, out isol obligated to, cure such failure at Tenant's cost at any time following five (5) business days after notice to Tenant. If Landlord at any time, by reason of such failure by Tenant, pays any sum or does any act, the reasonable, ascertainable and verifiable sum paid by Landlord plus the reasonable, ascertainable and verifiable cost of performing such act shall be due as additional rent within thirty (30) days after the sum is paid or the act performed. No such payment or act by Landlord shall constitute a waiver of Tenant's default or of any remedy for Tenant's default or render Landlord liable for any loss or damage resulting from any such act. Landlord shall provide Tenant with evidence of the foregoing expenditures.
9.4 Landlord's Default. Landlord shall not be deemed to be in default in the performance of any obligation required to be performed by it hereunder unless and until it has failed to perform such obligation within thirty (30) days after written notice by Tenant to Landlord specifying wherein Landlord has failed to perform such obligation; provided, however, that if the nature of Landlord's obligation is such that more than thirty (30) days are required for its performance, then Landlord shall not be deemed to be in default if it shall commence such performance within such thirty (30) day period and thereafter diligently and in good faith prosecute the same to completion.
9.5 Landlord's Liability. The term "Landlord" as used herein shall mean only the owner or owners at the time in question of the fee title to the Property, and in the event of any transfer of such title or interest, Landlord herein named (and in case of any subsequent transfers then the grantor) shall be relieved from and after the date of such transfer of all liability as respects Landlord's obligations hereafter to be performed, provided that any funds in the hands of Landlord or the then grantor at the time of such transfer, in which Tenant has an interest, shall be delivered to the grantee. The obligations contained in this Lease to be performed by Landlord shall be binding on Landlord's successors and assigns, only during their respective periods of ownership. If Landlord becomes obligated to pay Tenant a money judgment arising out of any failure by Landlord to perform or observe any of the terms, covenants, conditions or provisions to be performed or observed by Landlord hereunder, Tenant shall be limited for the satisfaction of said money judgment solely to Landlord's interest in the Property or any proceeds arising from the sale thereof and no other property or assets of Landlord or the individual partners, directors, officers, or shareholders of Landlord shall be subject to levy, execution or other enforcement procedure whatsoever for the satisfaction of said money judgment. - 15 -
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10. EXPIRATION OR TERMINATION
10.1 Surrender. At the expiration or earlier termination of this Lease for any reason, Tenant shall surrender the Property and surrender and transfer title in any and all buildings, fixtures and/or improvements on the Property to Landlord in their existing "as is" condition. Tenant, at its sole cost and within a reasonable time, not to exceed twelve (12) months after the expiration or earlier termination of this Lease, shall also clean, level, restore and otherwise reasonably remediate the Property to a condition consistent with the scope of work specific to the Property as set forth in the October 15, 2002 Fugro West "Restoration Cost Estimate, etc." (hereafter "Fugro Estimate"), a copy of which is attached hereto as Exhibit C, and incorporated herein by this reference, which shall mean and include the cost of both (a) the removal and disposal of the sludge at the Property and (b) further in a manner consistent with the Fugro Estimate, or, at the Landlord's option, payment to the Landlord of the actual cost or a reasonable estimate of the actual cost for same. Upon Tenant's satisfactory completion of this obligation, Tenant shall be released and forever discharged from any duty or obligation, express or implied, to pay for or contribute in any manner to the restoration or remediation of Landlord's other sludge lagoons adjacent to the Property (i.e., Sludge Lagoons 5-10 & 12-14).
10.2 Holding Over. If Tenant retains possession of the Property or any part thereof after the expiration of the Term hereof or earlier termination of this Lease, Tenant's occupancy of the Property shall be as a tenant at sufferance, terminable at any time by Landlord by delivering at least thirty (30) days' written notice to Tenant. Tenant shall pay Landlord rent for such time as Tenant remains in possession of the Property in an amount equal to one hundred twenty-five percent (125%) of the total amount of Annual Rent payable hereunder for the month immediately preceding the expiration or earlier termination and, in addition thereto, shall defend (with counsel reasonably acceptable to Landlord), protect, indemnify and hold harmless Landlord for all damages sustained by Landlord by reason of Tenant's retention of possession of the Property, including, without limitation, any damages suffered or costs incurred by Landlord as a result of any claims made by any succeeding tenant founded upon Tenant's failure to surrender the Property on the expiration or earlier termination of the Term. The provisions of this Section 10.2 do not exclude Landlord's rights of re-entry or any other right of Landlord hereunder.
10.3 Existing Liabilities. Expiration or termination of this Lease shall not relieve any party hereto of any liability accrued as of such date or arising out of or relating to facts occurring on or prior to such date, whether for breach, indemnity or otherwise.
11. NO TRANSFER WITHOUT LANDLORD'S CONSENT
11.1 No Transfer Without Landlord's Consent. Tenant shall not assign, transfer, pledge, encumber or otherwise dispose of its estate or interest under this Lease without any provision of this Lease to the contrary, Tenant shall have the right to assign this Lease or sublet any portion of the Property to an Affiliate (as defined in Section 2.4 above). Without consent to any assignment, or other transfer, if a proposed transferee's anticipated use of the Property involves a use not within the permitted uses set forth in Section 6.1 above. An assignment approved or permitted by this Article 11 shall not release the assignor from any liabilities arising prior to the date of such assignment. Any disposition by the Tenant without the - 16-
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prior written consent of Landlord as herein provided, whether it be voluntary or involuntary, by operation of law or otherwise, shall be deemed void and shall, at the option of Landlord, be an Event of Default hereunder. A consent by Landlord to one disposition shall not be deemed to be a consent to any subsequent disposition. Any assignment of beneficial interests in Tenant (excluding interests traded on public exchanges and excluding transfers of such interests as do not, singly or in the aggregate, result in a change of control of Tenant) shall be deemed to constitute an assignment of Tenant's interest under this Lease.
12. NO ENCUMBRANCE OF TENANT'S ESTATE. Tenant shall have no right to encumber Tenant's leasehold estate under this Lease or any portion thereof or interest therein without the prior written consent of Landlord.
13. NO SUBLEASES Tenant shall have no right to sublease all or any portion of the Property except to an Affiliate.
14. LANDLORD CONSENT AND APPROVAL
14.1 Consent Not a Waiver. It is understood and agreed that the granting of any consent or approval by Landlord to Tenant to perform any act of Tenant requiring Landlord's consent or approval under the terms of this Lease, or the failure on the part of Landlord to object to any such action taken by Tenant without Landlord's consent or approval, shall not be deemed a waiver by Landlord of its right to require such consent or approval for any further similar act by Tenant, and Tenant hereby expressly covenants and warrants that as to all matters requiring Landlord's consent or approval under the terms of this Lease Tenant shall secure such consent or approval for each and every happening of the event requiring such consent or approval, and shall not claim any waiver on the part of Landlord of the requirement to secure such consent or approval.
14.2 Landlord Not Liable for Money Damages. Whenever in this Lease Landlord's consent or approval is required and this Lease provides that Landlord's consent or approval shall not be unreasonably withheld and Landlord shall refuse such consent or approval, or in any instance in which Landlord shall delay its consent or approval, Tenant shall in no event be entitled to make, nor shall Tenant make, any claim, and Tenant hereby waives any claim, for money damages (nor shall Tenant claim any money damages by way of set-off, counterclaim or defense) based upon any claim or assertion by Tenant that Landlord unreasonably withheld or unreasonably delayed its consent or approval. Tenant's sole remedy shall be an action or proceeding to enforce any such provision, by specific performance, injunction or declaratory judgment, and if Tenant is the prevailing party in any such action or proceeding, no further evidence of Landlord's consent shall be required, but Landlord shall, promptly upon request, confirm that such consent has been given.
15. MISCELLANEOUS
15.1 Notices. All notices must be in writing. Notice shall be given either (i) when delivered in person to the addresses) set forth below, (ii) when deposited in the United States mail in a sealed envelope or container, either registered or certified mail, return receipt requested, postage and postal charges prepaid, addressed by name and address to the party or person intended set forth below, (iii) when sent to such address by any courier service keeping records of deliveries and attempted deliveries, or (iv) when sent by telecopy or similar facsimile - 17 -
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transmission to the number set forth below. The names, addresses and telecopy numbers of the parties are:
If to the Landlord:
With a copy to:
E.J. Shalaby
District Manager Steven N. Holland, Esq.
West County Wastewater District Morgan Miller Blair, a Law Corporation 2910 Hilltop Drive 1331 N. California Blvd., Suite 200
Richmond, CA 94806-1974 Walnut Creek, CA 94596-4544
If to Richmond:
With a copy to:
Chad Davisson
Waste Water Manager Mark C. Russell, Esq.
City of Richmond Gordon & Rees
450 Civic Center Plaza 275 Battery Street
Richmond, CA 94804 San Francisco, CA 94111
If any notice be served by registered or certified mail or courier in the manner provided, it shall be conclusively deemed received upon receipt or first attempted delivery, whichever is sooner. Notices given personally or by facsimile shall be deemed given on receipt.
Either party may, by notice given at any time or from time to time, change its address for notice. Notices given before actual receipt of notice of change shall not be invalidated by the change.
15.2 Estoppel Certificates. At any time and from time to time, within fifteen (15) days after notice of request by either party, the other party shall execute, acknowledge, and deliver to the requesting party, or to such other recipient as the notice shall direct, a statement certifying that this Lease is unmodified and in full force and effect, or, if there have been modifications, that it is in full force and effect as modified in the manner specified in the statement and acknowledging that there are no uncured defaults or failures to perform any covenant or provision of this Lease on the part of the requesting party or specifying any such defaults or failures which are claimed to exist. The statement shall also state the dates to which the Rent and any other charges have been paid in advance. The statement shail be such that it can be relied on by the addressee thereof.
Tenant's failure to execute, acknowledge, and deliver, on request, the certified statement described above within the specified time shall constitute acknowledgment by Tenant to all persons entitled to rely on the statement that this Lease is unmodified and in full force and effect and that the Rent and other charges have been duly and fully paid to and including the respective due dates immediately preceding the date of the notice of request and shall constitute a waiver, with respect to all persons entitled to rely on the statement, of any defaults on Landlord's part that may exist before the date of the notice.
15.3 Attorneys' Fees. If either party brings an action or proceeding to declare, enforce, protect, or establish any right or remedy under or with respect to this Lease, including, but not limited to, any proceedings to lift stay or other bankruptcy proceedings, the prevailing party shall be entitled to recover its costs and legal expenses including reasonable attorneys' fees. - 18-
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15.4 Interest on Past Due Obligations: Late Charges. Any amount due from one party to the other party under the terms of or with respect to this Lease which is not paid when due shall bear interest at the lesser of (i) ten percent (10%) per annum, or (ii) the highest rate allowed under applicable law ("Default Rate") from the date due until paid. The payment of interest shall not excuse or cure any default under this Lease.
In addition to the foregoing, if Tenant shall fail to make any Rent payment when due, a late charge by way of damages shall be immediately due and payable. Tenant agrees that, if for any reason Tenant fails to pay any Rent when due, Landlord shall be entitled to damages for the detriment caused thereby, but that it is extremely difficult and impractical to ascertain the extent of such damages. Tenant therefore agrees that an amount equal to fifteen percent (15%) of any Rent Tenant fails to pay when due is a reasonable estimate of the said damages to Landlord, which sum Tenant agrees to pay as additional Rent without notice or demand.
15.5 Waiver. The waiver by Landlord or Tenant of any breach by the other party of any term, covenant, or condition herein contained shall not be deemed to be a waiver of such term, covenant, or condition or any subsequent breach of the same or any other term, covenant, or condition herein contained.
15.6 Time of Essence. Time is of the essence with respect to the performance of every provision of this Lease in which time of performance is a factor.
15.7 Brokers. Landlord and Tenant each warrant to and for the benefit of the other, and shall indemnify and hold harmless the other for a breach hereof, that it has had no dealings with any real estate broker or other agent in connection with the negotiation or making of this Lease.
15.8 Exhibits. All exhibits to which reference is made in this Lease are hereby incorporated by reference. Any reference to "this Lease" includes matters incorporated by reference.
15.9 Entire Agreement; Modification. This Lease contains the entire agreement between the parties with regard to the subject matter hereof. No verbal agreement or implied covenant shall be held to vary the provisions hereof, any statements, law or custom to the contrary notwithstanding. No promise, representation, warranty, or covenant not included in this Lease has been or is relied on by either party. No provision of this Lease may be amended or varied except by an agreement in writing signed by the parties hereto or their respective successors-in-interest.
15.10 Severability. The invalidity or illegality of any provision shall not affect the remainder of this Lease and all remaining provisions shall, notwithstanding any such invalidity or illegality, continue in full force and effect.
15.11 Successors. Subject to the provisions of this Lease on assignment and subletting, each and all of the covenants and conditions of this Lease shall be binding on and shall inure to the benefit of the heirs, successors, executors, administrators, assigns, and personal representatives of the respective parties.
- 19 -
MMB:10851-001:1074231.2
15.12 Enforcement
15.12.1 Joint and Several Liability. If more than one person executes this Lease as Tenant, each such person shall be jointly and severally liable for Tenant's obligations and liabilities under this Lease.
15.12.2 No Non-Mandatory Counterclaim. If after an Event of Default Mandid y coate any sunray proceedings agains Tenan. Ten procal not interpose any no. -
15.12.3 Code of Civil Procedure Section 664.6 Enforcement. Because this Lease is entered into as part of the settlement of a lawsuit, the Contra Costa County Superior Court, Department 2, Judge Barbara Zuñiga presiding, or such other Contra Costa County Superior Court judge as is available if Judge Zuñiga is no longer sitting, retains jurisdiction to enforce the parties' rights, duties, and obligations under this Lease, including, without limitation, by issuing an order ejecting Tenant from the Property upon the termination of this Lease. The Parties further acknowledge, agree and expressly confer upon the Contra Costa County Superior Court the authority to order affirmative injunctive relief in connection with any ejectment, including, without limitation, by ordering Tenant to use alternate means to treat Tenant's biosolids and other waste being treated on the Property at Tenant's sole cost and expense. The Parties here request that the Contra Costa County Superior Court enter such an order in the event that an ejectment is ordered. Tenant waives all defenses it might have to such an order, including, without limitation, any "public interest" claim or defense.
15.13 Governing Law. The laws of the State of California shall govern the validity, construction, performance and effect of this Lease.
15.14 Covenants. Whenever in this Lease any words of obligation or duty are used in connection with either party, such words shall have the same force and effect as though framed in the form of express covenants on the part of the party obligated.
15.15 Execution in Counterparts. This Lease may be executed in two or more counterparts, each of which shall be an original, but all of which shall constitute one and the came instrument.
15.16 Construction. The parties have participated jointly in the negotiation and drafting of this Lease and have had competent counsel of their own choosing. In the event an ambiguity or question of intent or interpretation arises, this Lease shall be construed as if drafted jointly by the parties and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Lease. This Lease shall be given a fair and reasonable construction in accordance with the intention of the parties and without regard to or aid of California Civil Code Section 1654 or California Code of Civil Procedure Section 1864.
15.17 Force Majeure. Landlord and Tenant shall be excused for the period of any delay in the performance from performing any of their respective obligations hereunder when prevented from so doing by a cause or causes beyond such party's control, including war, war-lik perations, labor disputes, civil commotion, invasion, rebellion, hostilities, military or usurper - 20 -
MMB: 10851-001:1074231.2
power, sabotage, governmental regulations or controls, fire or other casualty, inability to obtain any material, or services or through adverse weather or acts of God; provided, however, that:
(a) Nothing contained in this Section 15.17 or elsewhere in this Lease shall be deemed to excuse or permit any delay in Tenant's payment of Rent, or any delay in Tenant's cure of any Default which may be cured by the payment of money; (b) Tenant gives Landlord notice of the existence of any force majeure preventing the performance of an obligation of Tenant within five (5) days after the commencement of the force majeure; and
(c) Nothing contained in this Section 15.17 or elsewhere shall delay or extend the Rent Commencement Date set forth above.
15.18 Landlord's Access. Landlord and Landlord's Representatives shall have the right to enter the Property at any time.
15.19 Memorandum of Lease. At the time of execution of this Lease, the parties agree that they will execute a Memorandum of Lease in the format as provided by attached Exhibit B, which may be recorded at any time by Landlord.
15.20 No Partnership. The parties hereto agree that nothing contained in this Lease shall be deemed or construed as creating a partnership, joint venture, or association between Landlord and Tenant, or cause either party to be responsible in any way for the debts or obligations of the other party, and neither the method of computing Rent nor any other provision contained in this Lease nor any acts of the parties hereto shall be deemed to create any relationship between Landlord and Tenant other than the relationship of landlord and tenant.
The undersigned have executed this Lease as of the date first written above.
TENANT LANDLORD
CITY OF RICHMOND WEST COUNTY WASTE WATER DISTRICT
A MUNICIPAL CORPORATION
By:
By:
Its: President
Its:
Attest: By:
City Clerk Its: Secretary
RICHMOND MUNICIPAL SEWER DISTRICT
By:
Its:
Attest:
City Clerk
- 21 -
MMB: 10851-001:1074231.2
power, sabotage, governmental regulations or controls, fire or other casualty, inability to obtain any material, or services or through adverse weather or acts of God; provided, however, that:
(a) Nothing contained in this Section 15.17 or elsewhere in this Lease shall be deemed to excuse or permit any delay in Tenant's payment of Rent, or any delay in Tenant's cure of any Default which may be cured by the payment of money; (b) Tenant gives Landlord notice of the existence of any force majeure preventing the performance of an obligation of Tenant within five (5) days after the commencement of the force majeure; and
(c) Nothing contained in this Section 15.17 or elsewhere shall delay or extend the Rent Commencement Date set forth above.
15.18 Landlord's Access. Landlord and Landlord's Representatives shall have the right to enter the Property at any time.
15.19 Memorandum of Lease. At the time of execution of this Lease, the parties agree that they will execute a Memorandum of Lease in the format as provided by attached Exhibit B, which may be recorded at auy time by Landlord.
15.20 No Partnership. The parties hereto agree that nothing contained in this Lease shall be deemed or construed as creating a partnership, joint venture, or association between Landlord and Tenant, or cause either party to be responsible in any way for the debts or obligations of the other party, and neither the method of computing Rent nor any other provision contained in this Lease nor any acts of the parties hereto shall be deemed to create any relationship between Landlord and Tenant other than the relationship of landlord and tenant.
The undersigned have executed this Lease as of the date first written above.
TENANT LANDLORD
CITY OF RICHMOND WEST COUNTY WASTE WATER DISTRICT
A MUNICIPAL CORPORATION
2223
By:
Its: President
Its: my Shem herm
Attest:
City Clerk
Its: Secretary
RICHMOND MUNICIPAL SEWER DISTRICT
By:
Its:
Attest:
City Clerk
- 21 -
MMB: 10851-001:1074231.2
IFTO RICHMOND:
WITH A COPY TO:
CHAD DAVISSON
Waste Water Manager Mark C. Russell, Esq.
City of Richmond Gordon & Rees
450 Civic Center Plaza 275 Battery Street
Richmond, CA 94804 San Francisco, CA 94111
Notices given via personal delivery shall be deemed received when delivered. Notices sent by registered or certified mail as provided herein shall be deemed received three (3) business days after the same is mailed. Notices sent via overnight delivery as provided herein shall be deemed received one (1) business day after delivered to the overnight courier service. Any notice or other documents sent by any other manner shall be effective only upon actual receipt thereof.
Refusal to accept notice shall be deemed to be delivery thereof on the date of the refusal. Any Party may change its address for purposes of this Paragraph by giving notice to the other Party as provided herein.
Q. TIME IS OF THE ESSENCE. Time is of the essence with respect to all terms and obligations of this Agreement, including, without limitation, the Ground Lease.
R. AUTHORITY AND ADVICE OF COUNSEL. The Parties represent that they have authority to enter into this Agreement, and that their legal counsel has fully explained to them the legal effect of this Agreement, of the release provided for herein, and that the settlement and release stated herein is final and conclusive forthwith, and counsel for the Parties represents that their respective clients have freely consented to and authorized this Agreement.
CITY OF RICHMOND WEST COUNTY WASTE WATEr DISTRICT
A MUNICIPAL CORPORATION
By: RMID By:
saty Attoro
Its: Its: President
Dian deem
Attest: By:
City Clerk
Its: Secretary
RICHMOND MUNICIPAL SEWER DISTRICT
By:
Sly Atteney
Its:
Pam Charte
Attest:
City Clerk
4 without regard to or aid of California Civil Code Section 1654 or California Code of Civil Procedure Section 1864.
15.17 Force Majeure. Landlord and Tenant shall be excused for the period of any delay in the performance from performing any of their respective obligations hereunder when prevented from so doing by a cause or causes beyond such party's control, including war, war-like operations, labor disputes, civil commotion, invasion, rebellion, hostilities, military or usurped power, sabotage, governmental regulations or controls, fire or other casualty, inability to obtain any material, or services or through adverse weather or acts of God; provided, however, that:
(a) Nothing contained in this Section 15.17 or elsewhere in this Lease shall be deemed to excuse or permit any delay in Tenant's payment of Rent, or any delay in Tenant's cure of any Default which may be cured by the payment of money; (b) Tenant gives Landlord notice of the existence of any force majeure preventing the performance of an obligation of Tenant within five (5) days after the commencement of the force majeure; and
(c) Nothing contained in this Section 15.17 or elsewhere shall delay or extend the Rent Commencement Date set forth above.
15.18 Landlord's Access. Landlord and Landlord's Representatives shall have the right to enter the Property at any time.
15.19 Memorandum of Lease. At the time of execution of this Lease, the parties agree that they will execute a Memorandum of Lease in the format as provided by attached Exhibit B, which may be recorded at any time by Landlord.
15.20 No Partnership. The parties hereto agree that nothing contained in this Lease shall be deemed or construed as creating a partnership, joint venture, or association between Landlord and Tenant, or cause either party to be responsible in any way for the debts or obligations of the other party, and neither the method of computing Rent nor any other provision contained in this Lease nor any acts of the parties hereto shall be deemed to create any relationship between Landlord and Tenant other than the relationship of landlord and tenant.
The undersigned have executed this Lease as of the date first written above.
TENANT LANDLORD
CITY OF RICHMOND WEST COUNTY WASTE WATER DISTRICT
A MUNICIPAL CORPORATION
By:
By:
Its: President
Its:
Attest: Dare Holmad By:
City Clerk
Its: Secretary
- 21-
MMB:10851-001:1070915.3
RICHMOND MUNICIPAL SEWER DISTRICT
Attest: Dure Helme
City Clerk
- 22-
MMB:10851-001:1070915.3
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Real property in the County of Contra Costa, State of California, described as follows:
PARCEL ONE:
ASSESSOR PARCEL NUMBER 408-190-031, AS IDENTIFIED ON THE ATTACHED MAP.
PARCEL TWO:
PORTION OF ASSESSOR PARCEL NUMBER 408-150-009, AS IDENTIFIED ON THE ATTACHED MAP.
MMB:10851-001:1074231.2
Contra Costa County
California Mapping Information Center
Wlap
RICHMOND PKWY
-RICHMOND PKWY?
Richmond
APN 408-190-031
http://ccmap.us/gis/print.aspx 3/2/2010
Contra Costa County
California Mapping Information Conter
OND PKWY: BROOKSIDE PREE
HIED
Richmond
RICHMOND PKWY GOLDEN GATE ST
- DE CARLO AVE:
APN 408-150-009
http://ccmap.us/gis/print.aspx 3/2/2010
ExHIBIT B
MEMORANDUM OF LEASE
MMB:10851-001:1074231.2
RECORDING REQUESTED BY:
ATTORNEY
WHEN RECORDED RETURN TO:
Morgan Miller Blair
1333 No. California Blvd., #200
Walnut Creek, CA 94596
_SPACE ABOVE THIS LINE FOR RECORDER'S USE.__
MEMORANDUM OF LEASE
THIS MEMORANDUM (this "Memorandum") is made and entered into as of the - 2010, by and between West County Wastewater District ("Landlord'"), and The Cly of Richmond and The Richmond Municipal Sewer District (collectively "Tenant").
WITNESSETH: That,
Pursuant to the terms of that certain unrecorded Lease dated January 1, 2010 (the "Lease"), Landlord has leased to Tenant and Tenant has leased from Landlord, that certain premises (hereinafter referred to as the "Leased Premises") situated in the City of Richmond, County of Contra Costa, State of California, and more particularly described on Exhibit "A" attached hereto and made a part hereof. ni The initial term of the Lease shall commence on or about January 1, 2010 and expire on or about December 31, 2012, subject to one (1) option period of three (3) years, and one (1) subsequent option period for two (2) years, unless earlier terminated. The terms, covenants, conditions, limitations, and restrictions governing Tenant's occupancy of the Leased Premises are set forth in the Lease which by this reference is incorporated herein with the same force and effect as though herein set forth at length.
3. Landlord and Tenant have executed and delivered this Memorandum for the purpose of memorializing, of record, their mutual understandings regarding the Lease. All of the terms, covenants and conditions regarding the foregoing are more particularly set forth in the Lease. In the event of conflict between the terms and condition set forth in this Memorandum and the terms and conditions set forth in the Lease, the and conditions of the Lease shall govern and control.
The purpose of this Memorandum is to give record notice of the Lease and of the rights created thereby, all of which are hereby confirmed and incorporated herein by reference.
Upon the expiration or earlier termination of the Lease, Tenant agrees to execute an instrument in recordable form cancelling this Memorandum upon Landlord's request. [Signatures Appear on Following Pages]
10851-001:1073121.2
IN WITNESS WHEREOF, Landlord and Tenant have signed and sealed this Memorandum of Lease as of the date and year first above written.
LANDLORD:
By:_
Name:
Title:_
TENANT:
By:_
Name:_
Title:_
TENANT:
By:_
Name:
Title:_
[Include notary acknowledgments.]
10851-001:1073121.2
STATE OF CALIFORNIA )
)SS
COUNTY OF CONTRA COSTA
On _, 2010, before me,. _ notary public,
personally appeared , who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/ are subscribed to the within instrument and acknowledged to me that he/she/ they executed the same in his/her/their authorized capacity(ies), and that by his/her/ their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Signature of Notary Public)
STATE OF CALIFORNIA )
)ss
COUNTY OF CONTRA COSTA )
On. _, 2010, before me, _ notary public,
personally appeared , who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/ are subscribed to I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Signature of Notary Public)
STATE OF CALIFORNIA )
)SS
COUNTY OF CONTRA COSTA )
10851-001:1073121.2
On _ _, 2010, before me, - _ notary public,
personally appeared , who proved to
me on the basis of satisfactory evidence to be the person(s) whose name(s) is/ are subscribed to the within instrument and acknowledged to me that he/she/ they executed the same in his/her/their authorized capacity(ies), and that by his/her/ their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
(Signature of Notary Public)
10851-001:1073121.2
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Real property in the County of Contra Costa, State of California, described as follows:
PARCEL ONE:
ASSESSOR PARCEL NUMBER 408-190-031, AS IDENTIFIED ON THE ATTACHED MAP.
PARCEL TWO:
PORTION OF ASSESSOR PARCEL NUMBER 408-150-009, AS IDENTIFIED ON THE ATTACHED MAP.
MMB:10851-001:1074231.2
Contra Costa County
Galifomia Mapping Information Center
liarg
aida. d sode parepar
E RICHMOND PKWY
RICHMOND PAWY-
TRSURG AVE
_QOLDEN-GATE ST.L!
APN 408-190-031
http://ccmap.us/gis/print.aspx 3/2/2010
Contra Costa County
California Mapping Information Cemor
ICHBAOND PKWY LE1EL
Richmond
RICHMOND PKWY*. GOLDEN GATE ST
EDE CARLO AVE..L
......yo
APN 408-150-009
http://ccmap.us/gis/print.aspx 3/2/2010
EXHIBIT C
OCTOBER 15, 2002 FUGRO WEST "RESTORATION COST ESTIMATE, ETC." CRICH/1053757/7525432v.1
MMB: 0851-001:1074231.2
FUGRO WEST, INC.
1000 Broadway, Suite 200
Oakland, Callfornia 94607
Tel: (510) 268-0461
Fax: (510) 268-0137
October 15, 2002
Project No. 1407.005 RECEIVED
West County Wastewater District OCT 1 5 2002
2910 Hilltop Drive
Richmond, California 94806 W.C.W.D.
Attention: Mr. Paul Winnicki
Subject: Restoration Cost Estimate
Sludge Drying Beds
West County Pollution Control Plant,
Richmond, California
Dear Mr. Winnicki:
This letter presents the cost estimate prepared by Fugro West, Inc. (Fugro) for the proposed Sludge Drying Bed Restoration project. The project is located at the West County Pollution Control Plant in Richmond, California as shown on the Vicinity Map, Plate 1. Our cost estimate was prepared on behalf of West County Wastewater District (WCWD) in accordance with our proposal dated April 1, 2002.
INTRODUCTION
The purpose of our estimate is to assist WOWD with budgetary planning involving the anticipated restoration of certain sludge drying beds at the site to their pre- development condition. The scope of our cost estimate was outlined in our proposal dated April 1, 2002 and consisted of (1) conducting a site visit, (2) reviewing the supplied data, (3) conducting field exploration, (4) preparing the cost estimate, and (5) summarizing our findings in this letter report.
PROJECT AND SITE DESCRIPTION
Fugro understands that WCWD is considering the Sludge Drying Bed Restoration project as part of existing operational and contractual arrangements with the City of Richmond. Based on our discussions with WCWD regarding anticipated work activities, we understand that the restoration work will be conducted after sludge is removed from the ponds. Conceptually, the scope of restoration work involves excavating and offsite disposal of residual sludge at the ponds; removing some of the existing inlet, outlet, and piping structures within the ponds; reusing certain A member of the Fugro group of companios with offices throughout the world.
West County Wastewater District
October 15, 2002 (Project No. 1407.005)
embankments as fill within the excavated ponds; removing some of the asphaltic overlay from selected existing roads; and importing fill to raise grade to the original pond elevations. The need and scope of actual decommissioning activities will be determined by WCWD at a later date.
Restoration activities will be conducted at some or all of fourteen (14) drying ponds shown on the attached Site Plan, Plate 2. The ponds include four east of Garden Tract Road (referred to as East Ponds on Site Plan), nine west of Garden Tract Road (referred to as West Ponds on Site Plan), and one additional pond west of the Plant buildings (referred to Pond #14) that is used infrequentiy as a drying pond.
FIELD WORK
On September 17, 2002, Fugro's field geologist observed the excavation of sixteen (16) test pits in eight (8) of the fourteen (14) ponds located onsite (Plate 2).
During field operations, Ponds 10, 11, 12, and 13, still had water in them. A representative of the WCWD advised us during excavation activities that although Ponds 3 and 7 were free of water, both ponds were still too wet to be accessed by personnel or equipment. The test pits were excavated using a track mounted bobcat- type backhoe and ranged in depth from 4 to 5 feet below ground surface (bgs). Each test pit was logged in the field using the Unified Soil Classification System (USCS).
Fugro's field geologist also surveyed the approximate elevations of the eight (8) ponds relative to a benchmark of 8.33 ft above mean sea level (msl), designated by WOWD personnel. Each completed test pit was subsequently backfilled with excavated material and tamped using the backhoe bucket.
In generally, Fugro observed residual dry sludge material ranging from 0.5 ft to
1.5 feet thick at each pond, with the exception of Pond #14, where no residual dry sludge was observed. The dry sludge comprised gray brown silty sand, which was • underlain by brown medium-grained sand and dark gray to black moist clay. Logs of soil encountered during excavation of the test pits are presented in Plates 3A through 3H. At the test pits completed within Ponds 1, 2, and 3, Fugro detected an aged hydrocarbon N odor in the sandy clay underlying the residual sludge.
On September 19, 2002, with verbal authorization from WCWWD, Fugro's field geologist collected 4 discreet soil samples of the impacted sandy clay for chemical anlayses. Samples were collected using hand auguring equipment and a shovel.
Sampling equipment was decontaminated between each location and prior to sampling.
Collected soil samples were packed in a clean stainless steel tube sealed with Teflon sheets and plastic end caps. Samples were placed in an ice filled chest and transported 2 West County Wastewater District
October 15, 2002 (Project No. 1407.005)
TAL 10012
under chain of custody documentation to Curtis and Tompkins, Ltd, a California certified testing laboratory. Samples were tested for the following:
• Total Volatile Hydrocarbons as Gasoline (TPHg) using USEPA 8015m • Total Extractable Hydrocarbons as Diesel and Motor (TPHd and mo) using USEPA 8015m with silica gel clean up
• Benzene, Toluene, Ethylbenzene, and Xylenes (BTEX) using USEPA 8020 Analytical Results
Analysis detected TPHd concentrations ranging from 990 to 1,200 mg/kg and TPHmo concentrations ranging from 2,400 to 3,200 mg/kg. With the exception of 6.5 milligrams per kilogram (mg/kg) in sample Pond 4 TP-2@1, no TPHg was detected in the samples analyzed. Benzene was not detected in any of the samples tested.
Analysis also detected toluene concentrations ranging from 5.2 to 40 mg/kg in three samples; 9.7 mg/kg of ethylbenzene in one sample; and 6.9 mg/kg of total xylenes in one sample. Results of analytical testing are summarized in Table 3. Laboratory data and chain of custody documentation are presented in Appendix A.
ASSUMPTIONS
To evaluate costs associated with the conceptual pond restoration activities, 12:30 Fugro made numerous assumptions regarding volumes, costs, and scope of work. The following presents some of the assumptions made to prepare this cost estimate, including:
• no dewatering, soil drying or overexcavation and chemical treatment due 1 to poor soil conditions will be conducted.
• results of field exploration were used to estimate the volume of residual sludge that will be removed from the interior dimensions of each pond. • interior embankments, typically those without paved roads, will be reused as onsite fill to backfill the resulting excavations. The embankments surrounding the ponds are not included as fill since those embankments may provide vehicular access to other ponds, with the exception of Pond #14, which we have assumed will be left in place.
3 West County Wastewater District BEAKE
October 15, 2002 (Project No. 1407.005)
• various pond improvements such as inlet, outlet, and piping structures encountered within the ponds will be removed. We have included a lump sum estimate for this item.
• till material representing the difference between pond bottom excavation and reused embankment material will be imported to raise grade to the pond bottom elevations (assumed to be approximate original ground elevation).
• material used to backfill the ponds to approximate original ground elevation will be loosely compacted. The actual effort required to compact the backfill material may change once development plans have been issued and engineering analyses have been performed for the proposed future use.
• all material to be handled will be considered non-hazardous for the purposes of offsite disposal and that no remediation of excavated soil will be conducted. Our estimate does not include costs for handling and disposal of the hydrocarbon-impacted soil. Some chemical characterization will likely be required by the actual receiving landfil. • all work will be performed by outside contractors (i.e., we have included no cost for WCWD personnel).
• engineering and creek restoration services are not included. Based on the actual reuse of the site, additional engineering services, including geotechnical and geo-environmental investigations may be required but are not included in this estimate.
For the purposes of calculating soil volumes for this estimate, we measured pond dimensions from the following drawings provided to Fugro by WCWD:
• "Contract Drawings for Construction of Biosolids Drying Bed Piping" by West County Wastewater District, dated 6/2000
• "West County Agency - Wet Weather Flow and Sludge Handling Facilities" by Cooper - Clark & Associates, dated 8/7/80
-
Fugro did not conduct a land survey, evaluation of existing and historical ground surface elevations, or review the contractual arrangements between WCWD and the City of Richmond as part of preparing this estimate.
4 ... -.. ...
West County Wastewater District RAGH A SE
October 15, 2002 (Project No. 1407.005)
COST ESTIMATE
Based on our understanding of likely construction methods and our experience with similar projects, we have calculated estimated total restoration costs for the subject sludge drying ponds on the order of $1,800,000 and $3,300,000, depending on whether excavated soil is disposed of at West Contra Costa County Landfill (WCCCL) or at an alternative Class II! landfill, respectively. Suitable local Class III Landills include Altamont and Vasco in Livermore, Keller in Pittsburg and Forward in Stockton. These costs include:
• excavation, loading, transport, and disposal of material from the base of drying ponds,
• excavation, loading, transport and disposal of asphalt overlay from ceratin roadways surrounding the drying ponds,
• excavation and handling of certain embankment materials,
5.22 • purchase, transport, and placement of imported fill, * removal of inlet, outlet, and piping structures encountered within the ponds, and
• a 20% contingency.
Actual restoration costs will be subject to bids for contractors, actual tonnage of soil disposed, landfill selected, and schedule requirements. This estimate is made assuming present value costs without consideration of inflationary impacts. A summary of our cost estimate for the restoration of the sludge drying ponds is presented on Table
1. A summary of the calculated volumes for excavation and import at each pond is presented on Table 2. The following is a discussion of our cost estimate for each area.
East Ponds
Results of our field investigation suggest that at the time the investigation was conducted, the thickness of the remaining sludge layer on these ponds ranged from 0.5 to 0.9 feet. We have assumed this to be representative of future residual sludge thicknesses in these ponds.
The east ponds consist of Ponds 1 through 4, as shown on the Site Plan. The calculated volume of material including the surrounding asphalt, to be excavated is approximately 11,700 cubic yards (CY). The removed material will be replaced by approximately 10,500 CY of embankment material and 200 CY of import fill. The total cost for restoration of the East Ponds is $527,000 if the removed material is disposed of 5 ..•
West County Wastewater District HABERRES
October 15, 2002 (Project No. 1407.005)
at WCCCL or $982,000 if the removed material is disposed of at an alternative Class Ill landfill. These estimates include a 20% contingency.
West Ponds
Results of our field investigation suggest that at the time the investigation was conducted, the thickness of the remaining sludge layer on these ponds ranged from 0.7 to 1.5 feet. We have assured this to be representative of future sludge thicknesses in these ponds.
The west ponds consist of Ponds 5 through 13, as shown on the Site Plan. The calculated volume of material including the surrounding asphalt to be excavated is approximately 27,000 cubic yards (CY). The removed material will be replaced by 16,000 CY of embankment material and 10,000 CY of import fill. The total cost for restoration of the West Ponds is $1,270,000 if the removed material is disposed of at WCCCL or is $2,305,000 if the removed material is disposed of at an alternative landfill.
These estimates include a 20% contingency.
Pond #14
Results of our field investigation suggest that no sludge was present at this pond.
We have assumed that this condition adequately represents the future condition of this pond.
Pond #14 is shown on the Site Plan. The calculated volume of material (only asphalt) to be excavated is approximately 700 cubic yards (CY), which will not be replaced by import fill. The total cost for restoration of Pond #14 is $5,900 if the removed material is disposed of at WCCCL or is $8,900 if the removed material is disposed of at an alternative landfill. These estimates include a 20% contingency.
West County Wastewater District
October 15, 2002 (Project No. 1407.005)
LIMITATIONS
Our services consist of professional opinions, conclusions, and recommendations that are made in accordance with generally accepted engineering principles and practices. This warranty is in lieu of all other warranties, either expressed or implied. Our conclusions and recommendations are based on an analysis of the observed conditions and the referenced reports. We cannot vouch for the accuracy of information supplied by others, nor accept consequences for unconsulted use of segregated portions of this report.
Sincerely,
FUGRO WEST, INC.
Corey T. Dare P.E.
Principal Engineer
Se d PE
Glenn S. Young, AG GLENN S. YOUNG
* *
NO, 6406
Principal Geologist 4p9.30.04) g.
AILS
ON:CTD:GSY:am
Coples Submitted (6)
7 ........
TABLES
acesa
1 • 2 BARACS
Table 1: Summary of Cost Estimate
West County Wastewater Sludge Drying Ponds
Richmond, Calffornia
Excavation & Embankment Improvement TOTAL
Loading WCCCL Handling Import Fill Removal 20% Contingency (+ 20% Contigency) PONDS $10/CY $10/tcn S10/CY $15/CY LUMP SUM WCCCL Class Ill WCCCL Class ill East 116,30B § 189,588. $ 116,804 174564 8 132278 2,216 $ 14,250 $ 87,833 $ 163,669_$ 527,000 WesT 267374 5. 41.20 $ 1292848 24,000 $ 211,633 | $ 384.013 $ . -1,269,799 $_2,304,078 #14 . 3,733 $
Estimated Range of Total Cost = $ 1,802,638 3,294,916
....
-•..
...-
THERE
LORE
Table 2: Volume Calculations
West County Wastewater Studge Drying Ponds
Richmond, California
EAST PONDS Dimensions Area Depth Volume Tonnage Estimated Coals (feet) (feet) (29 feet). (feet) (CY) (tong) Excavate/Load Transport and Disposal Class !!!
$10/CY $10/ton $30/ton
165 530 87,450 0.5 1,619 2,591
-NO= 245 530 129,850 0.5 2,405 3,847
245 630 129,850 0.9 4,328 6,925
245 630 129,850 0.5 2,405 3,847
Total 10,757 17,211 $107,570 $172,113 $516,338
Asphalt 117,960 0.2 874 1,748
Total 874 1,748 $8,738 $17.476 $52,427
Embankments Cross-sectional Area Length Volume Tonnage Handling Transport and Placement (sq feet) (feet) (CY) (tons) $11/CY $16/CY
250 610 5,648 9,037
110 1220 7,959
Total 10,619 16,990 8716,804
Imported FIl
Total 139 222 32,218
WEST PONDS Dimensions Area Depth Volume Tonnage Estimated Coals (feel) (leet) (sg leet) (fect). (CY) (tons) Excavate/Load Transport and Disposal WCCCL Class Ill
$ID/CY $10/ton $3O/ton
5 205 335 68,675 1.5 3,815 6,104
G 206 335 68,675 0.7 1,780 2,849
7 205 335 G8,675 0.9 2,289 3,663
205 335 66,675 0.8 2,035 3,256
9 205 335 68,675 0.7 1,780 2,849
10 205 335 68,675 0,9 2,289 3,663
11 230 520 119,600 0.9 5,987 6,379
12 230 520 119,600 0.9 3,987 6,379
13 230 520 119,600 0.9 3,987 6.379
Lions.. $259,494 51,245,569
Total 25,949 41,519 $415,190
Asphalt 106,380 0.2 788
1570. $7,880 115,760 -$47,280
Total 700
Embankments Crass-sectional Area Length Volume Tonnage Handling Transport and Placement (sq feet) (feet) (CY) (lons) $11/CY $16/CY
225 720 6,000 9,600
85 3135 9,869 15,791
Total 15,869 25,391 $174,564
Imported Fil
Total 10,080 16,128 5161,279
POND #14 Dimensions AreA Depth Volume Tonnage Estimated Costs (feet) (feel) (sq feet) (feet) (CY) (tons) Excavate/load Transport and Disposal WCCCL Class !!!
$10/CY Sio/toni $30/ton
14 150 320 48,000 0.0 0 0
Asphall 8,400 0.2 62 124
Total 62 124 $B22 ฿1,244 $3,733
Embankments... Cross-sectional Area Length Volume tonnage landlin Transport and Placement (sq feet) (feet). (CY) (tons) 511/C $1G/CY
Imported Fill
Total
Voles: A conversion factor of 1.6 tons/oubic yard was applled for solf and 2.0 lons/cuble yard for asphal Site dimensions based on as-built drawings by Cooper Clark & Associates, dated 8/7/1980 and contract drawings by West County Wastewater Distnct. dated 6/2000. • :
TABLE 3
SUMMARY OF ANALYTICAL DATA - SOIL SAMPLES
SLUDGE DRYING BEDS- WEST COUNTY WASTE WATER DISTRICT
RICHMOND, CA
Job No. 1407.005
Pond 1 TP- Pond 1 TP. Pond 2 TP-/ Pond 4 TP.
Analyte Units [email protected] [email protected] [email protected] 2@1
TPHd* mg/kg 1,100 1,200 1,100 290
TPHmo mg/kg 2,800 3,200 2,600 2,400
TPHg) mg/kg <1.0 <1.0 <1.1 6.5
Benzene, ing/kg <5.1 <5.1 <5.3 <5.2
Toluene, mg/kg 28 5.2 <53 40
Ethylbenzene, ing/kg <5.1 <5.1 <53 9.7
Total Xylenes! ing/kg <5.1 <5.1 <5.3 69
TPHd = Total Petroleum Hydrocarbons as diesel fuel
TPHmo= Total Petroleum Hydrocarbons as motor oil
TPHg = Total Petroleum Hydrocarbons as gasoline
Detected Concentration shown in bold
* = using silca gel cleanup
ng/kg = Milligrams per kilogram
Analytical Data: 1407.005
..... -...
PLATES
October 2002
Project No. 1407.005 ...
'ABLO
RICH
PARA
500
LE EVER:
MARE AN
+
PROJECT SITE
LYN.
11300 Bauma
SLEE IST
HEL-LIMES,
COOL JUNEA 1700
50 LIKE
2302
1600 AL
= 1700
PENNSYLYENEA
HOOT. Gille
995011
G: jobdoes\1407\1407.005\drowings\41407.005.01.dag 10-09-02 10:42:09 AM syoung CHARE BLE STR Re 3000 ki
CHEVROS MACHONA HAP
DIL Lag
REFIMENLES HEHORE 1000
ONL
Soc
CHASION
NOTE
This Vicinity Mop Is Based On A Thomas Guide
Mop For San Froncisco, Alomedo And Contra NORTH
Costa Counties, California, Mop 588, Year 2000 0 2400
FEET
VICINITY MAP
Sludge Drying Bed Restoration
....Richmond, California.. ..
"PLATE T™
October 2002
Project No.1407.005
POND 14
TP-2
POND 1
- POND 2
TP
TP-2
HOND POND 7 POND. 5
-2 TP-2
POND 3
TP-2
POND 10 POND 8 POND 6
TP, 1
POND 4
EAST PONDS
C: \obdocs\1402\1407.005 \drawings\41407.005.03.0mg 10-09-02 ID: 42:21 AM Gyoung POND 12 PONO 11 - WEST PONDS POND 13
BASE MAP SOURCE:
Adapled From An Electronic Drawing Provided By
The West County Wastewater Treatment Facility,
District Project Number 920, Dated July 2000,
LEGEND:
APPROXIMATE LOCATION OF TEST PIT
TP-1 NORTH
300
SITE PLAN WITH APPROXIMATE LOCATION OF FEET
TEST PITS
Sludge Drying Bed Restoration
... PLATE 2
Richmond;, California
UNIFIED SOIL CLASSIFICATION SYSTEM (ASTM D2487-93)
MAJOR DIVISIONS GROUP NAMES
O Well-graded gravel,
Clean gravels Well-graded gravel with sand
GRAVELS less than 5%
fines
GP
MORE THAN 50% Of Silty gravel
COARRE FRACTION GM
RETAINED ON NO. 4 Gravels with Silty gravel with sand
SIEVE
more than
12% fines ayey gravi
GC ayey gravel with sar
COARSE-GRAINED SOILS More than 50% retained on the No. 200 sieve Clean sand SW Wet-graded and win gravel
less than 5%
SANDS fines Poorly graded sanc
SP Poorly graded sand with grave
MORE THAN 50% OF
COARSE FRACTION slity sanc
Sands with SM ilty band with grave
more than
12% fines Clayey sand,
SC Clayoy sand with gravel
ML
SILTS AND CLAYS
CL
gravel or sand
Liquid Limit Less than 50% Organla silt or clay, Organic silt or clay with sand or OL gravel, Sandy or gravelly organla silt or clay, Sandy - or gravelly organic silt or clay with gravel or sanc
FINE-GRAINED SOILS 50% or more passes the No. 200 sieve gravely last sil i andy or gravely eat any or MH
SILTS AND CLAYS
Grey at any san or eye, ayer
CH
Liquid Limit Greater than 50% gravel or sand
HIGHLY ORGANIC SOILS PT Peat
For definition of dual and borderline symbols, see ASTM D2487-93.
KEY TO TEST DATA AND SYMBOLS
Perm Permeabilly Shear Confining
Consolidatton Strength Pressure
Consol
- 1200* (psh)
LL Liquid Limit TxLU 2600) Unconsolidated-Undrained Triaxial Shear PI Plasticity Index TxCU 3200 (2600) Consolldated-Undralned Triaxlal Shear Gs - Speclfo Gravity TxCD 3200 (2600) Consotidated-Drained Triaxial Sheer MA - Particle Size Analysis SSCU 3200 (2600) Consolidated-Undrained Simple Shear SSCD 3200 (2600) Consolidated-Drained Simple Shear
-200 - Percent Passing No. 200 Steve Consolidated-Drained Direct Shear DS 2700 (2000)
ND Not Detected UC 470 Unconfined Compression
Tube Sample LVS 700 Laboratory Vane Shear
FUGRO SOIL CLASSIFICATION 1407-05.GPJ SCI CORP.GDT 10/15/02 Bag or Bulk Sample FV 300 Field Vane Shear - Lost Sample RFV 300
- First Groundwater TV 800 Torvane Shear
PP 400 Pocket Penetrometer
- Stabilized Groundwater
Sludge Drying Beds Restoration PLATE
Richmond, California
FUGRO WEST, INC. JOB NUMBER DATE A1
I Broadway, Sulte 200, Oakinna, Callfomla 91
: (510) 266-0181, Fax: (510) 264-0
1407.005 10/02
Octobor 2002
Project-No: 1407.005
TP-1 Estimated Top of Teat Pit:
SAMPLE DESCRIPTION
EL. 7.84' MSL
SILTY SAND (SM)
SANDY CLAY FaY, dry (dry studge)
Dark gray to black, soft, molst, hydrocarbon ador
DEPTH BELOW GROUND SURFACE (FEET)
CLAYEY SAND (SC)
Light brown to brown, moist, increasing fines with
depth
Test pit terminated at 4.5 feet below ground surface
E02.5
TP-2 SAMPLE DESCRIPTION
" SILTY SAND (SM)
Gray born to gray, dry (dry sludge)
SANDY CLAY (CL]
Dark gray to gray black, soft, moist, hydrocarbor
ador
SANDY CLAY (CL)
DEPTH BELOW GROUND SURFACE (FEET) Light brown to brown, medium stif to atif, moist G: \jabdocs\1407\1407.005\drawings\41407.005.04.dmg 10-11-02 01:52:21 PM cyoung 3 4 5
Test pit terminated at 4.5 feet below ground surface
TEST PIT LOG - POND 1
Sludge Drying Bed Restoration
..Richmond, California. ….....
......
..': PLATE ЗА
ARMIT
October 2002
-. Project-No.-1407.006
TP-1 Estimated Top of Test Pit:
SAMPLE DESCRIPTION
EL. 7.76' MSL
*SLTY SAND (SM)
Gray borwn to gray, dry (dry sludge)
SANDY CLAY (CL)
1 Dark gray to black, molst
ANDY GLAY (CL
rown to dark brown, malst ta di
DEPTH BELOW GROUND SURFACE (FEET)
Test plt terminated at 4.5 feet below ground surface
TP-2 SAMPLE DESCRIPTION
inamndisneiho sut real are
SILTY SAND (SM)
Gray borwn to gray, dry (dry sludge)
SANDY CLAY (CL)
Dark gray to black, molst, strong hydrocarbon odor
1 SANDY CLAY (CL)
Light brown to brown, moist to dry, with some gravel
2 G: \jobdocs\1407\1407.005\drowings\41407.005.D4.dwg ID-11-02 01:52:24 Pk cyoung DEPTH BELOW GROUND SURFACE (FEET) 3 ---
LEAN CLAY (CL)
Brown to dark brawn, suff, malst
4 Test pit terminated al 5.0 feet below ground surface
6 TEST PIT LOG - POND 2
Sludge Drying Bed Restoration
Richmond, California...... PLATE 3B
October 2002
-Project No. 1407:005-
TP-1 Estimated Top of Test Pit:
SAMPLE DESCRIPTION
EL. 7.55' MS.
0 SILTY SAND (SM)
Gray borwn to gray, dry (dry sludge)
SANDY CLAY (CL)
Light brown to brown, stiff, dry
LEAN CLAY (CL)
Gray to black, stiff, molat
DEPTH BELOW GROUND SURFACE (FEET)
Test pit terminated at 5.0 feet below ground surface
TP-2 SAMPLE DESCRIPTION
SILTY SAND (SM)
SAND CLAY (, dry (iry sludga)
Light brown to brown, dry
SANDY CLAY (CL)
Black, hydrocarbon odor
SILTY SAND (SM)
2 Light brown to brown
G: Vobdocs\1407\1407.005\dromings\41407.005.D4.0wg 10-11-02 01:52:25 PM cyoung DEPTH BELOW GROUND SURFACE (FEET)
LEAN CLAY (CL)
Black to gray, slift, molst to wet
4 Wet at battom of plt
Tost pit terminated at 5.0 feet below ground surface
6 TEST PIT LOG - POND 4
Sludge Drying Bed Restoration
.... Richmond, California
... ... •
PLATE 30
TWO Ba FRO
October 2002
- Project.No. 1407.005... 13950
TP-1
SAMPLE DESCRIPTION Estimated Top of Test Pit:
SILTY SAND (SM) EL. 6.21 MSL_
Gray borwn to gray, dry (dry sludge)
LEAN CLAY (CL)
Dark brown to black, stiff, moist
DEPTH BELOW GROUND SURFACE (FEET)
5 Test plt torminated at 4,5 feet below ground surface
•
SAMPLE DESCRIPTION
SILTY SAND (SM)
Gray borwn Ib gray, dry (dry sludge)
1 LEAN CLAY (CL)
Bay Mud
G: \jobdoes\1407\1407.005\drowings\41407.005.04.dwg 10-11-02 01:52:26 PM cyoung •
DEPTH BELOW GROUND SURFACE (FEET)
3 4.
Test pit terminated at 4.5 feet below ground surface
TEST PIT LOG - POND 5
Sludge Drying Bed Restoration
Richmond, California...
.. PLATE 3D
October 2002
•-Project-No. 1407,005...
TP-1 DESCRIPTION Estimaled Top of Test Pit:
SAMPLE EL. 5,73' MSL
0 SILTY SAND (SM
Gray horwn to gray, dry (dry sludge)
LEAN CLAY (CL)
Dark brown to black, molst, with gravel
LEAN CLAY (CL.)
Brown to dark brown, soft to firm, very moist
DEPTH BELOW GROUND SURFACE (FEET)
Test pit terminaled at 5.0 feet below ground surface
TP-2 SAMPLE DESCRIPTION
SILTY SAND (SM)
Gray born to gray, dry (dry sludge)
LEAN CLAY (CL)
Dark brown to black, stiff, molat
2 G: \jobdocs\1407\1407.005\drowings\A1407.005.04.dmg 10-11-02 01:52:28 PH cyoung DEPTH BELOW GROUND SURFACE (FEET) LEAN CLAY (CL) Brown to grayish black, soft to firm, moist
3 Test pit terminated at 4.5 feel below ground surface
TEST PIT LOG - POND 6
Sludge Drying Bed Restoration
....Richmond, California PLATE ЗE
October 2002
Project No. 1407.005
TP-1 Estimated Top of Test PIt
SAMPLE DESCRIPTION iL, 5.31' MSL
SILTY SAND (SM)
Gray borwn to gray, dry (dry sludge)
2 LEAN CLAY (CL)
Brown stiff to very stiff, molst
3 DEPTH BELOW GROUND SURFACE (FEET)
6 Tost pil terminated at 5.0 feet below ground surface
6 ТP-2 DESCRIPTION
SAMPLE
SILTY SAND (SM)
Gray borwn to gray, dry (dry sludge'
LEAN CLAY (CL)
Gray to black, stiff, moist
2 ---
EAN CLAY (CL
кисній G: Vobdocs\1407\1407.005\orowings\41407.005.04.dmg 10-11-02 01:52:29 PM cyoung DEPTH BELOW GROUND SURFACE (FEET) rown to red brown, moi Test pli terminated at 4.5 feet below ground surface
•
TEST PIT LOG - POND 8
Sludge Drying Bed Restoration
..... Richmond, California •• •.. PLATE 3F
October 2002
• Project-No. 1407.005...-.--
TP-1 Estimated Top of Test Pit:
SAMPLE DESCRIPTION EL. 4.91* MSL
car san to fly, dry (ir sludge)
LEAN CLAY (CL)
Dark brown to black, soft to firm, molst
2 DEPTH BELOW GROUND SURFACE (FEET)
Test pit terminated at 4,0 feet helow ground surface
•
TP-2 SAMPLE DESCRIPTION
SILTY SAND (SM)
Brown lo dark brown
LEAN CLAY (CL)
Dark brown to black, aliff, molst
C: \jobdocs\1407\1407.005 \drowings\41407.005.04.dwg 10-11-02 01:52:31 PM cyoung DEPTH BELOW GROUND SURFACE (FEET) 3 4
5 Test pit terminated at 4.0 feet below ground surface
TEST PIT LOG - POND 9
Sludge Drying Bed Restoration
_Richmond, California
....
PLATE 3G
@250 APPENDIX A
ce Curtis & Tompkins, Ltd., Analytical Laboratories, Since 1878 2323 Fifth Street, Berkeley, CA 94710, Phone (510) 486-0900, Fax (51D) 486-0532
LOAL REPORT
Prepared fore
Fugro West Tho
000 Broadway
/suite 2009
Tand, CA 91607
Date: 03-OCT-02
Lab Job Number: 160847
Project ID: 1407.005
Location: Sludge Drying Beds Rest.
This data package has been reviewed for technical correctness and completeness. Release of this data has been authorized by the Laboratory Manager of the Manager's designee, as verified by the following signatures. The results contained in this report meet all requirements of NELAC and pertain only to those samples which were submitted for analysis.
Reviewed by: AT E
Project Manager
Reviewed by:
Ope Manager
This package may be reproduced only in its entirety.
NELAP # 01107CA Page 1 of 19
Laboratory Number: 160847 Receipt Date: 09/19/02
Client: Fugro West
Project Name: Sludge Drying Beds Restoration
CASE NARRATIVE
This hardcopy data package contains sample results and batch QC results for four soil samples received from the above referenced project. The samples were received cold and intact.
Total Volatile Hydrocarbons (TVH)/BTE: The matrix spike recoveries for gasoline range organics were outside acceptance limits. The associated laboratory control sample (LCS) recoveries were acceptable, therefore, there is no affect on the quality of the sample results. No other analytical problems were encountered.
Total Extractable Hydrocarbons: The matrix spikes for analytical batch number 75410 were not analyzed. The necessary dilution of the spiked sample rendered the spike amount insignificant. The associated LCS recovery was acceptable, therefore, there is no affect on the quality of the sample results. No other analytical problems were encountered.
63 85
... and
SHIY UF GUSTODY FORM PAGE OF
ANALYSIS REQUESTED
PROJECT NAME: Siudge Drying Beds Restoration
JOB NUMBER; . 1407.005 LAB:
PROJECT CONTACT: Celess Young TURNAROUND: - Standardl.
SAMPLED BY: . REQUESTED BY: Salemn Young
TPHOEMA (9015m silica
METHOD
MATRIX • CONTAINERS PRESERVED
SAMPLING DATE Illg (8015m) BIEX (8020
LABORATORY SAMPLE
LD. NUMBER NUMBER
WATER WASTE EF H2504 HNO? MONTH DAY YEAR TIME NOTES
GOIL AIR VOA LT PINT HCL ICE
160847-001 Pond. 4 TP-2@10 XIX 021902|0|0₴ XIXI
- D02 Pand 2 TP 20015 XX 09 119102 0/310 X'X
- 00 3 xIX 019 1012111
- 004 Pond. 1 TP-1@1-D
rese vatur Correct?
habitat
CHAIN OF CUSTODY RECORD DOMMENTS & NOTE8:
RELEASED BY: (Signate) DATE / TIME RECEIVED BY: (Signatura) DATE/ TIME 9/19/02
Azers 9/19/02 |l#0
RELEASED BY: (5lgnakre) RECENED BY: (9 malms DATE/ TIME RELEASED BY: (Signature) DATE / TIME RECEIVED BY: (5/na37a) DATE I TIME SCI Subsurface Consultants, Inc.
171 - 121h Street, Quite 202, Dukland, GA 948D7
HELEASED BY: (Signature) DATE / TIME RECEIVED BY: (Signature) DATE/ TIME (810) 367-0481 - FAX: (810) 288-0137 3T38ML Diabio Bivd, Sta, 208, Lulaynite, CAS4B4S
(825) 218-7880 - (925) 288-5973
ct
Curtis & Tompkins, Lid.
Concie
Lab #: 160847 Location: Sludge Drying Beds Rest.
Client: Fugro West Inc. Prep: EPA 5030B
Project#: 1407.005
Matrix: SampLed: 09719/02
Basia: as received Received: 09/19/02
Diln Fac: 1. 000 Analyzed: 09/23/02
Batch#: 75407
Field ID: POND 4 [email protected] Lab ID: 160847-001
'ype : SAMPLE
Gasoline C7-C12 6.5 H mg/Kg 80158 |(M)
Benzene ND ug/Kg EPA B021B
Toluene 40 ug/kg EPA B021B
Ethylbenzene 9.7 • ug/Kg EPA 8021B
m, p-Xylenes 6.9 ug/Kg EPA 8021B
o-Xylene NID ug/Kg APA 180218
Trifluorotoluene (FID) 92 58-144 8015B (M)
Bronofluorobenzene (FID) 1.17 60-146 8015B (M)
Trifluorotoluene (PID) 82 67-146 EPA 8021B
Bromofluorgbenzene (PID) 86 60-1,37 EPA 8021B
Field ID: POND 2 [email protected] Lab ID: 160847-002
Type: SAMPLE
Gasoline C7-C12 ND mg/Kg 8015B (M)
Benzene ND 4g/Kg EPA 8021B
WWWH
Toluene ND ug/Kg EPA 8021B
Ethylbenzene ND ug/Kg EPA 80218
m, p-Xylenes ND 5.3 ug/Kg EPA 8021B
o-Xylene ND 3 49/Kg EPA B021B
Trifluorotoluene (FID) 92 58-144 8015B (M)
Bromofluorobenzene (FID) 1,07 60-146 8015B (M)
Trifluorotoluene (PID) 81 67-146 EPA 80218
Bromof luorobenzene (PID) 86 60-137 EPA 8021B
pattern which does not resemble standard
Ra Reporting limit Page
1,0
GC07 TVH 'A' Data File RTX 502
sample Name: 160847-00175407
EleName Page 1 of 1
: G: \GC07\DACA\266A008.raw
Method : TVABIXC
Start Time : 0.00 min End Time : 26.00 min
Stale Factor: 1.0 Plot Offset: 10 mV
POND 4 TP-201.0 Response [mV]
-0.71
1:39
-C-6
-2.95
-3.62
THR
C-7 ~4.53
U-
-TRIFLUO - -5.98
C-8 7090
-8.85
=11:7
=12.2
-12.7
BROMOF - -14.7
- = 15.2
=182
-1 7.
=134
-18.2
-18.6
~19.1
20 =18:5
=20.3
-20.8
31$
=22.8
-33:
=24.
25 -24.
-25.4
-
ct
Curtis & Tompkins, Lid
Lab #: 160847 Location: Sludge Drying Beds Rest.
Client: Fugro West Inc. Prep : EPA 5030B
Project#: 1407.005
-Matrix: soll Sampled: 09/19/02
Basis: as received Received: 09/19/02
Diln Fac: 1.000 Analyzed: 09/23/02
Batch#: 75407
ield ID: POND 1 [email protected] Lab ID: 160847-003
ype: SAMPLE
Gasoline C7-C12 ND mg/Kg 8015B (M)
Benzene ND ug/Kg EPA 8021B
4 Toluene 5.2 ug/Kg EPA 80218
MMMM
Ethylbenzene ND ug/kg EPA 8021B
ND ug/Kg EPA 8021B
to-Xylene ND 5 ,1 ug/Kg EPA 8021B
Trifluorotoluene (FID) 90 58-144 80158(M)
* Bromofluorobenzene (FID) 112 60-146 801.5B (M)
Trifluorotoluene (PID) 82 67-146 EPA 8021B
* Bromofluorobenzene (PID). 87 60-137 EPA. 8021B
Field ID: POND 1 [email protected] Lab ID: 160847-004
Type: SAMPLE
Gasoline C7-C12 ND mg/Kg 8015B (M)
→ Benzene ND ug/Kg BPA 8021B
Toluene 28 ug/Kg EPA 8021B
Ethylbenzene ND . 1 ug/Kg EPA 80218
m, P-Xylenes ND 1 ug/Kg EPA 8021,8
o-xylene ND .1 ug/Kg ERA 80218
Trifluorotoluene (FID) 90 58-144 80158 (M)
Bromofluorobenzene (FID) 111 60-146 8015B (M)
Trifluorotoluene (PID) 82 67-146 EPA 8021.3
Bromofluorobenzene (PTD) 88 60-137 EPA 8021B
Type: BLANK Lab ID: QC190426
MOUTHE
Gasoline C7-C12 ND 1.0 mg/Kg 8015B (M)
Benzene 5.0 ug/Kg EPA 8021B
Toluene ND 5.0 ug/Kg EPA 8021B
Ethylbenzene ND 5.0 ug/Kg EPA 80218
ND 5,0 ug/Kg EPA 8021B
o-Xyлene ND 5.0 u9/Ka EPA 8021B
Trifluorotoluene (FID) 91 58-144 8015B (M)
Bromofluorobenzene (FID) 107 60-146 8015B (M)
Trifluorotoluene (PID) 80 67-146 EPA 8021B
Bromofluorobenzene (PID) 85 60~137_ EPA 8021B
| I= Heavier hydrocarbons contributed to the quantitation • Y= Sample exhibite fuel pattern which does not resemble standard ND= Not Detected
Limit
Ras Reptig of
GC07 IVH 'A' Data File RTX 502
mple Name : cov/lcs, gc190427, 75407,02ws1468, 5/5000 page 1. of 1 H.eName : G: \GC07\DATA\266A002.raw він 0 2 02 0: 21 3402 09.19 2% Methad : THATXE
jart Time : 0.00 min End Time : 26.00 min tow coint : -10.66 mt High Point: : 555.70 mv ale factor: 1.0 Plot offset: -1 ml Plot Scale: 566.9 mv Gasoli Response [mV]
8 -+CB
·6:30
C-в -
=280
-3.65
-4.07
-4,50
-4.99
-5.54
TRIFLUO - ~~5.99
-8:38
nic-is
Eposal minh
OF
=18.5
-19.1
=18:4
-20.0
-20.6
=21.1
=32:7
-339
=33:4
-24.
-24.1
-35.1
ct Curtis & Tompkins, Lid.
To t Hydro
Lab #: 160847 Location: Sludge Drying Beds Rest.
*Client: Fugro West Inc. Prep: EPA 5030B
Project#: 1407.005 Analyais: 8015B (M)
Type: ICS Basis: as received
Lab ID: QC190427 Diln Fac: 1.000
Matrix: Soil Batch#: 75407
Units: mg / Kg Analyzed: 09/23/02
Gasoline C7-C12 10.00 9,681 97 78-120
LATA
Irifluorotoluene (FID) 101 58-144
107 60-146
Promo FLuorobenzene, (EXD)
7 1
ct
Curtis & Tompkins, Ltd.
Toluen
Lab #: 360847 Location: Sludge Drying Beds Rest.
Client: Fugro West Inc. Prep: EPA 5030B
Project#: 1407.005 Analysis: EPA B021B
Type: ICS Basis: as received
Lab ID: QC190428 Dila Fac: 1.000
Matrix: Soil Batch#: 75407
unjts: ug/Kg Analyzed: 09/23/02
Benzene 100.0 1.00.3 100 65-120
Toluene 100.0 97.53 98 69-120
* Ethylbenzene 100.0 93.24 93 68-1.21
M, P-Xylenes 200.0 171.7 86 70-124
go-xylene 1.00.0 97.83 98 73-121
#Trifluorotoluene (PID) 67-146
"Bromofluorobenzene (PID) 84 60-137
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1 Curtis & Tompkins. Lta.
10 atale Hydrogerbone
Lab #: 1.60847 Location: Sludge Drying Beds Reat.
Client: Fugro Weet Inc. Prep: EPA S030B
Project#: 1407.005 Analysis: 80158 (M)
Field ID: POND 2 [email protected] Diln Fac: 1.000
MSS Lab ID: 160847-002 Batch#: 75407
Matrix: Soil. Sampled: 09/19/02
Units: mg/Kg Received: 09/19/02
Bagig: as received AnaLyzed: 09/23/02
Type: MS Lab ID: QC190429
Gasoline C7-C12 0. 4066 9.709 1.393 10* 44-133
Trifluorotoluene (FID) 97 58-144
Bromofluorobenzene (FID) 104 60-146
Type: MSD Lab ID: QC190430
Gasoline C7-C12 10.64 2.100 16* 44-133 32 * 31
Trifluorotoluene (PID) 99 58-144
Bronofluorobenzene (FID) 105 60-14G
1 *= Value outside of QC limits; see narrative
RPD= Relative Percent Dilference
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Curtis & Tompkins. Lid.
Lab #: 160847 Location: Sludge Drying Beds Rest.
Client: Fugto West Inc. Prep: SHAKER TABLE
Project#: 1407.005 Anaiysis: EPA 80158 (M)
latrix: Soll'). Sampled: 09/19/02
Units: mg/Kg Received: 09/19/02
Вавід: ag received Prepared: 09/20/02
fatch#: 75410
Hield ID: POND 4 [email protected] Diln Fac: 20.00
SAMPLE Analyzed: 09/23/02
ID: 160847-001 Cleanup Method: EPA 3630C
Diegel C10-C24 990 H 20
otor. O.L.C24-C36 2,400 7,00
lexacosane
Pield ID: POND 2 [email protected] Diln Fac: 20.00
SAMPLE Analyzed: 09/23/02
ID: 160847-002 Cleanup Method: EPA 3630С
•Diesel CD.0-C24 1,100 H Y 20
Motor 011 C24-C36 2,600 99
Hexacosane DO 48-137
Pield ID: POND 1 [email protected] Diln Fac: 20.00
vpe: SAMPLE Analyzed: 09/23/02
b ID: 160847-003 Cleanup Method: ЕРА 3630С
Diegel C10-C24 1,200 H X 20
Motor 0il C24-C36 3,200 2.00
108
Lexacosane 48-137
ield ID: POND 1 [email protected] Diln Fac: 20.00
SAMPLE Analyzed: 09/23/02
ID: 160847-004 Cleanup Method: EPA 3630C
SUTEN
Diesel C10-C24 1,100 H 20
Motor 011. C24-C36 2,800 100
Нехасовале 48-137
= Heavier hydrocarbons contributed to the quantitatior
= Sample exhibits fuel pattern which does not resemble standarı : Dilúted Out
)= Not Detected
Limit
age of 5.0
Chromatogram
Sample Name: 160847-00155,75110 Page 1 of 1
: G: \GC27\CHA\2661006-RAN sate : 01/24/2002 09:33 AM
Mathod : ATEH256.МTH
Start Time : 0.01 Ilme of T: 12.83 09/23/2002 0gh Pont 1 549.11 mv m.i.n End Time : 31.91 min
Scale Factor: 0.0 Plot Offset: 13 mv
POND 4 [email protected] Response [mV]
-LEAON -0.43
N -+CB
C-10 -
C-12 -
DO.
C-16
ind ...i.
C-22
C-24
8!
=24.5
=38.3
-28.G
Chromatogram
ample Name : 160847-002sg, 75410 page 1 or i
: G: \GC17\CHA\266A007-RAW
Method : ATEH256.MTH
Start Time : 0.01 min End Time : 31.91 min High Point : 687.03 mV filcale Factor: 0.0 Plot Offset: 13 mV
PONDA TP.280.5 Response [mV]
8 g
LLL.LLL
EPA.ON
=155
N +CB 22:16
C-10
C-12
C-22
C -24
97 381
-27.5
-383
-29.4
-30.8
Chromatogram
Trample Name : 160847-003sg, 75410 Sample #: 75410 Page 1 os. 1 ELleName : G: \GC17\CHA\266A008.RAW Date: 09/24/2002 09:34 AM *Method : ATEH256,MTH
Start Time : 0.01 min End Time : 31.91 min High Point: 924.41 mV nacale Factor: 0.0 Plot Offset: 6 mV
POND I TP - 201.0 Response [mV)
L-PAOM
EtS:
+CB
C-10
C-12 -
L 1821л.
9533
C-22
3383
=387
-373
=28.0
-28.6
-29.3
=30.5
-31.6
Chromatogram
Sample Name : 260447-0049g, 75410 Sample #: 75110 Page 1 of 1 T'IleName : G: \GC17\CHA\266A005.RAW
Hathod : ATEH256.MTH
Start Time : 0.01 min End Timo : 31.91 min
D.D Plot Offset: 13
scala Factor:
POND I [email protected] Response [mV]
-0.43
-+CB
C-10 -
. •
afino
C-12
ст3-
ié naél
indim d
,-22
C -24
Time Imin mm
81 -38.8
-27,5
-28.6
-30.8
Chromatogram
ole Name : ccv, 02ws1405, dsl Sample f: 500mg/L Page 1 of 1 SeName : G: \GC15\CHB\2668002.RAW
ethod : BTEH230.MTH
hort Iime : 0.01 min End Time : 31.91 min
le Factor: 0.0 Plot Offset: 15
Dusel Response [mV]
LLLELLLIIL
=PB_ONPA.ON
C-10 -
C-12 -
C-16
C-22
C-24
cane unuyestor
-20.
-21.
EZA/] IM ILI I 11 1 -21.
-22.
-23.
-23.
-24
-25
Chromatogram
Le Name : ccv, 02w8l409, mo ample i: 500mg/ Page 1 of 1 : G: \GC15\CHA\2668003.RAW ate: 09/23/2002 12:12 E
thod : BTEH230_MTH Time of Injection: 09/23/2002 10:46 AM BEt Time : 0.01 min End Time : 31.91 min Low Point: 25.46 mv High Point: 106,12 mv de factor: 0.0 Plot Offset: 25 mV Plot Scale: 160.7 m
Motor Ol Response [mV]
+P
-
C-12 -
Pita
-M
C-22
-24
-SEA
BETS
=221
-M
ct
Curtis & Tompkins. Ltd.
Lab #: 160847 Location: Sludge Drying Beds Rest.
Client: Fugro West Inc. Prep: SHAKER TABLE
roject#: 1407.005 Ana1y815: EPA 8015B (M)
latrix: Soil Sampled: 09/19/02
Units: mg/Kg Received: 09/19/02
as received Prepared: 09/20/02
Batch#: 75410
BLANK Analyzed: 09/24/02
ID: QC190441 Cleanup Method: EPA 3630C
0 In Fac: 1.000
piesel C10-C24 ND 0.99
Motor 01l C24-C36 ND 5. 0
exacosane -137
22 1
resemble standard
ID= Not Detected
= Reporting Limit
5.0 page
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Curts & Tompkins, Lid
scable my
wab #: 160847 Location: Sludge Drying Beds Reat.
*lient: Fugro West Ina. Prep: SHAKER TABLE
Project#: 1407.005 Analysis: EPA 80158 (M)
Type: LCS Diln Fac: 1.000
wab ID: QC190442 Batch#: 75410
vatrix: Soil Prepared: 09/20/02
Unita: mg/Kg Analyzed: 09/24/02
Basis: a received
leanup Method: EPA 3630C
Diesel C10-C24 49.69 43.62 88 67-121
Hexacosane 68 48-137
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