2. Renewal. After the initial ten (10) year term, each year on the anniversary thereafter of the effective date of this Agreement (hereinafter referred to as the "renewal date"), this Agreement shall extend for an additional year unless notice of nonrenewal is mailed as provided herein. If either Owner or City desires in any year following the Initial Term not to renew the Agreement, Owner or City shall serve written notice of nonrenewal of the Agreement on the other party in advance of the first or succeeding annual renewal date of the Agreement within the timeframes set forth herein. In the event Owner does not wish to renew this Agreement, Owner shall provide City written notice at least ninety (90) days prior to the annual renewal date. In the event City does not wish to renew this Agreement, City shall provide written notice to Owner not less than sixty (60) days prior to the annual renewal date. Upon receipt by Owner of a notice of nonrenewal from City, Owner may make a written protest of the notice. City may, at any time prior to the annual renewal date of the Agreement, withdraw its notice to Owner of nonrenewal.
If either City or Owner serves notice to the other of nonrenewal in any year, the Agreement shall remain in effect for the balance of the term then remaining, either from its original execution or from the last renewal of the Agreement, whichever may apply.
3. Standards for Historical Property. During the term of this Agreement, the Historic Property shall be subject to the following conditions, requirements and restrictions:
a. Owner shall restore, preserve and maintain the characteristics of historical significance of the Historic Property. Attached hereto, marked as Exhibit "B", and incorporated herein by this reference, is a list of those minimum standards and conditions for maintenance, use and preservation of the Historic Property, which shall apply to such property throughout the term of this Agreement. If this Agreement is renewed after the Initial Term, any modifications of the standards adopted by the City of Upland in Exhibit B shall apply to the Historic Property.
b. Owner shall, where necessary, restore and rehabilitate the Historic Property according to the rules and regulations of the office of the Historic Preservation of the State Department of Parks and Recreation. Attached hereto, marked as Exhibit "C", and incorporated herein by this reference, is a list of those conditions pertaining to the restoration or rehabilitation of the Historic Property.
c. At least every five (5) years, Owner shall allow reasonable periodic examinations, by prior appointment, of the interior and exterior of the Historic Property by representatives of the County Assessor, State Department of Parks and Recreation, State Board of Historical Agreement Rev 2022 2
Equalization and City, as may be necessary to determine Owner's compliance with the terms and provisions of this Agreement.
d. Owner shall provide written notice of this Agreement to the Office of Historic Preservation within six months of execution of this Agreement.
4. Provision of Information of Compliance. Owner hereby agrees to furnish City with any and all information requested by City which may be necessary or advisable to determine compliance with the terms and provisions of this Agreement.
5. Cancellation. City, following a duly noticed public hearing as set forth in California Government Code Sections 50280, et seq., may cancel this Agreement if it determines that Owner breached any of the conditions of this Agreement or has allowed the Historic Property to deteriorate to the point that it no longer meets the standards for a qualified historic property.
City may also cancel this Agreement if it determines that Owner has failed to restore or rehabilitate the Historic Property in the manner specified in subparagraph 3(b)of this Agreement. In the event of cancellation, Owner may be subject to payment of those cancellation fees set forth in California Government Code Sections 50280, et seq.
6. Enforcement of Agreement. In lieu of and/or in addition to any provisions to cancel the Agreement as referenced herein, City may specifically enforce, or enjoin the breach of, the terms of this Agreement. In the event of a default under the provisions of this Agreement by Owner, City shall give written notice to Owner by registered or certified mail addressed to the address stated in this Agreement, and if such a violation is not corrected to the reasonable satisfaction of City within thirty (30) days thereafter, or if not corrected within such a reasonable time as may be required to cure the breach or default if said breach or default cannot be cured within thirty(30)days (provided that acts to cure the breach or default must be commenced within thirty(30)days and must thereafter be diligently pursued to completion by Owner),then City may, without further notice, declare a default under the terms of this Agreement and may bring any action necessary to specifically enforce the obligations of Owner growing out of the terms of this Agreement, apply to any court,state or federal,for injunctive relief against any violation by Owner or apply for such other relief as may be appropriate.
City does not waive any claim of default by Owner if City does not enforce or cancel this Agreement. All other remedies at law or in equity which are not otherwise provided for in this Agreement or in City's regulations governing historic properties are available to the City to pursue in the event that there is a breach of this Agreement. No waiver by City of any breach Historical Agreement Rev 2022 3
or default under this Agreement shall be deemed to be a waiver of any other subsequent breach thereof or default hereunder.
7. Binding Effect of Agreement. Owner hereby subjects the Historic Property to the covenants, reservations and restrictions as set forth in this Agreement. City and Owner hereby declare their specific intent that the covenants, reservations and restrictions as set forth herein shall be deemed covenants running with the land and shall pass to and be binding upon the Owner's successors and assigns in title or interest to the Historic Property. Each and every contract, deed or other instrument hereinafter executed, covering or conveying the Historic Property, or any portion thereof, shall conclusively be held to have been executed, delivered and accepted subject to the covenants, reservations and restrictions expressed in this Agreement regardless of whether such covenants, reservations and restrictions are set forth in such contract, deed or other instrument.
Owner hereby declares its understanding and intent that the burden of the covenants,reservations and restrictions set forth herein touch and concern the land in that Owner's legal interest in the Historic Property is rendered less valuable thereby. City and Owner hereby further declare their understanding and intent that the benefit of such covenants, reservations and restrictions touch and concern the land by enhancing and maintaining the historic characteristics and significance of the Historic Property for the benefit of the public and Owner.
8. Notice. Any notice required to be given by the terms of this Agreement shall be provided at the address of the respective parties as specified below or at any other address as may be later specified by the parties hereto.
To City: City of Upland
460 North Euclid Avenue
P.O. Box 460
Upland, California 91785
Attention: Development Services Director
To Owner: Diana Sjol
506 N. 8th Avenue
Upland CA, 91786
9. General Provisions.
a. None of the terms,provisions or conditions of this Agreement shall be deemed to create a partnership between the parties hereto and any of their heirs, successors or Historical Agreement Rev 2022 4
assigns,nor shall such terms,provisions or conditions cause them to be considered a joint venture or members of any joint enterprise.
b. Owner agrees to and shall hold City and its elected officials,officers, agents and employees harmless from liability for damage or claims for damage for personal injuries, including death, and claims for property damage which may arise from the direct or indirect use or operations of Owner or those of any contractor, subcontractor, agent, employee or other person acting on Owner's behalf which relate to the use, operation and maintenance of the Historic Property. Owner hereby agrees to and shall defend City and its elected officials, officers, agents and employees with respect to any and all actions for damages, or injuries caused by, or alleged to have been caused by, reason of Owner's activities in connection with the Historic Property. This hold harmless provision applies to all damages, injuries and claims for damages, or injuries suffered, or alleged to have been suffered,by reason of the operations referred to in this Agreement regardless of whether or not the City prepared, supplied or approved the plans, specifications or other documents for the Historic Property. c. All of the agreements, rights, covenants, reservations and restrictions contained in this Agreement shall be binding upon and shall accrue to the benefit of the parties herein, their heirs, successors, legal representatives, assigns and all persons acquiring any part or portion of the Historic Property, whether by operation of law or in any manner whatsoever.
d. In the event legal proceedings are brought by any party or parties to enforce or restrain a violation of any of the covenants,reservations or restrictions contained herein, or to determine the rights and duties of any party hereunder,the prevailing party in such proceeding may recover all reasonable attorney's fees to be fixed by the court, in addition to court costs and other relief ordered by the court.
e. In the event that any of the provisions of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, or by subsequent preemptive legislation, the validity and enforceability of the remaining provisions, or portions thereof, shall not be effected thereby.
f. This Agreement shall be construed and governed in accordance with the laws of the State of California.
Historical Agreement Rev 2022 5
10. Recordation. No later than twenty(20) days after the parties execute and enter into this Agreement, City shall cause this Agreement to be recorded in the Office of the County Recorder of the County of San Bernardino.
11. Amendments. This Agreement may be amended, in whole or in part, only by a written and recorded instrument executed by the parties hereto.
12. Exhibits. The following exhibits are attached:
Exhibit"A"Legal Description.
Exhibit"B" Improvements List.
Exhibit"C" Standards of Rehabilitation.
Historical Agreement Rev 2022 6
IN WITNESS WHEREOF, City and Owner have executed this Agreement on the day and year first written above.
CITY OF UPLAND
Dated: By:
Michael Blay, City Manager
OWNER
Dated: By:
Diana Sjol
Historical Agreement Rev 2022 7
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of
On before me,
(insert name and title of the officer)
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 (Seal}
Historical Agreement Rev 2022 8
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of )
On before me,
(insert name and title of the officer)
personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) islare subscribed to the within instrument and acknowledged to me that helshelthey executed the same in his/herftheir 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 (Seal}
Historical Agreement Rev 2022 9
EXHIBIT "A"
LEGAL DESCRIPTION
FOR
506 N. 8th Ave, Upland, CA 91786
Real Property in the City of Upland, County of San Bernardino, State of California, described as follows:
LOT 13, BLOCK 1 OF ALLEN'S SUBDIVISION OF LOT 571 OF ONTARIO COLONY LANDS, AS PER MAP RECORDED IN BOOK 16, PAGE 90 OF MAPS, RECORDS OF SAID COUNTY.
APN: 1046-212-01-0-000
Historical Agreement Rev 2022 10
EXHIBIT "B"
IMPROVEMENTS LIST
FOR
506 N. 8th Avenue, Upland, CA 91786
YEAR IMPROVEMENTS
1-2. Roof— Remove and replace original existing shingles with like for like Cedar Shingles. Including the installation of weather proofing material.
3-5. Exterior Paint — Sanding and repainting of exterior. 6-7. Porch — Removal of existing tiles and restoration of underlying concrete flooring.
8. Roof— Repair of drainpipes and shingles. Intended to finalize any repairs.
9-10. Plumbing — Replacement of galvanized water piper with new pipe system.
Historical Agreement Rev 2022 11
EXHIBIT "C"
Standards of Rehabilitation
1. Every reasonable effort shall be made to provide a compatible use for a property that requires minimal alteration of the building structure, or site and its environment, or to use a property for its originally intended purpose.
2. The distinguishing original qualities or character of a building, structure, or site and its environment shall not be destroyed. The removal or alteration of any historic material or distinctive architectural features should be avoided when possible.
3. All buildings, structures, and sites shall be recognized as products of their own time.
Alterations which have no historical basis and which seek to create an earlier appearance shall be discouraged.
4. Changes,which may have taken place in the course of time, are evidence of the history and development of a building, structure,or site and its environment. These changes may have acquired significance in their own right, and this significance shall be recognized and respected.
5. Distinctive stylistic features or examples of skilled craftsmanship, which characterize a building, structure, or site shall be treated with sensitivity.
6. Deteriorated architectural features shall be repaired rather than replaced, wherever possible. In the event replacement is necessary,the new material should match the material being replaced in composition, design, color, texture, and other visual qualities. Repair or replacement of missing architectural features should be based on accurate duplications of features, substantiated by historical, physical, or pictorial evidence rather than on conjectural designs or the availability of different architectural elements from other buildings or structures.
7. The surface cleaning of structures shall be undertaken with the gentlest means possible.
Sandblasting and other cleaning methods that will damage the historic building materials shall not be undertaken.
8. Every reasonable effort shall be made to protect and preserve archeological resources affected by, or adjacent to any acquisition, protection, stabilization, preservation, rehabilitation, restoration, or reconstruction project.
Historical Agreement Rev 2022 12
UPLAND HERITAGE
PO Box 1828 Upland,CA 91785
www.uplandheritage.org
909-981-0280
,
61.-10
',t "Preserving the Past to Enrich our Future"
January 18,2025
City of Upland
Mayor and City Council Members
460 N Euclid Avenue
Upland,CA 91786
Dear City Council,
The Mills Act has been a huge benefit to homeowners in the City of Upland since it was implemented allowing for the preservation and restoration of Upland's historic homes.In turn this enhances the Cities property values,which means higher values in the future that will bring in more tax revenue for the City.
Upland Heritage supports the Mills Act for the home located on 406 North 8th Avenue, Upland,CA 91786.
The Mills Act is a great tool to entice homeowners to improve their homes through restoration as well as their communities.Upland Heritage strongly supports the Mills Act and hopes the City will continue their support as well.We ask you to please approve this Mill Act Application.
Best Regards,
Carol Timm
President,Upland Heritage
4 or UN
`tCALIFORNIA LEVINE ACT DISCLOSURE STATEMENT
Ogt�� 4Q"
California Government Code Section 84308, commonly referred to as the "Levine Act," prohibits City Officers from participating in any action concerning a license, permit,other entitlement for use,franchise, or contract(collectively"license, permit,or contract") if they receive political contribution(s)from a party, or its agent(s), totaling more than $500 within the twelve (12) months before the proceeding, while a proceeding is pending, and for twelve (12) months following the date of a final decision in a proceeding.
The Levine Act also requires a member of the Upland City Council who has received such a contribution to disclose the contribution on the record of the proceeding and recuse themselves before the proceeding unless the violation has been properly cured.
Current Upland City Council Members are listed at:
https://www.uplandca.gov/city-council-treasurer
Parties and their Agents are responsible for accessing the link to review the names and disclosing their applicable contributions to City Officers on the record of a proceeding.
As a party to a proceeding,you are also required to provide information below about contributions made by you, your agents on behalf of you or your organization, your organization subject to the proceeding with the City, and any organization you direct or control pursuant to the aggregation rules at FPPC Reg. § 18438.5, except for uncompensated officers of a nonprofit organization. This form is to be submitted to the City of Long Beach and is a public record. If you have any questions about this form, please contact your City representative for assistance.
1. Have you or your company,or any agent/board member on behalf of you or your company/entity, made any political contributions of more than $500 to any Upland City Council Member in the 12 months preceding the date of the submission of your proposal or application,or the anticipated date of any Council action?
fYES If yes, please identify the Council Member(s): _ 1NO
2. Do you or your company/entity, or any agency on behalf of you or your company/entity, anticipate or plan to make any political contribution of more than $500 to any Upland City Council Member in the 12 months following any Council action related to your proposal or application? YES If yes, please identify the Council Member(s):
NO
Answering yes to either of the two questions above does not preclude the Upland City Council from awarding a contract or approving an application or any subsequent action. It does, however, preclude the identified Council Member(s)from participating in any actions related to your proposal or application. 1 /14/25
Date Si nature of authorized individual
Diana jol
Company/Applicant Name
(Levine Act definitions on reverse side)
LEVINE ACT DISCLOSURE STATEMENT DEFINITIONS
Term Definition Law
A proceeding to grant, deny, revoke, restrict, or modify a license, permit or other entitlement for use, that
does not solely involve purely ministerial decisions
and is:
Covered (1)Applied for by the party; FPPC Reg 18438.2(a) "proceedings" (2) Formally or informally requested by the party; or (3)A contract between the agency and the party or a
franchisee granted by the agency to the party, other
than a contract that is competitively bid, a labor
contract, or a personal employment contract.
Any person who files an application for, or is the
Party subject of, a proceeding involving a license, permit, or Gov. Code 84308(a)(1) other entitlement for use.
Any person who is not a party but who actively
supports or opposes a particular decision in a
proceeding involving a license, permit, or other
entitlement for use and who has a financial interest in Gov. Code 84308(a)(2) Participant the decision.A person actively supports or opposes a FPPC Reg 18438.4 particular decision in a proceeding if that person
lobbies in person the officers or employees of the
agency, testifies in person before the agency, or
otherwise acts to influence officers of the agency.
A person who represents a party or participant for
compensation and appears before or otherwise
Agent communicates with the governmental agency for the FPPC Reg 18438.3 purpose of influencing the pending proceeding. See
FPPC Reg 18438.3 for exceptions for certain
consultants.
A contract required by law to be awarded to the lowest
responsible bidder with a responsive bid, or, if the FPPC Reg Competitively Bid successful bidder refuses or fails to execute the 18438.2(a)(3)(A) contract, to the next lowest bidder with a responsive
bid.
A contract or agreement reached through collective
bargaining or with a representative group regarding
Labor Contract the salary, benefits, or terms and conditions under an FPPC Reg employment or retirement policy for employees or 18438.2(a)(3)(B) retirees, including a project labor agreement entered
under Public Contract Code Section 2500.
Personal A contract for employment, including the terms and Employment conditions of employment, between the agency and FPPC Reg Contract an agency employee.A contract with an independent 18438.2(a)(3)(C)-(D) contractor is NOT a personal employment contract.
�� �pl"� CITY
UPLAND
„.;
"The City of Gracious Living"
tIFOBS
1. Staff(kr°flit
DATE: February 10,2025
TO: MAYOR AND CITY COUNCIL
FROM: MICHAEL BLAY,CITY MANAGER
PREPARED BY:ROBERT D.DALQUEST,DEVELOPMENT SERVICES DIRECTOR
MELECIO PICAZO,ECONOMIC DEVELOPMENT COORDINATOR
SUBJECT: CONSIDER APPROVAL OF A FIRST AMENDMENT TO THE LEASE AGREEMENT WITH TESLA INC.FOR CITY OWNED SITE LOCATED AT THE CORNER OF 15TH STREET AND 6TH AVENUE
RECOMMENDED ACTION:
It is recommended that the City Council do the following: 1) approve the First Amendment to the Lease Agreement between the City of Upland and Tesla Inc. for a 35,000 square foot area within a City-owned site that is 4.31 acres in size located at the northwest corner of 15th Street and 6th Avenue (APN: 1045-081-40 & 55); 2) authorize the City Manager to execute the First Amendment to the Lease; and 3) determine that the First Amendment to the Lease is exempt from the California Environmental Quality Act (CEQA) pursuant to Guidelines Section 15061(B)(3) and 15311;and direct staff to file a Notice of Exemption pursuant to the California Environmental Quality Act.
GOAL STATEMENT
The proposed action will support the City's goal to enhance local government funding and protect its assets.
BACKGROUND
Tesla Inc. (Tesla) operates an automotive dealership at 1018 E. 20th Street. Tesla approached staff in 2022 and indicated that they were looking for land off-site within the vicinity of their dealership to temporarily park and store new vehicles,while they completed an expansion of their vehicle display/storage area on the vacant 3.5-acre parcel to the west of their facility on 20th Street. The subject lease was intended to be a temporary storage facility while Tesla worked and completed the 3.5-acre expansion area for permanent vehicle storage to increase capacity.
On November 17,2022,the City and Tesla Inc. entered into a Lease Agreement for parking new Tesla Vehicles on a 35,000 square foot City-owned reservoir site, located at the northwest corner of 15' Street and 6th Avenue. The reservoir site is 4.31 acres in size and contains a water tank on the western portion of the site and is vacant with no improvements on the balance of the property.
ISSUES AND ANALYSIS
Under the terms of the Lease Agreement,Tesla leased the City-owned reservoir site for$9,000 a month to park up to approximately 100 new vehicles. The Lease Agreement term was good for one year,until December 31,2023.
On September 13, 2023, Tesla delivered to the City a 30-day Notice to Terminate the Lease Agreement and to be effective October 13,2023. However,Tesla remained on the site beyond the Lease termination date, on a month-to- month basis,as Tesla needed additional time until completion of the 3.5-acre expansion area located west of the Tesla dealership.
Prior to December 2024, Tesla has since vacated the City-owned property, however, back rent is due and Tesla is willing to pay that amount which is$131,225.81. For this reason,the City and Tesla are now seeking to"retroactively" extend the term of the Lease Agreement from October 14,2023 and to expire on December 31,2024. Tesla will pay the back rent within 15 business days after the effective date of the First Amendment to the Lease Agreement. The City Attorney has reviewed the First Amendment to the Lease Agreement and is recommending approval as to the form and content.
ENVIRONMENTAL DETERMINATION
The First Amendment to the Lease is exempt from the California Environmental Quality Act(CEQA)pursuant to
State CEQA Guidelines Section 15061(b)(3), which states that CEQA does not apply where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.
The project only concerns the temporary use of the site for parking/storage of up to 100 new Tesla vehicles on a lease area of 35,000 square feet within a vacant part of a 4.31-acre City reservoir site. The project also includes grading the lease area by the City and installation of a 6-inch gravel base.The First Amendment to the Lease is also exempt under Section 15311 of the CEQA Guidelines (Accessory Structures),which exempts the construction, or replacement, of minor structures accessory to (appurtenant to) existing commercial, industrial, or institutional facilities which includes a small parking lot.
Lastly, none of the exceptions provided in Section 15300.2 of the CEQA Guidelines to the Class 11 exemption apply, as the project would not impact an environmental resource of hazardous or critical concern. There are no cumulative impacts, as the temporary parking/storage of vehicles on the 4.31-acre reservoir site would not be developed in the same place over time. There are no unusual circumstances surrounding the project site and the project would not damage resources within a state scenic highway, is not located on a hazardous waste site, and would not impact the significance of a historical resource as the site is currently within an urbanized area on a City- owned property containing a water reservoir on a portion of the site.
FISCAL IMPACTS
Tesla will pay back rent to the City in the amount of$131,225.81 within 15 business days after the effective date of the First Amendment to the Lease Agreement. This revenue will be deposited into the Water Fund.
ALTERNATIVES
Provide alternative direction to staff.
CEQA: Determine to be Exempt.
FIRST AMENDMENT TO LEASE
THIS FIRST AMENDMENT TO LEASE ("First Amendment") is entered into as of the date this First Amendment is fully executed by the parties as set forth below (the "First Amendment Effective Date"), by and between CITY OF UPLAND, a Municipality ("Lessor" or "Landlord") and TESLA, INC., a Texas corporation (formerly known as Tesla, Inc., a Delaware corporation) ("Lessee" or"Tenant"), with reference to the following facts:
A. Landlord and Tenant are parties to that certain Parking Lease dated as of November 17, 2022, as might have been amended (collectively, the "Lease"), pursuant to which Landlord leases to Tenant space containing approximately 35,000 square feet, which includes 100 full-size parking spaces within the parking area at the Property and as more particularly identified in the Lease (the "Premises").
B. On or about September 13, 2023, Tenant delivered a thirty (30) day notice to terminate the Lease (the "Termination Notice")with such termination to be effective on or about October 13, 2023 (the "Early Termination Date"), however, Tenant remained in possession of the Premises beyond the Early Termination Date.
C. Notwithstanding the Termination Notice, the Lease, by its terms would have expired on December 31, 2023 (the "Lease Termination Date"), and the parties desire to retroactively extend the term of the Lease(the"Term"), all on the following terms and conditions.
NOW, THEREFORE, in consideration of the above recitals which by this reference are incorporated herein, the mutual covenants and conditions contained herein and other valuable consideration,the receipt and sufficiency of which are hereby acknowledged,Landlord and Tenant agree as follows:
1. Extension. The Term is hereby retroactively extended for a period of approximately fourteen (14) months and eighteen (18) Days and shall expire on December 31, 2024(the"Extended Termination Date"),unless sooner terminated in accordance with the terms of the Lease. That portion of the Term commencing the day immediately following the Current Termination Date (the "Extension Date") and ending on the Extended Termination Date shall be referred to herein as the "Extended Term," and unless the context clearly provides otherwise, from and after the Extension Date,references in the Lease to the"Term"shall be deemed to include the Extended Term.
2. Rent. During the Extended Term, Tenant will pay as Rent for the Premises the following:
Monthly
Period Base Rent
October 14, 2023 —December 31, 2024 $9,000.00
Provided Tenant delivers payment of Rent in the amount of One Hundred Thirty-One Thousand Two Hundred Twenty Five Dollars and Eighty One Cents ($131,225.81) ("Back Rent") within fifteen(15)business days after the First Amendment Effective Date,no other payment shall 1 46708.00210\43139859.2
be due from Tenant for the Extended Term. Should Tenant fail to make the Back Rent payment in full within said fifteen (15) business day period, Landlord hereby reserves the right to seek recovery of the Back Rent, in addition to any and all remedies available to Landlord in law and equity.
3. Defaults. Except to those matters addressed in this First Amendment, Tenant hereby represents and warrants to Landlord that, as of the date of this First Amendment, Tenant has received no notice of any violation of its obligations under the Lease from any party and to Tenant's actual knowledge, Tenant is in full compliance with all terms, covenants and conditions of the Lease. Tenant to its actual knowledge further represents and warrants to Landlord that as of the First Amendment Effective Date, there are no breaches or defaults under the Lease by Landlord and Tenant knows of no events or circumstances which,given the passage of time,would constitute a default under the Lease by Landlord. Except to those matters addressed in this First Amendment, Landlord to its actual knowledge further represents and warrants to Landlord that as of the First Amendment Effective Date,there are no breaches or defaults under the Lease by Tenant and Landlord knows of no events or circumstances which, given the passage of time, would constitute a default under the Lease by Landlord.
4. Notices.
Tenant's address for notices (including invoices) is:
c/o Tesla, Inc.
1 Tesla Rd.
Austin, TX 78725
Attn: Legal/Lease Administration
TRT#59369
With a PDF Copy to:
leas [email protected]
5. No Further Modification. Except as set forth in this First Amendment, all of the terms and provisions of the Lease shall remain unmodified and in full force and effect, including but not limited to Tenant's obligations under Lease sections 12 and 29.
6. Miscellaneous.
(a) This First Amendment sets forth the entire agreement between the parties with respect to the matters set forth herein. There have been no additional oral or written representations or agreements.
(b) Each party hereby agrees that there are, as of the date hereof, regardless of the giving of notice and the passage of time, or both, to such party's knowledge, no defaults or breaches of the Lease on the part of the other party.
2 46708.00210\43139859.2
(c) Except as herein modified or amended,the provisions,conditions and terms of the Lease shall remain unchanged and in full force and effect. (d) In the case of any inconsistency between the provisions of the Lease and this First Amendment, the provisions of this First Amendment shall govern and control. (e) Capitalized terms used in this First Amendment shall have the same definitions as set forth in the Lease to the extent that such capitalized terms are defined therein and not redefined in this First Amendment.
(f) Tenant hereby represents to Landlord that Tenant has dealt with no broker in connection with this First Amendment. Tenant agrees to defend, indemnify and hold Landlord harmless from all claims of any brokers claiming to have represented Tenant in connection with this First Amendment. Landlord agrees to indemnify and hold Tenant harmless from all claims of any brokers claiming to have represented Landlord in connection with this First Amendment. (g) Each signatory of this First Amendment represents hereby that he or she has the authority to execute and deliver the same on behalf of the party hereto for which such signatory is acting.
(h) This First Amendment may be executed in multiple counterparts each of which is deemed an original but together constitute one and the same instrument. This First Amendment may be executed in so-called"pdf'format and each party has the right to rely upon a pdf counterpart of this First Amendment signed by the other party to the same extent as if such party had received an original counterpart.
[SIGNATURES ARE ON FOLLOWING PAGE]
3 46708.00210\43139859.2
IN WITNESS WHEREOF, Landlord and Tenant have duly executed this First Amendment as of the First Amendment Effective Date.
LANDLORD:
CITY OF UPLAND
a Municipality
By:
Print Name:
Its:
Date:
TENANT:
TESLA, INC.
a Texas corporation
By:
Print Name:
Its:
Date:
4 46708.00210\43139859.2
PARKING LEASE
This Parking Lease ("Lease") is made by and between City of Upland, a Municipality whose address is 460 N. Euclid Ave. Upland CA 91786("Landlord") and Tesla,Inc.,a Delaware corporation, whose address is 1 Tesla Road, Austin, TX, 78725 Legal/Lease Administration ("Tenant") as of the date this Lease is fully executed by the parties as of the date last set forth below ("Effective Date"). Tenant and Landlord are each referred to herein as a "Party" and collectively as the "Parties."
A. Property: The property located at 15th St. west of Campus —APN 1045-081-55- 000 (the"Property").
B. Premises. 35,000 sq.feet shown on Exhibit A,which includes One-Hundred(100) full-size parking spaces within the parking area at the Property as more particularly set forth on Exhibit A attached hereto and made a part hereof(such designated area,the"Premises").
C. Commencement Date. The date that Landlord has delivered (i) written notice to Tenant that the Initial Site Preparation, defined below, is complete and (ii) possession of the Premises to Tenant, which date is anticipated to be November 17, 2022 (the "Outside Delivery Date"). If Landlord does not provide (i) and (ii) above on or before the Outside Delivery Date, Tenant shall have the right to terminate this Lease by providing written notice thereof to Landlord, in which event this Lease shall terminate and be of no further force or effect except for those provision hereof which expressly survive the termination of this Lease.
D. Expiration Date. That date which is twelve (12) full calendar months from and after the Commencement Date (the "Expiration Date").
E. Rent: The sum of Nine Thousand Dollars and 00/100 ($9,000.00) per month Ninety Dollars and 00/100 ($90.00) per parking space. If Tenant remains in possession of the Premises after the Expiration Date, such possession by Tenant shall be deemed to be a month-to-month tenancy terminable on thirty (30) days prior written notice given at any time by either party. All provisions of this Lease shall apply to the month-to-month tenancy, provided that beginning on the first anniversary of the Commencement Date, and each year of the Term thereafter, Rent shall increase annually at the end of each 12-month period by any increase in the Consumer Price Index as determined by the U. S. Bureau of Labor Statistics for all Urban Consumers for the Riverside/San Bernardino/Ontario Metropolitan Area over the previous year. Should the CPI be discontinued, the index used for comparison shall be a comparable index as designated by the Bureau. It is recognized by both parties that the Index for any month is not published for approximately two months. Tesla shall, therefore, continue to pay the current rental paid by Tesla until such time as the new rental is calculated and,at that time, Tesla shall pay within ten(10)days of notice of the new Rent the new amount plus 1 City Lot at E 15th St.&Campus Ave
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arrearages. In no event shall Rent ever decrease below the prior year's Rent even if the CPI is negative. In such event,the Rent shall remain the same.
1. Property. Landlord, the owner of the Property, leases to Tenant and Tenant leases from Landlord the Premises. The Premises specifically excludes the building and other improvements located on the Property.
2. Term. The term of this Lease shall commence on the Commencement Date and shall terminate on the Expiration Date(the"Term").
3. Rent. Tenant shall pay Landlord the Rent as rent for the Premises. Any partial month of Rent will be prorated. Except for the first payment of Rent, which shall be paid within Ten (10) business days from the Effective Date, all Rent shall be due on the first (1st) business day of the month and shall be paid by electronic payment or wire transfer to the order of Landlord in accordance with the bank details provided by Landlord. Landlord acknowledges and agrees that Landlord (or any Landlord's successor) must create an account in Tenant's vendor portal, including completing vendor portal forms and uploading documents such as a W9, a bank document (bank issued letter on bank letterhead,bank statement, or a screenshot of bank statement)and a NDA form signed by Landlord, to the extent permitted by law, in order for Tenant to process payment to Landlord. In the event any installment of Rent is not received or postmarked on or before the seventh(7th) day of the month in which it is due after written notice from Landlord,a late payment penalty of Fifty Dollars and NO/100($50)shall be assessed and such amount shall be due and payable to Landlord with the next installment of Rent coming due under this Lease. In the event of a Chronic Delinquency (as hereinafter defined), at Landlord's sole option,Landlord shall have the right,in addition to all other remedies under this Lease and at law, to require that Rent be paid by Tenant quarterly, in advance. This provision shall not limit in any way nor be construed as a waiver of the rights and remedies of Landlord provided herein or by law in the event of delinquency. "Chronic Delinquency" shall mean failure by Tenant to pay Rent, or any other payments required to be paid by Tenant under this Lease as and when due on four(4)or more occasions during the Term.
4. Permitted Use. Tenant may exclusively use the Premises solely as a parking lot and any other purpose or purposes incidental thereto including at Tenant's reasonable discretion, parking and/or storage of cars, trucks or motorcycles and/or for the storage of Tenant's materials or equipment ("Incidental Equipment.") Without limiting the foregoing in this Section 4, Tenant shall not use, or permit the Premises, or any part thereof to be used, for any purpose other than the purpose for which the Premises are hereby leased. Tenant shall not sell or permit to be kept, used, or sold, in or about the Premises, any article that may be prohibited by the standard form of fire insurance policies. Landlord acknowledges that Tenant's use are not prohibited by the standard form of fire policies. Tenant shall not commit, or suffer to be committed, any material waste on the Premises, or any material public or private nuisance,or other act or thing that may injure,annoy,or disturb the quiet enjoyment of any occupant of neighboring properties; nor,without limiting the generality of the foregoing, shall Tenant allow the Premises to be used for any improper, unlawful, or objectionable purpose. Tenant shall not allow motor vehicles to be repaired, serviced, or fueled on the Premises. Tenant shall not place any Hazardous Materials in violation of 2 City Lot at E 15th St.&Campus Ave
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any applicable laws in the drainage system of the Premises. All use of the Premises by Tenant shall comply with applicable codes, laws, and ordinances. Tenant shall not install any physical improvements to the Property without the prior written consent of Landlord.
Tenant shall have the right in its reasonable discretion, without Landlord's consent, to maximize exterior parking stalls located on the Premises subject to applicable codes.
Tenant shall not in any event install lights and generators on the Property and Tenant shall disarm car alarms on all stored cars while they are stored on the Property.
5. Securit\ Deposit. Intentionally Deleted
6. Access to Premises. Notwithstanding Tenant's ability to use the Property at all times for purposes set forth in Section 4,Tenant's access to the Property shall be limited to between 7:00 a.m. and 6:00 p.m. Monday—Sunday, including holidays.
7. Compliance with Leual Requirements.Landlord shall at Landlord's sole cost and expense comply with all applicable laws, rules or regulations of any governmental entity relating to the Property or any improvements to the Property.Landlord represents and warrants to Tenant that, as of the date hereof: (i) it is the owner of the Property and has the right to enter into this Lease; (ii) it has obtained any and all required consents and authorizations related to this Lease (including under any superior lease and/or mortgage); (iii) Landlord has received no written notice indicating that (a) the Property is not in compliance with any applicable laws, ordinances, codes, rules, regulations and requirements (collectively, "Legal Requirements"),and/or(b)there are any zoning or title restrictions that in any way prohibit or limit the use of the Premises by Tenant for its intended use hereunder. Tenant shall at Tenant's sole cost and expense comply with all Legal Requirements relating to the Premises or any improvements to the Premises, including but not limited to, OSHA; CalOSHA; all provisions of the Americans With Disabilities Act (the "ADA"); the requirements of any federal or state labor board or commission; any direction or occupancy certificate issued by public officers;workers'and unemployment compensation laws; equal employment opportunity laws; and tax withholding laws, insofar as they actually relate to the condition, use, or occupancy of the Premises or the operation of the Premises.The judgment of any court of competent jurisdiction,or the admission of Tenant in any action or proceeding against Tenant,whether Landlord be a party or not,that Tenant has violated any Legal Requirement in the condition, use, or occupancy of the Premises, shall be conclusive of that fact as between Landlord and Tenant.
8. Construction and Alterations.Landlord shall promptly and diligently perform the work to initially prepare the site, including, without limitation, grading and placement of a 6" gravel base ("Initial Site Preparation") in accordance with all Applicable Laws (as such term is defined herein below). Tenant shall reimburse Landlord for the actual costs of the Initial Site Preparation in amount not to exceed Nineteen-Thousand Three-Hundred-Fifty Dollars ($19,350.00) upon receipt of written invoice, with supporting documentation of all payments and applicable lien waivers, from the Landlord_Notwithstanding anything to the contrary contained herein, if the Initial Site Preparation is not performed in accordance with the provisions of this paragraph above on or prior to November 17_, 2022, Tenant shall have the right to terminate this Lease by providing written notice thereof to Landlord, in which event this Lease shall terminate and be of no further force 3 City Lot at E 15th St.&Campus Ave
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or effect except for those provision hereof which expressly survive the termination of this Lease.
9. Utilities. Tenant agrees to arrange for and pay the charges for all Tenant-related utility services provided or used in or at the Premises during the Term,including connection fees, upgrades, switchgear or any other required infrastructure. Tenant shall pay directly to the utility company the cost of installation of any and all such Tenant-related utility services and shall arrange to have the utility service separately metered. Landlord shall not be responsible for any damages suffered by Tenant in connection with the quality, quantity or interruption of utility service, unless the cause of the disruption or damage was the Landlord's gross negligence or intentional misconduct.
10. Maintenance. Tenant shall be responsible for maintaining the Premises (including repair and replacement of any Incidental Equipment,as necessary) at its sole cost. Tenant shall keep the Premises in good condition and repair. Landlord shall have no liability for damage to Tenant's Incidental Equipment, if any,unless caused by Landlord's negligence or intentional misconduct.
11. Removal. Tenant shall, at its sole cost, remove any Incidental Equipment promptly, and in no event longer than forty five(45)days after Lease expiration or earlier termination of this Lease, and restore the Premises to a similar condition as of the Commencement Date , subject to reasonable wear and tear.
12. Indemnification bG Tenant. Unless caused by Landlord's gross negligence or willful misconduct, Tenant shall indemnify and defend Landlord and hold Landlord harmless from all losses and liabilities, including court costs and reasonable attorneys' fees, on account of or arising out of or alleged to have arisen out of any third party claim directly related to (1) any breach or nonperformance by Tenant of any representation, warranty, covenant or obligation of Tenant contained in this Lease; (2) any bodily injury, death and/or damage to property occurring in or resulting from the use of the Premises and/or Incidental Equipment by Tenant or Tenant's respective agents, employees or contractors (collectively,the"Tenant Parties");(3)any bodily injury,death and/or damage to property that is incident to, arises out of,or caused by Tenant's operations in the Premises; and(4) any act or omission of Tenant or any Tenant Parties. As used in this Section 12,the term "Landlord" shall include Landlord and its officers, directors, partners, members, managers, , , employees, property managers, agents and attorneys. To the extent such claim arises during the Term,the obligations of this Section 12 shall survive the expiration or earlier termination of this Lease.
13. Indemnification b\ Landlord (Intentionally deleted.)
14. Insurance. Tenant hereby covenants and agrees that, prior to any entry on the Premises, and in any event, on or before the Commencement Date, and until expiration or termination of the Term, Tenant will maintain or self-insure, at its sole cost:
A. Commercial General Liability Insurance. Commercial general liability insurance, for bodily injury, or property damage in or about the Premises 4 City Lot at E 15th St.&Campus Ave
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or in compliance with Section F below maintain the equivalent level of self-insurance with a combined liability limit of One Million Dollars ($1,000,000.00)per occurrence,with a general aggregate of Three Million Dollars ($3,000,000.00), and which insurance shall include coverage for liability assumed under this Lease as an "insured contract" for the performance of Tenant's indemnity obligations as set forth in Section.
Landlord, and if requested in writing by Landlord)Landlord's Lender and Landlord's management company shall be included as an additional insured on the policy in respect to liabilities assumed by Tenant under this Lease.
B. Workers' Compensation. Tenant will maintain worker's compensation insurance in accordance with state law. This requirement may be waived if Tenant is a qualified self-insured in the state where the Premises are located or work is performed.
C. Business Automobile Liability Insurance. Tenant shall during the Term, at its sole cost and expense,procure and maintain or self-insure for business automobile liability insurance in the amounts required by legal requirements with respect to vehicles of Tenant in or about the Premises..
D. Form of Policies and Additional Re !uirements. The insurance requirements set forth above are independent of Tenant's waiver, indemnification, and other obligations under this Lease and shall not be construed or interpreted in any way to restrict, limit or modify Tenant's waiver, indemnification and other obligations or to in any way limit Tenant's liability under this Lease. In addition to the requirements above, the insurance shall be maintained with insurance carriers authorized to write policies in California with a Best Insurance Reports rating of"A-"or better or through a formal self-insurance mechanism that has either (a) a Best Insurance Reports rating of "A-" or better; or (b) a financial size category of"VI" or higher, provided, that if such self-insurance program does not meet either (a) or (b), then Tenant's use of self-insurance for the coverages herein shall be subject to Landlord's approval, not to be unreasonably withheld, conditioned, or delayed. . Without limiting in any way, and subject to, Paragraph F below, upon the execution of this Agreement and upon reasonable request by Landlord, Tenant shall deliver to Landlord a certificate evidencing all policies procured by Tenant in compliance with Tenant's obligations under this Lease. Tenant or its insurance company, if applicable, shall provide Landlord with thirty (30) days'prior written notice if any coverage hereunder will be canceled(or 10 days'notice with respect to cancellation due to non-payment of premiums).
E. Waiver of Subrogation. Notwithstanding anything in this Agreement to the contrary, each party agrees to waive and shall cause their respective property insurance carriers (to the extent there is a third party insurer) to waive any right of subrogation against the other and such party's 5 City Lot at E 15th St.&Campus Ave
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indemnitees in connection with any loss or damage to the Property or the Premises as applicable and any contents thereof. If one party prohibits waiver of subrogation,then each party's waiver shall become null and void as each waiver is given in consideration for the other.
F. Self-Insurance. So long as Tenant continues to be the tenant,or an Affiliate of the Tenant or the then Tenant hereunder, and has a tangible net worth equal to or greater than $100,000,000, as reasonably determined using sound accounting principles, Tenant may self-insure (self-assume for property) for the insurance required under this Lease. Tenant's obligations and liabilities shall be the same as those that would otherwise exist if Tenant had purchased and maintained the policy or policies of insurance that are otherwise required under the terms of this Agreement.
G. Landlord's Property Insurance. Landlord shall maintain insurance on the Property and other real property improvements related to the Property covering such property on an"All Risk" basis to the extent of one hundred percent(100%) of full replacement value.
H. Landlord's Commercial General Liabilit\ Insurance. Landlord, at its sole cost, shall maintain Commercial General Liability Insurance with a limit of liability in the amount of One Million Dollars ($1,000,000) per occurrence or per claim and Three Million Dollars ($3,000,000) in aggregate. These limits can be met through a combination of primary and excess policies of insurance. Tenant shall be included as an additional insured, in respect to liabilities assumed by Landlord under this Lease.
15. Security. Tenant hereby acknowledges that Landlord is not responsible for providing security for the benefit of Tenant and that Tenant has sole responsibility for enacting any and all security measures that Tenant shall deem appropriate for the Premises,at Tenant's discretion. Tenant shall not be liable for or required to implement any security matters related to any areas outside of the Premises.
16. Casualr,: Condemnation. Tenant may immediately terminate this Lease upon 14 days' written notice if any portion of the Premises is taken for any public or quasi-public use or if the Property is damaged to the extent that Tenant is prevented from accessing the Premises or is prevented from using more than twenty five percent(25%)of the Premises.
If at any time during the Lease,the Property is destroyed in whole or in part,not in excess of twenty five percent(25%), by a casualty, not the fault of Landlord, Tenant, at its own cost and expense, shall repair and restore the damage and all proceeds from the insurance required to be maintained by Tenant shall be made available to Tenant in connection with such repair and restoration. Tenant's obligation for restoration described in this Section shall exist whether or not funds are available from insurance proceeds or are self-insured by Tenant. Rent shall be appropriately abated and prorated during any period of partial destruction or taking.
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17. Limitation on Liabili! : Notwithstanding anything herein to the contrary, the liability of Landlord under this Lease shall be limited and, accordingly, Tenant's sole source of satisfaction of such liability shall be limited to Landlord's interest in the Property, including rents and proceeds and any insurance proceeds, and Tenant shall not seek to obtain payment from Landlord or any person comprising Landlord or from any assets of Landlord other than those assets described herein. The limitation of this Section 17 shall not apply to or limit any injunctive or other equitable, declaratory or other forms of relief to which Tenant may be entitled (notwithstanding that such actions are in personam in nature). Notwithstanding anything to the contrary set forth herein, neither Party shall be liable to the other Party for any consequential, indirect or punitive damages, including, without limitation, loss of rent or loss of profit.
18. Default: Each of the following shall constitute an"Event of Default"under this Lease:
A. Breach: The failure by Tenant to(i)make any payment of rent or any other payment required to be made hereunder within,five(5)business days after written notice from the other party that the same is due; or the failure of either party to(ii)perform or observe any material term or condition of this Agreement and such failure continues for a period of thirty(30) days after receipt of written notice thereof from the other Party, provided, however, that if the nature of such default is such that it cannot reasonably be cured within such thirty (30) day period and the defaulting Party commences to cure within the thirty (30) day period and proceeds with diligence and continuity, then such Party shall have additional time to cure as is reasonably required.
B. Bankruptcy; Insolvency: The appointment of a receiver or trustee to take possession of all or substantially all of the assets of Tenant located at the Premises if possession is not restored to Tenant within sixty (60) days; or a general assignment by Tenant for the benefit of creditors; or any action or proceeding is commenced by or against Tenant under any insolvency or bankruptcy act, or under any other statute or regulation having as its purpose the protection of creditors and, in the case of actions filed against Tenant, is not discharged within sixty (60) days.
19. Remedies. Landlord and Tenant acknowledge and agree that each Party shall have all remedies available at law or in equity if an Event of Default by the other Party has occurred and is continuing. In addition, if an Event of Default by Tenant has occurred and is continuing,then Landlord,may: (a) continue this Agreement in effect by not terminating Tenant's right to possession of said Premises and thereby be entitled to enforce all Landlord's rights and remedies under this Agreement; or (b) bring an action to recover and regain possession of said Premises in the manner provided by the laws of eviction of the state where the Premises are located then in effect. 7 City Lot at E 15th St.&Campus Ave TESL F-1
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In addition to any other remedies available to Landlord under this Lease, at law or in equity, Landlord shall have the option to terminate this Lease, provided that Landlord shall send Tenant a 2"' written notice prior to terminating this Lease and if Tenant fails to commence to cure the Event of Default within fifteen(15)days of the 2nd written notice, then Landlord may terminate this Agreement. In the event that Landlord shall elect to so terminate this Lease, pursuant to Section 1951.2 of the California Civil Code, then Landlord may recover from Tenant: (i) the worth at the time of award of any unpaid rent which had been earned at the time of such termination;plus (ii)the worth at the time of the award of the amount by which the unpaid rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided;plus(iii)the worth at the time of award of the amount by which the unpaid rent for the balance of the Primary Term (or the balance of an Extension Term) after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus (iv) any other amount necessary to compensate Landlord for all the detriment proximately caused by a Tenant's Default which in the ordinary course of things,would be likely to result therefrom. As used in this Section 19,the"worth at the time of award"is computed by allowing interest at the Interest Rate (defined below). As used in this Section 19, the "worth at the time of award" is computed by discounting such amount at the discount rate of the Federal Reserve Bank of San Francisco at the time of award plus one percent(1%).
Landlord shall also have the remedy described in California Civil Code Section 1951.4 (Landlord may continue lease in effect after lessee's breach and abandonment and recover rent as it becomes due, if Tenant has right to sublease or assign, subject only to reasonable limitations). In the event of a Tenant Default, in addition to any other remedies available to Landlord under this Lease, at law or in equity, Landlord shall have the right to continue this Lease in full force and effect, whether or not Tenant shall have abandoned the Premises. In the event Landlord elects to continue this Lease in full force and effect pursuant to this Section, then Landlord shall be entitled to enforce all of its rights and remedies under this Lease, including the right to recover rent as it becomes due.
All rights,options and remedies of Landlord contained in this Section and elsewhere in this Lease shall be construed and held to be cumulative, and no one of them shall be exclusive of the other, and Landlord shall have the right to pursue any one or all of such remedies or any other remedy or relief which may be provided by law or in equity,whether or not stated in this Lease. Nothing in this Section shall be deemed to limit or otherwise affect Tenant's indemnification of Landlord pursuant to any provision of this Lease.
20. Exclusions. Tenant has disclosed that it will assume the risk of damage to its personal property and trade fixtures, and Landlord acknowledges and accepts such assumption.
Tenant, as a material part of the consideration to Landlord and as part of its obligations hereunder, assumes all risk of damage to any Incidental Equipment, and Tenant expressly releases Landlord and waives all claims in respect thereof against Landlord, except for such claims that are caused by the negligence or willful misconduct of Landlord and its 8 City Lot at E 15th St.&Campus Ave
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authorized representatives or as otherwise provided for herein. Notwithstanding anything herein to the contrary, each Party expressly releases the other from any claims for, speculative,indirect,consequential or punitive damages,including any lost sales or profits of the other Party.
21. Notices. All notices required by or related to this Lease shall be in writing and shall be sent to the Parties at the email addresses indicated below. Notices shall be deemed delivered upon receipt of the email by recipient.
I To Landlord: To Tenant:
Name:Michael Blay [email protected]
Tesla,Inc.
Address:460 N.Euclid Ave 901 Page Ave.
Upland,CA 91786 Fremont,CA 94538
Attn: tesla.com.
Email:[email protected] TRT#59369
Phone:909-931-4100
22. Governin2 Law. This Lease shall be construed and enforced in accordance with the laws of the State in which the Property is located.
23. Limitation on Liability. Notwithstanding anything to the contrary set forth herein,neither Party shall be liable to the other Party for any consequential, indirect or punitive damages, and Landlord shall not be responsible to Tenant for loss of rent or loss of profit.
24. Signage. Subject to applicable laws, Tenant may erect signs on the Premises, subject to Landlord's written consent, not to be unreasonably withheld, delayed or conditioned.
25. Brokers: Each Party represents to the other Party that it has not dealt with any broker and each Party hereby agrees to indemnify and hold the other Party harmless from all losses and liabilities, including court costs and reasonable attorneys' fees, arising out of any claims for commissions or fees related to any broker, finder or similar person with whom the indemnifying Party has dealt, or purportedly has dealt, in connection with this Agreement.
26.Prevailin!,:Wanes.To the extent the Infrastructure or Incidental Equipment installed by Tenant may be considered a"public work," as defined in Labor Code§ 1720,et. seq.,Tenant shall comply with the state prevailing wage law, California Labor Code §§ 1720 et seq. and 8 CCR§ 16000 et seq. for any "public work" (as that term is defined in the statutes) performed pursuant to this Agreement. For purposes of compliance with prevailing wage law, Tenant shall comply with provisions applicable to an awarding body. Compliance with state prevailing wage law includes,without limitation,payment of at least prevailing rates as determined by the Director of Industrial Relations, overtime and working hour requirements, apprenticeship obligations,payroll record-keeping requirements, and other obligations as required by law.
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27. Taxes. Tenant understands and acknowledges that the Landlord's grant of non-exclusive use may be subject to property taxation and that Tenant may be subject to the payment of possessory interest tax levied on the grant of non-exclusive use pursuant to California Revenue and Taxation Code Section 107.6. Tenant shall pay without abatement, deduction, or offset any possessory interest taxes levied on or assessed against the Premises and the Incidental Equipment which are directly and solely attributable to Tenant's use of the Premises, whether belonging, owned or chargeable against the City.
Tenant shall make all such payments directly to the charging authority prior to delinquency and before any fine, interest, or penalty becomes due or is imposed for Tenant's non-payment. Notwithstanding the foregoing, Tenant shall, at its sole cost and expense, have the right to challenge the assessment. Tenant shall provide Landlord with proof of payment of such tax.
28. Public Records Act. Tenant acknowledges Landlord is subject to the California Public Records Act(Gov.Code, Section 6250,et.seq.). If Landlord receives a request for records related to information obtained from Tenant pursuant to this Lease,Landlord,to the extent permissible under applicable law, agrees to provide Tenant with written notice of such request within seventy-two (72) hours of its receipt of the records request. Tenant shall then have the time period specified in Landlord's notice to determine whether it considers any of the information confidential proprietary information and whether it will take legal action to prevent disclosure of the requested information. Tenant acknowledges a request for records under the California Public Records Act will require prompt response from Tenant given Landlord's obligation to respond to such request within ten (10) days of its receipt of such request for records. Absent a timely response, Landlord shall release all of the requested records. Landlord shall have no monetary liability whatsoever to Tenant for release of information pursuant to a request under the California Public Records Act or any subpoena; nor shall Landlord be obligated to defend against any challenge related to a California Public Records Act request or a subpoena for records that Tenant asserts are confidential. Tenant further agrees to indemnify, hold Landlord harmless from and against any and all claims,causes of action,damages,and judgments,as well as reasonable attorney fees and actual costs, resulting from a challenge related to a records request or subpoena for records that Tenant asserts are confidential. Tenant's indemnity obligations under this Section 28 shall survive the Termination Date.
29. Environmental Matters.
A. Tenant shall comply at all times during the Term with all applicable Environmental Laws relating to Hazardous Materials on the Premises.
Tenant shall not bring and shall use commercially reasonable efforts to prevent any of the Tenant Parties from bringing any Hazardous Materials onto the Property in violation of Applicable Laws other than those used customarily in Tenant's business operations and in all events in the quantities and in the manner prescribed by applicable Environmental Laws.
Tenant agrees that it will indemnify and hold Landlord harmless for any and all costs, liabilities, investigations, damages and expenses, including any remediation costs or cleanup or corrective action expenses, associated with environmental contamination to the extent introduced by Tenant 10 City Lot at E 15th St.&Campus Ave
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Parties. Tenant agrees that it is responsible for remediating environmental contamination to the extent introduced by Tenant Parties and required by the applicable government entity, but only to the extent required by Environmental Law.
B.Landlord Termination Option.If a Hazardous Materials violation occurs during the Term and is caused by a third party, Landlord may, at Landlord's option, either (i) investigate and remediate such Hazardous Substance Condition, if required, as soon as reasonably possible at Landlord's expense,in which event this Lease shall continue in full force and effect, or (ii) if the estimated cost to remediate such condition exceeds fifty thousand dollars ($50,000), give written notice to Tenant of the estimate of the cost of remediation (the "Remediation Notice") and Landlord's willingness to proceed with remediation on a 50/50 sharing basis with Tenant for all costs to remediate, provided however, if Tenant does not elect to contribute to the costs of remediation within thirty (30)days receipt of the Remediation Notice,as described above,Landlord or Tenant shall each have the right to terminate this Agreement upon sixty(60)days following the date of the Remediation Notice. Should Tenant elect to contribute to the remediation costs,Tenant shall provide Landlord with said funds or satisfactory assurance thereof within thirty(30) days following such commitment. Upon such commitment to remediate between the Parties, this Lease shall continue in full force and effect, and Landlord shall proceed to make such remediation as soon as reasonably possible after the required funds are available.
C. Definitions.The following definitions shall be used in this Section 29. "Environmental Law" means any federal, state or local law pertaining to land use, air, soil, surface water, groundwater (including the protection, cleanup, removal, remediation, or damage thereof), public or employee health or safety or any other environmental matter, including, but not limited to,the following: (a)Clean Air Act(42 U.S.C. § 7401,et seq.); (b) Clean Water Act (33 U.S.C. § 1252, et seq.); (c) Resource Conservation and Recovery Act (42 U S.C. § 6901, et seq.); (d) Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601, et seq.); (e) Safe Drinking Water Act(42 U.S.C. § 300f, et seq.); (f) Toxic Substances Control Act(15 U.S.C. § 2601, et seq.); (g)Endangered Species Act(16 U.S.C. § 1531,et seq.);(h)Occupational Safety and Health Act (29 U.S.C. § 651, et seq.); (i) Emergency Planning and Community Right-To-Know Act (42 U.S.C. § 11001, et. seq.); and (j) any other applicable laws or regulations for the protection of the environment,human health or safety or regulating Hazardous Materials,or Hazardous Material Activities.
"Hazardous Materials" means (a) any petroleum, crude oil,natural gas, or any fraction, product or derivative thereof, radioactive materials, asbestos in any form that is friable; (b) any chemicals, materials, substances or wastes that are defined as or included in the definition of hazardous 11 City Lot at E 15th St.&Campus Ave
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substances, hazardous wastes, hazardous materials, extremely hazardous substances,toxic substances, pollutants, contaminants or words of similar import under any Environmental Law;and(c)any other chemical,material, substance, waste or exposure that is limited or regulated by any governmental authority having jurisdiction over the Premises. "Hazardous Materials Activity" means the handling, transportation, transfer, recycling, storage, use, treatment, manufacture, generation, investigation, removal, remediation, release, exposure of others to, sale or distribution of any Hazardous Material or any product containing a Hazardous Material, and any consulting, management, administrative, monitoring or testing services relating to any of the foregoing.
30. Sale or Transfer. In the event of a sale or transfer of all or a portion of Landlord's interest in the Property or Premises while this Lease is in effect, Tenant's rights shall be conveyed with the Property or Premises and Landlord warrants that any transferee shall be bound by all terms and conditions of this Lease, and shall obtain any necessary documents to confirm such assignment.
31. Subordination. Subject to Section 7 above,this Lease is subject to and subordinate to all ground or superior leases and to all mortgages which may now or hereafter affect such leases or the real property of which the Premises are a part and to all renewals, modifications,consolidations,replacements and extensions of any such ground or superior leases and mortgages;provided that Tenant's rights under this Lease shall not be disturbed by such subordination so long as no Event of Default by Tenant exists. This Section 31 shall be self-operative and no further instrument of subordination or non-disturbance shall be required by any ground or superior lessor or by any mortgagee, affecting any lease or the Property.
32. Force Majeure: If either Party's performance of its obligations under this Lease is delayed by Force Majeure, then such Party's time of performance will be extended by a corresponding number of days, provided that Force Majeure shall not excuse timely payments when due under this Agreement.As used in this Lease, "Force Majeure"means an unforeseeable act, event, condition or requirement beyond such party's reasonable control, including, without limitation, labor disputes, governmental restrictions, natural disasters,fire,flood,inclement weather,pandemic,disease or other outbreak of infectious disease or any other public health crisis, inclusive of quarantine, shelter order or similar restrictions on employees or travel, declaration of national, regional or local state of emergency, explosion, embargoes, war, terrorism, civil disturbance or other similar events.Notwithstanding the forgoing, in no way shall the occurrence of a Force Majeure excuse the payment of Rent.
33 Entire Agreement. Each of Landlord and Tenant acknowledges and agrees that this Lease has been read and understood,represents the entire agreement and understanding of the Parties with respect to the subject matter herein, and supersedes all prior agreements, 12 City Lot at E 15th St.&Campus Ave
Upland,CA[TRT 59369]
communications, or understandings,whether oral or written,of the Parties with respect to the subject matter herein.
34. Successors and Assigns. This Lease shall be binding upon, and inure, to the benefit of, the Parties and their respective permitted successors and assigns. Tenant shall not assign this Agreement voluntarily or by operation of law,or any right hereunder,nor sublet the Premises or any part thereof,without the prior written consent of Landlord,which shall not be unreasonably withheld, conditioned or delayed; provided that the foregoing prohibition shall not limit Tenant's ability to transfer this Agreement to tenant's Affiliate. "Affiliate"of a Party is an entity that controls,is controlled by or is under common control with that Party, where "control" means possessing, directly or indirectly, the power to direct or cause the direction of the management,policies or operations of an entity,through ownership of voting securities, by contract or otherwise. Any attempted or purported assignment or delegation of any of the rights of obligations by Tenant without the prior written consent of Landlord shall be void and of no force and effect.
35. No Third-Party Beneficiary. This Agreement and every provision herein are for the exclusive benefit of Tenant and Landlord and not for the benefit of any other party. There will be no incidental or other beneficiaries of any of Tenant's or Landlord's obligations under this Agreement.
36. Attorneys' Fees. In the event of a conflict or dispute between the Parties related to this Agreement,the Parties agree to first meet to discuss in good faith a resolution to such conflict or dispute or a cure the Event of Default without the use of attorneys,whether in- house or outside counsel, in order to quickly resolve the conflict or dispute and avoid attorney fees. If the Parties are unable to amicably resolve the conflict or dispute on their own, and if a lawsuit or other action of any nature is then instituted in connection with such controversy,then it is agreed that the prevailing Party shall be entitled to reasonable and documented attorney's fees and costs.
37. Cit. Municipal Powers. Landlord is entering this lease in its proprietary capacity and not in its regulatory or governmental capacity. Nothing in this Lease shall be construed as restraining, impairing or restricting the City of Upland in its regulatory capacity, or granting any rights upon the Tenant with respect to the use,occupancy or operation of the Premises in a manner inconsistent with Law. This Lease does not grant any development rights upon the Tenant with respect to the Premises and any such development shall be subject to all applicable provisions of the Upland City Code.
38. Execution: Counterparts. This Lease may be executed in any number of counterparts with the same effect as if the Parties had signed the same document. In place of the transmittal of an original document, such executed counterpart may be transmitted to the other Party by portable document format (PDF) or other electronic signature and such PDF or electronic document shall have the full force and effect of an original document.
All fully-executed counterparts,whether original documents, PDF, electronic documents or a combination thereof, shall be construed together and shall constitute one and the same Lease.
[SIGNATURE PAGE FOLLOWS]
City Lot at E 15th St.&Campus Ave 13
Upland,CA[TRT 59369] T� ��L r"
IN WITNESS WHEREOF, each Party hereto has caused this Lease to be executed by its authorized representative as of the date shown below.
LANDLORD: TENANT:
City of Upland, Tesla,Inc.,
a Municipality a Delaware corporation
By: By: g . /'ri-(/'
Name: Mi ael Blav Name: Troy R.Jones
Title: C/i Mana er Title: VP,North America Sales and Service -7
Date: ! /—i / - 2- a- Date: November 17,2022
Signature Page
City Lot at E 15th St.&Campus Ave
Upland,CA[TRT 59369] T 5 L F
EXHIBIT A
The Premises
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Lease Area Attachment 1
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' CALIFORNIA LEVINE ACT DISCLOSURE STATEMENT
�9LIFOR�t�
California Government Code Section 84308, commonly referred to as the "Levine Act," prohibits City Officers from participating in any action concerning a license, permit,other entitlement for use,franchise, or contract(collectively"license, permit,or contract") if they receive political contribution(s)from a party, or its agent(s), totaling more than $500 within the twelve (12) months before the proceeding, while a proceeding is pending, and for twelve (12) months following the date of a final decision in a proceeding.
The Levine Act also requires a member of the Upland City Council who has received such a contribution to disclose the contribution on the record of the proceeding and recuse themselves before the proceeding unless the violation has been properly cured.
Current Upland City Council Members are listed at:
https://www.uplandca.gov/city-council-treasurer
Parties and their Agents are responsible for accessing the link to review the names and disclosing their applicable contributions to City Officers on the record of a proceeding.
As a party to a proceeding, you are also required to provide information below about contributions made by you, your agents on behalf of you or your organization, your organization subject to the proceeding with the City, and any organization you direct or control pursuant to the aggregation rules at FPPC Reg. § 18438.5, except for uncompensated officers of a nonprofit organization. This form is to be submitted to the City of Upland and is a public record. If you have any questions about this form, please contact your City representative for assistance.
1. Have you or your company,or any agent/board member on behalf of you or your company/entity, made any political contributions of more than $500 to any Upland City Council Member in the 12 months preceding the date of the submission of your proposal or application,or the anticipated date of any Council action?
YES If yes, please identify the Council Member(s):
� NO
2. Do you or your company/entity, or any agency on behalf of you or your company/entity, anticipate or plan to make any political contribution of more than $500 to any Upland City Council Member in the 12 months following any Council action related to your proposal or application? YES If yes, please identify the Council Member(s):_
I/ NO
Answering yes to either of the two questions above does not preclude the Upland City Council from awarding a contract or approving an application or any subsequent action. It does, however, preclude the identified Council Member(s)from participating in any actions related to your proposal or application. 02/04/2025 Noe(Ge k/f-kpafr ck
Date Signature of authorized individual
Tesla,Inc.
Company/Applicant Name
(Levine Act definitions on reverse side)