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Syar Industries, Inc.
U-08-09/RP-08-01 Staff Report
Uti l ities
The project is connected to City of Vallejo water thoug h the quarry does not uti lize the connection. Nonpotable water comes from an agricultural well, the sediment ponds on-site, the quarry pit retention pond and a lake on the adjacent golf course property (through an ag reement with the City of Vallejo) . Drinking water is supplied by bottled water.
The operation util izes a septic system and portable restrooms. The maintenance shop at the north end of the parcel is the only building with permanent plumbing fixtures. The plumbing fixtures discharge to a holding tank which requires routine maintenance/removal of the waste accumulation in the tank. The tank is pumped twice per year. There are seven portable toilets in use throug hout the property to augment the use of the permanent toilet faci lities. The portable toilets are serviced by United Site Services.
There are connections to PG&E for natural gas and electricity. The quarry participates in PG&E programs to reduce energy during peak hours, which includes the Base Interruptible Program and .the Demand Building Program.
Hazardous Materials
There are a number of potentially hazardous materials and waste stored at the project site. Some of these materials include quantities of motor oil, machine lubricants, and solvent. The hazardous materials are stored at various locations throughout the site including the fuel island, scalper plant, hot plant maintenance shop, drum plant concrete plant and AC plant. Per the Environmental Health Division of the Department of Resource Management, a "Soil Prevention Control and Countermeasure Plan" has been approved for the existing project. This plan describes the safety procedures followed by the appl icant as well as the procedure for response and notification in case a spill occurs. A Hazardous Materials Business Plan which contains a complete inventory of hazardous materials is also on fi le with the Environmental Health Division .
The explosives that are used as part of the rock removal process consists of ammonium nitrate fuel oil (ANFO). The ANFO is not stored on-site but is transported to the project site via a Department of Transportation approved and placarded truck by an explosives dealer prior to a blasting event.
Hours of Operation
Current hours of operation are based on demand. The regular hours of operation are Monday th ru Friday from 7:00 am to 10:00 pm and Saturday from 7:00 am to 4:30 pm (sales only), with reduced hours during the winter. Aggregate processing intermittently occurs up to 7 days a week 24 hours a day during emergency and high demand situations. Work on transportation infrastructure projects for Caltrans and other government agencies often takes place at nig ht, to avoid the traffic impacts that would result from daytime construction. According to Syar Industries, their energy saving contracts with PG&E req uires them to process during off-peak hours due to the high energy demand for PG&E in hot summer months .
Weekend hours are sometimes necessary to maintain project schedules particularly in the fall when rainy season is approaching. In addition, large scale disasters, such as widespread flooding, earthquakes or landslides may create short-term extraordinary market demand for agg regate products which can only be satisfied by extended operational hours.
Extraction and Sales Quantities
Per the applicant, sales from 2004 to 2008 were between 2.0 and 3.4 million tons of material per year which averaged to 2.97 million tons of material (incl udes agg regate, asphalt, overburden and recycled products). Approximately 75% of gross extraction materials produce construction grade agg reg ate with the remaining 25% consisting of waste materials (overburden) which is either stored on the project site or sold as fi ll material for projects.
DocuSign Envelope ID: 350D47B3-4F04-4083-853A-325D20545454 DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Syar Industries, Inc.
U-08-09/RP-08-01 Staff Report
Mining Method
Agg regate materials are extracted primarily by mechanical excavation equipment. Prior to mining within an undisturbed area, topsoil is stri pped to an average depth of 18 inches and stockpiled on the site for future use during reclamation. Overburden encountered during mining is also removed in order to reach the mineral deposit below. The overburden is sold as fi ll, stored in the quarry pit, or stockpiled on the site to be used for final slope configuration during reclamation activities. Next, a rock drill is broug ht to the work area and a matrix of holes is dril led. A blasting cap is placed in each hole, explosives are placed above the blasting cap, and the upper portion of each hole is capped with granular material. The explosives are controlled electronically or through a time fusing system so that the charge in each hole is detonated milliseconds apart from that in other holes in the matrix. The energy of the blast is directed into the rock causing it to fracture. Once the rock has been fractured, it can be harvested using mechanical excavators. As work progresses, the working terrace is lowered, and 25-foot wide benches are cut into the slope at 50-foot intervals to create a stable slope, intercept falling rock, and to provide controlled slope drainage. The extraction continues outward from the uppermost bench and downward until a prescribed depth is reached. Overall slope ratios average 0.5:1 gradient, while the slopes between benches are nearly vertical. A water truck is used to wet work areas and haul roads for dust control.
Fractured rock is collected by loaders and loaded into large-capacity, off-road haul trucks or conveyors and transported to the main crusher at the rock plant, except for some material which is taken directly by the loader to a scalper where oversized rocks are diverted to a temporary stockpile. After the rock is crushed, it is screened by size and conveyed to storage piles. Some of the processed rock is also stockpiled at the asphalt paving materials and ready-mix concrete batch plants where it is fed into respective plants according to the desired mix.
On-Site Processing
On-site processing activities include aggregate processing , recycled material processing (includes crushing and blending with other materials to make recycled asphalt, aggregate or concrete products), and the manufacture of asphalt paving materials and ready-mix concrete. Raw materials are stockpiled adjacent to each processing unit.
Rock processing typically begins with the freshly excavated rock being brought to a primary crusher.
Large sized rock, usually larger than six inches, is separated for uses such as rip-rap (for armor shorelines, bridge abutments, etc.) or gabion rock (rocks used to fi ll cages , boxes, cyl inders for road building , etc.). The remaining rock is transported to the primary jaw crusher and secondary cone crusher where it is crushed. After crushing, the rock is conveyed to a series of screens where it is separated by size and then conveyed to separate stockpiles accord ing to size specifications. A water spray system with jets at transfer units on the conveyor systems is used to suppress dust during rock processing activities . Some of the rock, depending on the specification needed, is washed. in a satld screw to remove fine sediments. The fine sediments are conveyed in a water slurry to settl ing ponds located at the northwest edge of the quarry site. Recycle processing is similar to rock processing , except that all materials are crushed and screened using a separate plant.
Two asphaltic concrete manufacturing plants and a Portland cement concrete batch plant are located at the Lake Herman Quarry. Rock from the mining operation is the primary component in the final, manufactured products from these plants and is stockpiled at each plant. Other components of the products are imported into the site by truck, including asphalt oil, Portland cement, sand, and various other materials and additives.
Asphalt paving materials are manufactured by mixing rock, sand and fine sediments together with asphalt oil which is trucked to the site and stored in tanks at the plant. The rock and sand are first DocuSign Envelope ID: 350D47B3-4F04-4083-853A-325D20545454 DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Syar Industries, Inc.
U-08-09/RP-08-01 Staff Report
heated in a revolving drum to drive out moisture and then the asphalt oil is added. Dust is removed during the drying process and is trapped in an enclosed vacuum system known as a bag house. The trapped dust is then piped into a water slurry from the bag house to settl ing ponds located at the northwest edge of the quarry site. The hot paving material is conveyed from the pug-mill or drum to either a truck or a silo and then loaded from the silo into customer trucks.
Ready-mix concrete is manufactured by mixing rock and sand together with Portland cement and water.
Sand and Portland cement and some rock are trucked to the site and stored in silos. The rock, sand, and cement are loaded from the plant into ready-mix concrete trucks which are fitted with a revolvi ng drum. Water and additives are then added according to mix specifications.
Lighting
During the summer months, processing and extraction may occur at night. Occasionally processing is done at night in the winter months during emergency situations. There are approximately 38 outdoor lighting fixtures throughout the quarry. Lighting at the driveway, ready mix area and fuel island are photo cell activated. The yard plant lights are manually operated and are turned on by the operator on as asneeded basis. A majority of the light fixtures are directional, meaning they direct light towards the ground and not skyward . The quarry also has portable lig ht plants that are used throughout the processing area on as-needed basis. When portable lights are used during extraction they are directed toward the rock face.
Stormwater Runoff and Water Qual ity
Stormwater discharges from industrial sites are regulated by the Federal Clean Water Act by the California State Water Resources Control Board throug h a General Industrial Storm Water Permit. A Notice of Intent was fi led for the Lake Herman Quarry in order to obtain authorization for storm water discharges.
There is an existing Lake Herman Quarry Storm Water Pol lution Prevention Plan (SWPPP). The plan was developed to describe the sites' stormwater drainage system and the potential pollutants in stormwater. The plan outl ines Best management Practices used to control stormwater pol lutants and to establish a monitoring plan. The SWPPP addresses specific actions and activities at the site to minimize stormwater pol lutants from entering the stormwater drainage system at the site and from being discharged to Blue Rock Springs Creek to the northwest and Sulphur Springs Creek to the southeast.
This Plan is reviewed and updated annually as needed by Syar.
Street Sweeping
A road sweeper is used several times per day to clean up spill and loose materials tracked on Lake Herman road. Spill prevention measures include leaving freeboard on trucks and covering certain loads.
VII. Lake Herman Quarry Proposed Expansion Project
In Apri l 2008, Syar Industries submitted a use permit application to expand the quarry operation and to extend the operations beyond the 20 14 permit expiration. Because there were multiple use permits associated with all the operations at the site, staff combined all the existing use permits with the new expansion project so that there is now a new all-inclusive use permit. This is intended to al leviate any confusion in the future with the older permit numbers and approvals for both staff and Syar.
It should be noted that since the application was orig inally submitted in 2008, the project description has since been scaled back by Syar Industries. The proposed expansion project is described below:
DocuSign Envelope ID: 350D47B3-4F04-4083-853A-325D20545454 DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
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Syar Industries, Inc.
U-08-09/RP-08-01 Staff Report
Project Description
The appl icant has applied for a 35-year use permit (U-08-09) to:
1. Continue to al low surface mining and reclamation activities for aggregate processing , aggregate product manufacturing and sales of 3.0 mill ion tons per year at the existing Lake Herman Quarry for an additional 35 years commencing at the time if issuance of the Use Permit and approval of a new Mining and Reclamation Plan.
2. Expand the active quarry pit from 11 3 acres to 21 1 acres.
3. Increase the depth of the existing quarry pit by 200 feet from 200 feet above mean sea level (msl) to 0 msl; and
4. Change the al lowable hours of operation.
Proposed On-site Facil ities
The types of on-site faci lities would remain the same as identified and described above in Current Operations portion of the staff report. The number of employees would remain the same. The existing facilities, including the agg regate processing equipment would not be expanded. However, some existing faci lities would be modified with new equipment or technology to meet market demand. The existing equipment that would be modified includes:
1. Operation of recycled asphalt pavement (RAP) handling equipment at the asphalt concrete batch plant. Installation and operation of RAP handl ing equipment at the asphalt concreted drum mix plant. The RAP equipment includes dual hoppers, transfer conveyor belt, screen conveyor belt, vibrating screen, feed conveyor belt, holding hopper, and pug mill feed conveyor. This equipment would allow for a certain percentage of virgin aggregate currently used in the asphalt mix to be replaced with recycle mater. The recycled asphalt from existing onsite stockpiles would be used to make this product.
2. The existing 80-ton silo would be replaced with two 120-ton silos.
3. A three-bin aggregate mixing system would be added to the agg regate processing faci lities.
Over time, as existing equipment ages , it would be replaced with newer equipment and new technologies.
Storage of overburden would continue as described in Current Operations above. Al l existing haul roads on the site would continue to be used and maintained.
Proposed Hours of Operation
The regular hours of operation are Monday throug h Friday from 7:00 am to 10:00 pm and Saturday from 7: 00 am to 4:30 pm (sales only) , with hours reduced during the winter months. Aggregate processing occurs outside the regular hours of operation approximately 60 days per year during emergency or high demand situation and asphalt plant operations occur outside the regular hours of operation approximately 90 days per year. Projects for Caltrans and other government agencies often occur at nig ht to avoid traffic impacts that may be caused during daylight hours.
The proposed changes to the hours of operation are as follows:
Regular Aggregate Processing Operation Hours
Construction Season - Monday thru Saturday, 6:00 am to 10:30 pm DocuSign Envelope ID: 350D47B3-4F04-4083-853A-325D20545454 DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Syar Industries, Inc.
U-08-09/RP-08-01 Staff Report
Off Season - Monday thru Friday, 6:00 am to 10:30 pm
Regular Aggregate Mining Operation Hours
Construction Season - Monday thru Saturday, 6:00 am to 10:30 pm Off Season - Monday thru Friday, 6:00 am to 2:30 pm
Construction season is generally from April - October and off-season is generally considered November thru March. Aggregate processing and sales would continue to operate outside the regular hours of operation approximately 60 days per year, and the asphalt plant operations approximately 90 days per year, depending on market conditions and customer requirements.
Extraction and Sales Quantities
There would be no increase in the average annual sales which would remain the same as the existing ·
condition at 3.0 mi llion tons per year. The 3. 0 mi llion tons would include rock products as well as asphalt paving materials, ready-mix concrete, overburden for fi ll material and recycled asphalt and concrete.
Mining Method
There are no changes proposed to the mining methods that are described in the Current Operations section above. However, the maximum mining depth would change from 200 feet above msl level to 0 feet above msl. A 75' wide access road would be established at 450 feet above msl to provide primary access to the perimeter of the extraction area. The access road would be constructed such that stormwater originating from the road surface would be conveyed to an inboard drainage ditch that would be parallel to the roadway. The drainage ditch would col lect runoff and convey it into the expanding quarry pit. The road location would change as the quarry pit expands, and the proper grading would need to be maintained to eliminate the potential of stormwater being conveyed off-site. Other temporary access roads at various elevations and ramps between benches would be established and removed as needed as part of the ongoing mine operations.
On-site Processing
In general, on-site processing activities wi ll remain the same as those described in the Current Operations section above. Thoug h , as the quarry pit expands over time, mobile equipment could take different routes between the quarry pit and the processing area. Also, the location of the processing equipment could shift within the boundaries of the quarry expansion area.
Lighting
Lighting would remain the same as described under Current Operations. No new lig hting source is being proposed. Night time lighting may remain on for longer periods of time to accommodate nig ht-time hours of operation.
Stormwater Runoff and Water Quality
Stormwater runoff and water qual ity would be managed in the same manner as the existing operations.
There wi ll continue to be yearly reviews and updates to the Hazardous Materials Business Plan and the Industrial Storm Water Pollution Prevention Plan.
Street Sweeping
No changes are being proposed. Street sweeping would continue in the same manner as described under Current Operations.
Bridge Replacement
There is a di lapidated bridge across Sulphur Springs Creek that exists to the southeast of the project site off Sky Val ley Road. The bridge is about 80' long and consists of a wood plank deck, steel joists and DocuSign Envelope ID: 350D47B3-4F04-4083-853A-325D20545454 DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Syar Industries, Inc.
U-08-09/RP-08-01 Staff Report
steel and wood supports. The bridge wi ll be replaced as part of this project in order to allow for an emergency access to the back side (northeast) of the quarry in event of a wildfire. Some of the bridge supports would remain and 14 new 24-inch reinforced concrete piers would be added. The new piers would be located above the Ordinary High Water (OHW) mark. Four additional abutments wo uld be constructed, which also would be located above the OHW. The wood deck, which is attached to metal piping Uoists) would be removed and replaced with two railroad flat cars welded together. The existing pilings would remain in place. Rock slope protection is proposed on both sides of the creek bank for approximately 2, 100 square feet of which a portion would be below the OHW mark. Construction of the replacement bridge would occur during the summer after the permit is issued and would last approximately nine weeks. (DEIR Figure 2.4 - Sulphur Creek Bridge Replacement Conceptual Plan for additional details)
Off-Site Improvements
Improvements to Lake Herman Road are being proposed as part of the new use permit. Improvements would occur along an approximately 2,280-foot segment from the Solano CountyNal lejo City limit line to several hundred feet east of the Lake Herman Quarry Entrance in accordance with plans prepared by Solano County in association with Syar in 2003 and revised plans in 20 14. Improvements include enhancing the pavement structural section (except no concrete reinforcement structure crossing Lake Herman Road at the quarry entrance) , lane widen ing, addition of paved shoulders, addition of a left turn lane into the quarry entrance for eastbound truck traffic, a merge lane for westbound trucks leaving the quarry, and a transition section on the east side of the quarry entrance. Much of the increased paving that would result from the improvements would occur on the southwest side of Lake Herman Road and would increase by as much as 22 feet. Improvements on the northeast side would be limited to the entrance and approach to the entrance. The existing road varies in width from 23 to 47 feet. After installation of the improvements, the width would vary between about 39 and 69 feet. These improvements would be completed within three years after issuance of the Use Permit. Construction is expected to take approximately six months.
VIII. DISCUSSION AND ANALYSIS
The Department of Resource Management staff has reviewed the project for consistency with the Solano County General Plan, the Solano County Zoning Regulations, the Surface Mining and Reclamation Act (SMARA) , and the California Environmental Qual ity Act (CEQA).
General Plan & Zoning Consistency
General Plan - The property is designated Ag riculture with a Resource Conservation Overlay by the Solano County General Plan. An Agriculture land use desig nation provides areas for the practice of agriculture as the primary use, including areas that contribute significantly to the local ag ricultural economy and al lows for secondary uses that support the economic viability of ag riculture. A Resource Conversation Overlay identifies and protects areas of the County with special resource management needs . The California Surface Mining and Reclamation Act of 1975 (SMARA) requires that all jurisdictions incorporate mapped mineral resources designations approved by the State Mining and Geology Board within their General Plans. The Lake Herman Quarry area is deSig nated an MRZ-2 Mineral Resource Zone, which is described as an area where adequate information indicates that significant mineral deposits are present, or where it is judged that a high likelihood for their presence exists. The expansion and continued mining operation at the Lake Herman Quarry site, as proposed, complies with the Solano County General Plan.
Zoning -The property is zot;led A-20, Exclusive Ag ricultural (20 acre minimum), which allows surface mining with a Use Permit, according to Table 28-21 A in Section 28.21 (Agricultural Districts) and Section DocuSign Envelope ID: 350D47B3-4F04-4083-853A-325D20545454 DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Syar Industries, Inc.
U-08-09/RP-08-01 Staff Report
28.78.20(A) General Requirements for Infrastructure Uses of the Solano County Zoning Reg ulations.
The applicant has applied for a use permit to extend and expand the mining operation. As proposed, the project complies with Solano County Zoning Regulations.
Surface Mining and Reclamation Act (SMARA)
The Lake Herman Quarry is part of the Sulphur Springs Mountain mineral resource that has been designated by the State of California as an Area of Regional Significance, pursuant to the State Surface Mining and Reclamation Act (SMARA) of 1975. Area of Regional Significance means an area designated by the State Mining and Geology Board, pursuant to public Resource Code section 2790, which is known to contain a deposit of minerals, the extraction of which is judged to be of prime importance in meeting future needs for minerals in a particular region of the state.
Reclamation as defined in the State Surface Mining and Reclamation Act (SMARA) consists of a combination of land treatments intended to minimize water degradation , air pollution, damage to aquatic or wi ldl ife habitat, and erosion. SMARA states that the reclamation process may include backfilling, grading, re-soiling , revegetation, soil compaction and 'stabilization . Revegetation , an important part of most mined-land reclamation plans, can provide for erosion and sediment control, dust control, slope stabil ity, aesthetics, crop production, or a combination of these purposes.
Since there is an existing mining operation at the site, there is an existing, approved Reclamation Plan for the property. The applicant has submitted an Amended Reclamation Plan to address the expansion of the mining operation. The Reclamation Plan was originally submitted and reviewed by the State Division of Mines and Geology, Mined Lands Reclamation Program. The complete Mining and Reclamation Plan was distributed in earl ier correspondence to the Planning Commsion.
In summary, reclamation of the quarry site wi ll be done in phases so that portions of the property will be undergoing reclamation as mining operations move to other areas of the quarry. Final rec;lamation will take place at the end of the 35-:-year permit and will include removing all Of the equipment on the site, grading any remaining aggregate stockpiles, fill ing in sediment ponds, dewatering the pit area, installing necessary drainage systems, and seeding graded areas to control erosion. Slopes on the quarry will be benched, resoiled and revegetated. The final use of the area will be open space. The Reclamation Plan includes a revegetation monitoring program for five . years after final reclamation to ensure that weeds are controlled and that plant materials are growing successfully. .
Included in the Reclamation Plan as Appendix C is the Financial Assurance Cost Estimat� (FACE).
SMARA requires ·surface mine operators to obtain County approval of financial assurances to ensure that if the operator abandons the mine prior to reclamation; the County wi ll have the necessary funds to reclaim the mined lands. Financial Assurance Cost Estimates are submitted annually by the operator for review and approval by the County. The 2014 FACE is currently under review and wi ll be approved by staff at a later date. A condition of approval addressing the updated FACE is included in the condition of approval for the project. Until then, the current surety bond of $1,409,563. 17 will remain in effect.
The proposed Reclamation Plan, as conditioned in this staff report, is consistent with SMARA and Chapter 29 of the Solano County Code.
OTHER REVIEW AND COMMENTS
The application for expansion was sent to State and local agencies for review and comment. No comments were received .
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Syar Industries, Inc.
U-08-09/RP-08-01 Staff Report
The application was reviewed by other Divisions with the Department of Resource Management and their comments are as follows:
The Environmental Health Services Division reviewed the application and recommended conditions of approval to the use permit which require annual slope stabil ity inspections of stockpiles and finished slopes to prevent adverse geological conditions. Also, conditions of approval addressing the requirements of a Hazardous Materials Business Plan and compliance with the State of California Department of Public Health, Division of Drinking Water.
The Public Works Engineering Division reviewed the application and recommended conditions of approval relating to road improvements required along Lake Herman Road near the quarry entrance.
Road improvements were a requirement of the previous use permit approved in 2001 . Per the 2001 permit, the road improvements were to be triggered when Syar Industries began using the property to the south of Lake Herman Road for storage of overburden. With the current appl ication, this parcel wi ll no longer be used for overburden storage. Discussions were held between Syar Industries and Public Works Engineering as to what type of road improvements would be required with this current application for expansion and extension. The previously approved road improvement plans have been redesigned to avoid existing util ities. The plans have been agreed to by both Syar Industries and the County and conditions of approval are included below to reflect the redesig ned road improvements.
The Building Division reviewed the application and has conditioned the permit to require a building permit for the installation of any new structures.
IX. ENVIRONMENTAL IMPACT REPORT/DETERMINATION
The County of Solano, as Lead Agency, through its consultant GHD, Inc. prepared a Draft EIR (DEIR) for the proposed Project. The EIR examines all of the potentially significant environmental effects of the project, and alternative and/or mitigation measures to reduce or avoid those significant impacts. The purpose of an EIR is not to recommend either approval or denial of a project, but to disclose objective information so that informed decisions can be made.
The Draft EIR was publ ished for a 45-day public review and comment period that began on Ju ly 19, 201 3 and closed on September 4, 20 13. A Notice of Completion was filed on July 19, 20 13 with the State Clearing house, which then circulated the document to responsible and interested agencies. Additional copies were distributed to selected agencies , organizations and individuals who had earlier requested a copy. A Final EIR (FEIR) was prepared and distributed to the Planning Commission and commenting agencies on November 14, 20 14, in advance of the minimum required 10-days prior to the schedu led certification date on December 4, 20 14. The FEIR incorporates the DEIR by reference and includes the comment letters received during the public review of the DEIR and responses to those comments, as well as additional references used in preparation of the FEIR. The Planning Commission must certify the EIR as a complete, accurate, and objective analysis prior to taking action on the proposed use permit.
Potential environmental impacts are classified into one of three major categories: sig nificant impacts that would remain sig nificant even with mitigation; significant impacts that could be mitigated to a level of less than sig nificant; and less than significant impacts that would require no mitigation. A complete discussion of each impact and associated mitigation is provided in the appropriate Chapters of the DEI R and as supplemented in the FEIR. The final mitigation measures are contained in Exhibit C (Mitigation and Monitoring Plan).
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Syar Industries, Inc.
U-08-09/RP-08-01 Staff Report
Potential environmental impacts and mitigation measures, when necessary, for the Syar project are summarized in Table 1-2 of Chapter 1 (I ntroduction and Summary) of the DEIR. For each significant impact, the table includes a summary of the mitigation measure(s) and the level of significance before and after mitigation. A brief summary of the Table 1-2 is provided below. As stated above, a complete discussion of each impact and associated mitigation is provided in the appropriate Chapters of the DEIR, and as supplemented in the FEIR. For the Syar project, the EIR concludes as follows:
Significant Impacts after Mitigation
There were no areas of significant impact after mitigation or areas where mitigation was not available.
Significant Impacts that could be Mitigated to a Less-Than-Significant Level Significant and potentially significant impacts that could be mitigated to a less-than-significant level would occur in the areas of Air Quality (AQ-2), Biology (BI0-1 -3,-5) , Cultural Resources (CR-1 -3), Geology and Soils (GEO-2-5), Greenhouse Gases and Energy Use (CG-2), Hydrology and Water Quality (HWQ-1 , 4- 5), Transportation (TR-4-5).
Less than Significant Impacts
Less than significant impacts that would not require mitigation are identified for Aesthetics, Air Quality, Biology, Geology and Soils, Greenhouse Gases and Energy Use (GG-1 ), Hazardous Materials (HAZ-1 - 6) , Hydrology and Water Quality (HWQ-2-3,-6), Land Use (LU-1), Noise (NO-1-4), Public Services, Recreation, and Util ities (PS-1 -2), Transportation (TR-1 -2).
Cumulative Impacts
CEQA requires the analysis of the "cumulative impacts" of a project when existing or planned projects would produce impacts in a particular impact category, and where the project under review would contribute to these impacts. In the case of the Syar project, no cumulative impacts were identified.
Alternatives
Chapter 5 of the DEIR analyzes alternatives of the Project. As mentioned earlier in this report, the Project has been substantially revised from the project that was described in the original application. There were three primary changes in the project: the north section of the project area was found to contain a number of sensitive habitats, such as habitat for the Callippe Si lverspot Butterfly, and the applicant requested that the sensitive area, approximately 82 acres, be excluded from the mining area. Secondly, the elimination of the overburden site across Lake Herman Road, and thirdly, the elimination of the increase in saleable aggregate from 4.0 mi llion tons to the existing 3.0 mi llion tons.
These project changes el iminated potential biological resources, aesthetics, air quality, hydrology, greenhouse gases, and transportation impacts all of which have been avoided by the current proposed project.
Alternatives Evaluated Included:
Alternative 1 - No Project Alternative (as required by CEQA) Under the No Project Alternative, operation of the quarry would continue until expiration of the use permit and reclamation would begin. However, the demand for aggregate would remain the same. Without the quarry, local construction projects would need to find an alternative source of aggreg ate product. The next closest source of supply would be a quarry in Napa or a quarry in Contra Costa County. However, the permitted capacity of these two quarries combined could not accommodate demand that is currently supplied by the Lake Herman Quarry. Therefore, the No Project Alternative would increase vehicle miles traveled, which would result in more air pollution and greenhouse gas emissions, and shift traffic impacts to other areas.
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Syar Industries , Inc.
U-08-09/RP-08-01 Staff Report
Alternative 2 - Reduced Biological Impacts
This would be the same Project, except that biological resources along the southern border of the project site would be avoided. Mining and processing would continue in the same manner and the pit would be expanded as proposed, however; a 300-foot exclusion buffer would be establ ished along the southern border to avoid sensitive wetlands and grasslands. The Draft EIR concluded that Alternative 2 was the Environmentally Superior Alternative because it would have fewer impacts to biolog ical resources than the Project. However, none of Project's impacts are complete avoided under Alternative 2, and the mitigation proposed for implementation of the Project would also apply to Alternative 2.
The Draft EIR identifies the Project as the environmentally preferred alternative, as a means of satisfying the project objectives as stated while minimizing potential environmental impacts.
Comments Received on the Draft EIR
A Notice of Completion was filed on July 19, 201 3 with the State Clearinghouse, which then circulated the document to responsible and interested agencies. No comments were received from any State agency in regards to the Draft EIR.
All the comment letters received are located in the Final EIR along with a detailed response to each comment. Below is a brief summary of some of the comments received:
The City of Benicia req uested a clarification on extraction and hours of operation and also had questions regarding visual impacts. The City of Vallejo had comments regarding Greenhouse Gas Emissions, need for Health Risk Assessment and Transportation concerns. The Tri-City and County Cooperative Planning Group had questions regarding possible impacts to nearby hiking trails. Comment letters from members of the public included concerns about groundwater, air quality, dust, and noise.
As found in the Final EIR, the emission data was clarified as shown in Appendix A of the Final EIR.
Additional groundwater studies were conducted and concluded that there would be no impacts to groundwater. As requested, additional noise data was included as shown in Appendix C. Mitigation measures and conditions of approval address hours of operation, noise and street sweeping for dust control and hiking trails.
Mitigation and Monitoring Plan
A Mitigation and Monitoring Plan has been prepared for adoption by the Planning Commission in compliance with the requirements of Public Resources Code Section 21081.6. A Mitigation and Monitoring Plan is required in order to ensure the implementation of those mitigation measures recommended in the EIR that are being imposed on the project by Solano County as Conditio ns of Approval for the required permits. An updated Mitigation and Monitoring Plan is provided as Exhibit C.
The Mitigation Monitoring Plan references the Catraio Ranch Management Plan under the Monitoring/Reporting Action column. Syar submitted a copy of the plan to staff and has been working with U.S. Fish and Wildlife Service and U.S. Army Corps of Engineers on the plan. This plan establishes a conservation easement of 106 acres on the Catraio Ranch property which is owned by Syar and currently used for grazing activities. The conservation easement would set aside land in perpetuity to compensate for the impacts to the Callippe Silverspot Butterfly and the California Red-Legged Frog.
X. CEQA FINDINGS
Findings pursuant to the Cal ifornia Environmental Qual ity Act in Support o f t h e Adoption of the Lake Herman Quarry Expansion can be found in Attachment 1 of Exhibit A.
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Syar Industries, Inc.
U-08-09/RP-08-01 Staff Report
XI . FIN DINGS FOR USE PERMIT APPROVAL AN D RECLAMATION PLAN
APP ROVAL
Based on the discussion above, staff recommends that the Planning Commission make the following findings in regard to this project:
1. The establishment, maintenance or operation of a use or building appl ied for are in conformity t o t h e General Plan for the County with regard to traffic circulation, population densities and distribution, and other aspects of the General Plan considered by the Zoning Administrator or Planning Commission to be pertinent.
As discussed under General Plan and Zoning Consistency in the Discussion and Analysis section of the staff report, the establishment, maintenance and operation of the proposed project is consistent with all pertinent goals, pol icies and programs of the Solano County General Plan .
2. Adequate uti lities, access roads, drainage and other necessary facilities have been or are being provided. Adequate facil ities wi ll be provided.
The project site is currently served by Lake Herman Road and Columbus Parkway.
Improvements to Lake Herman Road and the quarry entrance are conditioned as part of this project. Drainage wi ll be accommodated by the existing drainage facilities such as the ponds and basins. Electrical u
,
tilities are currently atthe site. No changes are proposed to the existing septic and restroom faci lities and the there is an existing bottled water program for Syar employees.
3. The appl icant exhibits proof that such use will not, under the circumstances of the particular case, constitute a nuisance or be detrimental to the health, safety, peace, morals, comfort or general welfare of persons residing or working in or passing through the neigh borhood as such proposed use, or be detrimental or injurious to property and improvements in the neighborhood or t o t h e general welfare of the County; provided that if any proposed building or use is necessary fo r the public health, safety or general welfare, the finding shall be to that effect.
The applicant has shown evidence to support making this mandatory finding. The project presents insignificant environmental impacts and the Resource Management Department has recommended the adoption of an Environmental Impact Report (EIR) for the project. The project has been designed and conditioned to resolve concerns identified during the preparation of the EIR regarding aesthetics, agricultural resources, air quality, biological resources , cultural resources, geology and soils, greenhouse gases, hazardous materials, hydrology and water quality, land use, population and housing , mineral resources, noise, public services , uti lities and recreation and transportation.
4. The proposed Reclamation Plan, as amended by the appl icant and proposed conditions of approval is consistent with the requirements of the Surface Mining and Reclamation Act of 1975 (SMARA) and Chapter 29 of the Solano County Code. The Reclamation Plan provides for the reclamation of disturbed lands, prevention of adverse effects, and protection of the public health and safety.
5. A copy of the application, Reclamation Plan and other documents submitted by the appl icant was submitted to the Office of Mine Reclamation (OMR) and the comments submitted have been considered by the County in the review of this project.
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Syar Industries, Inc.
U-08-09/RP-08-01 Staff Report
6. The proposed use is compatible with surrounding land uses and will not conflict with the long term open space land use potential of the project site.
7. The use will not have a negative effect on neighboring properties or pose a threat to health or safety.
8. The project is in conformance with the Solano County General Plan and provides for returning the proposed mine area to open space.
9. A surety bond for $1 ,409,563.1 7 (as may be adjusted consistent with the requirements of SMARA) is necessary to comply with the financial assurance requirements of SMARA and to guarantee completion o f t h e Reclamation Plan.
XI I. CONCLUSION
Based on the appl ication materials submitted by the applicant, the information contained in the EIR including the mitig ation measures incorporated into the project as conditions of approval, the Reclamation Plan , and as discussed in this report, staff recommends that the Planning Commission find that the project is consistent with the appl icable provisions of the General Plan and Zoning Regulations, and all other applicable plans, policies, ordinances and regulations.
The Use Permit Findings, Reclamation Plan Findings, CEQA Findings, as attached to this staff report, describe the potentially significant impacts to a level that is less than significant, the means of mitigating such impacts to a level less than significant, as the reasons for recommending approval of the project.
ATTACHMENTS:
EXHIBIT A Resolution Certifying EIR ..................................... ............ ............. ............. .......... 19 . EXHIBIT B Resolution Approving U-08-09 and RP-08-01 ................. ............... ........... .......... 21 Attachment 1 - CEQA Findings ...... . ... . ....... . ...................... ..... ............... ..... . ........ 25 Attachment 2 - Conditions of Approval. . ................................. ................... .......... 31 EXH IBIT C Mitigation and Monitoring Plan . . . ........ . ................ . ..... . ......... .. ............. . .... . .... . ...... 47 The following documents were previously distributed and can also be found on the County Website at www.solanocounty.com; click on Departments, Resource Management. Documents; Environmental Impact Reports & Negative Declarations:
Final EIR
Draft EI R
Mining and Reclamation Plan RP-08-01
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18719286.1
Exhibit F to Collaborative Use Easement
Quarry Expansion Area
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18719286.1
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, ____________________________, a 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
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18719286.1
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, ____________________________, a 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
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EXHIBIT G
Quarry Expansion Area
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EXHIBIT H
1. In accordance with paragraph 10 of the Site Preparation Agreement, City and Syar agree to the following:
a. The Quarry Operator will not blast on weekends except under emergency situations (as defined in Section 13 hereof). The Quarry Operator will give City 48-hour notice prior written notice of any emergency blasting events. The City may require cancellation of outdoor activities at the revised Blue Rock GC during the scheduled emergency blasting events.
b. The City may temporarily suspend special outdoor activities at the clubhouse during the scheduled Quarry weekday blasting events and emergency blasting events. This provision shall in no way cancel golf play. c. City shall require, consistent with SB 110 of 2011 (amending Section 1103.4 of the Civil Code), that future land purchasers or lessors, and business operators, within one mile of the Quarry receive a “Notice of Mining Operations” disclosing the presence and continued operation of the Lake Herman Quarry with its blasting consistent with the Quarry Permit and EIR.
d. Commercial land sales/leases, and residential sales/leases for all properties listed in Exhibit A of this Agreement shall include a deed restriction providing notice of Quarry Operations consistent with the Quarry Permit and the Easement identified in Exhibit F.
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Certificate Of Completion
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All notices and disclosures will be sent to you electronically Electronic Record and Signature Disclosure created on: 10/10/2019 1:09:10 PM Parties agreed to: James M. Syar, Douglas V. Mull, Veronica A.F. Nebb, Gillian Hayes DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Unless you tell us otherwise in accordance with the procedures described herein, we will provide electronically to you through the DocuSign system all required notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you during the course of our relationship with you. To reduce the chance of you inadvertently not receiving any notice or disclosure, we prefer to provide all of the required notices and disclosures to you by the same method and to the same address that you have given us. Thus, you can receive all the disclosures and notices electronically or in paper format through the paper mail delivery system. If you do not agree with this process, please let us know as described below. Please also see the paragraph immediately above that describes the consequences of your electing not to receive delivery of the notices and disclosures electronically from us.
How to contact City of Vallejo:
You may contact us to let us know of your changes as to how we may contact you electronically, to request paper copies of certain information from us, and to withdraw your prior consent to receive notices and disclosures electronically as follows:
To contact us by email send messages to: [email protected] To advise City of Vallejo of your new email address
To let us know of a change in your email address where we should send notices and disclosures electronically to you, you must send an email message to us at [email protected] and in the body of such request you must state: your previous email address, your new email address. We do not require any other information from you to change your email address.
If you created a DocuSign account, you may update it with your new email address through your account preferences.
To request paper copies from City of Vallejo
To request delivery from us of paper copies of the notices and disclosures previously provided by us to you electronically, you must send us an email to [email protected] and in the body of such request you must state your email address, full name, mailing address, and telephone number. We will bill you for any fees at that time, if any.
To withdraw your consent with City of Vallejo
To inform us that you no longer wish to receive future notices and disclosures in electronic format you may:
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
i. decline to sign a document from within your signing session, and on the subsequent page, select the check-box indicating you wish to withdraw your consent, or you may; ii. send us an email to [email protected] and in the body of such request you must state your email, full name, mailing address, and telephone number. We do not need any other information from you to withdraw consent.. The consequences of your withdrawing consent for online documents will be that transactions may take a longer time to process..
Required hardware and software
The minimum system requirements for using the DocuSign system may change over time. The current system requirements are found here: https://support.docusign.com/guides/signer-guidesigning-system-requirements.
Acknowledging your access and consent to receive and sign documents electronically To confirm to us that you can access this information electronically, which will be similar to other electronic notices and disclosures that we will provide to you, please confirm that you have read this ERSD, and (i) that you are able to print on paper or electronically save this ERSD for your future reference and access; or (ii) that you are able to email this ERSD to an email address where you will be able to print on paper or save it for your future reference and access. Further, if you consent to receiving notices and disclosures exclusively in electronic format as described herein, then select the check-box next to ‘I agree to use electronic records and signatures’ before clicking ‘CONTINUE’ within the DocuSign system.
By selecting the check-box next to ‘I agree to use electronic records and signatures’, you confirm that:
You can access and read this Electronic Record and Signature Disclosure; and You can print on paper this Electronic Record and Signature Disclosure, or save or send this Electronic Record and Disclosure to a location where you can print it, for future reference and access; and
Until or unless you notify City of Vallejo as described above, you consent to receive exclusively through electronic means all notices, disclosures, authorizations, acknowledgements, and other documents that are required to be provided or made available to you by City of Vallejo during the course of your relationship with City of Vallejo.
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit C-1 | Page 1
Exhibit C-1
Legal Description – Residential West Parcel
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit C-1 | Page 2
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit C-1 | Page 3
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit C-1 | Page 4
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit C-2 | Page 1
Exhibit C-2
Legal Description – Commercial North Parcel
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit C-2 | Page 2
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit C-2 | Page 3
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Exhibit C-2 | Page 4
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit C-3 | Page 1
Exhibit C-3
Legal Description – Commercial South Parcel
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit C-3 | Page 2
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit C-3 | Page 3
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Exhibit C-3 | Page 4
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit D Purchase and Sale Agreement and Joint Escrow Instructions Exhibit D
Due Diligence Materials
1. Agreements. Copies of all existing easements, covenants, restrictions, agreements, warranties, and other documents, if any, which affect or relate to the Subject Property that are not disclosed by the Preliminary Title Report, including without limitation all agreements for the purchase of the Subject Property or an interest therein or an option with respect thereto entered into within the last three (3) years and documentation evidencing the termination or cancellation of the effectiveness of such agreements (which documents may be redacted to prevent disclosure of the purchase/option price).
2. Leases. Copies of all existing commercial or residential leases or rental agreements regarding any portion of the Subject Property, any guarantees thereof, and all amendments thereto (“Leases”), together with all court filings and/or correspondence regarding any past or ongoing litigation or disputes with tenants.
3. Service Contracts. Copies of all service, maintenance, management and other contracts and agreements related to the operation and management of the Subject Property.
4. Notices of Claims. Copies of all written notices actually received by City regarding any actual or potential claim, default, violation or liability with respect to the Subject Property.
5. Other Subject Property Documents. Copies of all the following documents, to the extent they are within City’s possession, custody, or control: preliminary title reports, surveys and recorded parcel/tract maps, plotted easements, property tax bills for the three (3) years prior to the date of this Agreement; assessment district information; aerial photographs of 655 Columbus and/or the Subject Property; environmental assessments; hazardous waste reports/toxic waste studies; flood zone maps; drainage facility studies; hydrology studies; soils and/or boring reports; utility studies; utility availability letters; tree studies/surveys; traffic, biological, acoustical studies/surveys; engineering and/or geotechnical studies; prior development applications/correspondence to/from the County of Solano, Solano County Department of Environmental Health, and related public agencies; prior architectural drawings, engineering drawings, construction drawings and any other drawings (including but not limited to site plans, building plans, elevations, schematics, renderings and details); environmental impact report(s); special studies zone; specific plan/planned community texts, and CC&Rs/design and review criteria; and documentation concerning the 655 Columbus or the Subject Property that was disclosed to City in connection with its acquisition of 655 Columbus.
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit E
Form of Grant Deed
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY OF VALLEJO
Attn: City Attorney
555 Santa Clara Street
Vallejo, CA 94590
_____________________________________________________________________________ (Space above line for Recorder’s use only) APN: 0081-040-100 (portion), 0081-040-880 (portion), 0081-191-010 (portion), 0081-040-110 (portion), and 0181-190-010 (portion)
Property Address: None
GRANT DEED
The undersigned declares that the document to which this page is affixed and made a part of is exempt from the fee imposed by the Affordable Housing & Job Act (SB2) (GC 27388.1) and Restrictive Covenant Modification (GC 27388.2)
( ) Recorded [concurrently] in connection with a transfer of real property subject to the imposition of Documentary Transfer Tax per GC 27388.1 (a) (2) & Gov’t Code 27388.2(b). ( ) Recorded [concurrently] in connection with a transfer of real property that is residential dwelling to an owner-occupier per GC 27388.1(a)(2) & Gov’t Code 27388.2(b). ( ) Maximum fee of $225 has been reached per GC 27388.1(a)(1). ( ) Not related to real property GC 27388.1(a)(1).
( ) Transfer of real property subject to the imposition of Documentary Transfer Tax - GC 27388.1(a)(2) and 27388.2(b).
( ) Transfer of real property that is a residential dwelling to an owner-occupier - GC 27388.1(a)(2) and 27388.2(b).
( X ) Document is executed or recorded by the state or any county, municipality, or other political subdivision of the state – Gov’t Code 27388.1(a)(2) & Gov’t Code 27388.2(b).
THIS PAGE ADDED TO PROVIDE EXEMPTION INFORMATION FOR THE BUILDING
HOMES AND JOBS ACT FEE
(SB-2; AFFORDABLE HOUSING FEE) ($3.00 Additional recording fee applies) and Restrictive Covenant Modification Fee ($2.00 Additional recording fee applies) DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:
CITY OF VALLEJO
Attn: City Attorney
555 Santa Clara Street
Vallejo, CA 94590
_____________________________________________________________________________ (Space above line for Recorder’s use only) APN: 0081-040-100 (portion), 0081-040-880 (portion), 0081-191-010 (portion), 0081-040-110 (portion), and 0181-190-010 (portion)
Property Address: None
The undersigned grantor(s) declare(s):
Documentary Transfer Tax is: $0.00 [Cal. Govn’t. Code §§ 6103 and 27383] ( x ) computed on full value of property conveyed, or
( ) computed on full value of less of liens and encumbrances remaining at time of sale. ( ) unincorporated area: ( x ) City of Vallejo
( ) Signature of Declarant
________________________________________________
By: Michael Malone
Its: City Manager
GRANT DEED
FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, the CITY OF VALLEJO, a municipal corporation, (“Grantor”), hereby grants to BLUE ROCK SPRINGS, LLC, a Delaware limited liability company, (“Grantee”), all right, title, and interest in and to that certain real property situated in the City of Sacramento, County Sacramento, State of California, as described in Exhibits A-1 through A-3, which is attached and incorporated in this Grant Deed by this reference.
Grantor has caused this Grant Deed to be duly executed on December ___, 2022. [SIGNATURES FOLLOW]
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325 Terrance Davis
acting City Manager
IN WITNESS WHEREOF, the Parties have executed this Grant Deed as of the date and year first above written.
THE CITY OF VALLEJO
a municipal corporation
_____________________________________
By: Michael Malone
Its: City Manager
ATTEST:
_____________________________________
By: Dawn Abrahamson
Its: City Clerk
APPROVED AS TO CONTENT:
_____________________________________
By: Gillian Hayes
Its: Assistant City Manager
APPROVED AS TO FORM:
_____________________________________
By: Veronica A. F. Nebb
Its: City Attorney
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325 Terrance Davis
acting City Manager
Exhibit A-1 | Page 1
Exhibit A-1
Legal Description – Residential West Parcel
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit A-1 | Page 2
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Exhibit A-1 | Page 3
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit A-1 | Page 4
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit A-2 | Page 1
Exhibit A-2
Legal Description – Commercial North Parcel
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit A-2 | Page 2
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit A-2 | Page 3
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit A-2 | Page 4
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit A-3 | Page 1
Exhibit A-3
Legal Description – Commercial South Parcel
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit A-3 | Page 2
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit A-3 | Page 3
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
Exhibit A-3 | Page 4
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
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INITIALS INITIALS
© 2019 AIR CRE. All Rights Reserved. Last Edited: 12/21/2022 4:48 PM LG-15.23, Revised 10-22-2020 Page 1 of 16
1. Basic Provisions ("Basic Provisions").
1.1 ParƟes. This Lease ("Lease"), dated for reference purposes only December ___, 2022 , is made by and between BLUE ROCK SPRINGS, LLC, a Delaware limited liability company ("Lessor") and CITY OF VALLEJO, a municipal corporation ("Lessee"), (collecƟvely the "ParƟes", or individually a "Party").
1.2 Premises: That certain real property, including all improvements thereon or to be provided by Lessor under the terms of this Lease, commonly known as (street address, city, state, zip): n/a ("Premises"). The Premises are located in the County of Solano , and are generally described as (describe briefly the nature of the property and the improvements on the property, if any, and , if applicable, the "Project", if the property is located within a Project): a portion of the Blue Rock Springs Golf Course, more fully described on Exhibits A-1 through A-2 . (See also Paragraph 2)
1.3 Term: Year-to-year, commencing on the date when Lessor takes title to the Premises (i.e., on or prior to December 30, 2022), and continuing thereafter, subject to (a) termination due to rescission as provided in Paragraph 51; or (b) termination by Lessor on 180 days' notice, following Lessor's receipt of entitlements to develop the Premises years and months ("Original Term") commencing ("Commencement Date") and ending ("ExpiraƟon Date"). (See also Paragraph 3)
1.4 Early Possession: If the Premises are available Lessee may have non-exclusive possession of the Premises commencing n/a ("Early Possession Date"). (See also Paragraphs 3.2 and 3.3)
1.5 Base Rent: $1.00 per year; payable on the date of commencement, and annually thereafter per month ("Base Rent"), payable on the day of each month commencing . (See also Paragraph 4) If this box is checked, there are provisions in this Lease for the Base Rent to be adjusted. See Paragraph .
1.6 Base Rent and Other Monies Paid Upon ExecuƟon:
1.7 Agreed Use: Continued use and operation of a golf course, and attendant uses consistent with Lessee's use of the Premises prior to commencement . (See also Paragraph 6)
1.8 Insuring Party. Lessor is the "Insuring Party". The annual "Base Premium" is TBD . (See also Paragraph 8)
1.9 n/a [no brokers] Real Estate Brokers. (See also Paragraph 15 and 25) agency relaƟonships in this Lease with the following real estate brokers ("Broker(s)") and/or their agents("Agent(s)"):
Lessor's Brokerage Firm License No. Is the broker of (check one): the Lessor; or both the Lessee and Lessor (dual agent).
Lessor's Agent License No. is (check one): the Lessor's Agent (salesperson or broker associate); or both the Lessee's Agent and the Lessor's Agent (dual agent).
Lessee's Brokerage Firm License No. Is the broker of (check one): the Lessee; or both the Lessee and Lessor (dual agent).
Lessee's Agent License No. is (check one): the Lessee's Agent (salesperson or broker associate); or both the Lessee's Agent and the Lessor's Agent (dual agent).
separate wriƩen agreement (or if there is no such agreement, the sum of or % of the total Base Rent) for the brokerage services rendered by the Brokers.
1.10 n/a Guarantor. The obligaƟons of the Lessee under this Lease are to be guaranteed by ("Guarantor"). (See also Paragraph 37)
1.11 AƩachments. AƩached hereto are the following, all of which consƟtute a part of this Lease:
an Addendum consisƟng of Paragraphs 51 through ;
STANDARD INDUSTRIAL/COMMERCIAL LAND LEASE - GROSS
(DO NOT USE THIS FORM FOR BUILDINGS OR FOR LEASES PROVIDING FOR THE CONSTRUCTION OF BUILDINGS) (a) Base Rent: n/a for the period .
(b) Security Deposit: n/a ("Security Deposit"). (See also Paragraph 5) (c) Other: n/a for .
(d) Total Due Upon ExecuƟon of this Lease: n/a .
(a) RepresentaƟon: Each Party acknowledges receiving a Disclosure Regarding Real Estate Agency RelaƟonship, confirms and consents to the following (b) Payment to Brokers. Upon execuƟon and delivery of this Lease by both ParƟes, Lessor shall pay to the Brokers the brokerage fee agreed to in a a plot plan depicƟng the Premises;
a current set of the Rules and RegulaƟons;
a Work LeƩer;
other (specify): legal description .
2. Premises.
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INITIALS INITIALS
© 2019 AIR CRE. All Rights Reserved. Last Edited: 12/21/2022 4:48 PM LG-15.23, Revised 10-22-2020 Page 2 of 16
2.1 Leƫng. Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, the Premises, for the term, at the rental, and upon all of the terms, covenants and condiƟons set forth in this Lease. While the approximate square footage of the Premises may have been used in the markeƟng of the Premisesfor purposes of comparison, the Base Rentstated herein is NOT Ɵed to square footage and is notsubject to adjustment should the actual size be determined to be different. NOTE: Lessee is advised to verify the actual size prior to execuƟng this Lease.
2.2 See Addendum CondiƟon. Lessor shall deliver the Premisesto Lessee free of debris on the Commencement Date or the Early Possession Date, whichever first occurs("Start Date"), and warrants that the exisƟng electrical, plumbing, lighƟng, if any, and all other such elementsin the Premises, other than those constructed by Lessee, shall be in good operaƟng condiƟon on said date. If a non-compliance with said warranty exists as of the Start Date, or if one ofsuch systems or elements should malfuncƟon or fail within the warranty period, Lessor shall, as Lessor's sole obligaƟon with respect to such maƩer, except as otherwise provided in this Lease, promptly aŌer receipt of wriƩen noƟce from Lessee seƫng forth with specificity the nature and extent of such non-compliance, malfuncƟon or failure, recƟfy same at Lessor's expense. The warranty period shall be 30 days. If Lessee does not give Lessor the required noƟce within the appropriate warranty period, correcƟon of any such non-compliance, malfuncƟon or failure shall be the obligaƟon of Lessee at Lessee's sole cost and expense. Lessor also warrants, that unless otherwise specified in wriƟng, Lessor is unaware of (i) any recorded NoƟces of Default affecƟng the Premise; (ii) any delinquent amounts due under any loan secured by the Premises; and (iii) any bankruptcy proceeding affecƟng the Premises.
2.3 See Addendum Compliance. Lessor warrantsthat to the best of its knowledge the improvements on the Premises comply with the building codes, applicable laws, covenants or restricƟons of record, regulaƟons, and ordinances ("Applicable Requirements") that were in effect at the Ɵme that each improvement, or porƟon thereof, was constructed. Said warranty does not apply to the use to which Lessee will put the Premises, modificaƟons which may be required by the Americans with DisabiliƟes Act or any similar laws as a result of Lessee's use (see Paragraph 50), or to any AlteraƟons or UƟlity InstallaƟons (as defined in Paragraph 7.3(a)) made or to be made by Lessee. NOTE: Lessee is responsible for determining whether or notthe Applicable Requirements, and especially the zoning, are appropriate for Lessee's intended use, and acknowledges that past uses of the Premises may no longer be allowed. If the Premises do not comply with said warranty, Lessor shall, except as otherwise provided, promptly aŌer receipt of wriƩen noƟce from Lessee seƫng forth with specificity the nature and extent of such non-compliance, recƟfy the same at Lessor's expense. If Lessee does not give Lessor wriƩen noƟce of a non-compliance with this warranty within 6 months following the Start Date, correcƟon of that non-compliance shall be the obligaƟon of Lessee at Lessee's sole cost and expense.
2.4 Acknowledgements. Lessee acknowledgesthat: (a) it has been given an opportunity to inspect and measure the Premises, (b) it has been advised by Lessor and/or Brokersto saƟsfy itself with respect to the size and condiƟon of the Premises (including but not limited to the improvements, if any,security, environmental aspects, and compliance with Applicable Requirements and the Americans with DisabiliƟes Act), and their suitability for Lessee's intended use, (c) Lessee has made such invesƟgaƟon asit deems necessary with reference to such maƩers and assumes all responsibility therefor asthe same relate to its occupancy of the Premises, (d) it is not relying on any representaƟon as to the size of the Premises made by Brokers or Lessor, (e) the square footage of the Premises was not material to Lessee's decision to lease the Premises and pay the Rentstated herein, and (f) neither Lessor, Lessor's agents, nor Brokers have made any oral or wriƩen representaƟons or warranƟes with respect to said maƩers other than as set forth in this Lease. In addiƟon, Lessor acknowledges that: (i) Brokers have made no representaƟons, promises or warranƟes concerning Lessee's ability to honor the Lease orsuitability to occupy the Premises, and (ii) it is Lessor'ssole responsibility to invesƟgate the financial capability and/or suitability of all proposed tenants.
2.5 Lessee as Prior Owner/Occupant. The warranƟes made by Lessor in Paragraph 2 shall be of no force or effect if immediately prior to the Start Date Lessee wasthe owner or occupant of the Premises. In such event, Lessee shall be responsible for any necessary correcƟve work.
3. Term.
3.1 Term. The Commencement Date, ExpiraƟon Date and Original Term of this Lease are as specified in Paragraph 1.3.
3.2 Early Possession. Any provision herein granƟng Lessee Early Possession of the Premises issubject to and condiƟoned upon the Premises being available for such possession prior to the Commencement Date. Any grant of Early Possession only conveys a non-exclusive right to occupy the Premises. If Lessee totally or parƟally occupies the Premises prior to the Commencement Date, the obligaƟon to pay Base Rentshall be abated for the period of such Early Possession. All other terms of this Lease (with the exception the obligations to pay Real Property Taxes and insurance premiums) shall be in effect during such period, and Lessee shall have a duty to maintain the Premises. (including but not limited to the obligaƟonsto pay Real Property Taxes and insurance premiums and to maintain the Premises)shall be in effect during such period. Any such Early Possession shall not affect the ExpiraƟon Date.
3.3 Delay In Possession. Lessor agrees to use commercially reasonable effortsto deliver exclusive possession of the Premises to Lessee by the Commencement Date. If, despite said efforts, Lessor is unable to deliver possession by such date, Lessor shall not be subject to any liability therefor, nor shall such failure affect the validity of this Lease or change the ExpiraƟon Date. Lessee shall not, however, be obligated to pay Rent or perform its other obligaƟons unƟl Lessor delivers possession of the Premises and any period of rent abatement that Lessee would otherwise have enjoyed shall run from the date of delivery of possession and conƟnue for a period equal to what Lessee would otherwise have enjoyed under the terms hereof, but minus any days of delay caused by the acts or omissions of Lessee. If possession is not delivered within 60 days aŌer the Commencement Date, Lessee may, at its opƟon, by noƟce in wriƟng within 10 days aŌer the end of such 60 day period, cancel this Lease, in which event the ParƟes shall be discharged from all obligaƟons hereunder. Ifsuch wriƩen noƟce is not received by Lessor within said 10 day period, Lessee'sright to cancel shall terminate. If possession of the Premises is not delivered within 120 days aŌer the Commencement Date, this Lease shall terminate unless other agreements are reached between Lessor and Lessee, in wriƟng.
3.4 Lessee Compliance. Lessor shall not be required to tender possession of the Premisesto Lessee unƟl Lessee complies with its obligaƟon to provide evidence of insurance (Paragraph 8.5). Pending delivery of such evidence, Lessee shall be required to perform all of its obligaƟons under this Lease from and aŌer the Start Date, including the payment of Rent, notwithstanding Lessor's elecƟon to withhold possession pending receipt of such evidence of insurance. Further, if Lessee isrequired to perform any other condiƟons prior to or concurrent with the Start Date, the Start Date shall occur but Lessor may elect to withhold possession unƟl such condiƟons are saƟsfied.
4. Rent.
4.1 Rent Defined. All monetary obligaƟons of Lessee to Lessor under the terms of this Lease (except for the Security Deposit) are deemed to be rent ("Rent").
4.2 Payment. Lessee shall cause payment of Rent to be received by Lessor in lawful money of the United States, without offset or deducƟon (except as specifically permiƩed in this Lease), on or before the day on which it is due. All monetary amounts shall be rounded to the nearest whole dollar. In the event that any invoice prepared by Lessor isinaccurate such inaccuracy shall not consƟtute a waiver and Lessee shall be obligated to pay the amountset forth in this Lease, with the exception of the Base Rent. Rent for any period during the term hereof which isfor less than one full calendar month shall be prorated based upon the actual number of days of said month. Payment of Rentshall be made to Lessor at its address stated herein or to such other persons or place as Lessor may from Ɵme to Ɵme designate in wriƟng. Acceptance of a payment which is lessthan the amount then due shall not be a waiver of Lessor's rights to the balance ofsuch
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INITIALS INITIALS
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Rent, regardless of Lessor's endorsement of any check so staƟng. In the event that any check, draŌ, or other instrument of payment given by Lessee to Lessor is dishonored for any reason, Lessee agrees to pay to Lessor the sum of $25 in addiƟon to any Late Charge and Lessor, at its opƟon, may require all future payments to be made by Lessee to be by cashier's check. Payments will be applied first to accrued late charges and aƩorney's fees,second to accrued interest, then to Base Rent and OperaƟng Expense Increase, and any remaining amount to any other outstanding charges or costs.
5. Security Deposit. Lessee shall deposit with Lessor upon execuƟon hereof the Security Deposit assecurity for Lessee'sfaithful performance of its obligaƟons under this Lease. If Lessee fails to pay Rent, or otherwise Defaults under this Lease, Lessor may use, apply or retain all or any porƟon ofsaid Security Deposit for the payment of any amount already due Lessor, for Rents which will be due in the future, and/ or to reimburse or compensate Lessor for any liability, expense, loss or damage which Lessor may suffer orincur by reason thereof. If Lessor uses or applies all or any porƟon of the Security Deposit, Lessee shall within 10 days aŌer wriƩen request therefor deposit monies with Lessor sufficient to restore said Security Deposit to the full amount required by this Lease. If the Base Rent increases during the term of this Lease, Lessee shall, upon wriƩen request from Lessor, deposit addiƟonal monies with Lessor so that the total amount of the Security Deposit shall at all Ɵmes bear the same proporƟon to the increased Base Rent as the iniƟal Security Deposit bore to the iniƟal Base Rent. Should the Agreed Use be amended to accommodate a material change in the business of Lessee or to accommodate a sublessee or assignee, Lessor shall have the right to increase the Security Deposit to the extent necessary, in Lessor'sreasonable judgment, to account for any increased wear and tear that the Premises may suffer as a result thereof. If a change in control of Lessee occurs during this Lease and following such change the financial condiƟon of Lessee is, in Lessor's reasonable judgment, significantly reduced, Lessee shall deposit such addiƟonal monies with Lessor asshall be sufficient to cause the Security Deposit to be at a commercially reasonable level based on such change in financial condiƟon. Lessor shall not be required to keep the Security Deposit separate from its general accounts. Within 90 days aŌer the expiraƟon or terminaƟon of this Lease, Lessor shall return that porƟon of the Security Deposit not used or applied by Lessor. Lessor shall upon wriƩen request provide Lessee with an accounƟng showing how that porƟon of the Security Deposit that was not returned was applied. No part of the Security Deposit shall be considered to be held in trust, to bear interest or to be prepayment for any monies to be paid by Lessee under this Lease. THE SECURITY DEPOSIT SHALL NOT BE USED BY LESSEE IN LIEU OF PAYMENT OF THE LAST MONTH'S RENT.
6. Use.
6.1 Use. Lessee shall use and occupy the Premises only for the Agreed Use, or any other legal use which isreasonably comparable thereto, and for no other purpose. Lessee shall not use or permit the use of the Premises in a manner that is unlawful, creates damage, waste or a nuisance, or that disturbs occupants of or causes damage to neighboring premises or properƟes. Other than guide, signal and seeing eye dogs, Lessee shall not keep or allow in the Premises any pets, animals, birds, fish, or repƟles. Lessorshall not unreasonably withhold or delay its consent to any request for a modificaƟon of the Agreed Use, so long asthe same will not be significantly more burdensome to the Premises. If Lessor elects to withhold consent, Lessor shall within 7 days aŌer such request give wriƩen noƟficaƟon ofsame, which noƟce shall include an explanaƟon of Lessor's objecƟons to the change in the Agreed Use.
6.2 Hazardous Substances.
(a) Reportable Uses Require Consent. The term "Hazardous Substance" as used in this Lease shall mean any product, substance, or waste whose presence, use, manufacture, disposal, transportaƟon, or release, either by itself or in combinaƟon with other materials expected to be on the Premises, is either: (i) potenƟally injurious to the public health, safety or welfare, the environment or the Premises, (ii) regulated or monitored by any governmental authority, or (iii) a basis for potenƟal liability of Lessor to any governmental agency or third party under any applicable statute or common law theory. Hazardous Substances shall include, but not be limited to, hydrocarbons, petroleum, gasoline, and/or crude oil or any products, byproducts or fracƟons thereof. Lessee shall not engage in any acƟvity in or on the Premises which consƟtutes a Reportable Use of Hazardous Substances without the express prior wriƩen consent of Lessor and Ɵmely compliance (at Lessee's expense) with all Applicable Requirements. "Reportable Use" shall mean (i) the installaƟon or use of any above or below ground storage tank, (ii) the generaƟon, possession, storage, use, transportaƟon, or disposal of a Hazardous Substance that requires a permit from, or with respect to which a report, noƟce, registraƟon or business plan is required to be filed with, any governmental authority, and/or (iii) the presence at the Premises of a Hazardous Substance with respect to which any Applicable Requirements requires that a noƟce be given to persons entering or occupying the Premises or neighboring properƟes. Notwithstanding the foregoing, Lessee may use any ordinary and customary materials reasonably required to be used in the normal course of the Agreed Use, ordinary office supplies (copier toner, liquid paper, glue, etc.) and common household cleaning materials, so long as such use isin compliance with all Applicable Requirements, is not a Reportable Use, and does not expose the Premises or neighboring property to any meaningful risk of contaminaƟon or damage or expose Lessor to any liability therefor. In addiƟon, Lessor may condiƟon its consent to any Reportable Use upon receiving such addiƟonal assurances as Lessor reasonably deems necessary to protect itself, the public, the Premises and/or the environment against damage, contaminaƟon, injury and/or liability, including, but not limited to, the installaƟon (and removal on or before Lease expiraƟon or terminaƟon) of protecƟve modificaƟons (such as concrete encasements) and/or increasing the Security Deposit. (b) Duty to Inform Lessor. If Lessee knows, or hasreasonable cause to believe, that a Hazardous Substance has come to be located in, on, under or about the Premises, other than as previously consented to by Lessor, Lessee shall immediately give wriƩen noƟce ofsuch fact to Lessor, and provide Lessor with a copy of any report, noƟce, claim or other documentaƟon which it has concerning the presence of such Hazardous Substance. (c) Lessee RemediaƟon. Lessee shall not cause or permit any Hazardous Substance to be spilled or released in, on, under, or about the Premises (including through the plumbing or sanitary sewer system) and shall promptly, at Lessee's expense, comply with all Applicable Requirements and take all invesƟgatory and/or remedial acƟon reasonably recommended, whether or not formally ordered or required, for the cleanup of any contaminaƟon of, and for the maintenance, security and/or monitoring of the Premises or neighboring properƟes, that was caused or materially contributed to by Lessee, or pertaining to or involving any Hazardous Substance brought onto the Premises during the term of this Lease, by or for Lessee, or any third party. (d) Lessee IndemnificaƟon. Lessee shall indemnify, defend and hold Lessor, its agents, employees, lenders and ground lessor, if any, harmless from and against any and all loss of rents and/or damages, liabiliƟes, judgments, claims, expenses, penalƟes, and aƩorneys' and consultants' fees arising out of or involving any Hazardous Substance brought onto the Premises by or for Lessee, or any third party (provided, however, that Lessee shall have no liability under this Lease with respect to underground migraƟon of any Hazardous Substance under the Premises from adjacent properƟes not caused or contributed to by Lessee). Lessee's obligaƟons shall include, but not be limited to, the effects of any contaminaƟon or injury to person, property or the environment created or suffered by Lessee, and the cost of invesƟgaƟon, removal, remediaƟon, restoraƟon and/or abatement, and shall survive the expiraƟon or terminaƟon of this Lease. No terminaƟon, cancellaƟon or release agreement entered into by Lessor and Lessee shall release Lessee from its obligaƟons under this Lease with respect to Hazardous Substances, unless specifically so agreed by Lessor in wriƟng at the Ɵme ofsuch agreement. (e) Lessor IndemnificaƟon. Except as otherwise provided in paragraph 8.7, Lessor and itssuccessors and assigns shall indemnify, defend, reimburse and hold Lessee, its employees and lenders, harmless from and against any and all environmental damages, including the cost of remediaƟon, which result from Hazardous Substances which existed on the Premises prior to Lessee's occupancy or which are caused by the gross negligence or willful misconduct of Lessor, its agents or employees. Lessor's obligaƟons, as and when required by the Applicable Requirements, shall include, but not be limited to, the cost of invesƟgaƟon, removal, remediaƟon, restoraƟon and/or abatement, and shall survive the expiraƟon or terminaƟon of this Lease. (f) InvesƟgaƟons and RemediaƟons. Lessor shall retain the responsibility and pay for any invesƟgaƟons or remediaƟon measuresrequired by
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governmental enƟƟes having jurisdicƟon with respect to the existence of Hazardous Substances on the Premises prior to Lessee's occupancy, unlesssuch remediaƟon measure is required as a result of Lessee's use (including "AlteraƟons", as defined in paragraph 7.3(a) below) of the Premises, in which event Lessee shall be responsible for such payment. Lessee shall cooperate fully in any such acƟviƟes at the request of Lessor, including allowing Lessor and Lessor's agents to have reasonable access to the Premises at reasonable Ɵmesin order to carry out Lessor's invesƟgaƟve and remedial responsibiliƟes. (g) Lessor TerminaƟon OpƟon. If a Hazardous Substance CondiƟon (see Paragraph 9.3(a)) occurs during the term of this Lease, unless Lessee is legally responsible therefor (in which case Lessee shall make the invesƟgaƟon and remediaƟon thereof required by the Applicable Requirements and this Lease shall conƟnue in full force and effect, but subject to Lessor's rights under Paragraph 6.2(d) and Paragraph 13), Lessor may, at Lessor's opƟon, either (i) invesƟgate and remediate such Hazardous Substance CondiƟon, if required, assoon asreasonably possible at Lessor's expense, in which event this Lease shall conƟnue in full force and effect, or (ii) if the esƟmated cost to remediate such condiƟon exceeds 12 Ɵmes the then monthly Base Rent or $25,000 $100,000, whichever is greater, give wriƩen noƟce to Lessee, within 30 days aŌer receipt by Lessor of knowledge of the occurrence of such Hazardous Substance CondiƟon, of Lessor's desire to terminate this Lease as of the date 60 days following the date ofsuch noƟce.
6.3 Lessee's Compliance with Applicable Requirements. Except as otherwise provided in this Lease, Lessee shall, at Lessee'ssole expense, fully, diligently and in a Ɵmely manner, materially comply with all Applicable Requirements, the requirements of any applicable fire insurance underwriter or raƟng bureau, and the recommendaƟons of Lessor's engineers and/or consultants which relate in any manner to the Premises, without regard to whethersaid Applicable Requirements are now in effect or become effecƟve aŌer the Start Date. Lessee shall, within 10 days aŌer receipt of Lessor's wriƩen request, provide Lessor with copies of all permits and other documents, and other informaƟon evidencing Lessee's compliance with any Applicable Requirements specified by Lessor, and shall immediately upon receipt, noƟfy Lessor in wriƟng (with copies of any documents involved) of any threatened or actual claim, noƟce, citaƟon, warning, complaint or report pertaining to or involving the failure of Lessee or the Premises to comply with any Applicable Requirements.
6.4 InspecƟon; Compliance. Lessor and Lessor's "Lender" (as defined in Paragraph 30) and consultants authorized by Lessor shall have the right to enter onto Premises at any Ɵme in the case of an emergency, and otherwise at reasonable Ɵmes aŌer reasonable noƟce, for the purpose of inspecƟng and/or tesƟng the condiƟon of the Premises and/or for verifying compliance by Lessee with this Lease. The cost of any such inspecƟons shall be paid by Lessor, unless a violaƟon of Applicable Requirements, or a Hazardous Substance CondiƟon (see Paragraph 9.3(a)) is found to exist or be imminent, or the inspecƟon is requested or ordered by a governmental authority. In such case, Lessee shall upon request reimburse Lessor for the cost of such inspecƟon, so long as such inspecƟon isreasonably related to the violaƟon or contaminaƟon. In addiƟon, Lessee shall provide copies of all relevant material safety data sheets(MSDS) to Lessor within 10 days of the receipt of a wriƩen request therefor. Lessee acknowledges that any failure on its part to allow such inspecƟons ortesƟng will expose Lessor to risks and potenƟally cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, should the Lessee fail to allow such inspecƟons and/or tesƟng in a Ɵmely fashion the Base Rent shall be automaƟcally increased, without any requirement for noƟce to Lessee, by an amount equal to 10% of the then exisƟng Base Rent or $100, whichever is greater for the remainder to the Lease. The ParƟes agree that such increase in Base Rent represents fair and reasonable compensaƟon for the addiƟonal risk/costs that Lessor will incur by reason of Lessee'sfailure to allow such inspecƟon and/or tesƟng. Such increase in Base Rent shall in no event consƟtute a waiver of Lessee's Default or Breach with respect to such failure nor prevent the exercise of any of the other rights and remedies granted hereunder.
7. Maintenance; Repairs; UƟlity InstallaƟons; Trade Fixtures and AlteraƟons.
7.1 Lessee's ObligaƟons.
(a) In General. Subject to the provisions of Paragraph 2.2 (CondiƟon), 2.3 (Compliance), 6.3 (Lessee's Compliance with Applicable Requirements), 7.2 (Lessor's ObligaƟons), 9 (Damage or DestrucƟon), and 14 (CondemnaƟon), Lessee shall, at Lessee's sole expense, keep the Premises, in good order, condiƟon and repair (whether or not the need for such repairs occurs as a result of Lessee's use, any prior use, the elements or the age ofsuch porƟon of the Premises), including, but not limited to, plumbing, lighƟng faciliƟes, landscaping, driveways, parking lots, fences, retaining walls, signs, sidewalks and parkways located on, or adjacent to, the Premises. Lessee, in keeping the Premises in good order, condiƟon and repair, shall exercise and perform good maintenance pracƟces, specifically including the procurement and maintenance of the service contracts required by Paragraph 7.1(b) below. Lessee's obligaƟons shall include restoraƟons, replacements or renewals when necessary to keep the Premises and all improvements thereon or a part thereof in good order, condiƟon and state of repair. Lessee shall, during the term of this Lease, keep the appearance of the Premises in a first-class condiƟon (including, e.g. graffiƟ removal). (b) Service Contracts. Lessee shall, at Lessee's sole expense, procure and maintain a contract, with copies to Lessor, in customary form and substance for, and with a contractor specializing and experienced in the maintenance of the landscaping and irrigaƟon systems, However, Lessor reserves the right, upon noƟce to Lessee, to procure and maintain such service contract, and Lessee shall reimburse Lessor, upon demand, for the cost thereof. (c) Failure to Perform. If Lessee fails to perform Lessee's obligaƟons under this Paragraph 7.1, Lessor may enter upon the Premises aŌer 10 days' prior wriƩen noƟce to Lessee (except in the case of an emergency, in which case no noƟce shall be required), perform such obligaƟons on Lessee's behalf, and put the Premises in good order, condiƟon and repair, and Lessee shall promptly pay to Lessor a sum equal to 115% of the cost thereof.
Notwithstanding anything to the contrary herein, Lessee shall not be required to make capital improvements or other improvements to the Premises. Its maintenance and repair obligations shall be limited to the activities that are commercially reasonable to permit the Premises to continue to be operated as a golf course.
7.2 Lessor's ObligaƟons. Subject to the provisions of Paragraphs 2.2 (CondiƟon), 2.3 (Compliance), 9 (Damage or DestrucƟon) and 14 (CondemnaƟon), iIt is intended by the ParƟes hereto that Lessor have no obligaƟon, in any manner whatsoever, to repair and maintain the Premises. It isthe intenƟon of the ParƟes that the terms of this Lease govern the respecƟve obligaƟons of the ParƟes asto maintenance and repair of the Premises, and they expressly waive the benefit of any statute now or hereaŌer in effect to the extent it is inconsistent with the terms of this Lease.
7.3 UƟlity InstallaƟons; Trade Fixtures; AlteraƟons.
(a) DefiniƟons. The term "UƟlity InstallaƟons" refersto security and fire protecƟon systems, lighƟng fixtures, plumbing, and fencing on the Premises.
The term "Trade Fixtures" shall mean Lessee's machinery and equipment that can be removed without doing material damage to the Premises. The term "AlteraƟons" shall mean any modificaƟon of the improvements, other than UƟlity InstallaƟons or Trade Fixtures, whether by addiƟon or deleƟon. "Lessee Owned AlteraƟons and/or UƟlity InstallaƟons" are defined as AlteraƟons and/or UƟlity InstallaƟons made by Lessee that are not yet owned by Lessor pursuant to Paragraph
7.4(a).
(b) Consent. Lessee shall not make any AlteraƟons or UƟlity InstallaƟonsto the Premises without Lessor's prior wriƩen consent. Lessee may, however, make non-structural AlteraƟons or UƟlity InstallaƟons to the Premises without such consent but upon noƟce to Lessor, aslong asthe cumulaƟve cost thereof during this Lease as extended does not exceed a sum equal to 3 month's Base Rent in the aggregate or a sum equal to one month's Base Rent in any one year. Lessor may, as
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a precondiƟon to granƟng such approval, require Lessee to uƟlize a contractor chosen and/or approved by Lessor. Any AlteraƟons or UƟlity InstallaƟonsthat Lessee shall desire to make and which require the consent of the Lessor shall be presented to Lessor in wriƩen form with detailed plans. Consent shall be deemed condiƟoned upon Lessee's: (i) acquiring all applicable governmental permits, (ii) furnishing Lessor with copies of both the permits and the plans and specificaƟons prior to commencement of the work, and (iii) compliance with all condiƟons ofsaid permits and other Applicable Requirements in a prompt and expediƟous manner.
Any AlteraƟons or UƟlity InstallaƟons shall be performed in a workmanlike manner with good and sufficient materials, in Lessor's discretion, with no further notice to Lessee. Lessee shall promptly upon compleƟon furnish Lessor with as-built plans and specificaƟons. For work which costs an amount in excess of one month's Base Rent, Lessor may condiƟon its consent upon Lessee providing a lien and compleƟon bond in an amount equal to 150% of the esƟmated cost ofsuch AlteraƟon or UƟlity InstallaƟon and/or upon Lessee's posƟng an addiƟonal Security Deposit with Lessor. (c) Liens; Bonds. Lessee shall pay, when due, all claimsfor labor or materials furnished or alleged to have been furnished to or for Lessee at or for use on the Premises, which claims are or may be secured by any mechanic's or materialmen's lien against the Premises or any interest therein. Lessee shall give Lessor not lessthan 10 days noƟce prior to the commencement of any work in, on or about the Premises, and Lessor shall have the right to post noƟces of non-responsibility. If Lessee shall contest the validity of any such lien, claim or demand, then Lessee shall, at itssole expense defend and protect itself, Lessor and the Premises against the same and shall pay and saƟsfy any such adverse judgment that may be rendered thereon before the enforcement thereof. If Lessorshall require, Lessee shall furnish a surety bond in an amount equal to 150% of the amount of such contested lien, claim or demand, indemnifying Lessor against liability for the same. If Lessor elects to parƟcipate in any such acƟon, Lessee shall pay Lessor's aƩorneys' fees and costs.
7.4 Ownership; Removal; Surrender; and RestoraƟon.
(a) Ownership. Subject to Lessor's right to require removal or elect ownership as hereinaŌer provided, all AlteraƟons and UƟlity InstallaƟons made by Lessee shall be the property of Lessee, but considered a part of the Premises. Lessor may, at any Ɵme, elect in wriƟng to be the owner of all or any specified part of the Lessee Owned AlteraƟons and UƟlity InstallaƟons. Unless otherwise instructed per paragraph 7.4(b) hereof, all Lessee Owned AlteraƟons and UƟlity InstallaƟons shall, at the expiraƟon or terminaƟon of this Lease, become the property of Lessor and be surrendered by Lessee with the Premises. (b) Removal. By delivery to Lessee of wriƩen noƟce from Lessor not earlier than 90 and not later than 30 days prior to the end of the term of this Lease, Lessor may require that any or all Lessee Owned AlteraƟons or UƟlity InstallaƟons be removed by the expiraƟon or terminaƟon of this Lease. Lessor may require the removal at any Ɵme of all or any part of any Lessee Owned AlteraƟons or UƟlity InstallaƟons made without the required consent. (c) Surrender; RestoraƟon. Lessee shall surrender the Premises by the ExpiraƟon Date or any earlier terminaƟon date, with all of the improvements, parts and surfacesthereof broom clean and free of debris, and in good operaƟng order, condiƟon and state of repair, ordinary wear and tear excepted. "Ordinary wear and tear" shall not include any damage or deterioraƟon that would have been prevented by good maintenance pracƟce. Notwithstanding the foregoing and the provisions of Paragraph 7.1(a), if the Lessee occupies the Premises for 12 months or less, then Lessee shall surrender the Premises in the same condiƟon as delivered to Lessee on the Start Date with NO allowance for ordinary wear and tear. Lessee shall repair any damage occasioned by the installaƟon, maintenance or removal of Trade Fixtures, Lessee owned AlteraƟons and/or UƟlity InstallaƟons, furnishings, and equipment as well as the removal of any storage tank installed by orfor Lessee.
Lessee shall also completely remove from the Premises any and all Hazardous Substances brought onto the Premises by or for Lessee, or any third party (except Hazardous Substances which were deposited via underground migraƟon from areas outside of the Premises) to the levelspecified in Applicable Requirements. Trade Fixtures shall remain the property of Lessee and shall be removed by Lessee. Any personal property of Lessee not removed on or before the ExpiraƟon Date or any earlierterminaƟon date shall be deemed to have been abandoned by Lessee and may be disposed of or retained by Lessor as Lessor may desire. The failure by Lessee to Ɵmely vacate the Premises pursuant to this Paragraph 7.4(c) without the express wriƩen consent of Lessor shall consƟtute a holdover under the provisions of Paragraph 26 below.
8. Insurance; Indemnity.
8.1 Payment ofInsurance Premiums. Increases.
(a) Lessee shall pay to Lessor the cost of insurance premiums for liability and property insurance carried by Lessor as provided in this Lease. In no event, however, shall Lessee be responsible for any portion of such premiums attributable to liability insurance carried by Lessor under Paragraph 8.2(b) in excess of $2,000,000 per occurrence.any insurance cost increase ("Insurance Cost Increase") occurring during the term of this Lease.
Insurance Cost Increase is defined as any increase in the actual cost of the insurance required under Paragraph 8.2(b), 8.3(a) and 8.3(b), over and above the Base Premium as hereinaŌer defined calculated on an annual basis. Insurance Cost Increase shall include but not be limited to increases resulƟng from the nature of Lessee's occupancy, any act or omission of Lessee, requirements of the holder of mortgage or deed of trust covering the Premises, increased valuaƟon of the Premises and/or a premium rate increase. The parƟes are encouraged to fill in the Base Premium in paragraph 1.8 with a reasonable premium for such insurance based on the Agreed Use of the Premises. If the parƟes fail to insert a dollar amount in Paragraph 1.8, then the Base Premium shall be the lowest annual premium reasonably obtainable for the required insurance as of the commencement of the Original Term for the Agreed Use of the Premises. In no event, however, shall Lessee be responsible for any porƟon of the increase in the premium cost aƩributable to liability insurance carried by Lessor under Paragraph 8.2(b) in excess of $2,000,000 per occurrence.
(b) Lessee shall pay such premium costs to Lessor within 30 days after receipt by Lessee for a copy of the premium statement or other reasonable evidence of the amount due. Premiums for policy periods commencing prior to, or extending beyond the term of this Lease, shall be prorated to correspond to the term of this Lease. any such Insurance Cost Increase to Lessor within 30 days aŌer receipt by Lessee of a copy of the premium statement or other reasonable evidence of the amount due. If the insurance policies maintained hereunder cover other property besides the Premises, Lessor shall also deliver to Lessee a statement of the amount ofsuch Insurance Cost Increase aƩributable only to the Premisesshowing in reasonable detail the manner in which such amount was computed. Premiumsfor policy periods commencing prior to, or extending beyond the term of this Lease, shall be prorated to correspond to the term of this Lease.
8.2 Liability Insurance.
(a) Carried by Lessee. Lessee shall obtain and keep in force a Commercial General Liability policy of insurance protecƟng Lessee and Lessor as an addiƟonal insured against claims for bodily injury, personal injury and property damage based upon or arising out of the ownership, use, occupancy or maintenance of the Premises and all areas appurtenant thereto. Such insurance shall be on an occurrence basis providing single limit coverage in an amount not less than $1,000,000 per occurrence with an annual aggregate of not less than $2,000,000. Lessee shall add Lessor as an addiƟonal insured by means of an endorsement at least as broad as the Insurance Service OrganizaƟon's "AddiƟonal Insured-Managers or Lessors of Premises" Endorsement. The policy shall not contain any intra-insured exclusions
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as between insured persons or organizaƟons, but shall include coverage for liability assumed under this Lease as an "insured contract" for the performance of Lessee's indemnity obligaƟons under this Lease. The limits of said insurance shall not, however, limit the liability of Lessee nor relieve Lessee of any obligaƟon hereunder.
Lessee shall provide an endorsement on its liability policy(ies) which provides that its insurance shall be primary to and not contributory with any similar insurance carried by Lessor, whose insurance shall be considered excess insurance only. (b) Carried by Lessor. Lessor shall maintain liability insurance as described in Paragraph 8.2(a), in addiƟon to, and not in lieu of, the insurance required to be maintained by Lessee. Lessee shall not be named as an addiƟonal insured therein.
8.3 Property Insurance - Improvements and Rental Value. (a) Improvements. The Insuring Party shall obtain and keep in force a policy or policies in the name of Lessor, with loss payable to Lessor, any ground-lessor, and to any Lender insuring loss or damage to the Premises. The amount of such insurance shall be equal to the full insurable replacement cost of the Premises, as the same shall exist from Ɵme to Ɵme, or the amount required by any Lender, but in no event more than the commercially reasonable and available insurable value thereof. Lessee Owned AlteraƟons and UƟlity InstallaƟons, Trade Fixtures, and Lessee's personal property shall be insured by Lessee and not by Lessor. If the coverage is available and commercially appropriate, such policy or policies shall insure against all risks of direct physical loss or damage (except the perils of flood and/or earthquake unlessrequired by a Lender or included in the Base Premium), including coverage for debris removal and the enforcement of any Applicable Requirements requiring the upgrading, demoliƟon, reconstrucƟon or replacement of any porƟon of the Premises as the result of a covered loss. Said policy or policies shall also contain an agreed valuaƟon provision in lieu of any coinsurance clause, waiver ofsubrogaƟon, and inflaƟon guard protecƟon causing an increase in the annual property insurance coverage amount by a factor of not less than the adjusted U.S. Department of Labor Consumer Price Index for All Urban Consumers for the city nearest to where the Premises are located. Ifsuch insurance coverage has a deducƟble clause, the deducƟble amount shall not exceed $5,000 per occurrence, and Lessee shall be liable for such deducƟble amount in the event of an Insured Loss. (b) Rental Value. The Insuring Party shall obtain and keep in force a policy or policiesin the name of Lessor with loss payable to Lessor and any Lender, insuring the loss of the full Rent for one year with an extended period of indemnity for an addiƟonal 180 days ("Rental Value insurance"). Said insurance shall contain an agreed valuaƟon provision in lieu of any coinsurance clause, and the amount of coverage shall be adjusted annually to reflect the projected Rent otherwise payable by Lessee, for the next 12 month period. Lessee shall be liable for any deducƟble amount in the event of such loss. (c) Adjacent Premises. If the Premises are part of a larger property owned by Lessor , the Lessee shall pay for any increase in the premiums for the property insurance ofsuch adjacent property if said increase is caused by Lessee's acts, omissions, use or occupancy of the Premises.
8.4 Lessee's Property; Coverage; Worker's CompensaƟon Insurance. (a) Property Damage. Lessee shall obtain and maintain insurance coverage on all of Lessee's personal property, Trade Fixtures, and Lessee Owned AlteraƟons and UƟlity InstallaƟons. Such insurance shall be full replacement cost coverage with a deducƟble of not to exceed $1,000 per occurrence. The proceeds from any such insurance shall be used by Lessee for the replacement of personal property, Trade Fixtures and Lessee Owned AlteraƟons and UƟlity InstallaƟons. (b) Worker's CompensaƟon Insurance. Lessee shall obtain and maintain Worker's CompensaƟon Insurance in such amount as may be required by Applicable Requirements. Such policy shall include a "Waiver of SubrogaƟon" endorsement. Lessee shall provide Lessor with a copy of such endorsement along with the cerƟficate of insurance or copy of the policy required by paragraph 8.5. (c) No RepresentaƟon of Adequate Coverage. Lessor makes no representaƟon that the limits or forms of coverage of insurance specified herein are adequate to cover Lessee's property, business operaƟons or obligaƟons under this Lease.
8.5 Insurance Policies. Insurance required herein shall be by companies maintaining during the policy term a "General Policyholders RaƟng" of at least A-, VII, as set forth in the most current issue of "Best'sInsurance Guide", or such other raƟng as may be required by a Lender. Lessee shall not do or permit to be done anything which invalidates the required insurance policies. Lessee shall, prior to the Start Date, deliver to Lessor cerƟfied copies of policies of such insurance or cerƟficates with copies of the required endorsements evidencing the existence and amounts of the required insurance. No such policy shall be cancelable or subject to modificaƟon except aŌer 30 days prior wriƩen noƟce to Lessor. Lessee shall, at least 10 days prior to the expiraƟon of such policies, furnish Lessor with evidence of renewals or "insurance binders" evidencing renewal thereof, or Lessor may increase his liability insurance coverage and charge the cost thereof to Lessee, which amount shall be payable by Lessee to Lessor upon demand. Such policies shall be for a term of at least one year, or the length of the remaining term of this Lease, whichever is less. If either Party shall fail to procure and maintain the insurance required to be carried by it, the other Party may, but shall not be required to, procure and maintain the same. Notwithstanding anything to the contrary herein, Lessor acknowledges that Lessee may elect to self-insure Lessee’s obligation to carry liability insurance as provided in Section 8.2(b).
8.6 Waiver of SubrogaƟon. Without affecƟng any other rights or remedies, Lessee and Lessor each hereby release and relieve the other, and waive their enƟre right to recover damages against the other, for loss of or damage to its property arising out of or incident to the perilsrequired to be insured against herein. The effect of such releases and waivers is not limited by the amount of insurance carried or required, or by any deducƟbles applicable hereto. The ParƟes agree to have their respecƟve property damage insurance carriers waive any right to subrogaƟon that such companies may have against Lessor or Lessee, as the case may be, so long as the insurance is not invalidated thereby.
8.7 Indemnity. Except for Lessor's gross negligence or willful misconduct, Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessor and its agents, Lessor's master or ground lessor, partners and Lenders, from and against any and all claims, loss of rents and/or damages, liens, judgments, penalƟes, aƩorneys' and consultants' fees, expenses and/or liabiliƟes arising out of, involving, or in connecƟon with, a Breach of the Lease by Lessee and/or the use and/or occupancy of the Premises and/or Project by Lessee and/or by Lessee's employees, contractors or invitees. If any acƟon or proceeding is brought against Lessor by reason of any of the foregoing maƩers, Lessee shall upon noƟce defend the same at Lessee's expense by counsel reasonably saƟsfactory to Lessor and Lessor shall cooperate with Lessee in such defense. Lessor need not have first paid any such claim in order to be defended or indemnified.
8.8 ExempƟon of Lessor and its Agentsfrom Liability. Notwithstanding the negligence or breach of this Lease by Lessor or its agents, neither Lessor nor its agentsshall be liable under any circumstances for: (i) injury or damage to the person or goods, wares, merchandise or other property of Lessee, Lessee's employees, contractors, invitees, customers, or any other person in or about the Premises, from any cause, (ii) any damages arising from any act or neglect of any other tenant of Lessor or from the failure of Lessor or its agentsto enforce the provisions of any other lease in the Project, or (iii) injury to Lessee's business or for any loss of income or profit therefrom. Instead, it is intended that Lessee's sole recourse in the event of such damages or injury be to file a claim on the insurance policy(ies) that Lessee isrequired to maintain pursuant to the provisions of paragraph 8.
8.9 Failure to Provide Insurance. Failure to Provide Insurance. Lessee acknowledges that any failure on its part to obtain or maintain the insurance required herein will expose Lessor to risks and potentially cause Lessor to incur costs not contemplated by this Lease. Lessee shall defend and indemnify Lessor from and against such risks as provided in Paragraph 8.7. Lessee acknowledges that any failure on its part to obtain or maintain the insurance required herein will expose Lessor to risks and potenƟally cause Lessor to incur costs not contemplated by this Lease, the extent of which will be
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extremely difficult to ascertain. Accordingly, for any month or porƟon thereof that Lessee does not maintain the required insurance and/or does not provide Lessor with the required binders or cerƟficates evidencing the existence of the required insurance, the Base Rent shall be automaƟcally increased, without any requirement for noƟce to Lessee, by an amount equal to 10% of the then exisƟng Base Rent or $100, whichever is greater. The parƟes agree that such increase in Base Rent represents fair and reasonable compensaƟon for the addiƟonal risk/costs that Lessor will incur by reason of Lessee's failure to maintain the required insurance. Such increase in Base Rent shall in no event consƟtute a waiver of Lessee's Default or Breach with respect to the failure to maintain such insurance, prevent the exercise of any of the other rights and remedies granted hereunder, nor relieve Lessee of its obligaƟon to maintain the insurance specified in this Lease.
9. See Addendum Damage or DestrucƟon.
9.1 Insured Loss. If the improvements on the Premises are damaged and such damage is an Insured Loss, then Lessor shall, at Lessor's expense, repair such damage (but not Lessee's Trade Fixtures or Lessee Owned AlteraƟons and UƟlity InstallaƟons) as soon as reasonably possible and this Lease shall conƟnue in full force and effect; provided, however, that Lessee shall, at Lessor's elecƟon, make the repair of any damage or destrucƟon the total cost to repair of which is $10,000 or less, and, in such event, Lessor shall make any applicable insurance proceeds available to Lessee on a reasonable basisfor that purpose. Notwithstanding the foregoing, if the required insurance was not in force or the insurance proceeds are notsufficient to effect such repair, the Insuring Party shall promptly contribute the shortage in proceeds (except asto the deducƟble which is Lessee's responsibility) as and when required to complete said repairs. In the event, however, such shortage was due to the fact that, by reason of the unique nature of the improvements, full replacement cost insurance coverage was not commercially reasonable and available, Lessor shall have no obligaƟon to pay for the shortage in insurance proceeds or to fully restore the unique aspects of the Premises.
9.2 Uninsured Loss. If the improvements on the Premises are damaged and such damage is not an Insured Loss, unless caused by a negligent or willful act of Lessee (in which event Lessee shall make the repairs at Lessee's expense), Lessor may either: (i) repair such damage as soon asreasonably possible at Lessor's expense, in which event this Lease shall conƟnue in full force and effect, or (ii) terminate this Lease by giving wriƩen noƟce to Lessee within 30 days aŌer receipt by Lessor of knowledge of the occurrence of such damage. Such terminaƟon shall be effecƟve 60 days following the date of such noƟce.
9.3 Abatement of Rent; Lessee's Remedies.
(a) Abatement. In the event the improvements on the Premises are damaged or a Hazardous Substance CondiƟon for which Lessee is not responsible under this Lease occurs ('Hazardous Substance CondiƟon' shall mean the occurrence or discovery of a condiƟon involving the presence of, or a contaminaƟon by, a Hazardous Substance on or under the Premises which requires remediaƟon), the Rent payable by Lessee for the period required for the repair, remediaƟon or restoraƟon of such damage shall be abated in proporƟon to the degree to which Lessee's use of the Premises isimpaired, but not to exceed the proceeds received from the Rental Value insurance. All other obligaƟons of Lessee hereunder shall be performed by Lessee, and Lessor shall have no liability for any such damage, destrucƟon, remediaƟon, repair or restoraƟon except as provided herein. (b) Remedies. If Lessor is obligated to repair or restore the Premises and does not commence, in a substanƟal and meaningful way, such repair or restoraƟon within 90 days aŌersuch obligaƟon shall accrue, Lessee may, at any Ɵme prior to the commencement of such repair or restoraƟon, give wriƩen noƟce to Lessor and to any Lenders of which Lessee has actual noƟce, of Lessee's elecƟon to terminate this Lease on a date not lessthan 60 days following the giving of such noƟce. If Lessee givessuch noƟce and such repair or restoraƟon is not commenced within 30 days thereaŌer, this Lease shall terminate as of the date specified in said noƟce. If the repair or restoraƟon is commenced within such 30 days, this Lease shall conƟnue in full force and effect. "Commence" shall mean either the uncondiƟonal authorizaƟon of the preparaƟon of the required plans, or the beginning of the actual work on the Premises, whichever first occurs.
9.4 TerminaƟon; Advance Payments. Upon terminaƟon of this Lease pursuant to Paragraph 6.2(g) or Paragraph 9, an equitable adjustment shall be made concerning advance Base Rent and any other advance payments made by Lessee to Lessor. Lessor shall, in addiƟon, return to Lessee so much of Lessee's Security Deposit as has not been, or is not then required to be, used by Lessor.
9.5 Waive Statutes. Lessor and Lessee agree that the terms of this Lease shall govern the effect of any damage to or destrucƟon of the Premises with respect to the terminaƟon of this Lease and hereby waive the provisions of any present or future statute to the extent inconsistent herewith.
10. Real Property Taxes.
10.1 DefiniƟon. As used herein, the term "Real Property Taxes" shall include any form of assessment; real estate, general, special, ordinary or extraordinary, or rental levy or tax (other than inheritance, personal income or estate taxes); improvement bond; and/or license fee imposed upon or levied against any legal or equitable interest of Lessor in the Premises or the Project, Lessor's right to other income therefrom, and/or Lessor's business of leasing, by any authority having the direct or indirect power to tax and where the funds are generated with reference to the Building address. Real Property Taxes shall also include any tax, fee, levy, assessment or charge, or any increase therein: (i) imposed by reason of events occurring during the term of this Lease, including but not limited to, a change in the ownership of the Premises, and (ii) levied or assessed on machinery or equipment provided by Lessor to Lessee pursuant to this Lease.
10.2 Payment of Taxes. Lessor shall pay the Real Property Taxes applicable to the Premises in the following manner: provided, however, that Lessee shall pay to Lessor the amount, if any, by which Real Property Taxes applicable to the Premises increase over the fiscal tax year during which the Commencement Date Occurs ("Tax Increase"). Payment of any such Tax Increase shall be made by Lessee to Lessor within 30 days aŌer receipt of Lessor's wriƩen statement seƫng forth the amount due and computaƟon thereof. If any such taxes shall cover any period of Ɵme prior to or aŌer the expiraƟon or terminaƟon of this Lease, Lessee's share of such taxesshall be prorated to cover only that porƟon of the tax bill applicable to the period that this Lease is in effect. In the event lessee incurs a late charge on any Rent payment, Lessor may esƟmate the current Real Property Taxes, and require that the Tax Increase be paid in advance to Lessor by Lessee monthly in advance with the payment of the Base Rent. Such monthly paymentshall be an amount equal to the amount of the esƟmated installment of the Tax Increase divided by the number of monthsremaining before the month in which said installment becomes delinquent. When the actual amount of the applicable Tax Increase is known, the amount ofsuch equal monthly advance payments shall be adjusted as required to provide the funds needed to pay the applicable Tax Increase. If the amount collected by Lessor is insufficient to pay the Tax Increase when due, Lessee shall pay Lessor, upon demand, such addiƟonal sums as are necessary to pay such obligaƟons. Advance payments may be intermingled with other moneys of Lessor and shall not bear interest. In the event of a Breach by Lessee in the performance of its obligaƟons under this Lease, then any such advance payments may be treated by Lessor as an addiƟonal Security Deposit.
10.3 AddiƟonal Improvements. Notwithstanding anything to the contrary in this Paragraph 10.2, Lessee shall pay to Lessor upon demand therefor the enƟrety of any increase in Real Property Taxes assessed by reason of AlteraƟons or UƟlity InstallaƟons placed upon the Premises by Lessee or at Lessee's request or by reason of any alteraƟons or improvementsto the Premises made by Lessor subsequent to the execuƟon of this Lease by the ParƟes.
10.4 Joint Assessment. If the Premises are notseparately assessed, Lessee's liability shall be an equitable proporƟon of the Tax Increase for all of the land and improvements included within the tax parcel assessed, such proporƟon to be conclusively determined by Lessor from the respecƟve valuaƟons assigned in the assessor's work sheets or such other informaƟon as may be reasonably available.
10.5 Personal Property Taxes. Lessee shall pay, prior to delinquency, all taxes assessed against and levied upon Lessee Owned AlteraƟons, UƟlity InstallaƟons, Trade Fixtures, furnishings, equipment and all personal property of Lessee. When possible, Lessee shall cause its Lessee Owned AlteraƟons and UƟlity InstallaƟons, Trade Fixtures, furnishings, equipment and all other personal property to be assessed and billed separately from the real property of Lessor. If any of Lessee's said
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property shall be assessed with Lessor's real property, Lessee shall pay Lessor the taxes aƩributable to Lessee's property within 10 days aŌer receipt of a wriƩen statement seƫng forth the taxes applicable to Lessee's property.
11. UƟliƟes and Services.
11.1 Lessee shall pay for all water, gas, heat, light, power, telephone, trash disposal and other uƟliƟes and servicessupplied to the Premises, together with any taxesthereon. If any such services are not separately metered or billed to Lessee, Lessee shall pay a reasonable proporƟon, to be determined by Lessor, of all charges jointly metered or billed. There shall be no abatement of rent and Lessor shall not be liable in any respect whatsoever for the inadequacy, stoppage, interrupƟon or disconƟnuance of any uƟlity or service due to riot, strike, labor dispute, breakdown, accident, repair or other cause beyond Lessor's reasonable control or in cooperaƟon with governmental request or direcƟons.
11.2 Within fiŌeen days of Lessor's wriƩen request, Lessee agrees to deliver to Lessor such informaƟon, documents and/or authorizaƟon as Lessor needs in order for Lessorto comply with new or exisƟng Applicable Requirements relaƟng to commercial building energy usage, raƟngs, and/or the reporƟng thereof.
12. Assignment and Subleƫng.
12.1 Lessor's Consent Required.
(a) Lessee shall not voluntarily or by operaƟon of law assign, transfer, mortgage or encumber (collecƟvely, "assign or assignment") orsublet all or any part of Lessee's interest in this Lease or in the Premises without Lessor's prior wriƩen consent, which Lessor may provide or deny in its sole and absolute discretion.
(b) Unless Lessee is a corporaƟon and its stock is publicly traded on a naƟonal stock exchange, a change in the control of Lessee shall consƟtute an assignment requiring consent. The transfer, on a cumulaƟve basis, of 25% or more of the voƟng control of Lessee shall consƟtute a change in control for this purpose.
Lessee’s agreement with Touchstone Golf, LLC, a Delaware limited liability company (“Touchstone”) (or other operator) for the operation of a golf course on the Premises, shall not be deemed an assignment or sublease. In the event that Lessee elects to engage another operator to replace Touchstone, Lessee shall provide notice to Lessor within ten (10) business days. (c) The involvement of Lessee or its assets in any transacƟon, or series of transacƟons (by way of merger, sale, acquisiƟon, financing, transfer, leveraged buyout or otherwise), whether or not a formal assignment or hypothecaƟon of this Lease or Lessee's assets occurs, which results or willresult in a reducƟon of the Net Worth of Lessee by an amount greater than 25% of such Net Worth asit was represented at the Ɵme of the execuƟon of this Lease or at the Ɵme of the most recent assignment to which Lessor has consented, or as it exists immediately prior to said transacƟon or transacƟons consƟtuƟng such reducƟon, whichever was or is greater, shall be considered an assignment of this Lease to which Lessor may withhold its consent. "Net Worth of Lessee" shall mean the net worth of Lessee (excluding any guarantors) established under generally accepted accounƟng principles. (d) An assignment or subleƫng without consentshall, at Lessor's opƟon, be a Default curable aŌer noƟce per Paragraph 13.1(d), or a non-curable Breach without the necessity of any noƟce and grace period.If Lessor elects to treat such unapproved assignment as a non-curable Breach, Lessor may terminate this Lease. If Lessor electsto treat such unapproved assignment orsubleƫng as a non-curable Breach, Lessor may either: (i) terminate this Lease, or (ii) upon 30 days wriƩen noƟce, increase the monthly Base Rent to 110% of the Base Rent then in effect. Further, in the event of such Breach and rental adjustment, (i) the purchase price of any opƟon to purchase the Premises held by Lessee shall be subject to similar adjustment to 110% of the price previously in effect, and (ii) all fixed and non-fixed rental adjustments scheduled during the remainder of the Lease term shall be increased to 110% of the scheduled adjusted rent.
(e) Lessee's remedy for any breach of Paragraph 12.1 by Lessor shall be limited to compensatory damages and/or injuncƟve relief. (f) Lessor may reasonably withhold consent to a proposed assignment or subleƫng if Lessee is in Default at the Ɵme consent is requested. (g) Notwithstanding the foregoing, allowing a de minimis porƟon of the Premises, i.e. 20 square feet orless, to be used by a third party vendor in connecƟon with the installaƟon of a vending machine or payphone shall not consƟtute a subleƫng.
12.2 Terms and CondiƟons Applicable to Assignment and Subleƫng. (a) Regardless of Lessor's consent, no assignment orsubleƫng shall : (i) be effecƟve without the express wriƩen assumpƟon by such assignee or sublessee of the obligaƟons of Lessee under this Lease, (ii) release Lessee of any obligaƟons hereunder, or (iii) alter the primary liability of Lessee for the payment of Rent or for the performance of any other obligaƟons to be performed by Lessee. (b) Lessor may accept Rent or performance of Lessee's obligaƟons from any person other than Lessee pending approval or disapproval of an assignment.
Neither a delay in the approval or disapproval of such assignment nor the acceptance of Rent or performance shall consƟtute a waiver or estoppel of Lessor's right to exercise its remedies for Lessee's Default or Breach.
(c) Lessor's consent to any assignment orsubleƫng shall not consƟtute a consent to any subsequent assignment orsubleƫng. (d) In the event of any Default or Breach by Lessee, Lessor may proceed directly against Lessee, any Guarantors or anyone else responsible for the performance of Lessee's obligaƟons under this Lease, including any assignee or sublessee, without first exhausƟng Lessor's remedies against any other person or enƟty responsible therefor to Lessor, or any security held by Lessor. (e) Each request for consent to an assignment or subleƫng shall be in wriƟng, accompanied by informaƟon relevant to Lessor's determinaƟon as to the financial and operaƟonal responsibility and appropriateness of the proposed assignee or sublessee, including but not limited to the intended use and/or required modificaƟon of the Premises, if any, together with a fee of $500 as consideraƟon for Lessor's considering and processing said request. Lessee agrees to provide Lessor with such other or addiƟonal informaƟon and/or documentaƟon as may be reasonably requested. (See also Paragraph 36) (f) Any assignee of, or sublessee under, this Lease shall, by reason of accepƟng such assignment, entering into such sublease, or entering into possession of the Premises or any porƟon thereof, be deemed to have assumed and agreed to conform and comply with each and every term, covenant, condiƟon and obligaƟon herein to be observed or performed by Lessee during the term of said assignment orsublease, other than such obligaƟons as are contrary to or inconsistent with provisions of an assignment orsublease to which Lessor hasspecifically consented to in wriƟng. (g) Lessor's consent to any assignment or subleƫng shall not transfer to the assignee or sublessee any OpƟon granted to the original Lessee by this Lease unless such transfer is specifically consented to by Lessor in wriƟng. (See Paragraph 39.2)
12.3 AddiƟonal Terms and CondiƟons Applicable to Subleƫng. The following terms and condiƟons shall apply to any subleƫng by Lessee of all or any part of the Premises and shall be deemed included in all subleases under this Lease whether or not expressly incorporated therein:
(a) Lessee hereby assigns and transfersto Lessor all of Lessee's interest in all Rent payable on any sublease, and Lessor may collectsuch Rent and apply same toward Lessee's obligaƟons under this Lease; provided, however, that unƟl a Breach shall occur in the performance of Lessee's obligaƟons, Lessee may collect
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said Rent. In the event that the amount collected by Lessor exceeds Lessee's then outstanding obligaƟons any such excess shall be refunded to Lessee. Lessor shall not, by reason of the foregoing or any assignment ofsuch sublease, nor by reason of the collecƟon of Rent, be deemed liable to the sublessee for any failure of Lessee to perform and comply with any of Lessee's obligaƟons to such sublessee. Lessee hereby irrevocably authorizes and directs any such sublessee, upon receipt of a wriƩen noƟce from Lessor staƟng that a Breach exists in the performance of Lessee's obligaƟons under this Lease, to pay to Lessor all Rent due and to become due under the sublease. Sublessee shall rely upon any such noƟce from Lessor and shall pay all Rents to Lessor without any obligaƟon or right to inquire as to whether such Breach exists, notwithstanding any claim from Lessee to the contrary. (b) In the event of a Breach by Lessee, Lessor may, at its opƟon, require sublessee to aƩorn to Lessor, in which event Lessor shall undertake the obligaƟons of the sublessor undersuch sublease from the Ɵme of the exercise of said opƟon to the expiraƟon of such sublease; provided, however, Lessor shall not be liable for any prepaid rents or security deposit paid by such sublessee to such sublessor or for any prior Defaults or Breaches of such sublessor. (c) Any maƩer requiring the consent of the sublessor under a sublease shall also require the consent of Lessor. (d) No sublessee shall further assign or sublet all or any part of the Premises without Lessor's prior wriƩen consent. (e) Lessor shall deliver a copy of any noƟce of Default or Breach by Lessee to the sublessee, who shall have the right to cure the Default of Lessee within the grace period, if any,specified in such noƟce. The sublessee shall have a right of reimbursement and offset from and against Lessee for any such Defaults cured by the sublessee.
13. Default; Breach; Remedies.
13.1 Default; Breach. A "Default" is defined as a failure by the Lessee to comply with or perform any of the terms, covenants, condiƟons or Rules and RegulaƟons under this Lease. A "Breach" is defined as the occurrence of one or more of the following Defaults, and the failure of Lessee to cure such Default within any applicable grace period:
(a) The abandonment of the Premises; the vacaƟng of the Premises prior to the expiraƟon or terminaƟon of this Lease without providing a commercially reasonable level of security, or where the coverage of the property insurance described in Paragraph 8.3 isjeopardized as a result thereof, or without providing reasonable assurances to minimize potenƟal vandalism; or failure to deliver to Lessor exclusive possession of the enƟre Premises in accordance herewith prior to the expiraƟon or terminaƟon of this Lease.
(b) The failure of Lessee to make any payment of Rent or any Security Deposit required to be made by Lessee hereunder, whether to Lessor or to a third party, when due, to provide reasonable evidence of insurance or surety bond, or to fulfill any obligaƟon under this Lease which endangers or threatens life or property, where such failure conƟnues for a period of 3 business daysfollowing wriƩen noƟce to Lessee. THE ACCEPTANCE BY LESSOR OF A PARTIAL PAYMENT OF
RENT OR SECURITY DEPOSIT SHALL NOT CONSTITUTE A WAIVER OF ANY OF LESSOR'S RIGHTS, INCLUDING LESSOR'S RIGHT TO RECOVER POSSESSION OF THE PREMISES.
(c) The failure of Lessee to allow Lessor and/or its agents access to the Premises or the commission of waste, act or acts consƟtuƟng public or private nuisance, and/or an illegal acƟvity on the Premises by Lessee, where such acƟons conƟnue for a period of 3 business days following wriƩen noƟce to Lessee. In the event that Lessee commits waste, a nuisance or an illegal acƟvity a second Ɵme then, the Lessor may elect to treat such conduct as a non-curable Breach rather than a Default.
(d) The failure by Lessee to provide (i) reasonable wriƩen evidence of compliance with Applicable Requirements, (ii) the service contracts, (iii) the rescission of an unauthorized assignment or subleƫng, (iv) an Estoppel CerƟficate or financial statements, (v) a requested subordinaƟon, (vi) evidence concerning any guaranty and/or Guarantor, (vii) any document requested under Paragraph 42, (viii) material safety data sheets (MSDS), or (ix) any other documentaƟon or informaƟon which Lessor may reasonably require of Lessee under the terms of this Lease, where any such failure conƟnues for a period of 10 daysfollowing wriƩen noƟce to Lessee.
(e) A Default by Lessee asto the terms, covenants, condiƟons or provisions of this Lease, or of the rules adopted under Paragraph 40 hereof, other than those described in subparagraphs 13.1(a), (b), (c) or (d), above, where such Default conƟnues for a period of 30 days aŌer wriƩen noƟce; provided, however, that if the nature of Lessee's Default issuch that more than 30 days are reasonably required for its cure, then itshall not be deemed to be a Breach if Lessee commences such cure within said 30 day period and thereaŌer diligently prosecutes such cure to compleƟon. (f) The occurrence of any of the following events: (i) the making of any general arrangement or assignment for the benefit of creditors; (ii) becoming a "debtor" as defined in 11 U.S.C. § 101 or any successor statute thereto (unless, in the case of a peƟƟon filed against Lessee, the same is dismissed within 60 days); (iii) the appointment of a trustee or receiver to take possession of substanƟally all of Lessee's assets located at the Premises or of Lessee'sinterest in this Lease, where possession is not restored to Lessee within 30 days; or (iv) the aƩachment, execuƟon or other judicial seizure of substanƟally all of Lessee's assets located at the Premises or of Lessee's interest in this Lease, where such seizure is not discharged within 30 days; provided, however, in the event that any provision of this subparagraph is contrary to any applicable law, such provision shall be of no force or effect, and not affect the validity of the remaining provisions. (g) The discovery that any financial statement of Lessee or of any Guarantor given to Lessor was materially false. (h) The cessation of the use of the Premises for golf course operations or other Agreed Use for a period exceeding 180 consecutive days. If the performance of Lessee's obligaƟons under this Lease is guaranteed: (i) the death of a Guarantor, (ii) the terminaƟon of a Guarantor's liability with respect to this Lease other than in accordance with the terms of such guaranty, (iii) a Guarantor's becoming insolvent or the subject of a bankruptcy filing, (iv) a Guarantor's refusal to honor the guaranty, or(v) a Guarantor's breach of its guaranty obligaƟon on an anƟcipatory basis, and Lessee's failure, within 60 days following wriƩen noƟce of any such event, to provide wriƩen alternaƟve assurance or security, which, when coupled with the then exisƟng resources of Lessee, equals or exceeds the combined financial resources of Lessee and the Guarantors that existed at the Ɵme of execuƟon of this Lease.
13.2 Remedies. If Lessee fails to perform any of its affirmaƟve duƟes or obligaƟons, within 10 days aŌer wriƩen noƟce (or in case of an emergency, without noƟce), Lessor may, at its opƟon, perform such duty or obligaƟon on Lessee's behalf, including but not limited to the obtaining of reasonably required bonds, insurance policies, or governmental licenses, permits or approvals. Lessee shall pay to Lessor an amount equal to 115% of the costs and expenses incurred by Lessor in such performance upon receipt of an invoice therefor. In the event of a Breach, Lessor may, with or without further noƟce or demand, and without limiƟng Lessor in the exercise of any right or remedy which Lessor may have by reason of such Breach:
(a) Terminate Lessee'sright to possession of the Premises by any lawful means, in which case this Lease shall terminate and Lessee shall immediately surrender possession to Lessor. In such event Lessor shall be enƟtled to recover from Lessee: (i) the unpaid Rent which had been earned at the Ɵme of terminaƟon; (ii) the worth at the Ɵme of award of the amount by which the unpaid rent which would have been earned aŌer terminaƟon unƟl the Ɵme of award exceeds the amount of such rental loss that the Lessee proves could have been reasonably avoided; (iii) the worth at the Ɵme of award of the amount by which the unpaid rent for the balance of the term aŌer the Ɵme of award exceeds the amount of such rental lossthat the Lessee proves could be reasonably avoided; and (iv) any other amount necessary to compensate Lessor for all the detriment proximately caused by the Lessee's failure to perform its obligaƟons under this Lease or which in the ordinary course of things would be likely to result therefrom, including but not limited to the cost of recovering possession of the Premises, expenses of releƫng, including
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necessary renovaƟon and alteraƟon of the Premises, reasonable aƩorneys' fees, and that porƟon of any leasing commission paid by Lessor in connecƟon with this Lease applicable to the unexpired term of this Lease. The worth at the Ɵme of award of the amount referred to in provision (iii) of the immediately preceding sentence shall be computed by discounƟng such amount at the discount rate of the Federal Reserve Bank of the District within which the Premises are located at the Ɵme of award plus one percent. Efforts by Lessor to miƟgate damages caused by Lessee's Breach of this Lease shall not waive Lessor's right to recover any damagesto which Lessor is otherwise enƟtled. If terminaƟon of this Lease is obtained through the provisional remedy of unlawful detainer, Lessor shall have the right to recover in such proceeding any unpaid Rent and damages as are recoverable therein, or Lessor may reserve the right to recover all or any part thereof in a separate suit. If a noƟce and grace period required under Paragraph 13.1 was not previously given, a noƟce to pay rent or quit, or to perform or quit given to Lessee under the unlawful detainer statute shall also consƟtute the noƟce required by Paragraph 13.1. In such case, the applicable grace period required by Paragraph 13.1 and the unlawful detainer statute shall run concurrently, and the failure of Lessee to cure the Default within the greater of the two such grace periodsshall consƟtute both an unlawful detainer and a Breach of this Lease enƟtling Lessor to the remedies provided for in this Lease and/or by said statute. (b) ConƟnue the Lease and Lessee's right to possession and recover the Rent asit becomes due, in which event Lessee may sublet or assign, subject only to reasonable limitaƟons. Acts of maintenance, efforts to relet, and/or the appointment of a receiver to protect the Lessor'sinterests, shall not consƟtute a terminaƟon of the Lessee's right to possession.
(c) Pursue any other remedy now or hereaŌer available under the laws or judicial decisions of the state wherein the Premises are located. The expiraƟon or terminaƟon of this Lease and/or the terminaƟon of Lessee'sright to possession shall not relieve Lessee from liability under any indemnity provisions of this Lease as to maƩers occurring or accruing during the term hereof or by reason of Lessee's occupancy of the Premises.
13.3 Inducement Recapture. Any agreement for free or abated rent or other charges, the cost of tenant improvements for Lessee paid for or performed by Lessor, or for the giving or paying by Lessor to or for Lessee of any cash or other bonus, inducement or consideraƟon for Lessee's entering into this Lease, all of which concessions are hereinaŌer referred to as "Inducement Provisions," shall be deemed condiƟoned upon Lessee's full and faithful performance of all of the terms, covenants and condiƟons of this Lease. Upon Breach of this Lease by Lessee, any such Inducement Provision shall automaƟcally be deemed deleted from this Lease and of no further force or effect, and any rent, other charge, bonus, inducement or consideraƟon theretofore abated, given or paid by Lessor under such an Inducement Provision shall be immediately due and payable by Lessee to Lessor, notwithstanding any subsequent cure ofsaid Breach by Lessee. The acceptance by Lessor of rent or the cure of the Breach which iniƟated the operaƟon of this paragraph shall not be deemed a waiver by Lessor of the provisions of this paragraph unless specifically so stated in wriƟng by Lessor at the Ɵme of such acceptance.
13.4 Late Charges. Lessee hereby acknowledgesthat late payment by Lessee of Rent will cause Lessor to incur costs not contemplated by this Lease, the exact amount of which will be extremely difficult to ascertain. Such costsinclude, but are not limited to, processing and accounƟng charges, and late charges which may be imposed upon Lessor by any Lender. Accordingly, if any Rent shall not be received by Lessor within 5 days aŌer such amountshall be due, then, without any requirement for noƟce to Lessee, Lessee shall immediately pay to Lessor a one-Ɵme late charge equal to 10% of each such overdue amount or $100, whichever is greater. The ParƟes hereby agree that such late charge represents a fair and reasonable esƟmate of the costs Lessor will incur by reason ofsuch late payment.
Acceptance of such late charge by Lessor shall in no event consƟtute a waiver of Lessee's Default or Breach with respect to such overdue amount, nor prevent the exercise of any of the other rights and remedies granted hereunder. In the event that a late charge is payable hereunder, whether or not collected, for 3 consecuƟve installments of Base Rent, then notwithstanding any provision of this Lease to the contrary, Base Rent shall, at Lessor's opƟon, become due and payable quarterly in advance.
13.5 Interest. Any monetary payment due Lessor hereunder, other than late charges, not received by Lessor, when due shall bear interest from the 31st day aŌer it was due. The interest ("Interest") charged shall be computed at the rate of 10% per annum but shall not exceed the maximum rate allowed by law. Interest is payable in addiƟon to the potenƟal late charge provided for in Paragraph 13.4.
13.6 Breach by Lessor.
(a) NoƟce of Breach. Lessor shall not be deemed in breach of this Lease unless Lessor fails within a reasonable Ɵme to perform an obligaƟon required to be performed by Lessor. For purposes of this Paragraph, a reasonable Ɵme shall in no event be less than 30 days aŌer receipt by Lessor, and any Lender whose name and address shall have been furnished to Lessee in wriƟng for such purpose, of wriƩen noƟce specifying wherein such obligaƟon of Lessor has not been performed; provided, however, that if the nature of Lessor's obligaƟon issuch that more than 30 days are reasonably required for its performance, then Lessor shall not be in breach if performance is commenced within such 30 day period and thereaŌer diligently pursued to compleƟon. (b) Performance by Lessee on Behalf of Lessor. In the event that neither Lessor nor Lender cures said breach within 30 days aŌer receipt of said noƟce, or if having commenced said cure they do not diligently pursue it to compleƟon, then Lessee may elect to cure said breach at Lessee's expense and offset from Rent the actual and reasonable cost to perform such cure, provided however, that such offset shall not exceed an amount equal to the greater of one month's Base Rent or the Security Deposit, reserving Lessee'sright to seek reimbursement from Lessor for any such expense in excess of such offset. Lessee shall document the cost ofsaid cure and supply said documentaƟon to Lessor.
14. CondemnaƟon. If the Premises or any porƟon thereof are taken under the power of eminent domain or sold under the threat of the exercise of said power (collecƟvely "CondemnaƟon"), this Lease shall terminate as to the part taken as of the date the condemning authority takes Ɵtle or possession, whichever first occurs.
If more than 25% of the Premises, istaken by CondemnaƟon, Lessee may, at Lessee's opƟon, to be exercised in wriƟng within 10 days aŌer Lessor shall have given Lessee wriƩen noƟce of such taking (or in the absence of such noƟce, within 10 days aŌer the condemning authority shall have taken possession) terminate this Lease as of the date the condemning authority takessuch possession. If Lessee does not terminate this Lease in accordance with the foregoing, this Lease shall remain in full force and effect as to the porƟon of the Premises remaining, except that the Base Rentshall be reduced in proporƟon to the reducƟon in uƟlity of the Premises caused by such CondemnaƟon. CondemnaƟon awards and/or payments shall be the property of Lessor, whether such award shall be made as compensaƟon for diminuƟon in value of the leasehold, the value of the part taken, or for severance damages; provided, however, that Lessee shall be enƟtled to any compensaƟon paid by the condemnor for Lessee'srelocaƟon expenses, loss of business goodwill and/or Trade Fixtures, without regard to whether or not this Lease isterminated pursuant to the provisions of this Paragraph. All AlteraƟons and UƟlity InstallaƟons made to the Premises by Lessee, for purposes of CondemnaƟon only, shall be considered the property of the Lessee and Lessee shall be enƟtled to any and all compensaƟon which is payable therefor. In the event that this Lease is not terminated by reason of the CondemnaƟon, Lessor shall repair any damage to the Premises caused by such CondemnaƟon.
15. Brokerage Fees.
15.1 AddiƟonal Commission. In addiƟon to the payments owed pursuant to Paragraph 1.9 above, Lessor agrees that: (a) if Lessee exercises any OpƟon, (b) if Lessee or anyone affiliated with Lessee acquires any rights to the Premises or other premises owned by Lessor and located within the same Project, if any, within which the Premisesis located, (c) if Lessee remains in possession of the Premises, with the consent of Lessor, aŌer the expiraƟon of this Lease, or (d) if Base Rent is increased, whether by agreement or operaƟon of an escalaƟon clause herein, then, Lessor shall pay Brokers a fee in accordance with the fee schedule of the Brokers in effect at the Ɵme the Lease was executed. The provisions of this paragraph are intended to supersede the provisions of any earlier agreement to the contrary.
15.2 AssumpƟon of ObligaƟons. Any buyer or transferee of Lessor'sinterest in this Lease shall be deemed to have assumed Lessor's obligaƟon hereunder.
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Brokersshall be third party beneficiaries of the provisions of Paragraphs 1.9, 15, 22 and 31.
15.3 RepresentaƟons and IndemniƟes of Broker RelaƟonships. Lessee and Lessor each represent and warrant to the other that it has had no dealings with any person, firm, broker, agent or finder (other than the Brokers and Agents, if any) in connecƟon with this Lease, and that no one other than said named Brokers and Agents is enƟtled to any commission or finder's fee in connecƟon herewith. Lessee and Lessor do each hereby agree to indemnify, protect, defend and hold the other harmless from and against liability for compensaƟon or charges which may be claimed by any such unnamed broker, finder or other similar party by reason of any dealings or acƟons of the indemnifying Party, including any costs, expenses, aƩorneys' feesreasonably incurred with respect thereto.
16. Estoppel CerƟficates.
(a) Each Party (as "Responding Party") shall within 10 days aŌer wriƩen noƟce from the other Party (the "RequesƟng Party") execute, acknowledge and deliver to the RequesƟng Party a statement in wriƟng in form similar to the then most current "Estoppel CerƟficate" form published by AIR CRE, plus such addiƟonal informaƟon, confirmaƟon and/or statements as may be reasonably requested by the RequesƟng Party. (b) If the Responding Party shall failto execute or deliver the Estoppel CerƟficate within such 10 day period, the RequesƟng Party may execute an Estoppel CerƟficate staƟng that: (i) the Lease isin full force and effect without modificaƟon except as may be represented by the RequesƟng Party, (ii) there are no uncured defaults in the RequesƟng Party's performance, and (iii) if Lessor isthe RequesƟng Party, not more than one month's rent has been paid in advance.
ProspecƟve purchasers and encumbrancers may rely upon the RequesƟng Party's Estoppel CerƟficate, and the Responding Party shall be estopped from denying the truth of the facts contained in said CerƟficate. In addiƟon, Lessee acknowledges that any failure on its part to provide such an Estoppel CerƟficate will expose Lessor to risks and potenƟally cause Lessor to incur costs not contemplated by this Lease, the extent of which will be extremely difficult to ascertain. Accordingly, should the Lessee fail to execute and/or deliver a requested Estoppel CerƟficate in a Ɵmely fashion the monthly Base Rentshall be automaƟcally increased, without any requirement for noƟce to Lessee, by an amount equal to 10% of the then exisƟng Base Rent or $100, whichever is greater for remainder of the Lease. The ParƟes agree that such increase in Base Rent represents fair and reasonable compensaƟon for the addiƟonal risk/costs that Lessor will incur by reason of Lessee's failure to provide the Estoppel CerƟficate. Such increase in Base Rentshall in no event consƟtute a waiver of Lessee's Default or Breach with respect to the failure to provide the Estoppel CerƟficate nor prevent the exercise of any of the other rights and remedies granted hereunder. (c) If Lessor desiresto finance, refinance, or sell the Premises, or any part thereof, Lessee and all Guarantorsshall within 10 days aŌer wriƩen noƟce from Lessor deliver to any potenƟal lender or purchaser designated by Lessor such financial statements as may be reasonably required by such lender or purchaser, including but not limited to Lessee's financial statementsfor the past 3 years. Allsuch financial statementsshall be received by Lessor and such lender or purchaser in confidence and shall be used only for the purposes herein set forth.
17. DefiniƟon of Lessor. The term "Lessor" as used herein shall mean the owner or owners at the Ɵme in quesƟon of the fee Ɵtle to the Premises, or, if thisis a sublease, of the Lessee's interest in the prior lease. In the event of a transfer of Lessor's Ɵtle or interest in the Premises orthis Lease, Lessor shall deliver to the transferee or assignee (in cash or by credit) any unused Security Deposit held by Lessor. Upon such transfer or assignment and delivery of the Security Deposit, as aforesaid, the prior Lessor shall be relieved of all liability with respect to the obligaƟons and/or covenants under this Lease thereaŌer to be performed by the Lessor.
Subject to the foregoing, the obligaƟons and/or covenants in this Lease to be performed by the Lessor shall be binding only upon the Lessor as hereinabove defined.
18. Severability. The invalidity of any provision of this Lease, as determined by a court of competent jurisdicƟon, shall in no way affect the validity of any other provision hereof.
19. Days. Unless otherwise specifically indicated to the contrary, the word "days" as used in this Lease shall mean and refer to calendar days.
20. LimitaƟon on Liability. The obligaƟons of Lessor under this Lease shall not consƟtute personal obligaƟons of Lessor, or its partners, members, directors, officers or shareholders, and Lessee shall look to the Premises, and to no other assets of Lessor, for the saƟsfacƟon of any liability of Lessor with respect to this Lease, and shall not seek recourse against Lessor's partners, members, directors, officers or shareholders, or any of their personal assetsfor such saƟsfacƟon.
21. Time of Essence. Time is of the essence with respect to the performance of all obligaƟons to be performed or observed by the ParƟes under this Lease.
22. No Prior or Other Agreements; Broker Disclaimer. This Lease contains all agreements between the ParƟes with respect to any maƩer menƟoned herein, and no other prior or contemporaneous agreement or understanding shall be effecƟve. Lessor and Lessee each represents and warrants to the Brokers that it has made, and isrelying solely upon, its own invesƟgaƟon asto the nature, quality, character and financial responsibility of the other Party to this Lease and asto the use, nature, quality and character of the Premises. Brokers have no responsibility with respect thereto or with respect to any default or breach hereof by either Party.
23. NoƟces.
23.1 NoƟce Requirements. All noƟces required or permiƩed by this Lease or applicable law shall be in wriƟng and may be delivered in person (by hand or by courier) or may be sent by regular, cerƟfied or registered mail or U.S. Postal Service Express Mail, with postage prepaid, or by facsimile transmission, or by email, and shall be deemed sufficiently given ifserved in a manner specified in this Paragraph 23. The addresses noted adjacent to a Party's signature on this Lease shall be that Party's address for delivery or mailing of noƟces. Either Party may by wriƩen noƟce to the otherspecify a different address for noƟce, except that upon Lessee's taking possession of the Premises, the Premises shall consƟtute Lessee's address for noƟce. A copy of all noƟces to Lessor shall be concurrently transmiƩed to such party or parƟes at such addresses as Lessor may from Ɵme to Ɵme hereaŌer designate in wriƟng.
23.2 Date of NoƟce. Any noƟce sent by registered or cerƟfied mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date isshown, the postmark thereon. If sent by regular mail the noƟce shall be deemed given 72 hours aŌer the same is addressed as required herein and mailed with postage prepaid. NoƟces delivered by United States Express Mail or overnight courier that guarantees next day delivery shall be deemed given 24 hours aŌer delivery of the same to the Postal Service or courier. NoƟces delivered by hand, or transmiƩed by facsimile transmission or by email shall be deemed delivered upon actual receipt. If noƟce is received on a Saturday, Sunday or legal holiday, itshall be deemed received on the next business day.
23.3 OpƟons. Notwithstanding the foregoing, in order to exercise any OpƟons (see paragraph 39), the NoƟce must be sent by CerƟfied Mail (return receipt requested), Express Mail (signature required), courier (signature required) or some other methodology that provides a receipt establishing the date the noƟce was received by the Lessor.
24. Waivers.
(a) No waiver by Lessor of the Default or Breach of any term, covenant or condiƟon hereof by Lessee, shall be deemed a waiver of any other term, covenant or condiƟon hereof, or of any subsequent Default or Breach by Lessee of the same or of any other term, covenant or condiƟon hereof. Lessor's consent to, or approval of, any actshall not be deemed to render unnecessary the obtaining of Lessor's consent to, or approval of, any subsequent or similar act by Lessee, or be construed as the basis of an estoppel to enforce the provision or provisions of this Lease requiring such consent. (b) The acceptance of Rent by Lessor shall not be a waiver of any Default or Breach by Lessee. Any payment by Lessee may be accepted by Lessor on
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account of monies or damages due Lessor, notwithstanding any qualifying statements or condiƟons made by Lessee in connecƟon therewith, which such statements and/or condiƟons shall be of no force or effect whatsoever unless specifically agreed to in wriƟng by Lessor at or before the Ɵme of deposit of such payment. (c) THE PARTIES AGREE THAT THE TERMS OF THIS LEASE SHALL GOVERN WITH REGARD TO ALL MATTERS RELATED THERETO AND HEREBY WAIVE THE PROVISIONS OF ANY PRESENT OR FUTURE STATUTE TO THE EXTENT THAT SUCH STATUTE IS INCONSISTENT WITH THIS LEASE.
25. Disclosures Regarding The Nature of a Real Estate Agency RelaƟonship. (a) When entering into a discussion with a real estate agent regarding a real estate transacƟon, a Lessor or Lessee should from the outset understand what type of agency relaƟonship or representaƟon it has with the agent or agents in the transacƟon. Lessor and Lessee acknowledge being advised by the Brokers in thistransacƟon, asfollows:
(i) Lessor's Agent. A Lessor's agent under a lisƟng agreement with the Lessor acts as the agent for the Lessor only. A Lessor's agent or subagent hasthe following affirmaƟve obligaƟons: To the Lessor: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Lessor. To the Lessee and the Lessor: (a) Diligent exercise of reasonable skills and care in performance of the agent's duƟes. (b) A duty of honest and fair dealing and good faith. (c) A duty to disclose all facts known to the agent materially affecƟng the value or desirability of the property that are not known to, or within the diligent aƩenƟon and observaƟon of, the ParƟes. An agent is not obligated to reveal to either Party any confidenƟal informaƟon obtained from the other Party which does not involve the affirmaƟve duƟes set forth above.
(ii) Lessee's Agent. An agent can agree to act as agent for the Lessee only. In these situaƟons, the agent is not the Lessor's agent, even if by agreement the agent may receive compensaƟon for servicesrendered, either in full or in part from the Lessor. An agent acƟng only for a Lessee has the following affirmaƟve obligaƟons. To the Lessee: A fiduciary duty of utmost care, integrity, honesty, and loyalty in dealings with the Lessee. To the Lessee and the Lessor: (a) Diligent exercise of reasonable skills and care in performance of the agent's duƟes. (b) A duty of honest and fair dealing and good faith. (c) A duty to disclose all facts known to the agent materially affecƟng the value or desirability of the property that are not known to, or within the diligent aƩenƟon and observaƟon of, the ParƟes.
An agent is not obligated to reveal to either Party any confidenƟal informaƟon obtained from the other Party which does not involve the affirmaƟve duƟesset forth above.
(iii) Agent RepresenƟng Both Lessor and Lessee. A real estate agent, either acƟng directly or through one or more associate licensees, can legally be the agent of both the Lessor and the Lessee in a transacƟon, but only with the knowledge and consent of both the Lessor and the Lessee. In a dual agency situaƟon, the agent has the following affirmaƟve obligaƟons to both the Lessor and the Lessee: (a) A fiduciary duty of utmost care, integrity, honesty and loyalty in the dealings with either Lessor or the Lessee. (b) Other duƟesto the Lessor and the Lessee asstated above in subparagraphs (i) or (ii). In represenƟng both Lessor and Lessee, the agent may not, without the express permission of the respecƟve Party, disclose to the other Party confidenƟal informaƟon, including, but not limited to, facts relaƟng to either Lessee's or Lessor's financial posiƟon, moƟvaƟons, bargaining posiƟon, or other personal informaƟon that may impact rent, including Lessor's willingness to accept a rent less than the lisƟng rent or Lessee's willingness to pay rent greater than the rent offered. The above duƟes of the agent in a real estate transacƟon do not relieve a Lessor or Lessee from the responsibility to protect their own interests. Lessor and Lessee should carefully read all agreements to assure that they adequately express their understanding of the transacƟon. A real estate agent is a person qualified to advise about real estate. If legal or tax advice is desired, consult a competent professional. Both Lessor and Lessee should strongly consider obtaining tax advice from a competent professional because the federal and state tax consequences of a transacƟon can be complex and subject to change. (b) Brokers have no responsibility with respect to any default or breach hereof by either Party. The ParƟes agree that no lawsuit or other legal proceeding involving any breach of duty, error or omission relaƟng to this Lease may be brought against Broker more than one year aŌer the Start Date and that the liability (including court costs and aƩorneys' fees), of any Broker with respect to any such lawsuit and/or legal proceeding shall not exceed the fee received by such Broker pursuant to this Lease; provided, however, that the foregoing limitaƟon on each Broker's liability shall not be applicable to any gross negligence or willful misconduct of such Broker.
(c) Lessor and Lessee agree to idenƟfy to Brokers as "ConfidenƟal" any communicaƟon or informaƟon given Brokers that is considered by such Party to be confidenƟal.
26. No Right To Holdover. Lessee has no right to retain possession of the Premises or any part thereof beyond the expiraƟon or terminaƟon of this Lease. At or prior to the expiraƟon or terminaƟon of this Lease Lessee shall deliver exclusive possession of the Premisesto Lessor. For purposes of this provision and Paragraph
13.1(a), exclusive possession shall mean that Lessee shall have vacated the Premises, removed all of its personal property therefrom and that the Premises have been returned in the condiƟon specified in this Lease. In the event that Lessee does not deliver exclusive possession to Lessor asspecified above, then Lessor's damages during any holdover period shall be computed at the amount of the Rent (as defined in Paragraph 4.1) due during the last full month before the expiraƟon or terminaƟon of this Lease (disregarding any temporary abatement of Rent that may have been in effect), but with Base Rent being 150% of the Base Rent payable during such last full month. Nothing contained herein shall be construed as consent by Lessor to any holding over by Lessee.
27. CumulaƟve Remedies. No remedy or elecƟon hereunder shall be deemed exclusive but shall, wherever possible, be cumulaƟve with all other remedies at law or in equity.
28. Covenants and CondiƟons; ConstrucƟon of Agreement. All provisions of this Lease to be observed or performed by Lessee are both covenants and condiƟons.
In construing this Lease, all headings and Ɵtles are for the convenience of the ParƟes only and shall not be considered a part of this Lease. Whenever required by the context, the singular shall include the plural and vice versa. This Lease shall not be construed asif prepared by one of the ParƟes, but rather according to itsfair meaning as a whole, asif both ParƟes had prepared it.
29. Binding Effect; Choice of Law. This Lease shall be binding upon the ParƟes, their personal representaƟves, successors and assigns and be governed by the laws of the State in which the Premises are located. Any liƟgaƟon between the ParƟes hereto concerning this Lease shall be iniƟated in the county in which the Premises are located. Signatures to this Lease accomplished by means of electronic signature or similar technology shall be legal and binding.
30. SubordinaƟon; AƩornment; Non-Disturbance.
30.1 SubordinaƟon. This Lease and any OpƟon granted hereby shall be subject and subordinate to any ground lease, mortgage, deed of trust, or other hypothecaƟon or security device (collecƟvely, "Security Device"), now or hereaŌer placed upon the Premises, to any and all advances made on the security thereof, and to all renewals, modificaƟons, and extensions thereof. Lessee agrees that the holders of any such Security Devices (in this Lease together referred to as "Lender") shall have no liability or obligaƟon to perform any of the obligaƟons of Lessor under this Lease. Any Lender may elect to have this Lease and/or any OpƟon granted hereby superior to the lien of its Security Device by giving wriƩen noƟce thereof to Lessee, whereupon this Lease and such OpƟons shall be deemed prior to such Security Device, notwithstanding the relaƟve dates of the documentaƟon or recordaƟon thereof.
30.2 AƩornment. In the event that Lessor transfers Ɵtle to the Premises, or the Premises are acquired by another upon the foreclosure or terminaƟon of a Security Device to which this Lease is subordinated (i) Lessee shall, subject to the non-disturbance provisions of Paragraph 30.3, aƩorn to such new owner, and upon
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request, enter into a new lease, containing all of the terms and provisions of this Lease, with such new owner for the remainder of the term hereof, or, at the elecƟon of the new owner, this Lease will automaƟcally become a new lease between Lessee and such new owner, and (ii) Lessor shall thereaŌer be relieved of any further obligaƟons hereunder and such new owner shall assume all of Lessor's obligaƟons, except that such new owner shall not: (a) be liable for any act or omission of any prior lessor or with respect to events occurring prior to acquisiƟon of ownership; (b) be subject to any offsets or defenses which Lessee might have against any prior lessor, (c) be bound by prepayment of more than one month'srent, or (d) be liable for the return of any security deposit paid to any prior lessor which was not paid or credited to such new owner.
30.3 Non-Disturbance. With respect to Security Devices entered into by Lessor aŌer the execuƟon of this Lease, Lessee'ssubordinaƟon of this Lease shall be subject to receiving a commercially reasonable non-disturbance agreement (a "Non-Disturbance Agreement") from the Lender which Non-Disturbance Agreement provides that Lessee's possession of the Premises, and this Lease, including any opƟonsto extend the term hereof, will not be disturbed so long as Lessee is not in Breach hereof and aƩorns to the record owner of the Premises.
30.4 Self-ExecuƟng. The agreements contained in this Paragraph 30 shall be effecƟve without the execuƟon of any further documents; provided, however, that, upon wriƩen request from Lessor or a Lender in connecƟon with a sale, financing or refinancing of the Premises, Lessee and Lessor shall execute such further wriƟngs as may be reasonably required to separately document any subordinaƟon, aƩornment and/or Non-Disturbance Agreement provided for herein.
31. AƩorneys' Fees. If any Party or Broker brings an acƟon or proceeding involving the Premises whether founded in tort, contract or equity, or to declare rights hereunder, the Prevailing Party (as hereaŌer defined) in any such proceeding, acƟon, or appeal thereon, shall be enƟtled to reasonable aƩorneys' fees. Such fees may be awarded in the same suit or recovered in a separate suit, whether or not such acƟon or proceeding is pursued to decision or judgment. The term, "Prevailing Party" shall include, without limitaƟon, a Party or Broker who substanƟally obtains or defeats the relief sought, asthe case may be, whether by compromise, seƩlement, judgment, or the abandonment by the other Party or Broker of its claim or defense. The aƩorneys' fees award shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all aƩorneys' feesreasonably incurred. In addiƟon, Lessor shall be enƟtled to aƩorneys' fees, costs and expenses incurred in the preparaƟon and service of noƟces of Default and consultaƟons in connecƟon therewith, whether or not a legal acƟon is subsequently commenced in connecƟon with such Default or resulƟng Breach ($200 is a reasonable minimum per occurrence forsuch services and consultaƟon).
32. Lessor's Access; Showing Premises; Repairs. Lessor and Lessor's agentsshall have the right to enter the Premises at any Ɵme, in the case of an emergency, and otherwise at reasonable Ɵmes aŌer reasonable prior noƟce for the purpose ofshowing the same to prospecƟve purchasers, lenders, or tenants, and making such alteraƟons, repairs, improvements or addiƟons to the Premises as Lessor may deem necessary or desirable and the erecƟng, using and maintaining of uƟliƟes, services, pipes and conduits through the Premises and/or other premises as long as there is no material adverse effect on Lessee's use of the Premises. Allsuch acƟviƟesshall be without abatement of rent or liability to Lessee.
33. AucƟons. Lessee shall not conduct, nor permit to be conducted, any aucƟon upon the Premises without Lessor's prior wriƩen consent. Lessor shall not be obligated to exercise any standard of reasonableness in determining whether to permit an aucƟon.
34. Signs. Lessor may place on the Premises ordinary "For Sale" signs at any Ɵme and ordinary "For Lease" signs during the last 6 months of the term hereof. Except for ordinary "For Sublease" signs, Lessee shall not place any sign upon the Premises without Lessor's prior wriƩen consent. All signs must comply with all Applicable Requirements.
35. TerminaƟon; Merger. Unlessspecifically stated otherwise in wriƟng by Lessor, the voluntary or other surrender of this Lease by Lessee, the mutual terminaƟon or cancellaƟon hereof, or a terminaƟon hereof by Lessor for Breach by Lessee, shall automaƟcally terminate any sublease or lesser estate in the Premises; provided, however, that Lessor may elect to conƟnue any one or all exisƟng subtenancies. Lessor'sfailure within 10 days following any such event to elect to the contrary by wriƩen noƟce to the holder of any such lesser interest, shall consƟtute Lessor's elecƟon to have such event consƟtute the terminaƟon ofsuch interest.
36. Consents. All requestsfor consent shall be in wriƟng. Except as otherwise provided herein, wherever in this Lease the consent of a Party is required to an act by or for the other Party, such consent shall not be unreasonably withheld or delayed. Lessor's actual reasonable costs and expenses (including but not limited to architects', aƩorneys', engineers' and other consultants' fees) incurred in the consideraƟon of, or response to, a request by Lessee for any Lessor consent, including but not limited to consentsto an assignment, a subleƫng or the presence or use of a Hazardous Substance, shall be paid by Lessee upon receipt of an invoice and supporƟng documentaƟon therefor. Lessor's consent to any act, assignment or subleƫng shall not consƟtute an acknowledgment that no Default or Breach by Lessee of this Lease exists, nor shall such consent be deemed a waiver of any then exisƟng Default or Breach, except as may be otherwise specifically stated in wriƟng by Lessor at the Ɵme of such consent. The failure to specify herein any parƟcular condiƟon to Lessor's consent shall not preclude the imposiƟon by Lessor at the Ɵme of consent of such further or other condiƟons as are then reasonable with reference to the parƟcular maƩer for which consent is being given. In the event that either Party disagrees with any determinaƟon made by the other hereunder and reasonably requests the reasons for such determinaƟon, the determining party shall furnish its reasons in wriƟng and in reasonable detail within 10 business daysfollowing such request.
37. Guarantor.
37.1 ExecuƟon. The Guarantors, if any, shall each execute a guaranty in the form most recently published by AIR CRE.
37.2 Default. It shall consƟtute a Default of the Lessee if any Guarantor fails or refuses, upon request to provide: (a) evidence of the execuƟon of the guaranty, including the authority of the party signing on Guarantor's behalf to obligate Guarantor, and in the case of a corporate Guarantor, a cerƟfied copy of a resoluƟon of its board of directors authorizing the making of such guaranty, (b) current financial statements, (c) an Estoppel CerƟficate, or (d) wriƩen confirmaƟon that the guaranty is sƟll in effect.
38. Quiet Possession. Subject to payment by Lessee of the Rent and performance of all of the covenants, condiƟons and provisions on Lessee's part to be observed and performed under this Lease, Lessee shall have quiet possession and quiet enjoyment of the Premises during the term hereof.
39. OpƟons. If Lessee is granted any OpƟon, as defined below, then the following provisions shall apply.
39.1 DefiniƟon. "OpƟon" shall mean: (a) the right to extend or reduce the term of or renew this Lease or to extend or reduce the term of or renew any lease that Lessee has on other property of Lessor; (b) the right of first refusal or first offer to lease either the Premises or other property of Lessor; (c) the right to purchase, the right of first offer to purchase or the right of first refusal to purchase the Premises or other property of Lessor.
39.2 OpƟons Personal To Original Lessee. Any OpƟon granted to Lessee in this Lease is personal to the original Lessee, and cannot be assigned or exercised by anyone other than said original Lessee and only while the original Lessee is in full possession of the Premises and, if requested by Lessor, with Lessee cerƟfying that Lessee has no intenƟon of thereaŌer assigning or subleƫng.
39.3 MulƟple OpƟons. In the event that Lessee has any mulƟple OpƟonsto extend or renew this Lease, a later OpƟon cannot be exercised unless the prior OpƟons have been validly exercised.
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39.4 Effect of Default on OpƟons.
(a) Lessee shall have no right to exercise an OpƟon: (i) during the period commencing with the giving of any noƟce of Default and conƟnuing unƟlsaid Default is cured, (ii) during the period of Ɵme any Rent is unpaid (without regard to whether noƟce thereof is given Lessee), (iii) during the Ɵme Lessee is in Breach of this Lease, or(iv) in the event that Lessee has been given 3 or more noƟces of separate Default, whether or not the Defaults are cured, during the 12 month period immediately preceding the exercise of the OpƟon.
(b) The period of Ɵme within which an OpƟon may be exercised shall not be extended or enlarged by reason of Lessee's inability to exercise an OpƟon because of the provisions of Paragraph 39.4(a).
(c) An OpƟon shall terminate and be of no further force or effect, notwithstanding Lessee's due and Ɵmely exercise of the OpƟon, if, aŌer such exercise and prior to the commencement of the extended term or compleƟon of the purchase, (i) Lessee failsto pay Rent for a period of 30 days aŌersuch Rent becomes due (without any necessity of Lessor to give noƟce thereof), or (ii) if Lessee commits a Breach of this Lease.
40. MulƟple ProperƟes. If the Premises are a part of a group of properƟes controlled by Lessor, Lessee agreesthat it will abide by and conform to all reasonable rules and regulaƟons which Lessor may make from Ɵme to Ɵme for the management, safety, and care ofsaid properƟes, including the care and cleanliness of the grounds and including the parking, loading and unloading of vehicles, and to cause its employees, suppliers, shippers, customers, contractors and invitees to so abide and conform. Lessee also agrees to pay its fairshare of common expenses incurred in connecƟon with such rules and regulaƟons.
41. Security Measures. Lessee hereby acknowledges that the Rent payable to Lessor hereunder does not include the cost of guard service or other security measures, and that Lessor shall have no obligaƟon whatsoever to provide same. Lessee assumes all responsibility for the protecƟon of the Premises, Lessee, its agents and invitees and their property from the acts of third parƟes.
42. ReservaƟons. Lessor reservesto itself the right, from Ɵme to Ɵme, to grant, without the consent or joinder of Lessee,such easements, rights and dedicaƟons that Lessor deems necessary, and to cause the recordaƟon of parcel maps and restricƟons, so long assuch easements, rights, dedicaƟons, maps and restricƟons do not unreasonably interfere with the use of the Premises by Lessee. Lessee agrees to sign any documentsreasonably requested by Lessor to effectuate any such easement rights, dedicaƟon, map orrestricƟons.
43. Performance Under Protest. If at any Ɵme a dispute shall arise as to any amount or sum of money to be paid by one Party to the other under the provisions hereof, the Party against whom the obligaƟon to pay the money is asserted shall have the right to make payment "under protest" and such paymentshall not be regarded as a voluntary payment and there shall survive the right on the part of said Party to insƟtute suit for recovery ofsuch sum. If it shall be adjudged that there was no legal obligaƟon on the part of said Party to pay such sum or any part thereof, said Party shall be enƟtled to recover such sum or so much thereof asit was not legally required to pay. A Party who does not iniƟate suit for the recovery of sums paid "under protest" within 6 months shall be deemed to have waived itsright to protest such payment.
44. Authority; MulƟple ParƟes; ExecuƟon.
(a) If either Party hereto is a corporaƟon, trust, limited liability company, partnership, or similar enƟty, each individual execuƟng this Lease on behalf of such enƟty represents and warrantsthat he or she is duly authorized to execute and deliver this Lease on its behalf. Each Party shall, within 30 days aŌer request, deliver to the other Party saƟsfactory evidence of such authority. (b) If this Lease is executed by more than one person or enƟty as "Lessee", each such person or enƟty shall be jointly and severally liable hereunder. It is agreed that any one of the named Lessees shall be empowered to execute any amendment to this Lease, or other document ancillary thereto and bind all of the named Lessees, and Lessor may rely on the same asif all of the named Lessees had executed such document. (c) This Lease may be executed by the ParƟesin counterparts, each of which shall be deemed an original and all of which togethershall consƟtute one and the same instrument.
45. Conflict. Any conflict between the printed provisions of this Lease and the typewriƩen or handwriƩen provisionsshall be controlled by the typewriƩen or handwriƩen provisions.
46. Offer. PreparaƟon of this Lease by either Party or their agent and submission of same to the other Party shall not be deemed an offerto lease to the other Party. This Lease is not intended to be binding unƟl executed and delivered by all ParƟes hereto.
47. Amendments. This Lease may be modified only in wriƟng, signed by the ParƟesin interest at the Ɵme of the modificaƟon. Aslong asthey do not materially change Lessee's obligaƟons hereunder, Lessee agreesto make such reasonable non-monetary modificaƟonsto this Lease as may be reasonably required by a Lender in connecƟon with the obtaining of normal financing or refinancing of the Premises.
48. Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING INVOLVING THE PROPERTY OR ARISING OUT OF THIS AGREEMENT.
49. ArbitraƟon of Disputes. An Addendum requiring the ArbitraƟon of all disputes between the ParƟes and/or Brokers arising out of this Lease is is not aƩached to this Lease.
50. Accessibility; Americans with DisabiliƟes Act.
(a) The Premises:
have not undergone an inspecƟon by a CerƟfied Access Specialist (CASp). Note: A CerƟfied Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construcƟon-related accessibility standards under state law. Although state law does not require a CASp inspecƟon of the subject premises, the commercial property owner or lessor may not prohibit the lessee or tenant from obtaining a CASp inspecƟon of the subject premises for the occupancy or potenƟal occupancy of the lessee or tenant, if requested by the lessee or tenant. The parƟesshall mutually agree on the arrangementsfor the Ɵme and manner of the CASp inspecƟon, the payment of the fee for the CASp inspecƟon, and the cost of making any repairs necessary to correct violaƟons of construcƟon-related accessibility standards within the premises. have undergone an inspecƟon by a CerƟfied Access Specialist (CASp) and it was determined that the Premises met all applicable construcƟon-related accessibility standards pursuant to California Civil Code §55.51 et seq. Lessee acknowledges that it received a copy of the inspecƟon report at least 48 hours prior to execuƟng this Lease and agrees to keep such report confidenƟal.
have undergone an inspecƟon by a CerƟfied Access Specialist (CASp) and it was determined that the Premises did not meet all applicable construcƟon-related
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accessibility standards pursuant to California Civil Code §55.51 et seq. Lessee acknowledges that it received a copy of the inspecƟon report at least 48 hours prior to execuƟng this Lease and agreesto keep such report confidenƟal except as necessary to complete repairs and correcƟons of violaƟons of construcƟon related accessibility standards.
In the event that the Premises have been issued an inspecƟon report by a CASp the Lessor shall provide a copy of the disability accessinspecƟon cerƟficate to Lessee within 7 days of the execuƟon of this Lease.
(b) Since compliance with the Americans with DisabiliƟes Act (ADA) and otherstate and local accessibility statutes are dependent upon Lessee'sspecific use of the Premises, Lessor makes no warranty or representaƟon as to whether or not the Premises comply with ADA or any similar legislaƟon. In the event that Lessee's use of the Premisesrequires modificaƟons or addiƟons to the Premisesin order to be in compliance with ADA or other accessibility statutes, Lessee agrees to make any such necessary modificaƟons and/or addiƟons at Lessee's expense.
LESSOR AND LESSEE HAVE CAREFULLY READ AND REVIEWED THIS LEASE AND EACH TERM AND PROVISION CONTAINED HEREIN, AND BY THE EXECUTION OF THIS LEASE SHOW THEIR INFORMED AND VOLUNTARY CONSENT THERETO. THE PARTIES HEREBY AGREE THAT, AT THE TIME THIS LEASE IS EXECUTED, THE TERMS OF THIS LEASE ARE COMMERCIALLY REASONABLE AND EFFECTUATE THE INTENT AND PURPOSE OF LESSOR AND LESSEE WITH RESPECT TO THE PREMISES.
ATTENTION: NO REPRESENTATION OR RECOMMENDATION IS MADE BY AIR CRE OR BY ANY BROKER AS TO THE LEGAL SUFFICIENCY, LEGAL EFFECT, OR TAX CONSEQUENCES OF THIS LEASE OR THE TRANSACTION TO WHICH IT RELATES. THE PARTIES ARE URGED TO:
1. SEEK ADVICE OF COUNSEL AS TO THE LEGAL AND TAX CONSEQUENCES OF THIS LEASE.
2. RETAIN APPROPRIATE CONSULTANTS TO REVIEW AND INVESTIGATE THE CONDITION OF THE PREMISES. SAID INVESTIGATION SHOULD INCLUDE BUT NOT BE LIMITED TO: THE POSSIBLE PRESENCE OF HAZARDOUS SUBSTANCES, THE ZONING OF THE PREMISES, THE CONDITION AND THE SUITABILITY OF THE PREMISES FOR LESSEE'S INTENDED USE.
WARNING: IF THE PREMISES ARE LOCATED IN A STATE OTHER THAN CALIFORNIA, CERTAIN PROVISIONS OF THE LEASE MAY NEED TO BE REVISED TO COMPLY WITH THE LAWS OF THE STATE IN WHICH THE PREMISES ARE LOCATED.
The parƟes hereto have executed this Lease at the place and on the dates specified above their respecƟve signatures.
Executed at:
On:
By LESSOR:
BLUE ROCK SPRINGS, LLC, a Delaware limited
liability company
By: See Addendum
Name Printed:
Title:
Phone:
Fax:
Email:
By:
Name Printed:
Title:
Phone:
Fax:
Email:
Address:
Federal ID No.:
Executed at:
On:
By LESSEE:
CITY OF VALLEJO, a municipal corporation
By: See Addendum
Name Printed:
Title:
Phone:
Fax:
Email:
By:
Name Printed:
Title:
Phone:
Fax:
Email:
Address:
Federal ID No.:
BROKER
AƩn:
Title:
Address:
Phone:
Fax:
Email:
Federal ID No.:
Broker DRE License #:
Agent DRE License #:
BROKER
AƩn:
Title:
Address:
Phone:
Fax:
Email:
Federal ID No.:
Broker DRE License #:
Agent DRE License #:
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AIR CRE * hƩps://www.aircre.com * 213-687-8777 * [email protected] NOTICE: No part ofthese works may be reproduced in any form without permission in wriƟng.
Addendum to Standard Industrial/Commercial Land Lease – Gross by and between
Blue Rock Springs, LLC, a Delaware limited liability company, as Lessor and City of Vallejo, a municipal corporation, as Lessee
This Addendum is incorporated into and made a part of that certain AIRCRE Standard Industrial/Commercial Land Lease – Gross (“Lease”), dated for reference purposes as of December ___, 2022, as described above (“Addendum”). In the event of any conflict between the terms of the Lease and the terms of this Addendum, the terms of this Addendum shall prevail.
2.2 The existing text of Paragraph 2.2 is deleted and replaced with the following:
2.2 Condition; As-Is. Premises is leased to Lessee on an “as-is” basis, and notwithstanding anything to the contrary herein shall be maintained by Lessee to maintain its as-is condition. Lessor makes no representations or warranties as to the Premises, the land, or any improvements located thereon (including without limitation any and all structures; any and all existing electrical, plumbing, drainage, or lighting improvements; or any and all utilities), in any respect, including its suitability for Lessee’s intended purpose or compliance with the requirements of the Americans with Disabilities Act. Other than as is expressly required by this Lease, Lessor shall have no obligation to maintain or repair the Premises.
2.3 The existing text of Paragraph 2.3 is deleted and replaced with the following:
2.3 Compliance. Lessor makes no representations or warranties that the Premises or the improvements located thereon comply with the building codes, applicable laws, covenants or restrictions or record, regulations and ordinances (“Applicable Requirements”) that are in effect as of the Commencement Date or were in effect at the time that such improvements, or portion thereof, were constructed. Lessee is responsible for determining whether or not the Applicable Requirements, and especially the zoning, are appropriate for Lessee’s intended use, and acknowledges that past uses of the Premises may no longer be allowed. Lessee shall comply with the Applicable Requirements at its sole cost and expense.
9. The existing text of Paragraph 9 is deleted and replaced with the following:
9. Damage or Destruction. Except for any damage to the
Premises caused by the sole gross negligence or willful misconduct of Lessor, Lessee shall have the sole responsibility to repair, if desired, any damage to or destruction of the Premises or the improvements located thereon. In the event that such damage results in the cessation of golf course operations or other Agreed Use for a period of more than 180 days, Lessor may terminate the lease, in its sole and absolute discretion. For the avoidance of doubt, Lessee does not assume any obligation to make repairs to the Premises in the event of damage or destruction of the Premises, and may terminate the lease in the event of damage or destruction, if desired.
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
The following Paragraph 51 is appended to the Lease: “
51. Rescission; Survival. Notwithstanding anything to the contrary herein, Lessor and Lessee acknowledge that the December 20, 2022 Purchase and Sale Agreement and Joint Escrow Instructions between Lessee (as seller) and Lessor (as buyer) permits rescission of Lessor’s acquisition of the Premises in certain circumstances. In the event of rescission, this Lease shall terminate, and Rent due to Lessor shall be prorated as of the date of termination.
The obligations established by Paragraphs 4 [Rent]; 6.2(b) [Duty to Inform Lessor]; 6.2(c) [Lessee Remediation]; 6.2(d) [Lessee Indemnification]; 6.2(f) [Investigations and Remediations]; 8.7 [Indemnity]; 8.8 [Exemption of Lessor and its Agents from Liability];
8.9 [Failure to Provide Insurance]; 10.2 [Payment of Taxes]; 10.5 [Personal Property Taxes]; 11.1 [Utilities and Services]; 31 [Attorneys’ Fees] of this Lease shall survive termination of the Lease for a period of four (4) years.
IN WITNESS WHEREOF, the Parties have executed the Lease and this Addendum as of December ___, 2022.
THE CITY OF VALLEJO
a municipal corporation
_____________________________________
By: Michael Malone
Its: City Manager
Executed at: ___________________
On: __________________________
BLUE ROCK SPRINGS, LLC
a Delaware limited liability company
By: LEWIS MANAGEMENT CORP.,
a Delaware corporation
Its: Manager
_______________________________
By: John Goodman
Its: Chief Executive Officer and
Executive Vice President
Executed at: ___________________
On: __________________________
ATTEST:
_____________________________________
By: Dawn Abrahamson
Its: City Clerk
Executed at: ___________________
On: __________________________
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325 Terrance Davis
acting City Manager
APPROVED AS TO CONTENT:
_____________________________________
By: Gillian Hayes
Its: Assistant City Manager
Executed at: ___________________
On: __________________________
APPROVED AS TO FORM:
_____________________________________
By: Veronica A. F. Nebb
Its: City Attorney
Executed at: ___________________
On: __________________________
APPROVED AS TO INSURANCE:
_____________________________________
By: Armond Sarkis
Its: Risk Manager
Executed at: ___________________
On: __________________________
DocuSign Envelope ID: DD048B7C-3F32-4019-B775-453A28F31325
ACTION ITEM 9.D.
DATE: March 24, 2026
TO: Mayor and Members of the City Council
FROM: Nalungo Conley, Assistant City Manager
Natalie Peterson, Assistant to the City Manager
SUBJECT: RECEIVE UPDATE ON THE CITY OF VALLEJO’S UNHOUSED STRATEGIC PLAN AND
PROVIDE DIRECTION ON NEXT STEPS, RECIEVE AN UPDATE ON THE WHITE SLOUGH SITUATION, AND APPROVE ALLOCATING UP TO $1,000 TOTAL FOR A
LIVED EXPERIENCE STIPEND PROGRAM
RECOMMENDATION
Receive an update on the City of Vallejo’s Unhoused Strategic Plan, receive an update on the White Slough situation, and approve allocating up to $1,000 total for a lived experience stipend program.
REASONS FOR RECOMMENDATION
On February 10, 2026 the City Council received an update on the City's unhoused situation and programs, received an overview of the current situation at the White Slough, and received a staff request to approve allocating up to $1,000 total for a lived experience stipend program. Council requested that the item come back with the Unhoused Strategic Plan update, parameters for the lived experience stipends, and additional information regarding potential clean-up of the White Slough.
BACKGROUND AND DISCUSSION
This information is coming back before Council as an update, as the draft Unhoused Strategic Plan itself is not yet fully complete. City staff began drafting an Unhoused Strategic Plan in 2024, at which point City Council requested that staff release a Request for Proposals (RFP) for a consultant to work on an Unhoused Strategic Plan. The RFP was released in December 2024. The RFP responses were reviewed by a panel, and a potential consultant was selected by the panel. A consultant agreement was negotiated, and the item was brought before City Council on December 16, 2025 to amend the Fiscal Year 2025-2026 Budget to appropriate $120,000 for the City’s Unhoused Strategic Plan. Council did not approve the request to amend the FY 2025-2026 budget. Since the Unhoused Strategic Plan consultant agreement was not approved, staff will be working to update the previous draft plan.
The in-process Unhoused Strategic Plan contains five sections, as follows:
1. Plan Development. An overview of the plan’s development and the considerations taken during the development.
2. Vallejo’s Unhoused Statistics. A majority of the information comes from the 2024 Point In Time (PIT) Count and will be updated once the 2026 PIT Count information is released. This section touches briefly on Countywide statistics but predominately dives into the information relevant to the unhoused community in Vallejo.
3. Overview of current programs and projects. This section includes information on Emergency Shelters (Vallejo Homeless Navigation Center); Permanente Supportive Housing Programs (Blue Oak Landing and Broadway Village); Extreme Weather Centers; and Encampment Clean-ups/Removals.
4. Strategies for Reducing and Addressing Homelessness. This is broken into three distinct strategy sections.
Date: March 24, 2026
Subject: RECEIVE UPDATE ON THE CITY OF VALLEJO’S UNHOUSED STRATEGIC PLAN AND
PROVIDE DIRECTION ON NEXT STEPS, RECIEVE AN UPDATE ON THE WHITE SLOUGH SITUATION, AND APPROVE ALLOCATING UP TO $1,000 TOTAL FOR A
LIVED EXPERIENCE STIPEND PROGRAM
o Strategy 1: Improve Responses to Encampments Citywide o Strategy 2: Increase Local and Regional partnerships with CAP Solano JPA/CoC, non-profits, and the Community to leverage assistance in providing housing, sheltering, and service opportunities
o Strategy 3: Monitor and Measure Outcomes/Adjust Strategies
5. Resources. This section outlines the resources used during the drafting of the plan.
City staff seek Council's input and direction on next steps on developing the Unhoused Strategic Plan.
Lived Experience Stipends
As the City of Vallejo continues to establish its Unhoused Strategic Plan, staff would like to include a stipend program for individuals with lived experience. The stipend program would be established to ensure that the City is compensating individuals with lived experience for their input and expertise on potential future programs and policies. Staff have drafted a compensation procedure for people with lived experience of homelessness (attached). The procedure is based off the Community Action Partnership of Solano Joint Powers Authority (CAP Solano JPA) and the Vallejo-Solano Continuum of Care (CoC) compensation procedure. The stipends and their associated procedure would be incorporated into the City’s Unhoused Strategic Plan.
The compensation procedure outlines that meetings or events will be approved as compensation eligible for people with lived experience of homelessness. The meetings or events will include items such as requests for proposals/qualification review panels, policy review/development meetings, focus groups, listening sessions and other activities deemed appropriate by the City Manager or their designee. It establishes that individuals will be compensated $25 per hour, to be calculated to the nearest half hour. Individuals will fill out a compensation form that will be reviewed and verified for attendance before getting processed through the City’s finance department for payment. Compensation will come via check with the City’s current payment procedures, however staff will review to see if there are future possibilities to expand payment options. Staff will work with individuals on the best way to ensure they receive their checks.
White Slough
The location referred to as the White Slough is the wetlands located between Redwood Street and Highway 37 and Sonoma Boulevard and Sacramento Street. The area is made up of several parcels, some of which are publicly owned by Vallejo Flood and Wastewater District (VFWD) and the California Department of Transportation (Caltrans), and the others are privately owned by several different private entities. There is a continued growing concern regarding an unhoused encampment located across four of the privately owned parcels. The area of most concern presently is commonly referred to as “the spit,” which is the peninsula portion made up of two privately owned parcels.
At their February 10, 2026 meeting, the City Council requested that the City create an estimate of what the cost would be for the City to conduct a clean-up of the private properties the spit. Staff from the Public Works Department reviewed the current state of the location and estimated that cleaning up the location would cost approximately $146,000, as listed below, not including fees related to tow and/or storage of the inoperable vehicles on the spit. The estimate below is based off a three-week timeline to clear the site and assumes donated dumpsters from Recology’s dumpster program. Based on observation, there are approximately 110 vehicles and 30 RVs on site that will likely need to be towed. The estimate does not include costs associated
Date: March 24, 2026
Subject: RECEIVE UPDATE ON THE CITY OF VALLEJO’S UNHOUSED STRATEGIC PLAN AND
PROVIDE DIRECTION ON NEXT STEPS, RECIEVE AN UPDATE ON THE WHITE SLOUGH SITUATION, AND APPROVE ALLOCATING UP TO $1,000 TOTAL FOR A
LIVED EXPERIENCE STIPEND PROGRAM
with staff from the City Manager’s Office, City Attorney’s Office, Code Enforcement, or Police Department that would support these efforts leading up to and during the clean-up.
Equipment Cost per hour Hours Total cost
Backhoes (1) $65.00 120 $7,800.00
Loader (1) $65.00 120 $7,800.00
Peterbuilt Truck (1) $61.92 120 $7,430.40
End Dump Trailer (1) $29.60 120 $3,552.00
Public Works Staff Cost per hour Hours
HEO's (2) $75.70 120 $18,168.00
Maintenance worker (4) $68.50 120 $32,880.00
Items to Remove
Cars 110 $200.00 $22,000.00
Motorhomes/ Campers 30 $200.00 $6,000.00
Dumpster loads (garbage) 50 In kind Recology
Dump fees $50,000.00
Dumpster loads (tires) 4 In kind Recology
Materials
Crushed rock loads (if necessary) 2 $1,200.00
Sub Contractor
House of Acts $18,240.00
Subtotal $175,070.40
Contingency $35,014.08
Total $210,084.48
*these are estimates and may change depending on state of the properties upon clean-up As noted above, staff estimates that there are approximately 110 vehicles and 30 RVs on site that will likely need to be towed. The City has tow agreements with several local tow vendors that can be utilized for this clean up. The amount of vehicles and RVs that would need to be removed would create capacity challenges for the tow yards. The City is looking into alterative options, such as working with additional tow companies outside of the City or a temporary additional location to store the towed vehicles and RVs. Both options would come with an additional cost, outside of the tow contract that the City currently has in place. It is also possible that the volume of towing could result in additional costs. For the sake of discussion, it may cost $200 per vehicle or RV to be towed off of the site, outside of the City’s current tow contact, for a total estimated cost of $28,000 in addition to the $176,484.48 listed above for other items.
Date: March 24, 2026
Subject: RECEIVE UPDATE ON THE CITY OF VALLEJO’S UNHOUSED STRATEGIC PLAN AND
PROVIDE DIRECTION ON NEXT STEPS, RECIEVE AN UPDATE ON THE WHITE SLOUGH SITUATION, AND APPROVE ALLOCATING UP TO $1,000 TOTAL FOR A
LIVED EXPERIENCE STIPEND PROGRAM
City staff is currently seeking outside funding sources that may be able to cover some of the costs. Staff is also working with local, state, and federal partners to identify short term and long term strategies to address the issues that the encampment on White Slough is creating. As Council is aware, the City Attorney's Office has filed nuisance abatement cases on the four privately owned properties with encampment activity. Access to the property and an order of cleanup are being sought in the cases. If Council directs staff to move forward with taking the lead on conducting a clean-up of the location, it would take approximately two months to receive the court orders to abate the properties and an additional three weeks to conduct the clean-up. Even with the court order, the City will not have the right to inhibit access to the properties, so it may be challenging to prevent the reoccupation of the properties.
FISCAL IMPACT
Lived Experience Stipends
There is no impact on the general fund at this time. If Council approves allocating up to $1,000 total for unhoused stipends, there are currently funds available in the City’s unhoused account that could cover this expenditure.
White Slough
If at a future meeting Council directs staff to move forward with a clean-up of the White Slough, staff would come forward with potential funding sources to accomplish the efforts.
ENVIRONMENTAL REVIEW
This action is exempt from the California Environmental Quality Act (CEQA) because it is not a project which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment, pursuant to CEQA Guideline section 15378 as it is just an update/planning activities.
ATTACHMENTS
1. DRAFT Lived Experience Compensation Procedure
CONTACT
Natalie Peterson, Assistant to the City Manager
[email protected]
Office of the City Manager
City of Vallejo Compensation Procedure for People with
Lived Experience of Homelessness
BACKGROUND
The City of Vallejo believe that all people in Solano County have a role to play in addressing homelessness in our community. People with lived experience of homelessness have particular expertise and are essential participants in these efforts. People who are currently experiencing or have experienced homelessness are uniquely positioned to contribute their expertise to policy-setting, program development, and system design for Vallejo’s process for addressing homelessness in our community.
The City of Vallejo may compensate People with Lived Experience of Homelessness (PWLEH) for their time and expertise for participation in meetings or events such as request for proposals/qualification review panels, policy review/development meetings, focus groups, listening sessions, etc., as preapproved and deemed appropriate by the City Manager or their designee. Individuals will be made aware of the preapproved meetings/events and their qualification for being compensated. Meetings or events where compensation is eligible will be reviewed and pre-approved based on available funding for the program.
Compensation will be provided upon request after participating in the preapproved activities.
If a participant with lived experience of homelessness is employed and participates as a duty associated with that employment, and is therefore compensated by their employer, they are not eligible for additional compensation.
AMOUNT
Compensation for time and expertise will be provided at $25 per hour and will be calculated at the nearest half-hour, rounding up to the nearest half-hour. Minimum compensation will be for an hour for meetings/participation lasting more than 30 minutes.
PROCESS
Eligible participants will be provided with a form to complete at the conclusion of each meeting/event coved by this procedure. The participant will complete and submit the form to the designated City of Vallejo staff for approval. If for any reason the form cannot be immediately completed during the meeting/event, it may be submitted by the 5th of the month following the activity.
Within 15 days of the activity staff will verify attendance and forward the approved list of compensation to the finance department for processing. The City of Vallejo may contact the participant for additional information, if needed. No later than the 30th of the month following the activity the City will provide payment via check.
Designated City of Vallejo staff members will provide support to assist with the completion of the form if needed. If a form is not returned by a participant and there is no communication with the City of Vallejo staff to request assistance, it will be assumed that the participant does not wish to request compensation.
Compensation will be mailed to individuals no later than the 30th of the month following the activity. For individuals that do not have a mailing address, compensation stipends may be picked up at City Hall. Staff will coordinate with the individual on a date and time to retrieve the compensation stipend.
Note that this compensation counts as taxable income for income tax purposes. If participants are paid more than $599.99 per year, they will need to complete a W9 Form.
Benefits Counseling Resources
The City of Vallejo is not able to advise participants about how compensation payments could affect any benefits that members/participants receive, such as SSI or SSDI. People who receive SSI and SSDI and want to work can get free benefits counseling by contacting Social Security Administration’s Ticket to Work Help Line (1-866-968-7842) and asking to be referred to a benefits counselor.
City of Vallejo Compensation Request for People with
Lived Experience of Homelessness Form
First Name:
Last Name:
Phone Number:
What activity are you seeking compensation for:
Date of Meeting/Activity:
How long was the meeting/activity: (30-60 minutes) (61-90 minutes) (90-120 minutes) I am requesting reimbursement in the form of: (Mailed Check) (Pick-up Check) If requesting mailed check, please provide full mailing address (street, city, zip code) By signing I am verifying my attendance at the above named meeting/activity and that I am not otherwise being paid for my time at that
activity_________________________________