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8. ALLOCATION OF COSTS.
8.1 Buyer’s Costs. Buyer shall pay the following costs:
(a) fifty percent (50%) of Escrow Holder’s escrow fee;
(b) Buyer’s own attorney’s fees incurred in connection with this Agreement and the transactions contemplated hereby;
(c) fifty percent (50%) of all the charges for recording the Grant Deed, if any;
(d) the costs for the ALTA policy of title insurance; and (e) any additional title insurance coverages Seller is not required to pay for plus any title endorsements requested by Buyer.
8.2 Seller’s Costs. Seller shall pay:
(a) fifty percent (50%) of the Escrow Holder’s escrow fee; (b) Seller’s own attorney’s fees in connection with this Agreement and the transactions contemplated hereby;
(c) any documentary transfer taxes associated with the conveyance; and
(d) fifty percent (50%) of all the charges for recording the Grant Deed, if any.
9. AS-IS SALE; RELEASE.
Buyer shall rely solely and exclusively upon the results of its due diligence investigations of the Property, including, without limitation, investigations regarding geotechnical soil conditions, compliance with applicable laws pertaining to the use of the Property by Buyer and any other matters relevant to the condition or suitability of the Property for the Project, as Buyer may deem necessary or appropriate. Seller makes no representation or warranty to Buyer relating to the condition of the Property or suitability of the Property for any intended use or development by Buyer.
Buyer shall accept all conditions of the Property, without any liability of Seller whatsoever, upon Buyer’s approval of the Property pursuant to Section 2.3. Buyer’s approval of the Property pursuant to Section 2.3 shall evidence Buyer’s unconditional and irrevocable acceptance of the Property in the Property’s AS IS, WHERE IS, SUBJECT TO ALL
FAULTS CONDITION, WITHOUT WARRANTY AS TO QUALITY, CHARACTER, PERFORMANCE OR CONDITION and with full knowledge of the physical condition of the Property, all zoning, other land use laws and other governmental requirements
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affecting the Property, and of the conditions, restrictions, encumbrances and all matters of record relating to the Property. Buyer’s acceptance of the Property pursuant to Section
2.3 indicating Buyer’s unconditional acceptance of the Property shall constitute Buyer’s representation and warranty to Seller that Buyer has received assurances acceptable to Buyer by means independent of Seller or any agent of Seller of the truth of all facts material to Buyer’s acquisition of the Property pursuant to this Agreement, and that the Property is being acquired by Buyer as a result of its own knowledge, inspection and investigation of the Property and not as a result of any representations made by Seller or any employee, official, consultant or agent of Seller relating to the condition of the Property, unless such statement or representation is expressly and specifically set forth in this Agreement. Seller hereby expressly and specifically disclaims any express or implied warranties regarding the Property.
BUYER, ON BEHALF OF ITSELF, ITS SUCCESSORS, AND ASSIGNS,
WAIVES AND RELEASES SELLER FROM ANY RIGHT OF ACTION THAT MAY BE
AVAILABLE TO ANY OF THEM WITH RESPECT TO THE CONDITION OF THE PROPERTY. BUYER ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE SECTION 1542 RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 5.9, WHICH READS AS FOLLOWS:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS
WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT
TO EXIST IN HIS OR HER FAVOR AT THE TIME OF
EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM
OR HER MUST HAVE MATERIALLY AFFECTED HIS OR
HER SETTLEMENT WITH THE DEBTOR.
BY INITIALING BELOW, BUYER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 10:
________________
Buyer’s Initials
10. REPRESENTATIONS AND WARRANTIES.
10.1 Seller’s Representations and Warranties. Seller hereby makes the following representations and warranties to Buyer, each of which is true in all respects as of the date hereof and shall be true in all respects on the Closing Date:
10.1.1 Seller is duly organized and existing.
10.1.2 Seller has the legal power, right, and authority to execute, deliver and perform Seller’s obligations under this Agreement and the documents executed and delivered by Seller pursuant hereto.
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10.1.3 All requisite action (corporate, trust, partnership, or otherwise) has been taken by Seller in connection with entering into this Agreement and the instruments referenced herein and the consummation of the transactions contemplated hereby. No consent of any partner, shareholder, member, creditor, investor, judicial or administrative body, authority or other entity is required which has not been obtained to permit Seller to enter into this Agreement and consummate the transactions contemplated hereby.
10.1.4 The entering into this Agreement does not violate any provision of any other agreement to which Seller is bound.
10.1.5 There is no pending or threatened litigation, lawsuit or administrative proceeding which would adversely affect the Property.
10.1.6 With the exception of the BBQ Lease, there are no contracts affecting the Property and no agreements entered into, by or under Seller which shall survive the Close of Escrow.
10.1.7 Seller has no knowledge of the presence of any hazardous materials on the Property, or any portion thereof, and Seller has not been advised or notified by any third parties, prior owners of the Property, or any federal, state or local governmental agency, of the presence of any hazardous materials on the Property.
In the event Seller becomes aware of a change in circumstance during the term of the Escrow which would cause any of the representations or warranties of Seller under this Section 12 to be untrue, Seller shall advise Buyer of such change in circumstance in writing within five (5) business days from Seller’s discovery thereof. Buyer shall then have fifteen (15) business days from receipt of such notice from Seller to deliver written notice to Seller of Buyer’s election to either (i) terminate this Agreement, or (ii) waive objection to such change in circumstance and to accept title to the Property at the Close of Escrow subject to such change in circumstance. Buyer’s failure to notify Seller in writing within said fifteen (15) business day period shall conclusively be deemed Buyer’s election to waive objection to such change in circumstance and to proceed to close this Escrow subject to such change in circumstance. As used herein, the phrase “Seller has no knowledge” shall refer to the actual knowledge of the City Manager of Seller, without any duty of inquiry or investigation.
10.2 Buyer’s Representations, Warranties and Covenants.
10.2.1 Buyer is duly organized and existing.
10.2.2 Buyer has the legal power, right, and authority to execute, deliver and perform Buyer’s obligations under this Agreement and the documents executed and delivered by Buyer pursuant hereto.
10.2.3 All requisite action has been taken by Buyer in connection with entering into this Agreement and the instruments referenced herein and the consummation of the transactions contemplated hereby. No consent is required which
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has not been obtained to permit Buyer to enter into this Agreement and consummate the transaction hereby.
10.2.4 The entering into this Agreement does not violate any provision of any other agreement to which Buyer is bound.
11. CONDEMNATION. In the event that, prior to the Close of Escrow, any governmental entity shall commence any proceedings of or leading to eminent domain or similar type proceedings to take all or any portion of the Property, Buyer and Seller shall promptly meet and confer in good faith to evaluate the effect of such action on the purposes of this Agreement and following such meeting either Buyer or Seller may terminate this Agreement.
12. RISK OF PHYSICAL LOSS. Risk of physical loss to the Property shall be borne by Seller prior to the Close of Escrow and by Buyer thereafter. In the event that the Property shall be damaged by fire, flood, earthquake or other casualty Buyer shall have the option to terminate this Agreement, provided notice of such termination is delivered to Seller within fifteen (15) business days following the date Buyer learns of the occurrence of such casualty. If Buyer fails to terminate this Agreement pursuant to the foregoing sentence within said fifteen (15) business day period, Buyer shall complete the acquisition of the Property, in which case Seller shall assign to Buyer the interest of Seller in all insurance proceeds relating to such damage. Seller shall consult with Buyer regarding any proposed settlement with the insurer and Buyer shall have the reasonable right of approval thereof. Seller shall hold such proceeds until the Close of Escrow. In the event this Agreement is terminated for any reason, Buyer shall have no right to any insurance proceeds.
13. WAIVER OF DAMAGES; SPECIFIC PERFORMANCE. In the event a party defaults under this Agreement, the non-defaulting party’s sole and exclusive remedy will be for specific performance of this Agreement. EACH PARTY HEREBY WAIVES ANY
RIGHT TO PURSUE DAMAGES RESULTING FROM A DEFAULT OR BREACH OF
THIS AGREEMENT, AND IN NO EVENT SHALL THE DEFAULTING PARTY BE LIABLE FOR DAMAGES FOR A DEFAULT OR BREACH OF DEFAULTING PARTY’S
OBLIGATION UNDER THIS AGREEMENT, ALL OF WHICH RIGHTS ARE HEREBY WAIVED AND RELINQUISHED BY THE NON-DEFAULTING PARTY. The parties agree that the foregoing limitation on their respective remedies and measure of damages is reasonable under all of the circumstances of this Agreement, and is material consideration for the parties entering into this Agreement.
Seller’s Initials Buyer’s Initials
14. MISCELLANEOUS.
14.1 Assignment. This Agreement shall be binding upon and shall inure to the benefit of Buyer and Seller and their respective heirs, personal representatives,
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successors and assigns. Neither party to this Agreement may assign this Agreement or any interest or right hereunder or under the Escrow without the prior written consent and approval of the other party, which consent and approval may be withheld in the sole and absolute discretion of either party. No provision of this Agreement is intended nor shall in any way be construed to benefit any party not a signatory hereto or to create a third party beneficiary relationship.
14.2 Choice of Laws. This Agreement shall be governed by the internal laws of the State of California and any question arising hereunder shall be construed or determined according to such law without regard to conflict of law principles. Service of process on Buyer shall be made in accordance with California law. Service of process on Seller shall be made in any manner permitted by California law and shall be effective whether served inside or outside California.
14.3 Attorney’s Fees. In the event of any action, including an arbitration proceeding, between Buyer and Seller seeking enforcement of any of the terms and conditions to this Agreement or the Escrow or otherwise in connection with the Property, the prevailing party in such action shall be awarded, in addition to damages, injunctive or other relief, its reasonable costs and expenses, including without limitation its expert witness fees and reasonable attorney’s fees.
14.4 Notices. All notices under this Agreement shall be effective (i) upon personal delivery, (ii) upon delivery by reputable overnight courier that provides a receipt with the date and time of delivery, or (iii) three (3) business days after deposit in the United States mail, registered or certified, postage fully prepaid and addressed to the respective parties as set forth below or as to such other address as the parties may from time to time designate in writing:
To Seller: City of Yorba Linda
4845 Casa Loma Avenue
Yorba Linda, CA 92886
Phone No: 714-961-7110
Attn: City Manager
Copy to: Rutan & Tucker, LLP
611 Anton Boulevard, Suite 1400
Costa Mesa, CA 92628-1950
Phone No: (714) 641-5100
Attn: Todd Litfin, Esq.
To Buyer: Evan Carl
Evan’s Smokehouse BBQ
17160 Coriander Court
Yorba Linda, CA 92887
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14.5 Fair Meaning. This Agreement shall be construed according to its fair meaning and as if prepared by both parties hereto.
14.6 Headings. The headings at the beginning of each numbered Section of this Agreement are solely for the convenience of the parties hereto and are not a part of this Agreement.
14.7 Nonliability of Buyer Officials. No officer, official, member, employee, agent, or representative of Buyer shall be liable for any amounts due hereunder, and no judgment or execution thereon entered in any action hereon shall be personally enforced against any such officer, official, member, employee, agent, or representative.
14.8 Gender; Number. As used in this Agreement, masculine, feminine, and neuter gender and the singular or plural number shall be deemed to include the others wherever and whenever the context so dictates.
14.9 Survival. This Agreement and all covenants to be performed after the Closing Date, and, except as otherwise set forth herein, all representations and warranties contained herein, shall survive the Closing Date and shall remain a binding contract between the parties hereto.
14.10 Time of Essence. Time is of the essence of this Agreement and of each and every term and provision hereof, it being understood that the parties hereto have specifically negotiated the dates for the completion of each obligation herein.
14.11 Waiver. A waiver of a provision hereof shall be effective only if said waiver is in writing, and signed by both Buyer and Seller. No waiver of any breach or default by any party hereto shall be considered to be a waiver of any future breach or default unless expressly provided herein or in the waiver.
14.12 Broker’s/Consulting Fees. Neither the Buyer nor the Seller has employed a real estate broker to represent its interest in this transaction. Each party agrees to indemnify and hold the other free and harmless from and against any and all liability, loss, cost, or expense (including court costs and reasonable attorney’s fees) in any manner connected with a claim asserted by any individual or entity for any broker’s commission in connection with the conveyance of the Property arising out of agreements by the indemnifying party to pay any commission.
14.13 No Withholding Because Non-Foreign Seller. Seller represents and warrants to Buyer that Seller is not, and as of the Close of Escrow will not be, a foreign person within the meaning of Internal Revenue Code Section 1445 or an out-of-state seller under California Revenue and Tax Code Section 18805 and that it will deliver to Buyer on or before the Close of Escrow a Certificate of Non-foreign Status on Escrow Holder’s standard form pursuant to Internal Revenue Code Section 1445(b)(2) and the regulations promulgated thereunder and a California Form 593-C.
14.14 Counterparts. This Agreement may be executed in any number of counterparts, all of which shall be of equal legal force and effect.
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14.15 Severability. If any term, covenant or condition of this Agreement or the application thereof to any person, entity, or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant, or condition to persons, entities, or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby and each term, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
14.16 Exhibits. The following exhibits are attached hereto and incorporated herein by this reference:
Exhibit “A” Legal Descripction of Property
Exhibit “B” Grant Deed
Exhibit “C” Certificate of Non-Foreign Status
14.17 Covenants of Seller. Seller agrees that during the period between the Effective Date of this Agreement and the Closing Date:
(a) Seller shall maintain the Property in not less than the state of repair as that existing on the Effective Date (excepting ordinary wear and tear); (b) Seller shall not convey, grant, license, assign, mortgage, hypothecate, encumber, or otherwise transfer (on or off record) the Property or any interest therein; provided, however, that Buyer acknowledges and agrees that the BBQ Lease is in effect;
(c) Seller shall not alter the physical condition of the Property or introduce or release, or permit the introduction or release, of any Hazardous Material in, from, under, or on the Property;
(d) Prior to the Closing Date, Seller shall maintain Seller’s existing insurance on the Property.
14.18 Covenant Against Discrimination. Seller covenants that in its performance of this Agreement it shall not discriminate against any person or group of persons on account of any impermissible classification including but not limited to race, color, creed, gender, sexual orientation, age, religion, marital status, national origin, or ancestry.
14.19 Entire Agreement; Amendment. Except as set forth above, this Agreement and the exhibits incorporated herein contain the entire agreement of Buyer and Seller with respect to the matters contained herein, and no prior agreement or understanding pertaining to any such matter shall be effective for any purpose. No provisions of this Agreement may be amended or modified in any manner whatsoever except by an agreement in writing signed by duly authorized officers or representatives of each of the parties hereto.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, Buyer and Seller each hereby represents that it has read this Agreement, understands it, and hereby executes this Agreement to be effective as of the day and year first written above.
“Seller”
CITY OF YORBA LINDA
a California municipal corporation
Date:____________________, 2019 By:
Name: Mark Pulone
Its: City Manager
ATTEST:
Marcia Brown, City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
By:
Todd Litfin, City Attorney
Date:____________________, 2019
“Buyer”
Evan Carl,
a __________________
By:
Name:
Its:
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EXHIBIT “A”
LEGAL DESCRIPTION OF PROPERTY
APN 323-304-19
Real property in the City of Yorba Linda, County of Orange, State of California, described as follows:
LOTS 52 AND 53 OF THE NEWMARK TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 7, PAGES 45 AND 46 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
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EXHIBIT “B”
FORM OF GRANT DEED
[SEE FOLLOWING PAGES]
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RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
_______________________
_______________________
_______________________
SPACE ABOVE THIS LINE FOR RECORDER’S USE
Documentary transfer tax $_____________
Computed on the consideration of the full value of property conveyed [Exempt from recorder’s fee pursuant to
Government Code Section 27383]
The undersigned declares exemption
under the following:
Exempt from fee per Government Code
Section 27388.1 (a)(2).1 (a)(2);
recorded concurrently in connection with a
transfer subject to the imposition of
documentary transfer tax
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, CITY OF YORBA LINDA, a California municipal corporation (the “Grantor”), hereby grants to __________________________, a _____________________ (the “Grantee”), that certain real property (“Property”) located in the City of Yorba Linda, County of Orange, State of California, described in the legal description attached hereto as Attachment No. 1 and incorporated herein by this reference, subject to all matters of record.
“Grantor”
CITY OF YORBA LINDA,
a California municipal corporation
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Date:____________________, 2020 By:
Name:_____________________________
Its:________________________________
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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 Riverside )
On _________________________, before me, ,
(insert name and title of the officer)
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 (Seal)
882/009410-1017
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ATTACHMENT NO. 1
LEGAL DESCRIPTION OF PROPERTY
APN 323-304-19
Real property in the City of Yorba Linda, County of Orange, State of California, described as follows:
LOTS 52 AND 53 OF THE NEWMARK TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 7, PAGES 45 AND 46 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
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EXHIBIT “C”
CERTIFICATE OF NON-FOREIGN STATUS
Section 1445 of the Internal Revenue Code provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. To inform the transferee that withholding of tax is not required upon the disposition of a U.S. real property interest in Barton SOCO WEST, INC., a Delaware corporation (“Seller”), the undersigned hereby certifies the following on behalf of the Seller:
1. Seller is not a foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Internal Revenue Code and Income Tax Regulations);
2. Seller’s U.S. employer identification number is _________________; and
3. Seller’s office address is ______________________________________.
Seller understands that this certification may be disclosed to the Internal Revenue Service by the transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.
Under penalties of perjury, I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct and complete. I further declare that I have authority to sign this document on behalf of Seller.
“Seller”
CITY OF YORBA LIND,
a California municipal corporation
Date:____________________, 2020 By:
Name:_____________________________
Its:________________________________
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EXHIBIT “D:
FORM OF AFFORDABILITY COVENANT
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
City of Yorba Linda
4845 Casa Loma
P.O. Box 87014
Yorba Linda, CA 92885-8714
Attn: City Clerk
(SPACE ABOVE FOR RECORDER’S USE)
This Covenant is recorded at the request and for the
benefit of the City of Yorba Linda, and is exempt
from the payment of a recording fee pursuant to
Government Code Section 27383.
Covenant
If ten (10) or more residential units are developed on the property identified in Exhibit A (the “Property”), not less than 15 percent of the total number of residential units developed on the Property shall be sold or rented at affordable housing cost, as defined in Section 50052.5 of the California Health and Safety Code, or affordable rent, as defined in Section 50053 of the California Health and Safety Code, to lower income households, as defined in Section 50079.5 of the California Health and Safety Code. Rental units shall remain affordable to and occupied by lower income households for a period of 55 years for rental housing and 45 years for ownership housing. The initial occupants of all ownership units shall be lower income households, and the units shall be subject to an equity sharing agreement consistent with the provisions of paragraph (2) of subdivision (c) of 65915 of the California Government Code. These requirements shall be covenants or restrictions running with the land and shall be enforceable against any owner who violates a covenant or restriction and each successor-in-interest who continues the
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violation by any of the entities described in subdivisions (a) to (f), inclusive, of Section 54222.5 of the California Government Code.
IN WITNESS WHEREOF, the City has executed this Covenant by and through the signatures set forth below:
“City”
CITY OF YORBA LINDA, a California
municipal corporation
By:
Mark Pulone, City Manager
ATTEST:
Marcia Brown, City Clerk
APPROVED AS TO FORM:
RUTAN & TUCKER, LLP
By:
Todd Litfin, City Attorney
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EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Real property in the City of Yorba Linda, County of Orange, State of California, described as follows:
LOTS 52 AND 53 OF THE NEWMARK TRACT, AS SHOWN ON A MAP RECORDED IN BOOK 7, PAGES 45 AND 46 OF MISCELLANEOUS MAPS, RECORDS OF ORANGE COUNTY, CALIFORNIA.
APN: 323-304-19
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14344375.2 a07/05/22 -iA 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 Orange
Subscribed and sworn to (or affirmed) before me on this ___th day of ________, 2022, by ________________________________________, proved to me on the basis of satisfactory evidence to be the person(s) who appeared before me.
Signature
[Seal]
LEASE AGREEMENT BY AND BETWEEN
CITY OF YORBA LINDA AND EVAN’S SMOKEHOUSE
(Third Amendment )
This Lease Agreement describes the lease of City-owned property located mid-block on Main Street, Yorba Linda (APN 323-304-19), which serves as a public parking lot (as further described in the attached Exhibit A and herein referenced as “Property”), to be leased by Evan Carl, dba Evan’s Smokehouse BBQ, Sole Proprietorship, (“Lessee”) from the City of Yorba Linda (“Lessor” or “City”).
The Lessee has been leasing the property consistently since November 2020 and wishes to continue to utilize the property as the location to host an outdoor eating establishment on a month to month basis while in escrow to acquire the property. The Lessee is being granted continued use of the property beginning September 1, 2022 through June 30, 2023 for the sole purpose of an outdoor barbeque establishment. The following provisions are considered terms of the temporary lease agreement:
1. Lessee shall be allowed to utilize the subject property for a period of time beginning September 1, 2022 through June 30, 2023. Should the Lessee require an extension of the lease beyond June 30, 2023, the request for up to an additional six months extension must be made in writing at least 30 days prior to the lease expiration date and will be considered along with the status of the escrow process. Extension of the lease is not automatic and will require review and approval by the City Manager.
2. Lessee and/or Lessor may terminate the lease during the lease period with a 30-day written notice to vacate.
3. Lessee will be responsible for the installation and maintenance of all on-site improvements, including ground cover, landscaping, lighting, furnishings, etc. Lessee to pay all utility costs associated with the operation.
4. Lessee shall operate and maintain kitchen equipment and dining area in accordance with OC Health standards.
5. Lessee must maintain pedestrian access from the site to the Olinda public parking lot at all times.
6. The Lessee shall be subject to all applicable City ordinances and regulations, including the acquisition of an Encroachment Permit, Temporary Use Permit and City Business License prior to commencement of operations.
7. The hours of operation for onsite activity shall be consistent with the City of Yorba Linda’s Municipal Code and is expected to operate between the hours of 11am and 11pm. The lease is granted for operating four days per week (Thursday, Friday, Saturday and Sunday), but may be extended to additional days with approval from the City Manager.
2 8. The property shall be maintained in a neat and orderly manner to the satisfaction of the City during the entire lease period. Once vacated, the property shall be cleaned and cleared of all debris to the satisfaction of the City.
9. A deposit of $1,000 is required to retained by the City and may be used to cover costs associated with clean up and/or damage that is not remedied at conclusion of the lease period. Upon vacation of the property, and should the City retain ownership, City will evaluate the site and identify any necessary repairs in restoring the property to its original state. Any portion of the deposit that is not necessary will be refunded to the Lessee within 30 days of the site inspection. Should the Lessee acquire the property during the leasehold the property will be transferred in “as-is” condition.
10. The Lessee shall incur a negotiated monthly lease rate of $1,208.00 per month. The lease rate may be adjusted at the time of any extensions consistent with the Consumer Price Index (CPI). The lease payment is due to the City by the 1 st of each
month, and will be deemed late after the 5
th of the month, for which a $25 late fee
may be assessed.
11. The Lessee shall carry minimum insurance requirements as described in more detail below:
Prior to commencement of the Lease, Lessee shall provide proof of General Liability insurance with coverage at least as broad as Insurance Services Office "occurrence" Form CG 0001 and Automobile Liability insurance with coverage at least as broad as Insurance Services Office Form CA 0001 in the amount of $1,000,000. The City, its officials, officers, employees, agents and volunteers shall be additional insured with regard to liability and defense of suits or claims arising out of the performance of the Agreement. Additional Insured Endorsements shall not (1) be restricted to "ongoing operations"; (2) exclude "contractual liability"; (3) restrict coverage to "sole" liability of Lessee; or (4) contain any other exclusions contrary to this Agreement. If the existing policies do not meet these insurance requirements, Lessee agrees to amend, supplement or endorse the policies to do so. If Lessee is an employer or otherwise hires one or more employees during the term of this Lease, Lessee shall also provide proof of workers’ compensation coverage as required by the State of California and Employer's Liability Insurance with a limit of not less than $1,000,000 per accident for bodily injury and disease.
Each such policy shall be from a company or companies with a current A.M. Best’s rating of no less than A:VII and authorized to do business in the State of California, or otherwise allowed to place insurance through surplus line brokers under applicable provisions of the California Insurance Code or any federal law.
Lessee shall defend, indemnify and hold the City, their officials, officers, employees, agents, and volunteers free and harmless from any and all claims, demands, causes of action, costs, expenses, liabilities, losses, damages, and injuries, in law or equity, to property or persons, including wrongful death, in any manner arising out of or incident to any alleged negligent acts, omissions or willful misconduct of Lessee, its officials, officers, employees, agents, consultants, contractors, subconsultants, or subcontractors arising out of or in connection with the performance of the Lease, including, without limitation, the payment of all consequential damages, attorneys fees and other related costs and expenses. Lessee’s obligation to
3 indemnify shall not be restricted to insurance proceeds, if any, received by the City, their directors, officials, officers, employees, agents, and volunteers.
Lessee warrants that the individual who has signed this Agreement has the legal power, right and authority to make this Agreement and bind the Contractor hereto. If you agree with the terms of this Letter of Agreement, please indicate by signing and dating where indicated below.
A fully executed copy of this Letter of Agreement will be returned to you for your records.
CITY OF YORBA LINDA: LESSEE:
Reviewed and Accepted by Lessee:
By:
Mark Pulone By:
City Manager Signature
Name
Attest:
Title
By:
Marcia Brown
City Clerk Date
Approved as to form:
By:
Rutan & Tucker LLP
City Attorney