confidential by Consultant. Such materials shall not, without the prior written consent of City, be used by Consultant for any purposes other than the performance of the services under this Agreement. Nor shall such materials be disclosed to any person or entity not connected with the performance of the services under this Agreement. Nothing furnished to Consultant, which is otherwise known to Consultant or is generally known, or has become known, to the related industry shall be deemed confidential. Consultant shall not use City’s name or insignia, photographs relating to project for which Consultant’s services are rendered, or any publicity pertaining to the Consultant’s services under this Agreement in any magazine, trade paper, newspaper, television or radio production or other similar medium without the prior written consent of City.
8. Consultant’s Books and Records:
a. Consultant shall maintain any and all ledgers, books of accounts, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to City for a minimum period of three (3) years, or for any longer period required by law, from the date of final payment to Consultant to this Agreement.
b. Consultant shall maintain all documents and records which demonstrated performance under this Agreement for a minimum period of three (3) years, or for any longer period required by law, from the date of termination or completion of this Agreement.
c. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Administrator, City Attorney, City Auditor or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Consultant’s address indicated for receipt of notices in this Agreement.
d. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Consultant’s business, City may, by written request by any of the above named officers, require that custody of the records be given to the City and that the records and documents be maintained in City Hall. Access to such records and documents shall be granted to any party authorized by Consultant, Consultant’s representatives, or Consultant’s successorin-interest.
9. Independent Contractor. It is understood that Consultant, in the performance of the work and services agreed to be performed, shall act as and be an independent contractor and shall not act as an agent or employee of the City.
Consultant shall obtain no rights to retirement benefits or other benefits which accrue to City’s employees, and Consultant hereby expressly waives any claim it may have to any such rights.
Consultant is not a designated employee within the meaning of the Political Reform Act because Consultant:
a. Will conduct research and arrive at conclusions with respect to his/her rendition of information, advice, recommendation or counsel independent of the control and direction of the City or of any City official, other than normal agreement monitoring; and
b. Possesses no authority with respect to any City decision beyond rendition of information, advice, recommendation or counsel. (FPPC Reg. 18700(B)(2).)
10.Interest of Consultant. Consultant (including principals, associates and professional employees) covenants and represents that it does not now have any investment or interest in real property and shall not acquire any interest, direct or indirect, in the area covered by this Agreement or any other source of income, interest in real property or investment which would be affected in any manner or degree by the performance of Consultant’s services hereunder.
Consultant further covenants and represents that in the performance of its duties hereunder no person having any such interest shall perform any services under this Agreement.
11.Professional Ability of Consultant. City has relied upon the professional training and ability of Consultant to perform the services hereunder as a material inducement to enter into this Agreement. Consultant shall therefore provide properly skilled professional and technical personnel to perform all services under this Agreement. All work performed by Consultant under this Agreement shall be in accordance with applicable legal requirements and shall meet the standard of quality ordinarily to be expected of competent professionals in Consultant’s field of expertise.
12.Compliance with Laws. Consultant shall use the standard of care in its profession to comply with all applicable federal, state and local laws, codes, ordinances and regulations.
13.Licenses. Consultant represents and warrants to City that it has all licenses, permits, qualifications, insurance and approvals of whatsoever nature, which are legally required of Consultant to practice its profession. Consultant represents and warrants to City that Consultant shall, at its sole cost and expense, keep in effect or obtain at all times during the term of this Agreement, any licenses, permits, insurance and approvals which are legally required of
Consultant to practice its profession. Consultant shall maintain a City of Yuba City business license.
14.Indemnity. Consultant agrees to defend, indemnify and hold harmless the City, its officers, officials, agents, employees and volunteers from and against any and all claims, demands, actions, losses, damages, injuries, and liability, direct or indirect (including any and all costs, including attorney fees and expenses in connection therein), arising out of the performance of this Agreement in whole or in part by any negligent act or omission of the Consultant, or anyone directly or indirectly employed by the Consultant or anyone for whose acts the Consultant may be liable, or its failure to comply with any of its obligations contained in this Agreement, except for any such claim arising out of the sole negligence or willful misconduct of the City, its officers, agents, employees or volunteers.
15.Insurance Requirements. Consultant, at Consultant’s own cost and expense, shall procure and maintain, for the duration of the contract, necessary insurance policies as described in Exhibit B.
16.Notices. Any notice required to be given under this Agreement shall be in writing and either served personally or sent prepaid, first class mail. Any such notice shall be addressed to the other party at the address set forth below.
Notice shall be deemed communicated within 48 hours from the time of mailing if mailed as provided in this section.
If to City Nick Menezes
Public Works
City of Yuba City
1201 Civic Center Blvd
Yuba City, CA 95993
(530) 822-4626
If to Consultant: Mike Komsky
Chief Operating Officer
The Solis Group
3452 E Foothill Blvd / Suite 200
Pasadena, CA 91101
(626) 685-6989
17.Entire Agreement. This Agreement constitutes the complete and exclusive statement of Agreement between the City and Consultant. All prior written and oral communications, including correspondence, drafts, memoranda, and representations, are superseded in total by this Agreement.
18.Amendments. This Agreement may be modified or amended only by a written document executed by both Consultant and City and approved as to form by the City Attorney.
19.Assignment and Subcontracting. The parties recognize that a substantial inducement to City for entering into this Agreement is the professional reputation, experience and competence of Consultant. Assignments of any or all rights, duties or obligations of the Consultant under this Agreement will be permitted only with the express consent of the City. Consultant shall not subcontract any portion of the work to be performed under the Agreement without the written authorization of the City. If City consents to such subcontract, Consultant shall be fully responsible to City for all acts or omissions of the subcontractor. Nothing in this Agreement shall create any contractual relationship between City and subcontractor nor shall it create any obligation on the part of the City to pay or to see to the payment of any monies due to any such subcontractor other than as otherwise is required by law.
20.Waiver. Waiver of a breach or default under this Agreement shall not constitute a continuing waiver of a subsequent breach of the same or any other provision under this Agreement.
21.Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect.
22.Controlling Law Venue. This Agreement and all matters relating to it shall be governed by the laws of the State of California and any action brought relating to this Agreement shall be held exclusively in a state court in the County of Sutter.
23.Litigation Expenses and Attorneys’ Fees. If either party to this Agreement commences any legal action against the other party arising out of this Agreement, the prevailing party shall be entitled to recover its reasonable litigation expenses, including court costs, expert witness fees, discovery expenses, and attorneys’ fees.
24.Mediation. The parties agree to make a good faith attempt to resolve any disputes arising out of this Agreement through mediation prior to commencing litigation. The parties shall mutually agree upon the mediator and shall divide the costs of mediation equally. If the parties are unable to agree upon a mediator, the dispute shall be submitted to JAMS/ENDISPUTE (“JAMS”) or its successor in interest. JAMS shall provide the parties with the names of five qualified mediators. Each party shall have the option to strike two of the five mediators selected by JAMS and thereafter the mediator remaining shall hear the dispute. If the dispute remains unresolved after mediation, either party may commence litigation.
25.Execution. This Agreement may be executed in several counterparts, each of which shall constitute one and the same instrument and shall become binding upon the parties when at least one copy hereof shall have been signed by both parties hereto. In approving this Agreement, it shall not be necessary to produce or account for more than one such counterpart.
26.Authority to Enter Agreement. Consultant has all requisite power and authority to conduct its business and to execute, deliver, and perform the Agreement.
Each party warrants that the individuals who have signed this Agreement have the legal power, right, and authority to make this Agreement and to bind each respective party.
27.Prohibited Interest. Consultant maintains and warrants that it has not employed nor retained any company or person, other than a bona fide employee working solely for Consultant, to solicit or secure this Agreement. Further, Consultant warrants that it has not paid nor has it agreed to pay any company or person, other than a bona fide employee working solely for Consultant, any fee, commission, percentage, brokerage fee, gift or other consideration contingent upon or resulting from the award or making of this Agreement. For breach or violation of this warranty, City shall have the right to rescind this Agreement without liability. For the term of this Agreement, no member, officer or employee of City, during the term of his or her service with City, shall have any direct interest in this Agreement, or obtain any present or anticipated material benefit arising there from.
28.Equal Opportunity Employment. Consultant represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. Such non- discrimination shall include, but not be limited to, all activities related to initial employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination.
Consultant shall also comply with all relevant provisions of City’s Affirmative Action Plan or other related programs or guidelines currently in effect or hereinafter enacted.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed on the date first written above.
CITY OF YUBA CITY: CONSULTANT:
By:_____________________________ By:_________________________ Benjamin Moody Elvira Elizabeth Diez Solis-Compana
Public Works & Development Services Director Chief Executive Officer The Solis Group
Attachments: Exhibit A – Scope of Services
Exhibit B – Insurance Requirements
Exhibit A
Scope of Services
Pasadena / Dallas / Oakland / San Diego
Headquarters
3452 E Foothill Blvd / Suite 200
Pasadena, CA 91107 USA
P 626 685 6989
F 626 685 6985
thesolisgroup.com
December 10, 2024
Nick Menezes, PE, Sr Civil Engineer
City of Yuba City, Public Works Department
1201 Civic Center Blvd
Yuba City, CA 95993
Re: Proposal for Labor Compliance Services for the Bogue Road Sewer Extension Project Dear Nick Menezes:
The Solís Group (TSG) is pleased to submit this cost proposal to provide labor compliance services required for the above referenced project. The work scope for this assignment is based on our proposal dated November 6, 2020. Our fixed-fee cost proposal based on information provided by the City is summarized below.
Project Description Construction
Value
Duration
(including closeout)
Monthly
Fee
Life of Project
Cost Estimate
Bogue Road Sewer
Extension $ 8,000,000 6 $ 2,351 $ 14,106
TOTAL COST $ 14,106
If actual construction (including punch list) and closeout go beyond the expected duration, we will examine the need for additional budget.
We appreciate the opportunity to serve the City. If you have any questions regarding this cost proposal, please contact the undersigned. Please send Notice-to-Proceed to Sabrina Cristi, Accounting Assistant, at [email protected].
Sincerely,
Lina Gerpe
Marketing Pursuit Lead
Exhibit B
Professional Services Agreement
Insurance Requirements
I. Workers’ Compensation Coverage. Consultant shall maintain Workers’ Compensation Insurance for his/her employees in accordance with the laws of the State of California and Employers Liability Insurance in an amount not less than one million dollars ($1,000,000) per accident for bodily injury and/or disease. In addition, Consultant shall require each subcontractor to similarly maintain Workers’ Compensation Insurance in accordance with the laws of the State of California and Employers Liability Insurance in an amount not less than one million dollars ($1,000,000) per accident for bodily injury and/or disease. for all of the subcontractor’s employees. Any notice of cancellation or non-renewal of all Workers’ Compensation policies must be received by the City at least thirty (30) days prior to such change. The insurer shall agree to waive all rights of subrogation against City, its officers, agents, employees and volunteers for losses arising from work performed by Consultant for City. This provision shall not apply if Consultant has no employees performing work under this Agreement. If the Consultant has no employees for the purposes of this Agreement, Consultant shall sign the “Certificate of Exemption from Workers’ Compensation Insurance” which is attached hereto as Exhibit C.
II. General Liability Coverage. Consultant shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damage. If a commercial general liability insurance form or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to the work to be performed under this Agreement or the general aggregate limit shall be at least twice the required occurrence limit.
III. Automobile Liability Coverage. Consultant shall maintain automobile liability insurance covering bodily injury and property damage for all activities of the Consultant arising out of or in connection with the work to be performed under this Agreement, including coverage for owned, hired and non-owned vehicles, in an amount of not less than one million dollars ($1,000,000) combined single limit for each occurrence.
IV. Professional Liability Coverage. Consultant shall maintain professional errors and omissions liability insurance for protection against claims alleging negligent acts, errors or omissions which may arise from Consultant’s operations under this Agreement, whether such operations are by the Consultant or by its employees, subcontractors, or sub-consultants. The amount of this insurance shall not be less than one million dollars ($1,000,000) on a claims-made annual aggregate basis, or a combined single-limit per occurrence basis.
V. Endorsements. Each general liability and automobile liability insurance policy shall be with insurers possessing a current A.M. Best’s rating of no less than A:VII and shall be endorsed with the following specific language or equivalent:
A. The City, its elected or appointed officers, officials, employees, agents and volunteers are to be covered as additional insured with respect to liability arising out of work performed by or on behalf of the Consultant, including materials, parts or equipment furnished in connection with such work or operations. Conforms to ISO CG 2009 and CG 2037 10 01. Both are required.
B. This policy shall be considered primary insurance as respects to the City, its elected or appointed officers, officials, employees, agents and volunteers. Any insurance maintained by the City, including any selfinsured retention the City may have, shall be considered excess insurance only and shall not contribute with it.
C. This insurance shall act for each insured and additional insured as though a separate policy had been written for each, except with respect to the limits of liability of the insuring company.
D. The insurer waives all rights of subrogation against the City, its elected or appointed officers, officials, employees or agents.
E. Any failure to comply with reporting provisions of the policies shall not affect coverage provided to the City, its elected or appointed officers, officials, employees, agents or volunteers.
F. The insurance provided by this policy shall not be suspended, voided, canceled, or reduced in coverage except after thirty (30) days written notice has been received by the City.
VI. Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by the City. At the City’s option, Consultant shall demonstrate financial capability for payment of such deductibles or self-insured retention’s.
VII. Certificates of Insurance. Consultant shall provide certificates of insurance with original endorsements to City, as evidence of the insurance coverage required herein. Certificates of such insurance shall be filed with the City on or before commencement of performance of this agreement. Current certification of insurance shall be kept on file with the City at all times during the term of this Agreement.
Agenda Item 17
CITY OF YUBA CITY
STAFF REPORT
Date: December 17, 2024
To: Honorable Mayor & Members of the City Council;
From: Community Services Department
Presentation By: Ann Gillen, Community Services Director Summary
Subject: Terex Hi-Ranger XT PRO 56 Aerial Truck
Recommendation: Adopt a Resolution to approve an increase to the capital acquisition budget allocation for the Park's Department Terex Hi-Ranger XT PRO 56 Aerial Truck in the amount of $6,507.73 for a total capital asset value of $280,369.73 Fiscal Impact: $6,507.73 Vehicle Replacement Fund Account 6610-69410 Purpose:
Purchase of a replacement Aerial Tree Truck for the Parks Maintenance division.
Council's Strategic Goal:
This staff report addresses the City Council's Strategic Goal of fiscal responsibility.
Background:
The California Clean Air Regulations are state air quality laws that have created an end-of-life situation for several City vehicles with diesel powerplants, including the parks department's aerial tree truck. The Terex HI-Ranger XT PRO 56 Aerial Tree Truck was located and granted a purchase authorization by City Council in the FY 2020-21. On May 17, 2022 Council adopted Resolution No. 22-068 awarding the purchase in the amount of $273,862. With a supply chain Freightliner chassis shortage, the building of the aerial tree truck was delayed. Due to limited allocation of CARB compliant Freightliner chassis, we need to change to a 2026 International HV607 chassis.
Analysis:
The purchase of the Terex HI-Ranger XT PRO 56 Aerial Truck for the Parks Maintenance division was originally approved by Council in the Fiscal Year 21/22 budget in the amount of $273,862. Due to the change in chassis model years, 2024 to 2026, the price has increased to complete the truck. In order to appropriately capitalize, depreciate, and fund future replacement of the aerial tree truck, staff recommend that the Council action be altered in order to adjust the budget allocation in the Vehicle Replacement Fund in the amount of $6,507.73 for a total capital asset value of $280,369.73.
Fiscal Impact:
$6,507.73 Vehicle Replacement Fund Account 6610-69410
Alternatives:
Do not authorize the increase
Recommendation:
Adopt a Resolution to approve an increase to the capital acquisition budget allocation for the Park's Department Terex Hi-Ranger XT PRO 56 Aerial Truck in the amount of $6,507.73 for a total capital asset value of $280,369.73.
Attachments:
1. Resolution 22-068
2. Resolution - Terex HI-Ranger Aerial Truck Increase
Prepared By: Submitted By:
Ann Gillen
Community Services Director
Diana Langley
City Manager
ATTACHMENT 2
RESOLUTION NO. _____
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF YUBA CITY
TO APPROVE AN INCREASE TO THE CAPITAL ACQUISITION BUDGET
ALLOCATION FOR THE PARK'S DEPARTMENT TEREX HI-RANGER XT PRO 56 AERIAL TRUCK
WHEREAS, the California Clean Air Regulations require certain diesel-powered vehicles in Yuba City’s fleet to be replaced by January, 2023; and
WHEREAS, the City’s Fleet Maintenance staff has identified the aerial tree truck to be replaced per the regulations; and
WHEREAS, with a supply chain Freightliner chassis shortage, the building of the aerial tree truck was delayed; and
WHEREAS, due to limited allocation of CARB compliant Freightliner chassis, it will need to change to a 2026 International HV607 chassis with an additional cost of $6507.73; and NOW, THEREFORE, the City Council of the City of Yuba City does resolve as follows:
1. The City Council of the City of Yuba City approves an increase to the capital acquisition budget allocation for the Park's Department Terex Hi-Ranger XT PRO 56 Aerial Truck in the amount of $6507.73 for a total capital asset value of $280,369.73 AYES:
NOES:
ABSENT:
________________________
Dave Shaw, Mayor
ATTEST:
____________________________
Ciara Wakefield, Deputy City Clerk
APPROVED AS TO FORM:
_________________________
Shannon Chaffin, City Attorney
Aleshire & Wynder, LLP
Agenda Item 18
CITY OF YUBA CITY
STAFF REPORT
Date: December 17, 2024
To: Honorable Mayor & Members of the City Council;
From: Administration Department
Presentation By: Ciara Wakefield, City Clerk
Summary
Subject: City of Yuba City Advisory Board Appointment List Recommendation: Note and File the 2024 Local Appointment List and Direct Staff to post on the City’s website
Fiscal Impact: None
Purpose:
To post an appointment list of the City’s Advisory Boards in accordance with Government Code Section 54972 (the Maddy Act).
Background:
On or before December 31st of each year, each legislative body shall prepare an appointments list of all regular and ongoing boards, commissions, and committees which are appointed by the legislative body of the local agency. This list shall be known as the Local Appointments List. The list shall contain the following information:
(a) A list of all appointive terms which will expire during the next calendar year, with the name of the incumbent appointee, the date of appointment, the date the term expires, and the necessary qualifications for the position.
(b) A list of all boards, commissions, and committees whose members serve at the pleasure of the legislative body, and the necessary qualifications for each position.
The legislative body shall either post a copy of the list on its website or designate the public library with the largest service population within its jurisdiction to receive a copy of the list.
Analysis:
The City of Yuba City operates under the City Council-Manager form of government with five elected City Council members. The Mayor and Vice-Mayor are nominated and appointed by the City Council annually at the first meeting in December. Open positions on the City’s advisory boards are advertised on the City’s Website, in the Appeal-Democrat and through Social Media. The Advisory Board Screening committee, which is traditionally made up of the Mayor and Vice-Mayor, interview all
candidates for positions on the Boards and Commissions and make recommendations for appointment to the whole City Council in an open and public City Council meeting. Positions on boards and commissions appearing on the Local Appointment List can be filled by qualified citizens from the community. Positions filled by members of the City Council are not required to appear on the Local Appointment List.
Fiscal Impact: None
Recommendation:
Note and File the 2024 Local Appointment List and direct staff to post on the City’s website.
Attachments:
1. Local Appointment List 12.17.24
Prepared By: Submitted By:
Ciara Wakefield
City Clerk Administrator
Diana Langley
City Manager
ATTACHMENT 1
Commissioner Date Appointed Term Begins Term Ends
Jackie Sillman 03/02/21 03/02/21 02/27/25
Stacy Brookman 03/02/21 03/02/21 02/27/25
Bhavin Singh Dale 03/02/21 03/02/21 02/27/25
James Nore 02/27/23 02/27/23 02/27/27
Rupinder Johl Sandhu 02/27/23 02/27/23 02/27/27
Karri Campbell (Sutter Co.) 01/26/22 05/07/24 02/27/25
Vacancy
Commissioner Date Appointed Term Begins Term Ends
Erica Summers 05/18/21 05/18/21 02/27/25
Staci Howell 03/06/19 02/21/23 02/27/27
Bonnie Pullen 03/06/19 02/21/23 02/27/27
Pawandeep Rai 03/05/24 03/05/24 02/27/25
Vacancy 02/27/25
Alternate - Vacant
Commissioner Date Appointed Term Begins Term Ends
Anthony Kurlan 03/03/20 03/03/20 02/27/28
John Boyer 03/01/22 03/01/22 02/27/26
Tanna Thomas 03/01/22 03/01/22 02/27/28
Michael McFarlane 03/01/22 03/01/22 02/27/26
Pam Epley 03/01/22 03/01/22 02/27/26
Alternate - Vacant
Commissioner Date Appointed Term Begins Term Ends
Amelia Mullen 11/07/23 11/05/24 06/29/25
Parks & Recreation Commission
5 members, 1 alternate - 4 year terms - Meets the 3rd Monday of each month at 5:30 p.m. at City Hall - Members must reside within the City limits
Senior Commission
5 members, 1 alternate - 4 year terms - Meets the 1st Wednesday of each month at 9:00 a.m. in the Yuba City Senior Center - Members must reside in the City of Yuba City and represent a diverse group .
Youth Commission
9 members, 1 alternate - 2 year terms - Meets the 3rd Wednesday of each month at 7:00 p.m. in the Sutter Room at City Hall - Members must be between 14 and 19 years of age and reside within the City limits.
City of Yuba City
December 17, 2024
In compliance with the requirements of the Maddy Act, Government Code 54970, the following appointment list is posted on an annual basis by December 31st. It shows all current members of City Boards and Commissions and the dates of their terms of office as of the time of this posting.
Planning Commission
7 members - 4 year terms - Meets the 2nd and 4th Wednesday of each month at 6:00 p.m. in the Yuba City Council Chambers - Members must reside within the City limits. Sutter County member must be from the Sutter County Planning Commission.
Local Board and Commission Appointment List
Ellie Hartridge Gundershaug 11/07/23 11/05/24 06/29/25
Sukhraj Gill 11/07/23 11/05/24 06/29/25
Maddy de Lange 11/07/23 11/05/24 06/29/25
Maya Sangha 11/15/22 11/05/24 06/29/26
Arjan Sohal 11/05/24 11/05/24 06/29/26
Lyrik Robinson 11/05/24 11/05/24 06/29/26
Olivia Salle 11/05/24 11/05/24 06/29/26
Sanah Kahlon 11/05/24 11/05/24 06/29/26
Alternate - Jatin Agnish 11/05/24 11/05/24 06/29/25
Alternate - Kavan Boparai 11/05/24 11/05/24 06/29/25
Alternate - Ajai Sohal 11/05/24 11/05/24 06/29/26
Board Member Date Appointed Term Begins Term Ends
Lonard Brunelle 08/20/24 08/20/24 06/30/28
David Koll 10/04/22 10/04/22 06/30/26
Anthony Kurlan 10/04/22 10/04/22 06/30/26
Harman Rai 11/01/22 11/01/22 06/30/26
Tanna Thomas 12/19/23 08/20/24 06/30/28
Board Member Date Appointed Term Begins Term Ends
Suzanne Gallaty (Tenant) 05/17/22 05/17/22 12/31/24
Anthony Kurlan 09/15/20 09/15/20 12/31/24
Certain terms of service may have been modified in order to be more consistent with the Municipal Code, and reflect the Council’s intention to appoint as to that term duration.
Additionally, if a position is listed as “vacancy,” “vacant,” or is otherwise unfilled, then any prior appointment for that position is deemed to be complete, and the position is currently vacant and capable of being filled for the remainder of the term.
Regional Housing Authority
Personnel Board
1 member (4-year term) appointed by the City Council, and 1 tenant member (2-year term) appointed by the member agencies for the 14-member Board of Commissioners. Meets the 1st and 3rd Wednesday of each month at 12:15 at the Housing Authority. Citizen member must reside within the City limits; tenant member must be a tenant. 5 members - 4 year terms. Meets on an as needed basis. Members must reside in the City limits.
Agenda Item 19
CITY OF YUBA CITY
STAFF REPORT
Date: December 17, 2024
To: Honorable Mayor & Members of the City Council;
From: Administration Department
Presentation By: Ciara Wakefield, City Clerk
Summary
Subject: Biennial Review of the City of Yuba City Conflict of Interest Code Recommendation: Adopt a Resolution Amending the City of Yuba City Conflict of Interest Code and list of Designated Positions
Fiscal Impact: None
Purpose:
A Conflict of Interest Code informs the public officials, governmental employees, and consultants what financial interests they must disclose on their Statement of Economic Interest (FPPC Form 700).
Background:
The Political Reform Act (Act) prohibits a public official from using his or her official position to influence a governmental decision in which he or she has a financial interest. Every state and local agency must adopt a conflict of interest code that identifies all officials and employees within the agency who make governmental decisions based on the positions they hold. The individuals in the designated positions must disclose their financial interests as specified in the agency’s conflict of interest code.
In accordance with Government Code Section 87306.5, local agencies must conduct a biennial review of its conflict of interest code. The code must contain language that incorporates Fair Political Practices Commission (FPPC) Reg. 18730 or the basic provisions required in Government Code Section 87302. The last update was approved by the City Council on February 7, 2023.
Analysis:
Staff has reviewed the Conflict of Interest Code and determined that amendments to the Code are necessary in order to accurately designate all positions that make or participate in the making of governmental decisions. These are decisions that may foreseeably have a material effect on any financial interest. This amendment is due to personnel classification additions or deletions that have been incorporated in the City’s annual budget process as well as City-wide organization changes (Appendix A).
Fiscal Impact: None
Alternatives:
Do not approve the amended Conflict of Interest Code and ask Staff to provide further review.
Recommendation:
Adopt a Resolution Amending the City of Yuba City Conflict of Interest Code and list of Designated Positions.
Attachments:
1. Resolution - 2024 Amendments to Conflict of Interest Code
2. 2024 Conflict of Interest Code rev 12.17.24
Prepared By: Submitted By:
Ciara Wakefield
City Clerk Administrator
Diana Langley
City Manager
ATTACHMENT 1
RESOLUTION NO. _______
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF YUBA CITY AMENDING THE CITY OF YUBA CITY’S CONFLICT OF INTEREST CODE WHEREAS, the Political Reform Act of 1974 (Government Code Section 81000, et seg.) required state and local government agencies to adopt and promulgate conflict of interest codes; and, WHEREAS, the Fair Political Practices Commission has adopted regulations (2 Cal. Code of Regs. 18730) which contain the terms of a standard conflict of interest code; and WHEREAS, after public notice and hearing it may be amended by the Fair Political Practices Commission to conform to amendments in the Political Reform Act.
NOW, THEREFORE, the City Council of the City of Yuba City does hereby resolve as follows:
1. That the regulations of the Fair Political Practices Commission (2 Cal. Code of Regs.
Section 18730) and any amendments to the Act are hereby incorporated by reference, and this regulation and the attached Appendix(s) designating officials and employees and establishing disclosure categories, shall constitute the Conflict of Interest Code of the City of Yuba City; and
2. That designated employees shall file their Form 700 statements with the City Clerk’s Office, which will make the statements available to public inspection and reproduction (Gov. Code Section 81008).
3. That all previously adopted resolutions approving conflict of interest codes are hereby superseded effective as of the approval date of this resolution.
The foregoing Resolution of the City Council of the City of Yuba City was duly and regularly introduced, passed and adopted at a regular meeting thereof held on this 17th day of December 2024, by the following vote:
AYES:
NOES:
ABSENT:
_____________________________
Dave Shaw, Mayor
ATTEST:
______________________________
Ciara Wakefield, City Clerk
APPROVED AS TO FORM
COUNSEL FOR YUBA CITY:
______________________________
Shannon Chaffin, City Attorney
Aleshire & Wynder, LLP
ATTACHMENT 2
Revised December 17, 2024
City of Yuba City
Conflict of Interest Code
The Political Reform Act, Government Code Sections 81000 et seq., requires state and local government agencies to adopt and promulgate conflict of interest codes.
The Fair Political Practices Commission (FPPC) has adopted a regulation (2 Cal. Code of Regs.
Section 18730) which contains the terms of a standard conflict of interest code which may be incorporated by reference in an agency’s code, and which may be amended by the FPPC to conform to amendments in the Political Reform Act, following public notice and hearings.
Therefore, the terms of Section 18730 and any amendments that are duly adopted by the FPPC are hereby incorporated by reference, as the Conflict of Interest Code of the City of Yuba City along with the attached Appendix(s) in which officials and employees are designated and disclosure categories are set forth.
Designated employees shall file annual FPPC Form 700 Statements of Economic Interests with the City Clerk of the Yuba City and attend required AB1234 Code of Ethics every two years. The City shall make all statements available for public inspection and reproduction, pursuant to Government Section 81008.
Attachments:
• Appendix A: Designated Positions
• Appendix B: Disclosure Categories
APPENDIX A
City of Yuba City
Conflict of Interest Code
Designated Positions
A designated employee is an officer, employee, member or consultant of an agency whose position is designated in the code because the position entails the making or participation in the making of governmental decisions which may foreseeably have a material effect on any financial interest. (Government Code Section 82019)
1) Making a governmental decision means the person:
a. Votes on a matter
b. Appoints a person
c. Obligates or commits his or her agency to any course of action; or d. Enters into any contractual agreement on behalf of his or her agency 2) Participating in making of a decision, means the person:
a. Negotiates, without significant substantive review, with a governmental entity or private person regarding the decision
b. Advises or makes recommendations to the decision-maker by conducting research or an investigation, preparing or presenting a report, analysis or opinion which requires the exercise of judgment on the part of the employee and the employee is attempting to influence the decision
3) Consultant means an individual whom, pursuant to a contract with a state or local government agency makes a governmental decision whether to:
a. Approve a rate, rule, or regulation
b. Adopt or enforce a law
c. Issue, deny, suspend, or revoke any permit, license, application, certificate, approval, or similar authorization or entitlement
d. Grant agency approval to a contract which requires agency approval and in which the agency is a party or to the specifications for such a contract e. Grant agency approval to a plan, design, report, study, or similar item f. Adopt or grant agency approval of policies, standards, or guidelines for the agency or for any subdivision thereof
Positions listed in Government Code Section 87200 (i.e. City Council members, Planning Commissioners, City Manager, City Attorney, City Treasurer) are not required to be included in the list of designated positions because persons holding these positions are required to file FPPC Form 700 pursuant to State law.
Officials who manage Investments:
It has been determined that the position listed below manage public investments and will file a statement of economic interests (Form 700) pursuant to Government Code Section 87200:
City Treasurer
APPENDIX A
Disclosure
Department Position Category
Administration
Assistant City Manager I
Executive Assistant to the City Manager II
Administrative Analyst I/II/III II
City Clerk Administrator II
Management Analyst II
Community Services
Community Services Director I
Recreation Supervisor I/II/III IV
Recreation Manager II
Park Maintenance Manager II
Parks and Grounds Superintendent II
Parks Maintenance Supervisor IV
Animal Services Manager II
Animal Services Shelter Supervisor IV
Development Services
Public Works & Development Services Director I
Development Services Director I
Deputy Director, Development Services I
Development LiaisonManager I
Assistant Planner I
Associate Planner I
Chief Building Official I
Plans Examiner I/II I
Code Enforcement Officer I/II I
Building Inspector I/II III/IV
Administrative Analyst I/II/III II
Finance
Finance Director I
Accounting Manager II
Accountant II II
Customer Service Manager III/IV
Administrative Analyst I/II/III II
Information Technology Manager I
Information Security Administrator I
Senior Information Technology Analyst II
Fire
Fire Chief I
Assistant Fire Chief I
Deputy/Division Chief II
APPENDIX A
Fire Marshall II
Fire Safety Inspector II/III
Fire Battalion Chief IV
Fire Captain IV
Administrative Analyst I/II/III III/IV
Human Resources
Human Resources Director I
Administrative Analyst I/II/III II
Police
Police Chief I
Executive Assistant to the Police Chief II
Police Commander I
Administrative Manager II
Police Lieutenant II
Police Sergeant IV
Public Works
Public Works & Development Services Director I
Public Works Director I
PW Administrative Manager II
Deputy PW Director - Engineering II
Deputy PW Director - Utilities II
–Senior Civil EngineerEngineer -- Senior II
Civil Engineer – Associate II
Director of Engineering - SBFCA II
Environmental Compliance Manager II
Environmental Compliance Coordinator II
Environmental Compliance Inspector III/IV
Construction Project Manager II
Senior Construction Inspector II
Deputy Public Works Director - Maintenance II
PW Maintenance Superintendent II
Facilities Maintenance Supervisor II
Fleet Maintenance Supervisor II
Street Maintenance Supervisor II
Wastewater Collection Supervisor II
Water Distribution Supervisor II
Electrical Instrumentation Supervisor II
Plant Maintenance Supervisor II
WWTF Maintenance Supervisor II
WTP Maintenance Supervisor II
WWTF Supervisor II
APPENDIX A
WTP Supervisor II
Chief Plant Operator - WTP II
Chief Plant Operator - WWTF II
Lab Supervisor II
Administrative Analyst I/II/III III/IV
Consultants Determined by City Manager (1) I/II/III/IV
Personnel Attorney I
(1) Consultants (as defined by FPPC regulation 18700(a)(2)) shall be included in the list of designated employees and shall disclose pursuant to the broadest disclosure category in the code subject to the following limitation:
The City Manager or designee may determine in writing that a particular consultant is hired to perform a range of duties that are limited in scope and thus is not required to fully comply with the disclosure requirements described in this section.
APPENDIX B
City of Yuba City
Conflict of Interest Code
Disclosure Categories
The following disclosure categories set forth the required contents of disclosure statements for officers and employees holding designated positions. An investment, interest in real property, or income is reportable if the business entity in which the investment is held, the interest in real property, or the income or source of income may foreseeably be affected materially by any decisions made or participated in by the designated employee by virtue of the employee’s position.
Category I – Full Disclosure
Designated employees assigned to Category I shall report all investments, interests in real property and income, and any business entity in which the person is a director, officer, partner, trustee, employee, or holds any position of management. Financial interests are reportable only if located within or subject to the jurisdiction of the City of Yuba City or if the business entity is doing business or planning to do business in the jurisdiction or has done business within the jurisdiction at any time during the two years prior to the filing of the statement.
Category II – Citywide Disclosure: Material & Supplies
An employee in this category could possibly have a conflict of interest due to an interest in a supplier of goods, materials or services to the City.
Designated employees assigned to Category II shall report:
a) All investments in any business entity which, within the last two years, has contracted, or in the future foreseeably may contract with the City of Yuba City to provide services, supplies, materials, machinery, or equipment to the City.
b) All income from any source which, within the last two years, has contracted, or in the future foreseeably may contract with, the City of Yuba City to provide services, supplies, materials, machinery, or equipment to the City.
c) His or her status as a director, officer, partner, trustee, employee, or holder of a position of management in any business entity, which within the last two years, has contracted, or in the future foreseeably may contract with the City of Yuba City to provide services, supplies, materials, machinery, or equipment to the City.
Category III – Citywide Disclosure: Construction, Building and Real Property Designated employees assigned to Category III shall report:
a) Investments in any business entity licensed to do construction or build within the jurisdiction of the City of Yuba City.
b) All income from any business entity licensed to do construction or build within the jurisdiction of the City of Yuba City.
c) His or her status as a director, officer, partner, trustee, employee, or holder of a position of management in any business entity licensed to do construction or build within the jurisdiction of the City of Yuba City.
d) All investment and interests in real property if the property is located within or subject to the jurisdiction of the City of Yuba City.
APPENDIX B
Category IV - Department Disclosure: Material & Supplies An employee in this category could possibly have a conflict of interest due to an interest in a supplier of goods, materials or services to their department/division.
Designated employees assigned to Category IV shall report:
a) Investments in any business entity which, within the last two years, has contracted, or in the future foreseeably may contract with the City of Yuba City to provide services, supplies, materials, machinery, or equipment to the department/division. b) Income from any source which, within the last two years, has contracted, or in the future foreseeably may contract with the City of Yuba City to provide services, supplies, materials, machinery, or equipment to the department/division.
c) His or her status as a director, officer, partner, trustee, employee, or holder of a position of management in any business entity, which within the last two years, has contracted, or in the future foreseeably may contract with the City of Yuba City to provide services, supplies, materials, machinery, or equipment to the department/division.
Agenda Item 20
CITY OF YUBA CITY
STAFF REPORT
Date: December 17, 2024
To: Honorable Mayor & Members of the City Council;
From: Administration Department
Presentation By: Diana Langley, City Manager
Summary
Subject: Lease of the Madden House for the Yuba-Sutter Chamber of Commerce Offices Recommendation: Adopt a Resolution approving a Lease Agreement with the Yuba-Sutter Chamber of Commerce for the use of the Madden House (1300 Franklin Road), authorizing the City Manager to make non-material modifications, subject to City Attorney approval
Fiscal Impact: City will receive $6,600 per year in rent and Champion Circle membership in the Chamber of Commerce, which has an annual value of $12,000 Purpose:
Approve a Lease Agreement to lease the Madden House, located at 1300 Franklin Road, to the YubaSutter Chamber of Commerce (Chamber).
Council's Strategic Goal:
This item meets Council's goal of Business Friendly as the Chamber of Commerce supports local businesses and promotes economic growth and development opportunities.
Background:
Built in 1879, the Madden/Littlejohn House (House) was restored and gifted to the City as part of the WinCo development in 1997. As part of this gift, the property is limited in its uses for either community or public purposes. The House has been used primarily as offices for government agencies and other community uses including the Chamber from 2011 to 2016 and 2018 to current.
In 2016, the City Council approved a lease-to-own agreement with the Chamber, where the Chamber would pay $1 a year in rent and $500 a month toward a capital improvement fund, capped at $30,000 and pay for maintenance and utilities for the facility. The purchase option would be available in 2030.
At that time, the Chamber paid $9,000 a year in lease payments and the City paid for maintenance and utilities, not including staff time, of approximately $9,000. Between 2016 and 2018, the Chamber vacated the Madden House and moved to a location in Marysville.
In 2018, the Chamber signed a new Lease Agreement (Lease) with the City for the use of the Madden House, with a lease payment paid monthly by the Chamber. The revenue received from the Chamber
lease payment is used to offset the cost of staff time for managing facility maintenance and to provide funds for capital improvement projects for the historical building. The current Lease Agreement with the Chamber is scheduled to expire on December 31, 2024.
Analysis:
The attached proposed Lease Agreement provides for a three-year term, through December 31, 2027.
Commencing on January 1, 2025, the Chamber will pay $550/month or $6,600/year in rent and provide the City with a Champion Circle membership valued at $12,000 per year which includes the following benefits:
• Vendor Fair Sponsorship (1 per year)
• Annual Gala Sponsorship (10-person table)
• Taste of Yuba-Sutter Sponsorship (10 tickets)
• Recognition at all Chamber events
• Participation in LEADership Yuba Sutter (1 person)
• Free E-Blast each month
The City will maintain responsibility for major maintenance obligations, and the Chamber has the ability to sublease a portion of the Madden House to another tenant with written approval of the City.
Fiscal Impact:
The City will receive $6,600 per year in rent, which helps to offset staff costs and contract services to maintain the building. Due to the age of the Madden House, significant investment is required for upkeep and maintenance. The City will also be recognized as a Champion Circel member of the Chamber, which is currently valued at $12,000 per year.
Alternatives:
1. Do not approve the Lease Agreement and direct staff to notify the Chamber of Commerce that the Lease Agreement will not be executed.
2. Modify the terms of the Lease Agreement.
Recommendation:
Adopt a Resolution approving a Lease Agreement with the Yuba-Sutter Chamber of Commerce for the use of the Madden House (1300 Franklin Road), authorizing the City Manager to make non-material modifications, subject to City Attorney approval
Attachments:
1. RESOLUTION - Madden House Lease Agreement
2. EXHIBIT A - Madden House Lease Agreement
Prepared By: Submitted By:
Diana Langley
City Manager
Diana Langley
City Manager
ATTACHMENT 1
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF YUBA CITY
APPROVING A LEASE AGREEMENT WITH THE YUBA-SUTTER CHAMBER OF COMMERCE OF THE MADDEN HOUSE LOCATED AT 1300 FRANKLIN ROAD,
YUBA CITY
WHEREAS, the Madden House was restored and gifted to the City as part of the WinCo development in 1997; and
WHEREAS, the terms of the gift limit the use of the property to either community or public purposes; and WHEREAS, the Yuba-Sutter Chamber of Commerce is a non-profit organization that supports local businesses and promotes economic growth and development opportunities, contributing to the economic vitality of the region; and
WHEREAS, the Yuba-Sutter Chamber of Commerce has leased the Madden House since 2018 and has been a good tenant and steward of the property; and
WHEREAS, the current Lease Agreement expires on December 31, 2024, and Council desires to execute a new Lease Agreement for a three-year term; and
WHEREAS, the Yuba-Sutter Chamber of Commerce will pay $550/month or $6,600/year in rent and provide the City with a Champion Circle membership currently valued at $12,000 per year; and WHEREAS, the City Council recognizes that being a Champion Circle member supports their goal of being Business Friendly as it provides the City with more visibility in the business community, positive exposure, and increased accessibility to the business community through participation in various Chamber events.
NOW THEREFORE, the City Council of the City of Yuba City resolves as follows:
The City Council approves the Lease Agreement with the Yuba-Chamber of Commerce, attached hereto as Exhibit A, and authorizes the City Manager to execute the Lease Agreement on behalf of the City of Yuba City. The City Manager is authorized to make any non-material, technical, and clerical edits and corrections to the agreement subject to approval as to form by City Attorney.
The foregoing Resolution was duly and regularly introduced, passed, and adopted by the City Council of the City of Yuba City at a regular meeting thereof held on the 17th day of December 2024.
AYES:
NOES:
ABSENT:
Dave Shaw, Mayor
ATTEST:
_____
Ciara Wakefield, Deputy City Clerk
APPROVED AS TO FORM
COUNSEL FOR YUBA CITY
________________________________
Shannon Chaffin, City Attorney
Aleshire & Wynder, LLP
Attachment:
Exhibit A – Madden House Lease Agreement
EXHIBIT A
1 LEASE AGREEMENT
THIS LEASE AGREEMENT (“Lease”) is dated as of the 17th day of December, 2024 (“Effective Date”) by and between the CITY OF YUBA CITY ("Landlord"), and the YUBASUTTER CHAMBER OF COMMERCE ("Tenant").
RECITALS:
A. Landlord is the owner of certain real property located at 1300 Franklin Road, Yuba City, California 95993, consisting of approximately 0.31 acres (APN 57-230-010) which is described on Exhibit A attached hereto ("Property").
B. Landlord desires to lease to Tenant, and Tenant desires to lease from Landlord the Property consisting of certain improvements including a building as depicted on Exhibit B attached hereto and made a part hereof (collectively, the “Premises”), on the terms and conditions provided herein.
NOW, THEREFORE, in consideration of the premises and mutual agreements herein contained, the parties hereto hereby act and agree as follows:
ARTICLE I
LEASE OF PREMISES; RENT AND TERM
1.1 Lease of Premises.
(a) Lease of Premises. Landlord leases the Premises to Tenant, and Tenant leases the Premises from Landlord, for the Term (defined below), subject to the terms and conditions set forth in this Lease.
(b) Statutory Disclosure Notice. Pursuant to California Civil Code Section 1938, Landlord provides the following statutory notice to Tenant:
“A Certified Access Specialist (CASp) can inspect the subject premises and determine whether the subject premises comply with all of the applicable construction-related accessibility standards under state law. Although state law does not require a CASp inspection of the subject premises, the commercial property owner or Landlord may not prohibit the lessee or tenant from obtaining a CASp inspection of the subject premises for the occupancy or potential occupancy of the lessee or tenant, if requested by the lessee or tenant. The parties shall mutually agree on the arrangements for the time and manner of the CASp inspection, the payment of the fee for the CASp inspection, and the cost of making any repairs necessary to correct violations of construction-related accessibility standards within the premises.”
Landlord advises Tenant that the Premises have not gone through CASp Inspection. Any CASp Inspection shall be at the sole cost and expense of Tenant, and any cost for repairs identified in any such inspection shall be at the sole cost and expense of Tenant, it being acknowledged and agreed to
2 by the parties that the Premises are being delivered by Landlord and accepted by Tenant in their “as is, where is” condition.
1.2 Rent.
(a) Rent. Commencing on January 1, 2025, Tenant shall pay to Landlord a reduced rent amount in the sum of $6,600.00 per year, payable in equal monthly installments of $550.00 (“Rent”).
In exchange for a reduced rent, Tenant agrees to provide Landlord with a Champion Circle membership in the Chamber of Commerce, with all of the benefits that come with such membership. (b) Payment. The first installment of Rent is due on January 1, 2025. Thereafter, Rent is payable on or before the 1st day of each calendar month, without demand, offset or deduction of any nature.
(c) Late Charge. If any Rent is not received within ten (10) days after its due date for any reason whatsoever, or if any Rent payment is by check that is returned for insufficient funds, then in addition to the past due amount Tenant shall pay to Landlord a late charge in an amount equal to 5% of the amount due (“Late Charge”).
(d) Interest. Any amount payable to Landlord pursuant to this Lease, other than Late Charges, that is not received by Landlord within 10 days following the date on which it was due will bear interest starting on the 11th day after it was due. The interest rate shall be the prime rate reported in the Wall Street Journal as published on the start date plus 2% (“Interest”) but will not exceed the maximum rate allowed by law. Interest is payable in addition to the Late Charge but shall not accrue on the late charge.
1.3 Term. The Term (herein so called) of this Lease shall begin on the Delivery Date and shall end at 11:59 p.m. on December 31, 2027, unless sooner terminated in accordance with this Lease. Within 10 business days following the Delivery Date, Tenant shall execute and deliver to Landlord a letter substantially in the form of Exhibit “C” hereto confirming the Delivery Date; however, the failure of the parties to execute such letter shall not defer the Delivery Date or otherwise invalidate this Lease.
ARTICLE 2
TAXES, UTILITIES, INSURANCE AND MAINTENANCE
2.1 Taxes and Assessments. Landlord shall be responsible for payment of all real estate taxes and assessments.
2.2 Utilities. Tenant shall obtain all water, electricity, sewerage, gas, telephone and other utilities directly from the public utility company furnishing same. Any meters required in connection therewith shall be installed at Tenant’s sole cost. Tenant shall pay all utility deposits and fees, and all monthly service charges for water, electricity, sewage, gas, telephone and any other utility services furnished to the Premises during the Term. Landlord shall not be liable for any interruption in utility services unless caused solely by the gross negligence or willful misconduct of Landlord nor shall Tenant be entitled to an abatement or reduction of Rent on account of any interruptions.
3 2.3 Insurance.
(a) General Insurance. Tenant shall procure and maintain throughout the Term of this Lease the following insurance:
(1) Commercial General Liability Insurance including bodily injury, death, property damage, independent contractors, products/completed operations, contractual, and personal injury liability, with a limit of $2,000,000 per occurrence and in the annual aggregate.
(b) Fire. Tenant shall also procure and maintain throughout the term of this Lease, at its sole cost and expense, the following insurance Fire and “all risks” extended coverage insurance covering Tenant's personal Premises, fixtures, improvements and equipment against loss or damage containing the waiver of subrogation required in this Lease and in an amount equal to the full replacement value.
(c) Miscellaneous. It is expressly understood and agreed that the foregoing minimum limits of insurance coverage shall not limit the liability of Tenant for its acts or omissions as provided in this Lease. All of the foregoing insurance policies shall name Landlord and such other parties as Landlord shall from time to time designate as an additional insured as their respective interests may appear, and shall provide that any loss shall be payable to Tenant, Landlord and any other additional insured parties as their respective interests may appear. Tenant shall deliver to Landlord certificates of coverages in form and content reasonably satisfactory to Landlord as to all such policies, prior to the Delivery Date, or, in the case of renewals thereto, 15 days prior to the expiration of the prior insurance policy, together with evidence that such policies are fully paid for, and that no cancellation, material change or non-renewal thereof shall be effective except upon 30 days’ prior written notice from the insurer to Landlord.
(d) Limitation of Liability. Landlord and Landlord’s agents and employees shall not be liable to Tenant, nor to Tenant’s employees, agents or visitors, nor to any other person whomever, for any injury to or death of any person, or damage to Premises caused by the Premises becoming out of repair or by defect or failure of any structural element of the Premises or of any equipment pipes or wiring, or broken glass, or by the backing up of drains, or by gas, water, steam, electricity, or oil leaking, escaping or flowing into the Premises, nor shall Landlord be liable to Tenant, nor to Tenant’s employees, agents or visitors, nor to any other person whomsoever, for any loss or damage that may be occasioned by or through the acts or omissions of any persons whomsoever. Landlord shall not be liable to Tenant or to Tenant’s employees, agents, contractors, invitees or to any other person whomsoever, for any injury to any person or damage to Premises in or about the Premises caused by any reason. However, nothing in this section shall exempt Landlord for liability for damage or injury caused by the gross negligence or willful misconduct of Landlord or its agents, contractors or employees.
(e) Waiver of Subrogation. Landlord and Tenant each hereby release the other from any and all liability or responsibility to the other, or to any other party claiming through or under them by way of subrogation or otherwise, for any loss or damage to Premises caused by a casualty which is insurable under the standard fire and extended coverage insurance. Landlord and Tenant agree that all policies of insurance obtained by them pursuant to the terms of this Lease shall contain provisions or endorsements thereto waiving the insurer’s rights of subrogation with respect to claims against the
4 other, and, unless the policies permit waiver of subrogation without notice to the insurer, each shall notify its insurance companies of the existence of the waiver and indemnity provisions set forth in this Lease.
(f) Increases in Coverages. Landlord shall have the right to reasonably increase the amount of the coverages provided the increase is commercially reasonable and available at commercially reasonable rates, and the types of coverage, during the Term of this Lease upon prior written notice to Tenant.
2.4 Maintenance.
(a) Landlord Maintenance Obligations. Landlord shall be responsible for the maintenance, repair and replacement of any and all structural components of the building located on the Premises, and the maintenance, repair and replacement of: (1) the electrical system, (2) utility lines and connections to the Premises, (3) the parking lot, entrances, exterior lighting, and landscaping, (4) the heating, ventilation and air conditioning system, and (5) the fire sprinkler mains, if any, except for ordinary wear and tear. Landlord shall not be required to maintain, repair or rebuild, or to make any alterations, replacements or renewals of any nature or description to, the Premises or any part thereof, whether ordinary or extraordinary, structural or non-structural, foreseen or unforeseen, or to maintain the Premises or any part thereof in any way, except as set forth in this Section 2.4(a), and Tenant hereby expressly waives any right to make repairs at the expense of Landlord which may be provided for in any statute or law in effect at the time of the execution of this Lease or any statute of law which may thereafter be enacted. (b) Tenant Maintenance Obligations. Except for Landlord’s obligations set forth in Section 2.4(a) above, Tenant agrees that, at its sole cost and expense, it will keep and maintain the Premises in good condition, repair and appearance. Tenant shall also notify Landlord of any maintenance obligations as set forth in Section 2.4(a) above within a reasonable amount of time for Landlord to make repairs and limit any further issues or damage.
ARTICLE 3
USE AND ASSIGNMENT
3.1 Use. Tenant shall use the Premises solely as a Chamber of Commerce. Tenant shall not do or permit anything to be done on the Premises that may result in the creation, commission or maintenance of a nuisance.
3.2 Compliance with Law. Tenant agrees, at its own expense, to comply with all laws, orders and regulations of federal, state and municipal authorities and with any lawful direction of any public officer which shall impose any duty upon Tenant with respect to any work to be performed by Tenant on the Premises or the use of the Premises. Tenant shall, at its own expense, procure, maintain and strictly comply with all required licenses, permits or approvals necessary for Tenant’s use and occupancy of the Premises and for any activities or work to be performed by Tenant on the Premises, or the use of the Premises. Upon Landlord’s written request, Tenant shall promptly provide Landlord with copies of all such permits and approvals obtained by Tenant.
3.3 Quiet Enjoyment. Except as otherwise expressly set forth in this Lease, Landlord covenants and represents to Tenant that Tenant shall, at all times during this Lease, peaceably and
5 quietly enjoy the Premises without any disturbance from Landlord or from any other person claiming through Landlord, provided Tenant complies with its obligations hereunder.
3.5 Transfer of Landlord's Interest. Landlord shall have the right to sell the Property and assign its interest in this Lease to any third party in Landlord's sole discretion. If Landlord sells or transfers its interest in the Premises (other than a transfer for security purposes) Landlord shall be released from all obligations and liabilities accruing thereafter under this Lease, if Landlord's successor has assumed in writing Landlord's obligations under this Lease.
3.6 Assignment and Subletting. Tenant shall not transfer this Lease or any interest therein (any sale, assignment, mortgage, pledge, hypothecation or encumbrance of this Lease shall be deemed a "transfer"), and shall not sublet the Premises or any part thereof, without the prior written consent of Landlord (such consent to be in the sole discretion of Landlord) in each instance, and any attempt to do so without such consent shall be voidable by Landlord and, at Landlord's election, shall constitute a material default under this Lease. Sublet of the Premises is subject to the restrictions identified in the Declaration of Easements and Conditions by Waremart, Inc., recorded as Document No. 199710086 in the Sutter County Official Records and attached hereto as Exhibit “D”.
ARTICLE 4
CONDITION OF PREMISES
4.1 Condition of Premises. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN
THIS LEASE, AS A MATERIAL PART OF THE CONSIDERATION FOR THIS LEASE, LANDLORD AND TENANT AGREE THAT, TENANT IS LEASING THE PREMISES “AS IS”
WITH ALL FAULTS AND DEFECTS, LATENT AND PATENT, AND TENANT
ACKNOWLEDGES AND AGREES THAT LANDLORD HAS NOT MADE, DOES NOT MAKE
AND SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES,
COVENANTS, AGREEMENTS, OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST, PRESENT
OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE NATURE,
QUALITY OR CONDITION OF THE PREMISES, INCLUDING, WITHOUT LIMITATION, THE
WATER, SOIL, AND GEOLOGY, OR THE PRESENCE OR ABSENCE OF ANY POLLUTANT,
HAZARDOUS WASTE, GAS OR SUBSTANCE OR SOLID WASTE ON OR ABOUT THE
PREMISES, (B) THE INCOME TO BE DERIVED FROM THE PREMISES, (C) THE
SUITABILITY OF THE PREMISES FOR ANY AND ALL ACTIVITIES AND USES WHICH
TENANT MAY INTEND TO CONDUCT THEREON, (D) THE COMPLIANCE OF OR BY THE
PREMISES OR ITS OPERATION WITH ANY LAWS, RULES, ORDINANCES OR
REGULATIONS OF ANY GOVERNMENTAL AUTHORITY OR BODY HAVING
JURISDICTION INCLUDING WITHOUT LIMITATION, ALL APPLICABLE ZONING LAWS, (E) THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE PREMISES, OR (F) ANY OTHER MATTER RELATED TO OR CONCERNING THE PREMISES. TENANT SHALL NOT SEEK RECOURSE AGAINST
LANDLORD ON ACCOUNT OF ANY LOSS, COST OR EXPENSE SUFFERED OR INCURRED
BY TENANT WITH REGARD TO ANY OF THE MATTER DESCRIBED IN CLAUSES (A)
THROUGH (F) ABOVE AND HEREBY ASSUMES THE RISK OF ANY ADVERSE MATTERS
RELATED TO THE MATTERS DESCRIBED IN CLAUSES (A) THROUGH (F) ABOVE FROM AND AFTER THE EFFECTIVE DATE OF THIS LEASE. TENANT ACKNOWLEDGES THAT
TENANT, HAVING BEEN GIVEN THE OPPORTUNITY TO INSPECT THE PREMISES, IS
6 RELYING SOLELY ON ITS OWN INVESTIGATION OF THE PREMISES AND NOT ON ANY
INFORMATION PROVIDED OR TO BE PROVIDED BY OR ON BEHALF OF LANDLORD OR
ANY STATEMENT, REPRESENTATION OR OTHER ASSERTION MADE BY LANDLORD WITH RESPECT TO THE PREMISES. TENANT FURTHER ACKNOWLEDGES THAT NO
INDEPENDENT INVESTIGATION OR VERIFICATION HAS BEEN OR WILL BE MADE BY
LANDLORD WITH RESPECT TO ANY INFORMATION SUPPLIED BY OR ON BEHALF OF
LANDLORD CONCERNING THE PREMISES, AND LANDLORD MAKES NO
REPRESENTATION AS TO THE ACCURACY OR COMPLETENESS OF SUCH
INFORMATION, IT BEING INTENDED BY THE PARTIES THAT TENANT SHALL VERIFY THE ACCURACY AND COMPLETENESS OF SUCH INFORMATION ITSELF.
4.2 Alterations. Tenant shall not make any alterations, additions or improvements to the Premises without Landlord’s prior written consent which shall not be unreasonably withheld, conditioned or delayed provided that such alterations, additions or improvements are made to the interior portions of the building, and do not affect the structural or mechanical systems thereof. Tenant shall not have the authority to, and shall not, permit any lien, charge or encumbrance of any kind whatsoever to be placed upon the Premises, and Tenant shall bond or discharge any such lien, charge or encumbrance within 15 days' written notice from Landlord. Notwithstanding anything to the contrary set forth in this Lease, Tenant shall be solely responsible for making any alterations or improvements which are required by laws, rules, regulations, ordinances, permits, approvals, licenses or authorizations in connection with the Premises or Tenant’s use thereof.
4.3 Condemnation. In the event of condemnation or other similar taking or transfer due to governmental order, of all or any portion of the Premises which renders the Premises reasonably and economically unsuitable for Tenant's use, this Lease, at Landlord's sole discretion, shall terminate, in which case the Rent shall be apportioned as of such date, and Tenant shall be released of all further duties and obligations hereunder. Landlord shall be entitled to the entire proceeds of any condemnation award; provided, however, that Tenant shall have the right to make a separate claim against the condemning authority provided that such claim does not reduce the award which would be otherwise payable to Landlord.
4.4 Damage and Destruction.
(a) Casualty. If, during the Term, a fire or other casualty shall render the whole or any portion of the Premises untenantable, in Tenant’s commercially reasonable judgment, and if, in Landlord’s commercially reasonable judgment, the Premises can reasonably be expected to be restored to substantially the same condition existing immediately prior to such casualty as soon as reasonably practicable and in all events within 180 days from the date of such casualty, and Landlord elects in writing to Tenant in its sole discretion to restore the Premises to such condition, Landlord shall use commercially reasonable efforts to repair and restore the Premises to substantially the same condition existing immediately prior to such casualty (with the exception of any Tenant improvements or the property of Tenant) within such 180-day period. In the event that Landlord timely completes such repair and/or restoration, this Lease shall remain in full force and effect. In the event that Landlord does not complete such repair and restoration within such 180-day period for any reason or elects in writing to Tenant not to repair or restore the Premises, Tenant may, upon 15 days prior written notice to Landlord, terminate this Lease.
7 (b) Rent Proration. After the date of any casualty subject to this Section 4.4, and for the period during which any repair and/or restoration is being performed, all Rent and additional rent shall continue to be due and payable hereunder, but shall be reduced in the same proportion that the Premises rendered untenantable bears to the total gross leasable area of the Premises until the Premises is completely restored, repaired, or replaced to the condition set forth herein.
ARTICLE 5
DEFAULT AND REMEDIES
5.1 Default. The following events shall be deemed to be events of default by Tenant under this Lease:
(a) Tenant shall fail to pay any other obligation under this Lease involving the payment of money and such failure shall continue for a period of 10 days after such payment shall become due and payable.
(b) Tenant shall fail to comply with any provision of this Lease (other than those described in subsection (a) above) and shall not cure such failure within 30 days after written notice thereof to Tenant, provided, however, if the cure shall take longer than 30 days, Tenant shall have such additional time not to exceed 60 days if Tenant commences such cure within the initial 30-day period and diligently prosecutes such cure to completion.
(c) Tenant shall desert or vacate the Premises or any substantial portion of the Premises or at any time prior to the last month of the Lease Term shall remove or attempt to remove, without the prior written consent of Landlord, all or a substantial amount of Tenant’s personal property, equipment or fixtures.
5.2 Remedies. Upon the occurrence of any such event of default, Landlord shall have the option to pursue any one or more of the following remedies to the extent permitted by law:
(a) Without any further notice or demand whatsoever, Tenant shall be obligated to reimburse Landlord for the damages suffered by Landlord as a result of the event of default, plus interest on such amount at the Default Rate and Landlord may pursue a monetary recovery from Tenant.
(b) Without any further notice or demand whatsoever, Landlord may take any one or more of the actions permissible at law to ensure performance by Tenant of Tenant’s covenants and obligations under this Lease. In this regard, and without limiting the generality of the immediately preceding sentence, it is agreed that if Tenant deserts or vacates the Premises, Landlord may enter upon and take possession of such premises in order to protect them from deterioration. It is further agreed in this regard that in the event of any default described in Section 5.1(b) above, Landlord shall have the right to enter upon the Premises without being liable for prosecution or any claim for damages therefor, and do whatever Tenant is obligated to do under the terms of this Lease; and Tenant agrees to reimburse Landlord on demand for any expenses which Landlord may incur in thus effecting compliance with Tenant’s obligations under this Lease, and Tenant further agrees that Landlord shall not be liable for any damages resulting to the Tenant from such action.
8 (c) Landlord may re-enter the Premises with or without terminating this Lease in which event Tenant shall immediately surrender the Premises to Landlord, and if Tenant fails to do so, Landlord may, without prejudice to any other remedy which Landlord may have for possession, enter upon and take possession of the Premises and expel or remove Tenant and any other person who may be occupying said premises or any part thereof, by force if necessary, without being liable for prosecution or any claim for damages therefor. In addition, Tenant agrees to pay to Landlord on demand the amount of all loss and damage which Landlord may suffer by reason of any re-entry effected pursuant to this subsection (c), said loss and damage to be determined by either of the following alternative measures of damages.
If Landlord elects to exercise the remedy prescribed in Subsection (b) above, this election shall in no way prejudice Landlord’s right at any time thereafter to cancel said election in favor of the remedy prescribed in Subsection (c) above, provided that at the time of such cancellation Tenant is still in default. Pursuit of any of the above remedies shall not preclude pursuit of any other remedies prescribed in other sections of this Lease and any other remedies provided by law. Forbearance by Landlord to enforce one or more of the remedies herein provided upon an event of default shall not be deemed or construed to constitute a waiver of such default. (d) It is agreed that, in addition to payments required pursuant to Subsections (b) and (c) above. Tenant shall compensate Landlord for all expenses incurred by Landlord in repossession (including, among other expenses, any increase in insurance premiums caused by the vacancy of the Premises), all losses incurred by Landlord as a direct result of Tenant’s default and a reasonable allowance for Landlord’s other direct costs attributable directly or indirectly to Tenant’s default and Landlord’s pursuing the rights and remedies provided herein and under applicable law. (e) Landlord may restrain or enjoin any breach or threatened breach of any covenant, duty or obligation of Tenant herein contained without the necessity of proving the inadequacy of any legal remedy or irreparable harm. The remedies of Landlord hereunder shall be deemed cumulative and not exclusive of each other.
(f) Tenant hereby waives any and all rights to receive a notice to quit and rights of redemption or restoration of the operation of this Lease conferred by any present or future law, statute or otherwise upon the expiration or sooner termination of the term of this Lease, the entry of final unappealable judgment for recovery of possession through any action or proceeding, or Landlord’s obtaining possession of the Premises under the terms of this Lease. In an event of default occurs, Tenant hereby waives its rights to receive any notice of default, as well as any period of and right to cure said default, as may be required by State or local law, and Tenants’ rights in that regard shall be solely as provided in this Lease.
ARTICLE 6
ENVIRONMENTAL
6.1 Compliance by Tenant. During the Term, Tenant shall comply with all Environmental Laws and Environmental Permits (each as defined in Section 6.5) applicable to Tenant’s use of the Premises, will cause all other persons occupying or using the Premises to comply with all such Environmental Laws and Environmental Permits, will immediately pay or cause to be paid all costs and expenses incurred by reason of such compliance, and will obtain and renew all Environmental Permits required for operation or use of the Premises.
9 6.2 Prohibition. Tenant shall not treat, release or dispose of, or permit the treatment, release or disposal of Hazardous Materials (as defined in Section 6.5) on the Premises.
6.3 Notice to Landlord. Tenant will immediately advise Landlord in writing of any of the following: (a) any pending or threatened Environmental Claim (as defined in Section 6.5) against Tenant relating to the Premises; (b) any condition or occurrence on the Premises or any Premises adjoining the Premises that could reasonably be anticipated to cause the Premises to be subject to any restrictions on the ownership, occupancy, use or transferability of the Premises under any Environmental Law; and (c) the actual or anticipated taking of any removal or remedial action by Tenant in response to the actual or alleged presence of any Hazardous Material on the Premises. All such notices shall describe in reasonable detail the nature of the claim, investigation, condition, occurrence or removal or remedial action and Tenant’s response thereto. In addition, Tenant will provide Landlord with copies of all communications regarding the Premises with any government or governmental agency relating to Environmental Laws, all such communications with any person relating to Environmental Claims, and such detailed reports of any such Environmental Claim as may reasonably be requested by Landlord.
6.4 Indemnification.
(a) Tenant agrees to defend, indemnify and hold harmless the Indemnitees (as defined in Article 7)) from and against all obligations (including removal and remedial actions), losses, claims, suits, judgments, liabilities, penalties, damages (including consequential and punitive damages), cleanup costs, remediation expenses, response costs, fines, penalties, and other costs and expenses (including attorneys’ and consultants’ fees and expenses) of any kind or nature whatsoever that may at any time be incurred by, imposed on or asserted against such Indemnitees directly or indirectly based on, or arising or resulting from (a) the actual or alleged presence of Hazardous Materials in, on or under the Premises which is caused or permitted by Tenant or by Tenant’s use of the Premises and (b) any Environmental Claim relating in any way to Tenant’s operation or use of the Premises (“Hazardous Materials Indemnified Matters”).
(b) All sums paid and costs incurred by Landlord with respect to any Hazardous Materials Indemnified Matter shall bear interest at the Default Rate of interest from the date so paid or incurred until reimbursed by Tenant, and all such sums and costs shall be immediately due and payable on demand.
6.5 Definitions.
(a) “Hazardous Materials” means (i) petroleum or petroleum products, natural or synthetic gas, asbestos in any form that is or could become friable, urea formaldehyde, foam insulation, and radon gas; (ii) any substances defined as or included in the definition of “hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic pollutants,” “contaminants” or “pollutants,” or words of similar import, under any applicable Environmental Law; and (iii) any other substance exposure which is regulated by any governmental authority.
(b) “Environmental Law” means any federal, state or local statute, law, rule, regulation, ordinance, code, policy or rule of common law now or hereafter in effect and in each case as amended,
10 and any judicial or administrative interpretation thereof, including any judicial or administrative order, consent decree or judgment, relating to the handling of solid waste, including recyclable materials and organic waste, the environment, public health, safety or Hazardous Materials, including without limitation, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §§ 1801 et seq.; the Clean Water Act, 33 U.S.C. § 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Clean Air Act, 42 U.S.C. §§ 7401 et seq.; the Safe Drinking Water Act, 42 U.S.C. § 300f et seq.; the Atomic Energy Act, 42 U.S.C. § 2011 et seq.; the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 et seq.; the Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq.; the CarpenterPresley-Tanner Hazardous Substance Account Act, California Health and Safety Code §§ 25300 et seq., Division 20 of the California Health and Safety Code; Division 4.5 of Title 22 of the California Code of Regulations; Division 30 of the California Public Resources Code; and Titles 14 and 27 of the CaliforniaCode of Regulations.
(c) “Environmental Claims” means any and all third party, administrative, regulatory or judicial actions, suits, demands, demand letters, claims, liens, notices of non-compliance or violation, investigations, proceedings, consent orders or consent agreements relating in any way to any Environmental Law or any Environmental Permit, including without limitation (i) any and all Environmental Claims by governmental or regulatory authorities (including but not limited to the California Department of Toxic Substanes Control, the California Department of Resources Recycling and Recovery, the Monterey County Local Enforcement Agency, the Monterey County Dept. of Health, and Monterey County Hazardous Materials Management Services or CUPA) for enforcement, cleanup, removal, response, remedial or other actions or damages pursuant to any applicable Environmental Law and (ii) any and all Environmental Claims by any third party seeking damages, contribution, indemnification, cost recovery, compensation or injunctive relief resulting from Hazardous Materials or arising from alleged injury or threat of injury to health, safety or the environment.
(d) “Environmental Permits” means all permits, approvals, identification numbers, licenses and other authorizations required under any applicable Environmental Law.
6.6 Survival. The provisions of this Section shall survive the expiration or sooner termination of this Lease.
ARTICLE 7
MISCELLANEOUS
7.1 Indemnification by Tenant. Tenant agrees to indemnify and hold harmless Landlord and its affiliated agents, directors, officers, and employees (as used in this Section, Landlord and its affiliated agents, directors, officers, and employees are collectively called "Indemnitees") from and against any and all liabilities, losses, damages, liens, claims, suits, causes of action, costs (including court costs, attorneys' fees and costs of investigation), and actions of any kind arising out of, caused by, resulting from or alleged to arise by reason of injury to or death of any person or damage to or loss of Premises occurring on, in, or about the Premises or by reason of any other claim whatsoever of any person or party occasioned or alleged to be occasioned in whole or in part by any act or omission on the part of Tenant or any invitee, licensee, employee, director, officer, servant, contractor, subcontractor or Tenant of Tenant, or by any breach, violation, or nonperformance of any covenant
11 of Tenant under this Lease, even if such liability, losses, damages, liens, claims, suits, causes of action, costs, injuries, deaths or damages arise from or are attributed to the sole negligence of any Indemnitee. If any action or proceeding shall be brought by or against any Indemnitee in connection with any such liability or claim, Tenant, on notice from Landlord, shall defend such action or proceeding, at Tenant's expense, by or through attorneys reasonably satisfactory to Landlord. The provisions of this Section shall apply to all activities of Tenant with respect to the Premises, whether occurring before or after the Delivery Date of the Term and Tenant's obligations under this Section shall not be limited to the limits or coverage of insurance maintained or required to be maintained by Tenant under this Lease.
7.2 Exemption of Landlord from Liability. If the Premises, or any part thereof, is damaged by fire or other cause against which Tenant is required to carry insurance pursuant to this Lease, Landlord shall not be liable to Tenant for any loss, cost or expense arising out of or in connection with such damage. Tenant hereby releases Landlord, its directors, officers, shareholders, partners, employees, agents and representatives, from any liability, claim or action arising out of or in connection with such damage.
7.3 Indemnification by Landlord. Landlord agrees to indemnify and hold harmless Tenant from and against any and all liabilities, losses, damages, liens, claims, suits, causes of action, costs (including court costs, attorneys' fees and costs of investigation), and actions of any kind arising out of, caused by, resulting from or alleged to arise from the gross negligence or the willful misconduct of the Landlord.
7.4 Access to Premises. Landlord and Landlord’s employees, agents and representatives shall have the right to enter the Premises at any time in case of an emergency, and at all reasonable times upon prior reasonable notice to Tenant for any lawful purpose including, but not limited to, examining the Premises; making such repairs or alterations therein as may be necessary or appropriate in Landlord’s sole judgment for the safety and preservation thereof, or as required by any law, rule, regulation, statute, order, permit or direction of any applicable governmental authority; erecting, installing, maintaining, repairing or replacing equipment running in, to, or through the Premises; and posting notices of non-responsibility. Any entry to the Premises by Landlord shall not be construed or deemed to be a forcible or unlawful entry into or a detainer of the Premises, or an eviction, partial eviction or constructive eviction of Tenant from the Premises or any portion thereof, and shall not relieve Tenant of its obligations hereunder.
7.5 Brokers. Each of the parties represents and warrants there are no claims for brokerage commissions or finders' fees in connection with the execution of this Lease, and each of the parties agrees to indemnify and hold harmless the other from any and all liabilities, costs and expenses (including attorneys' fees) arising from any such claim.
7.6 Relationship of Parties. The relationship between the parties hereto shall be solely as set forth herein and neither party shall be deemed the employee, agent, partner or joint venturer of the other.
7.7 Separability. Each and every covenant and agreement herein shall be separate and independent from any other and the breach of any covenant or agreement shall in no way or manner discharge or relieve the performance of any other covenant or agreement. Each and all of the rights and remedies given to either party by this Lease or by law or equity are cumulative, and the exercise
12 of any such right or remedy by either party shall not impair such party's right to exercise any other right or remedy available to such party under this Lease or by law or equity.
7.8 No Waiver. No delay in exercising or omission of the right to exercise any right or power by either party shall impair any such right or power, or shall be construed as a waiver of any breach or default or as acquiescence thereto. One or more waivers of any covenant, term or condition of this Lease by either party shall not be construed by the other party as a waiver of a continuing or subsequent breach of the same covenant, provision or condition. The consent or approval by either party to or of any act by the other party of a nature requiring consent or approval shall not be deemed to waive or render unnecessary consent to or approval of any subsequent similar act.
7.9 Attorneys' Fees. In the event of any controversy arising under or relating to the interpretation or implementation of this Lease or any breach thereof, the prevailing party shall be entitled to payment for all costs and attorneys' fees (both trial and appellate) incurred in connection therewith.
7.10 Entire Lease. This Lease together with all Exhibits attached hereto constitutes and represents the entire agreement between the parties hereto and supersedes any prior understandings or agreements, written or verbal, between the parties hereto respecting the subject matter herein.
7.11 Amendment. This Lease may be amended, supplemented, modified or discharged only upon an agreement in writing executed by all of the parties hereto.
7.12 Successors and Assigns. This Lease shall inure to the benefit of and shall be binding upon the parties hereto and their respective successors and assigns, subject, however, to the limitations contained herein.
7.12 Partial Invalidity. In the event any provision of this Lease shall be held invalid or unenforceable by any court of competent jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.
7.13 Applicable Law. This Lease shall be governed by and construed in accordance with the laws of the state in which the Premises are situated.
7.14 Subordination. This Lease is and shall be subject and subordinate, at all times, to the lien of any mortgages or deeds of trust which now affect the Premises; provided, however, that so long as Tenant shall not be in default in the performance of its obligations under this Lease, neither this Lease nor Tenant's right to remain in exclusive possession of the Premises shall be affected or disturbed by reason of any default under such mortgage or deed of trust, and, if such mortgage or deed of trust shall be foreclosed or if such mortgagee or trustee shall exercise any of its remedies under such mortgage or deed of trust, this Lease and all of Tenant's rights and obligations hereunder shall survive such foreclosure and continue in full force and effect. Landlord covenants that it shall, upon Tenant's request and at Tenant's expense, obtain and deliver to Tenant (a) evidence satisfactory to the Tenant of the existence of such a "non-disturbance" provision of any such mortgage or deed of trust, or (b) a separate "non-disturbance" agreement incorporating the provisions of this section, satisfactory to Tenant.
13 7.15 Notices. All notices or other communications shall be deemed given by: (a) personal delivery or overnight courier, or (b) a written notice mailed via certified mail, return receipt requested; such notices to be addressed to the parties at the addresses set forth below:
Landlord: City of Yuba City
1201 Civic Center Boulevard
Yuba City, CA 95993
Attn: City Manager
With copy to:
Tenant:
Aleshire & Wynder, LLP
2440 Tulare Street, Suite 410
Fresno, CA. 93721
Attn: Shannon Chaffin
Yuba-Sutter Chamber of Commerce
1300 Franklin Road
Yuba City, CA 95993
Attn: Executive Director
7.16 Recording. Tenant shall not record this Lease or a memorandum hereof without the prior written consent of Landlord which Landlord may withhold in its sole discretion.
7.17 Estoppel. Tenant agrees that it will from time to time upon request by Landlord within 10 business days execute and deliver to Landlord a written statement addressed to Landlord (and to a party[ies] designated by Landlord), which statement shall identify Tenant and this Lease, shall certify that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as so modified), shall confirm that Landlord is not in default as to any obligations of Landlord under this Lease (or if Landlord is in default, specifying any default), shall confirm Tenant, and shall contain such other information or confirmations as Landlord may reasonably require.
7.18 Force Majeure. In the event that either party hereto shall be unable to carry out, in whole or in part, its obligations under this Leaset by reason of acts of God, acts of war or conditions attributable to war, riots, insurrection, strikes, lockouts, labor troubles, diseases, epidemics, pandemics, quarantines, declarations of emergency by any federal, state or local governmental authority, enactment after the Effective Date of statutes, laws, or ordinances by legislative bodies, issuance of regulations or orders by administrative agencies or commissions, actions by federal, state, municipal or regulatory courts or recording offices, or other reason of like nature not the fault of the party delayed in performance but not including financial inability to perform (“Permitted Delay”), such party shall be excused from performance for the period of time equivalent to the delay caused by such Permitted Delay, shall not be deemed in default during such inability, and shall not be liable to the other party for any breach. Promptly following the occurrence of an event giving rise to a Permitted Delay, the affected party shall give written notice of the event to the other party, which notice shall include a description of the nature of the event, its cause and possible consequences, its direct impact on the party’s inability to perform all or any part of its obligations under this Lease, and the expected duration of the event, if known.
14 7.19 Surrender.
(a) Tenant shall deliver and surrender to Landlord possession of the Premises (including all of Tenant’s Alterations in and to the Premises and all replacements and all fixtures permanently attached to the Premises) immediately upon the expiration of the Term or the earlier termination of this Lease in as good condition and repair as the same were on the Delivery Date (loss by any insured casualty and ordinary wear and tear only excepted).
(b) In the event Tenant remains in possession of the Premises after the expiration of this Lease and without the execution of a new lease, it shall be deemed to be occupying said premises as a month-to-moth Tenant and otherwise subject to all the conditions, provisions and obligations of this Lease. Neither any provision hereof nor acceptance by Landlord of rent after such expiration or earlier termination shall be deemed a consent to a holdover hereunder or result in a renewal of this Lease or an extension of the Term. Notwithstanding any provision to the contrary contained herein, (i) Landlord expressly reserves the right to reenter the Premises, and the right to assert any remedy at law or in equity to evict Tenant and collect damages in connection with any such holding over, and (ii) Tenant shall indemnify, defend and hold Landlord harmless from and against any and all claims, demands, actions, losses, damages (including consequential damages), obligations, costs and expenses, including, without limitation, attorneys’ fees incurred or suffered by Landlord by reason of Tenant’s failure to surrender the Premises on the expiration or earlier termination of this Lease in accordance with the provisions of this Lease. In the event Tenant holds over, either with or without the consent of Landlord, Tenant hereby waives its rights to receive any prior written notice to quit and vacate the Premises as may be required by State or local law.
7.20 Waiver of Jury Trial. LANDLORD AND TENANT HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN
RESPECT OF ANY LITIGATION BASED HEREON, ARISING OUT OF, UNDER OR IN
CONNECTION WITH THIS LEASE OR ANY DOCUMENTS CONTEMPLATED TO BE
EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF EITHER
PARTY ARISING OUT OF OR RELATED IN ANY MANNER WITH THE DEMISED
PROPERTY (INCLUDING WITHOUT LIMITATION, ANY ACTION TO RESCIND OR
CANCEL THIS LEASE OR ANY CLAIMS OR DEFENSES ASSERTING THAT THIS LEASE WAS FRAUDULENTLY INDUCED OR IS OTHERWISE VOID OR VOIDABLE). THIS
WAIVER IS A MATERIAL INDUCEMENT FOR LANDLORD TO ENTER AND ACCEPT THIS LEASE.
7.21 Counterparts. This Lease may be executed in counterparts, each of which shall be deemed an original and all of which together shall constitute one document. An electronic signature, and a “.pdf” or facsimile copy of any signature hereto shall be deemed an original.
7.22 Exhibits. Exhibits A, B, and C attached hereto are incorporated herein by reference. [SIGNATURES ON FOLLOWING PAGE]
15 IN WITNESS WHEREOF, the parties hereto have each executed this Lease as of the Effective Date set forth above.
TENANT: LANDLORD:
YUBA-SUTTER CHAMBER OF
COMMERCE
By:
Name:
Title:
ATTEST:
__________________________
City Clerk
APPROVED AS TO FORM:
ALESHIRE & WYNDER LLP
By: ______________________
Shannon Chaffin, City Attorney
CITY OF YUBA CITY
By: ________________________________
Name: ______________________________
Title: _______________________________
1 EXHIBIT “A”
DESCRIPTION OF THE PROPERTY
All that certain real property situate in the City of Yuba City, County of Sutter, State of California, described as follows:
A portion of the Northeast one-quarter of the Northeast one-quarter of Section 28, Township 15 North, Range 3 East, M.D.B.&M., more particularly described as follows:
BEGINNING at a point in the Westerly line of that certain real property described in the Grant Deed to the State of California recorded in Vol. 405, Page 118, Official Records of said County, from which the Northeast corner of said Section 28 bears the following three (3) courses: (1) North 19o59'12" West 16.77 feet; (2) North 00o35'00" East 16.50 feet and (3) South 89o46'28" East 123.00 feet; thence from the point of beginning and along said Westerly line South 19o59'12" East 71.48 feet to the Northwesterly corner of that certain real property described In the Grant Deed to the State of California recorded in Instrument No. 1997-00093, Official Records of said County; thence leaving said Westerly line and along the Westerly line of that certain real property described in said Instrument No. 1997-00093 South 00o35'00'' West 79.30 feet; thence leaving said Westerly line South 89o52'06" West 98.07 feet; thence North 00o07'54" West 146.52 feet; thence North 89o52'06" East 74. 78 feet to the point of beginning.
2 EXHIBIT “B”
DEPICTION OF PREMISES
Madden House
1 EXHIBIT “C”
CONFIRMATION LETTER
CONFIRMATION OF COMMENCEMENT DATES
______________, 20__
City of Yuba City
2010 Civic Center Boulevard
Yuba City, CA 95993
Attn: City Manager
Re: Lease Agreement ("Lease") dated December 17, 2024, between the City of Yuba City ("Landlord"), and the Yuba-Sutter Chamber of Commerce ("Tenant"). Capitalized terms used herein but not defined shall be given the meanings assigned to them in the Lease.
Landlord and Tenant agree as follows:
1. Condition of Premises. Tenant has accepted possession of the Premises pursuant to the Lease.
2. Commencement Date. The Commencement Date is January 1, 2025.
3. Contact Person. Tenant's contact person at the Premises is:
Yuba-Sutter Chamber of Commerce
1300 Franklin Road, Yuba City, CA 95993
Attention: Janell Willis, Executive Director
Telephone: 530-743-6501
4. Binding Effect; Governing Law. Except as modified hereby, the Lease shall remain in full effect and this letter shall be binding upon Landlord and Tenant and their respective successors and assigns. If any inconsistency exists or arises between the terms of this letter and the terms of the Lease, the terms of this letter shall prevail. This letter shall be governed by the laws of the state in which the Premises are located.
[Signature Page Follows]
2 Please indicate your agreement to the above matters by signing this letter in the space indicated below and returning an executed original to us.
Sincerely,
YUBA-SUTTER CHAMBER OF COMMERCE
By:
Name:
Title:
Agreed and accepted:
CITY OF YUBA CITY
By:
Name:
Title:
3 EXHIBIT “D”
DECLARATION OF EASEMENTS AND CONDITIONS BY WAREMART, INC.
'5 ..
Recording Requested by and
When Recorded, Return to:
Waremart, Inc.
ATIN: Vice President, Real Estate
P.O. Box 5756
Boise, ID 83705
Recorded in County of SUtter
Lonna B. smith, Clerk/Recorder·
llmiMIIII 192 '
00 199710086 0B:00iY11 07128/97
005 027179 07 00 000012
N03 63 6.00 186.00 0.00 0.00 0.00 0.00
(Space·-llne ror RcallllCJ'I Use)
Indexed
DECLARATION OF EASEMENTS AND CONDmONS
By
WAREMART, INC.
, 1.0086
·~
DECLARATION OF EASEMENTS AND CONPWONS
THIS DECLARATION OF EASEMENTS AND CONPWONS ("DEC') is made as of the 24th day of July , 1997 by WAREMART, INC., an Idaho corporation ("Waremart").
RECITALS
This DEC is made with reference to ~e following facts and objectives:
A Waremart is the owner of a certain tract of land in Sutter County, California more particularly described in Exhibit A attached hereto (the "Shopping Center").
B. The Shopping Center consists of eight (8) contiguous parcels identified as Parcel 1 through 8 on the Site Plan attached hereto as Exhibit B (the "Site Plan"). The parcel of property identified on the Site Plan as Parcel 9 is IU!.1 part of the Shopping Center and is IU!.1 covered or effected by this DEC.
C. Waremart intends that the Shopping Center (except for Parcel 8) be developed as an integrated retail shopping complex, but not a planned development, and in order to effectuate the common use and operation of certain portions of the Shopping Center, Waremart hereby grants certain reciprocal easements and imposes certain conditions and restrictions on the same.
D. There is presently located on Parcel 8 what is commonly referred to as the "Uttlejohn House." The Littlejohn House and the civic plaza around the house will be used for civic and community pmposes.
NOW, THEREFORE, in consideration of the premises, the covenants and agreements hereinafter set forth and in furtherance of the parties understanding, it is agreed as follows:
ARTICLE 1
DEFINWONS
1.1 Approvin~: PaT\}'. "Approving Party" shall mean the Party designated from time to time to make certain decisions and/or give certain approvals pursuant to the terms of this DEC. There shall be one Approving Party which shall be the owner of the Waremart Tract. The Approving Party shall, unless otherwise provided herein, have absolute discretion to make the decisions and/or give the approvals expressly designated in this DEC DECLARATION OF EASEMENTS AND CONPffiONS • 1
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to be made and/or given by the Approving Party. Waremart shall be the initial Approving Party.
1.2 .Buj!din~ Area. "Building Area" shall mean the limited areas of the Shopping Center within which buildings (which for the purpose of this DEC shall include any appurtenant canopies, supports, loading docks, truck ramps and other outward extensions) may be constructed, placed or located; Building Areas are designated on the Building Tie Exhibit (attached hereto as Exhibit C) by the building limit lines outlined in black thereon.
1.3 Buildin~ Tie Exhibit. "Building Tie Exhibit" shall mean the Building Tie Exhibit attached hereto as Exhibit C.
1.4 Common Area. "Common Area" shall mean all areas within the exterior boundaries of the Shopping Center, exclusive of buildings. 15 Constant Dollars. "Constant Dollars" means the present value of the dollars to which such phrase refers. An adjustment shall occur on January 1 of the sixth calendar year following the date of this DEC, and thereafter at five (5) year intervals. Constant Dollars shall be determined by multiplying the dollar amount to be adjusted by a fraction, the numerator of which is the Current Index Number and the denominator of which is the Base Index Number. The "Base Index Number" shall be the level of the Index for the month during which the DEC is dated; the "Current Index Number" shall be the level of the Index for the month of September of the year preceding the adjustment year; the "Index" shall be the Consumer Price Index, All Urban Consumers, for the greater Sacramento, California (or if not available, San Francisco, California) metropolitan area, published by the United States Department of Commerce (base year 1982-84 = 100), or any successor index thereto as hereinafter provided. If publication of the Index is discontinued, or if the basis of ealculating the Index is materially changed, then the Approving Party shall substitute for the Index comparable statistics as computed by an agency of the United States Government or, if none, by a substantial and responsible periodieal or publication of recognized authority most closely approximating the result which would have been achieved by the Index.
1.6 Environmental Laws. "Environmental Laws" means all present and future federal, state or loeal statute, ordinance, regulation, rule, guideline, decision or order governing the generation, storage, release, discharge, transportation, removal, remediation, reduction or disposal of hazardous or toxic materials such as, without limitation, the Resource Conservation and Recovery Act (RCRA, 42 U.S.C. s 6901, et seq.), the Comprehensive Environmental Response Compensation and Liability Act (CERCLA, 42 U.S.C. S 9601, ~.) as amended, the Toxic Substance Control Act (TSCA, 15 U.S.C.
S 2601, ~.), the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRTKA, 42 U.S.C. s 11001, ~.) the Clean Water Act (33 U.S.C. s 1251, et seq.), the Clean Air Act (42 U.S.C. S 7401, ~.), the Pollution Prevention Act of 1990 (42 U.S.C. S 13101, tl.ill}.), the Hazardous Materials Transportation Act (49 U.S.C. S 1801, ~ gq.), or any similar laws of th.: State of California, County of Sutter, or Yuba City DECLARATION OF EASEMENTS AND CONDmONS - 2
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regulating environmental pollutants or underground storage tanks, and any and all amendments, supplements, modifications and replacements thereof.
1.7 Floor Area. "Floor Area" shall mean the actual number of square feet of space contained on each floor within a building, including any mezzanine or basement space, as measured from the exterior faces of the exterior walls or store front and/or the center line of any common walls; provided, however, that the following areas shall not be included in such calculations: office space within retail establishments used by the Occupant for administrative purposes of that location and which is not open or accessible to the general public; space attributable to any multi-deck, platform or structural levels used for the storage of merchandise which is located vertically above ground floor; any space used for building utilities or mechanical equipment; truck ramps, loading and delivery areas and trash compactor facilities located outside the building though attached to it. Within thirty (30) days of a request, a Party shall certify to the requesting Party the amount of Floor Area applicable to each building on its Tract. If any Party causes an as-built survey to be prepared with respect to any portion of the Shopping Center, such Party shall furnish a copy of the survey to the other Parties for informational purposes only.
During any period of rebuilding, repairing, replacement or reconstruction of a building, the Floor Area of that building shall be deemed to be the same as existed immediately prior to that period. Upon completion of such rebuilding, repairing, replacement or reconstruction, the Party upon whose Tract such building is located, shall .:ause a new determination of Floor Area for such building to be made in the manner described above, and such determination shall be sent to any Party requesting the same.
1.8 Hazardous Materials. "Hazardous Materials" means wastes, substances, mixtures, pollutants, contaminants or other materials which are defined or classified by any Environmental Law as hazardous, toxic or radioactive, including, whether or not so defined, petroleum and natural gas products, polychlorinated biphenyls, radioactive materials, urea formaldehyde foam insulation and asbestos-containing materials.
1.9 Inline Tracts. "Inline Tracts" shall mean Parcels 1, 2, 3 and 4 as depicted on the Site Plan.
1.10 Occupant. "Occupant" shall mean any Person fi:om time to time entitled to the use and occupancy of any portion of a building in the Shopping Center under an ownership right or any lease, sublease, license, concession, or other similar agreement ..
1.11 Qperator. "Operator" means the Person designated from time to time by tlte Approving Party to maintain and operate the Common Area of the Shopping Center. The Person designated as Operator shall serve in such capacity until it resigns or is removed by the Approving Party.
1.12 Parcel 2. "Parcel 2" shall melin that certain parcel of property identified on the Site Plan as Parcel 2.
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1.13 Parcel 3. "Parcel 3" shal! mean that certain parcel of property identified on the· Site Plan as Parcel 3.
1.14 Parcel 4. "Parcel 4" shall mean that certain parcel of property identified on the Site Plan as Parcel 4.
1.15 Parcel 5. "Parcel 5" shall mean that certain parcel of property identified on the Site Plan as Parcel 5.
1.16 Parcel 6. "Parcel 6" shall mean that certain parcel of property identified on the Site Plan as Parcel 6.
1.17 farce! 7. "Parcel 7'' shall mean that certain parcel of propc:rty identified on the Site Plan as Parcel 7. ·
1.18 Parcel 8. "Parcel 8" shall mean that certain parcel of property identified on the Site Plan as Parcel 8.
1.19 f.ru:ll. "Party" shall mean each signatory hereto and, after compliance with the notice requirements set forth below, their respective successors and assigns who become owners of any portion of the Shopping Center. Each Party shall be liable for the performance of all covenants, obligations and undertakings herein set forth with respect to the portion of the Shopping Center owned by it which accrue during the period of such ownership, arcd such liability shall continue with respect to any portion transferred until the notice of transfer set forth below is given, at which time the transferring Party's liability for unaccrued obligations shall terminate. A Party transferring all or any portion of its interest in the Shopping Center shall give notice to all other Parties of such trru;.:;fer and shall include therein at least the following information:
(i) the name and address of the new Party;
(ii) a -.opy of the legal description of the portion of the Shopping Center transferred; and
(iii) if the transferee is the designated Approving Party.
If a Tract is owned by more than one Person, the Person or Persons holding at least 51% of the ownership interest in the Tract shall designate one of their number to represent all owners of the Tract and such designated Person shall be deemed the Party for such Tract. Until the notice of transfer is given, the transferring Party shall (for the purpose of this DEC only) be the transferee's agent.
Nothing contained herein to the contrary shall affect the existence, priority, validity or enforceability of any lien permitted hereunder which is placed upon the transferred portion of the Shopping Center prior to receipt of the notice.
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1.20 Permanent Access Easement Exhibit. "Permanent Access Easement Exhibit" shall mean the Permanent Access Easement Exhibit attached hereto as Exhibit D.
1.21 Person. "Person" shall mean any individual, partnership, firm, association, corporation, trust, or any other form of business or government entity.
1.22 ~~. "Permittee" shall mean all Occupants and the officers, directors, employees, agents, contractors, customers, vendors, suppliers, visitors, invitees, licensees, subtenants, and concessionaires of Occupants insofar as their activities relate to the intended development, use and occupancy of the Shopping Center. Among others, Persons engaging in the following activities on the Common Area will not be considered to be Permittees:
(i) Exhibiting any placard, sign, or notice;
(ii) Distributing any circular, handbill, placard, or booklet; (iii) Soliciting memberships or contributions;
(iv) Parading, picketing, or demonstrating; and
(v) Failing to follow regulations relating to the use of the Shopping Center.
1.23 Restaurant. "Restaurant" shall mean any operation or business which requires a governmental permit, license and/or authorization to prepare and/or serve food for either on or off site consumption.
1.24 ShOLJLJin~: Center. "Shopping Center shall mean the real property described in Exhibit A attached hereto.
1.25 Site Plan. "Site Plan" shall mean the Site Plan attached hereto as Exhibit B.
1.26 ~. 'Tract" shall mean that portion of the Shopping Center owned by a Party. There are eight (8) Tracts within the Shopping Center.
1.27 Utility Unes. "Utility Unes" shall mean those facilities and systems for the transmission of utility services, including drainage and storage of surface water. "Common Utility Unes" shall mean those Utility Lines which are installed to provide the applicable common service to all of the Tracts within the Shopping Center. "Separate Utility Lines" shall mean those Utility Lines which are installed to provide the applicable service solely to a particular Tract. For the purpose of this DEC, the portion of a Utility Line extending between a Common Utility Line and a building shall be considered a Separate Utility Line.
1.28 Ware mart Tract. "Waremart Tract" shall mean that certain parcel of property identified on the Site Plan as Parcel 1.
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ARTICLE2
EASEMENTS
2.1 Ingress. Egress and Parking.
During the term of this DEC each Party hereby grants and conveys to each other Party for its use and for the use of its Permittees, in common with others entitled to use the same, a non-exclusive easement for the passage and parking of vehicles over and across the parking and driveway areas of the grantor's Tract ·eommon Area, as the same may from time to time be constructed and maintained for such use, and for the passage and accommodation of pedestrians over and across the parking, driveways and sidewalk areas of the grantor's Tract Common Area, as the same may from time to time be constructed and maintained for such use. Such easement rights shall be subject to the following reservation, as well as other provisions contained in this DEC: each Party reserves the right at any time and from time to time to exclude and restrain any Person who is not a Permittee from using the Common Area on its Tract.
In addition to the foregoing, the Parties each hereby grant and convey to the other (and their successors and assigns) for their use and for the use of their Permittees, In common with others entitled to use the same, a non-exclusive perpetual access easement over and across that portion of the Shopping Center identified on the Permanent Access Easement Exhibit (attached hereto as Exhibit D) as the "Permanent Access."
2.2 Utilities.
(a) Each Party hereby grants and conveys to each other Party non-exclusive perpetual easements in, to, over, under, along and across those portions of the Common Area (exclusive of any portion located within a Building Area) located on the grantor's Tract necessary for the installation, operation, flow, passage, use, maintenance, connection, repair, relocation, and removal of Utility Lines serving the grantee's Tract, including but not limited to, sanitary sewers, storm drains, water (fire and domestic), gas, electrical, telephone and communication lines. All Utility Lines shall be underground except:
(i) ground mounted electrical transformers;
(ii) as may be necessary during periods of construction, reconstruction, repair, or temporary service;
(iii) as may be required by governmental agencies having jurisdiction; (iv) as may be required by the provider of such service; and (v) fire hydrants.
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Prior to exercising the right granted herein, the grantee shall first provide the grantor with a written statement describing the need for such easement, shall identify the proposed location of the Utility Une, and shall furnish a certificate of insurance showing that its contractor has obtained the minimum insurance coverage required by 5.4(c) hereof. Except as otherwise agreed to by the grantor and the grantee, any Party installing Separate Utility Unes pursuant to the provisions of this subparagraph shall pay all costs and expenses with respect thereto and shall cause all work in connection therewith (including general clean-up and proper surface and/ or subsurface restoration) to be completed as quickly as possible, in a manner so as to minimize interference with the use of the Common Area and in a manner so as to not unreasonably interface with the use, occupancy or enjoyment of the grantor's Tract. H the Parties elect to install Common Utility Unes, all repair, maintenance, replacement and other work thereon shall, if not performed by the utility company or the Operator, be performed by the owner of the Tract upon which the Common Utility Unes are located and paid for as provided in Section 4.2.
(b) The initial location of any Utility Une shall be subject to the prior written approval of the Approving Party and the Party whose Common Area is to be burdened thereby, such approval not to be unreasonably withheld or delayed. The easement area shall be the greater of the width reasonably necessary to satisfy the requirements of a private or public utility, or five feet (5') on each side of the centerline if the easement is granted to a Party. Upon request, the grantee shall provide to the grantor a copy of an as-built survey showing the location of such Utility Une. The grantor shall have the right at any time to relocate a Utility Une upon thirty (30) days' prior written notice, provided that such relocation:
(i) shall not interfere with or diminish the utility service to the grantee during the grantee's business hours;
(ii) shall not reduce or impair the usefulness or function of such Utility Une;
(iii) shall be performed without cost or expense to grantee; (iv) shall be completed using materials and design standards which equal or exceed those originally used; and
(v)
appropriate
thereover.
shall have been approved by the provider of such service and. the governmental or quasi-governmental agencies having jurisdiction Documentation of the relocated easement area, including the furnishing to the grantee of an "as-built" survey, shall be the grantor's expense and shall be accomplished as soon as possible.
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(c) Each Party hereby grants and conveys to each Party owning an adjacent Tract the perpetual right and easement to discharge surface storm drainage and/or runoff from the grantee's Tract over, upon and across the Common Area of the grantor's Tract, upon the following conditions and terms:
(i) The Common Area grades and the surface water drainage/retention system for the Shopping Center shall be initially constructed in strict conformance with the details approved by the Approving Party; and
(ii) No Party shall alter or permit to be altered the surface of the Common Area or the drainage/retention system constructed on its Tract if such alteration would materially increase the flow of surface water onto an adjacent Tract either in the aggregate or by directing the flow of surface water to a limited area or materially decrease the purity or quality of surface water flowing onto an adjacent Tract.
The surface water collection, retention and distribution facilities shall be deemed a Common Utility Line.
2.3 Construction. Maintenance and Reconstruction.
(a) In order to accommodate any building improvements which may inadvertently be constructed beyond a Tract's boundary line, each Party grants to each Party owning an adjacent Tract an easement in, to, over, under, and across that portion of the grantor's Tract adjacent to such common boundary line for the maintenance and replacement of such building improvements to a maximum lateral distance of six inches (6"). (b) In the event a constructing Party (the "Constructing Party") determines that it is necessary to place underground piers, footings and\or foundations ("Subsurface Construction Elements") across the boundary line of its Tract, the Constructing Party shall advise the Party owning the adjacent Tract (the "Adjacent Party") of its construction requirement and shall provide plans and specifications relating thereto, including proposed construction techniques for the Subsurface Construction Elements. The Adjacent Party hereby grants and conveys to the Constructing Party for the benefit of its Tract an easement, not to exceed a maximum lateral distance of five feet (5') under that portion of the Adjacent Party's Tract not theretofore occupied or reasonably anticipated to be occupied by any then existing structure, for the installation, maintenance and replacement of such Subsurface Construction Elements; provided, however, that the Constructing Party shall have no right to use such easement if the Adjacent Party is able to provide the Constructing Party a reasonable alternative construction method for the placement of the Subsurface Construction Elements entirely on the Constructing Party's Tract.
The Adjacent Party reserves the right to require the Constructing Party to modify the design specifications for the Subsurface Construction Elements in order to permit the Adjacent Party the opportunity to utilize the same in connection with the construction of its building improvements to the end that each Party shall be able to place its building DECLARATION OF EASEMENTS AND CONDmONS - 8
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immediately adjacent to the common boundary line. H a common Subsurface Construction Element is used by the Parties, each shall assume and pay its reasonable share of the cost and expense of the design and construction thereof. In the event any building utilizing a common Subsurface Construction Element is destroyed and not replaced or is removed, the common Subsurface Construction Element shall remain in place for the benefit of the other building utilizing the same.
(c) The foregoing easement grants shall not diminish or waive any right of a Party to recover damages resulting from the constructing Party's failure to construct its building within its Tract in the case of (a) above, or within the easement area limits in the case of (b) above. The easements in each instance shall:
(i) continue in effect for term of this DEC and thereafter for so long as the building utilizing the easement area exists (including a reasonable period to permit recon~truction or replacement of such building if the same shall be destroyed, damaged, or demolished); and
(ii) include the reasonable right of subsurface access necessary to exercise and enjoy such grant upon terms and with the limitations described in 3.1( e) below. (d) Nothing herein shall be deemed to create or establish a "common" or "party" wall to be shared by buildings constructed along the common boundary line between the Tracts.
2.4 Restriction. No Party shall grant any easement or license for the purpose set forth in this Article for the benefit of any property not within the Shopping Center or for the benefit of any Person in connection with any activity not related to the Shopping Center; provided, however, that the foregoing shall not prohibit the granting or dedicating of easements by a Party on its Tract to governmental or quasi-governmental authorities or to public utilities.
ARTICLE3
CONSTRUCTION
3.1 General Requirements.
(a) Each Party agrees that all construction activities performed by it within. the Shopping Center shall be performed in compliance with all applicable laws, rules, regulations, orders, and ordinances of the city, county, state, and federal government, or any department or agency thereof.
(b) Each Party further agrees that its construction activities shall not:
(i) cause any unreasonable increase in the cost of constructing improvements upon another Party's Tract;
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(ii) unreasonably interfere with construction work being performed on any other part of the Shopping Center;
(iii) unreasonably interfere with the use, occupancy or enjoyment of any part of the remainder of the Shopping Center by any other Party or its Permittees; or
(iv) cause any building located on another Tract to be in violation of any law, rule, regulation, order or ordinance authorized by any city, county, state, federal governrnent, or any department or agency thereof.
(c) Each Party agrees to defend, indemnify and hold harmless each other Party from all claims, losses, liabilities, actions, proceedings and costs (including reasonable attorneys' fees and costs of suit), including liens, and any accident, injury or loss or damage whatsoever occurring to any Person or to the property of any Person arising out of or resulting from any construction activities performed or authorized by such indemnifying Party; provided however, that the foregoing shall not be applicable to events or circumstances caused by the negligence or willful act or omission of such indemnified Party, its licensees, concessionaires, agents, servants, employees, or anyone claiming by, through, or under any of them unless covered by the release set forth in 5.4( d). (d) In connection with any construction, reconstruction, repair or maintenance on its Tract, each Party reserves the right to create a temporary staging and/or storage area in the Common Area or in the Building Area on its Tract at a location which will not unreasonably interfere with access between such Tract and the other areas of the Shopping Center. Prior to the commencement of any work which requires the establishment of a staging and/or storage area on its Tract a Party shall give at least 30 days prior notice to the Approving Party, for its approval, of the proposed location, provided, however, that if a business is operating on the Waremart Tract then no other Party's staging area shall be located within 500 feet of the front door of the building on the Waremart Tract, unless located within a Building Area. If the Approving Party does not approve the proposed location of the staging and/or storage area, the Party shall modify the proposed location to satisfy the reasonable requirements of the Approving Party. If substantial work is to be performed, the constructing Party shall, at the request of the Approving Party, fence off the staging and storage area. All storage of materials and the parking of construction vehicles, including vehicles of workers, shall occur only on the constructing Party's Tract, and all laborers, suppliers, contractors and others connected with such construction activities shall use only the access points located upon the constructing Party's Tract. Upon completion of such work, the constructing Party shall restore the affected Common Area to a condition equal to or better than that existing prior to commencement of such work. (e) Each Party hereby grants and conveys to each other Party and to its respective contractors, materialmen and laborers a temporary license for access and passage over and across the Common Area of the grantor's Tra~ as shall be reasonably necessary for the grantee to construct and/or maintain improvements upon the grantee's Tract; provided, DEClARATION OF EASEMENTS AND CONDmONS - 10
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however, that such license shall be in effect only during periods when actual construction and/or maintenance is being performed and provided further that the use of such license shall not unreasonably interfere with the use, operation and enjoyment of the Common Area by others. Prior to exercising the rights granted herein, the grantee shall first provide the grantor with a written statement describing the need for such license, and shall furnish a certificate of insurance showing that its contractor has obtained the minimum insurance coverage required by Section 5.4(b) hereof. Any Party availing itself of the temporary license shall promptly pay all costs and expenses associated with such work, shall diligently complete such work as quickly as possible, and shall promptly clean the area, and restore and/or repair the affected portion of the Common Area to a condition which is equal to or better than the condition which existed prior to the commencement of such work.
Notwithstanding the foregoing, in the event a dispute exists between the contractors, laborers, suppliers and/or others connected with construction activities, each Party shall have the right to prohibit the contractors, laborers, suppliers and/ or others working for another Party from using the Common Area on its Tract.
3.2 Common Area. The Parties have agreed that the Common Area of the Shopping Center shall be initially constructed as shown on the Site Plan, provided, however, no fence or other barrier which would prevent or unreasonably obstruct the passage of pedestrian or vehicular travel shall be erected or permitted within or across the Common Area, exclusive of the limited curbing and other forms of traffic control depicted on the Site Plan, or permitted staging and/or storage areas. The following minimum general design standards shall be complied with throughout the term of this Agreement:
(a) The lighting system shall be designed to produce a minimum maintained lighting intensity measured at grade at all points in the Common Area of 2.5 foot-candle; provided, however, that the extreme edge of the parking or drive areas may have not less than a minimum maintained lighting intensity measured at grade of 2.0 foot-candle, and provided further that the drive areas immediately in front of the entrance to any building shall have not less than a minimum maintained lighting intensity measured at grade of 4.0 foot-candle, except that the required lighting intensity measured at grade level for the drive areas immediately in front of the entrance to the building located on Parcel 8 shall be not less than 2.5 foot-candle. Subject to the provisions of Section 5.2 hereof, each Party may elect to control the lighting system located on its Tract. The type and design of the Common Area light standards shall be approved by the Approving Party. (b) The slope in the parking area shall not exceed a maximum of three percent (3%) nor be less than a minimum of one percent (1%). (c) All sidewalks and pedestrian aisles shall be concrete or other approved materials; the automobile parking areas, drives, and access roads shall be designed in conformity with the recommendations of a registered soils engineer approved by the Approving Party which shall require the installation of a suitable base and the surfacing with an asphaltic concrete or concrete wearing material.
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(d) Utility Unes that are placed underground shall be at depths designated by consultants approved by the Approving Party. If surface water retention and/or detention areas are located outside of the general parking lots, such areas shall be fenced or otherwise secured to impede public access thereto.
(e) The parking area on each Tract comprising the Shopping Center shall contain sufficient ground level parking spaces in order to comply with the following minimum requirements:
(i) Parcels:
Parcell:
Parcel 2:
Parcel 3:
Parcel 4:
Parcel 5:
Parcel 6:
Parcel 7:
Parcel 8:
A minimum of 328 parking spaces on said Tract, of which not more than 92 spaces shall be compact parking spaces.
A minimum of 152 parking spaces on said Tract, of which not more than 35 spaces shall be compact parking spaces.
A minimum of 154 parking spaces on said Tract, of which not more than 20 spaces shall be compact parking spaces.
A minimum of 90 parking spaces on said Tract, of which not more than 7 spaces shall be compact parking spaces.
A minimum of 22 parking spaces on said Tract, of which not more than 2 spaces shall be compact parking spaces.
A minimum of 35 parking spaces on said Tract, of which not more than 4 spaces shall be compact parking spaces.
A minimum of 63 parking spaces on said Tract, of which not more than 5 spaces shall be compact parking spaces.
8 parking spaces on said Tract, none of which shall be compact spaces, PROVIDED, HOWEVER, the owner of Parcel 8 may
either increase or decrease the number of parking spaces on Parcel 8, subject to it first obtaining the prior written consent of the Approving Party, which consent may be withheld in the Approving Party's sole discretion.
(ii) if a business use contains a drive-up unit (such as remote banking teller or food ordering/dispensing facility), then, except for the video tape return box located on the Waremart Tract, there shall also be created space for stacking not less than five (5) automobiles for each drive-up unit;
In the event of a condemnation of part of a Tract or sale or transfer in lieu thereof that reduces the number of usable parking spaces below that which is required herein, the Party whose Tract is so affected shall use its best efforts (including using proceeds from the condemnation award or settlement) to restore and/or substitute ground level parking spaces in order to comply with the parking requirements set forth in this DEC. If such compliance is not possible, such Party shall not be deemed in default hereunder, but such Party shall not be permitted to expand the amount of Floor Area located upon its Tract. If such Floor DECLARATION OF EASEMENTS AND CONDmONS - 12
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Area is thereafter reduced other than by casualty, then the Floor Area on such Tract may no~ subsequently be increased unless the parking requirement is satisfied. (f) No Party shall make changes to the Common Area on its Tract without the approval of the Approving Party, except that each Party hereby reserves the right, from time to time without obtaining the consent or approval of any other Party, to make at its own expense any insignificant change, modification or alteration in its portion of the Common Area, including the installation of convenience facilities such as mailboxes, public telephones and benches, provided that:
(i) the accessibility of such Common Area for pedestrian and vehicular traffic (as it relates to the remainder of the Shopping Center) is not unreasonably restricted or hindered, and all parking stalls and rows and vehicular traffic lanes shall remain generally as shown on the Site Plan;
(ii) there shall be maintained at all times within such Common Area, a sufficient number of vehicular parking spaces to meet the parking requirements set forth in 3.2(e), as well as all governmental rules, regulations, and/or ordinances relating to parking requirements;
(iii) no governmental rule, ordinance or regulation shall be violated as a result of such action, and such action shall not result in any other Party being in violation of any governmental rule, ordinance or regulation; (iv) no change shall be made in the access points between the Common Area and the public streets; provided, however, that additional access points may be created with the approval of the applicable governmental entity(s) and the Approving Party; and
(v) at least thirty (30) days prior to making any such change, modification or alteration, the Party desiring to do such work shall deliver to the Approving Party copies of the plans therefor, and provided further that such work shall not occur between October 1st and the following January 31.
The provisions of this paragraph (f) do not apply to aQy changes, modifications or alterations of Common Area located within Building Areas which result from or arise out of the construction, expansion or maintenance of buildings.
Notwithstanding anything contained herein to the contrary, any change to the access points or the major driveways identified on the Site Plan as the "Permanent Access Easements" from that which is shown on the Site Plan must be approved by each of the Parties.
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3.3 Building Improvements.
(a) While it is acknowledged and agreed that no Party shall have an obligation to commence construction of any building on its Tract, the Parties hereby agree once construction has been commenced, such building shall be completed in a timely fashion.
Each building on a Tract shall be located only within the Building Area designated on the Site Plan for such Tract. The Building Area for each building shall not exceed the number of square feet designated in Section 3.3(f) for that building. (b) The exterior of all buildings to be constructed or placed within the Shopping Center shall be architecturally and aesthetically compatible. In order to insure the exterior architectural and aesthetic compatibility of the buildings within the Shopping Center, each Party shall submit to the Approving Party detailed plans ("Plans") as required by Exhibit C attached hereto covering the initial construction of each building and any additions, remodeling, reconstruction or other alteration thereto which changes the exterior thereof for approval at least 30 days prior to the commencement of any such work. If the Approving Party should reject the Plans for not complying with the architectural theme, the submitting Party and the Approving Party shall mutually consult to establish approved Plans for the proposed work. The Approving Party shall not arbitrarily or unreasonably withhold approval of the Plans, nor shall they withhold approval of exterior remodeling or exterior reconstruction which does not either substantially enlarge an existing structure, or substantially change an existing structure. In no event shall the Approving Party require any other Party to utilize design standards superior to those utilized by the Approving Party in the construction of buildings on its Tract. Approval of Plans by the Approving Party shall not constitute assumption of responsibility for the accuracy, sufficiency, or propriety thereof, nor shall such approval constitute a representation or warranty that the Plans comply with applicable laws. No material deviation shall be made from the approved Plans without the Approving Party's prior written consent.
(c) Buildings may be placed along the common boundary line between the Inline Tracts and the owners of such Tracts agree to support any request by the other for a side-yard or setback variance if the same is required in order to accommodate such construction.
(d) Waremart initially proposes to construct on the Waremart Tract and to limit construction on the remaining Inline Tracts to buildings which are classified as an "unlimited area" building under certain building codes. (By way of explanation, but not limitation; an "unlimited area" building is designated II-N or V-N under the Uniform Building Code.) Waremart and any subsequent owner of the remaining Inline Tracts agree that if they construct an "unlimited area" building, such building shall be located immediately adjacent to the common boundary line between the Inline Tracts. So long as Waremart plans to construct an "unlimited area" building, or so long as an "unlimited area" building exists on either the Waremart Tract or any of the other Inline Tracts (including any restoration or reconstruction thereof), all buildings constructed within the Building Areas on the Inline Tracts shall comply with the following requirements:
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(i) no building shall be constructed within sixty feet (60') of the Building Area on the Waremart Tract unless such building, hereinafter referred to as the "adjacentbuilding," shall be located immediately adjacent to the common boundary line and is attached to the "unlimited area" building on the Waremart Tract, when and so long as such "unlimited area" building exists.
(ii) if an "adjacent building" exists on the Inline Tracts, then no building shall be located within sixty feet ( 60') of the "adjacent building" unless such building is attached to the "adjacent building"; the "adjacent building" and all other buildings on the Inline Tracts that are attached to the "adjacent building" and to each other are hereinafter referred to as the "building group";
(iii) any building that is not part of the "building group," shall be located at least sixty feet ( 60') distant from the "building group"; and (iv) the "adjacent building" or the ''building group," as the case may be, shall comply with the building code requirements applicable to an "unlimited area" building, including without limitation the installation of an approved sprinkler system for fire protection.
In addition to the requirements set forth above, the Parties agree that no building shall initially be placed or constructed on the Inline Tracts in a manner which will, based on then existing goverrunental regulations, either preclude the construction in the Building Areas on the Inline Tracts of an "unlimited area" building, or cause an existing "unlimited area" building thereon to no longer be in conformance with applicable building code requirements, it being understood and agreed, however, that subsequent changes in goverrunental regulations shall not obligate a Party to modify or alter its existing building.
A sixty-foot no-build clear area easement exists around the buildings on the Inline Tracts, the location of which is shown on the Building Tie Exhibit (Exhibit C attached hereto).
(e) The second Party to construct a building along a common boundary line shall do so in a manner that does not result in damage to the improvements in place on the adjoining Tract, and further shall undertake and assume at its sole cost the obligation of completing and maintaining the nominal attachment (flashing and seal) of its building to that of the existing building on the other Tract, it being the intent of the Parties to establish and maintain the appearance of one continuous building complex. In performing such attachment, the wall of one building shall not receive support from nor apply pressure to the wall of the other building.
(f) No building or other structure (exclusive of any light poles, free standing signs referred to in 5.3 hereof or flag poles referred to in Section 5.3(a) hereof) shall exceed the following size and height restrictions:
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TRACf
Parcel 1
Parcel2
Parcel 3
Parcel4
Parcel 5
Parcel 6
Parcel 7
Parcel 8
MAXIMUM HEIGHT
46 feet
32 feet
37 feet
37 feet
22 feet
22 feet
22 feet
As presently constructed
MAXIMUM ALLOWABLE FLQOR AREA
85,500 square feet
27,700 square feet
25,450 square feet
20,200 square feet
6,500 square feet
6,600 square feet
3,500 square feet
3,500 square feet
The height of any building shall be measured perpendicular from the finished floor elevation to the top of the roof structure, inCluding any screening, parapet, penthouse, mechanical equipment or similar appurtenance located on the roof of such building.
PROVIDED, HOWEVER, the height of each building pad shall be subject to the prior written approval of the Approving Party. Any Party shall have the right to install, maintain, repair, replace and remove Communications Equipment on the top of the building on its Tract so long as it does not extend above the height limits established above; provided, however, such Communication Equipment shall be screened so that it is not visible by customers. As used herein, the phrase "Communications Equipment" means such things as satellite and microwave dishes, antennas and laser heads, together with associated equipment and cable.
(g) No building or other structure on Parcels 5, 6 and 7 shall exceed one stocy. (h) The height of the existing building on Parcel 8 shall not be increased without the prior written approval of the Approving Party.
3.4 Phased Development.
(a) Site improvement work (the "Initial Work") has been performed on the Shopping Center. All additional site improvement work for or on the balance of the Shopping Center not included in the Initial Work (the "Remaining Work") shall be subject to the Approving Party's prior written consent and shall be performed in accordance with and subject to the terms and conditions applicable thereto set forth elsewhere in this DEC and in accordance with this 3.4. All of the Remaining Work applicable to any Tract shall be completed prior to the earlier of (a) initial occupancy of any building on such Tract in question or (b) issuance of any certificate of occupancy for any such building. Nothing in this DEC shall obligate any party to commence any Remaining Work, but once commenced, all of the Remaining Work for the Tract in question shall be prosecuted continuously and with all due diligence to completion. The Remaining Work shall be performed (if at all) under separate contract and independent of the Initial Work.
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(b) Except for areas on which any party is then prosecuting any Remaining Work, any undeveloped Tract shall either be hard-surfaced, left in a natural, but attractive, condition or planted in grass and maintained in an attractive condition until building improvements are constructed thereon. The owner of such Tract shall talce such steps on a on-going basis as are reasonably necessary to prevent erosion or blowing dust. In addition, the Party engaging in any Remaining Work shall leave the Initial Work, including all drive lanes and access points, open and accessible, and shall perform such construction in such manner as will not adversely affect the balance of the Shopping Center, or the businesses from time to time being conducted thereon, in any material way.
4.1 Utility Lines.
ARTICLE4
MAINTENANCE AND REPAIR
(a) Each Party shall maintain and repair, or cause to be maintained and repaired, in a good state of repair and safe condition, all Separate Utility Lines utilized by it regardless of where located. Any maintenance and repair of nondedicated utilities located on another Party's Tract shall be performed: after two (2) weeks notice to the grantor (except in an emergency the work may be initiated with reasonable notice); after normal business hours whenever possible; and in such a manner as to cause as little disturbance in the use of the grantor's Tract as is practicable under the circumstances. Any Party performing or causing to be performed maintenance or repair work agrees: to promptly pay all costs and expenses associated therewith; to diligently complete such work as quickly as possible; and to promptly clean the area and restore the affected portion of the Common Area to a condition equal to or better than the condition which existed prior to the commencement of such work.
(b) Common Utility Lines shall be maintained and replaced as part of the Common Area pursuant to 4.2 below.
4.2 Common Area Maintenance.
(a) Subject to the joint maintenance provision set forth in (b) below, each Party shall maintain, or cause to be maintained, the Common Area on its Tract in a sightly, safe condition and good state of repair. Any unimproved Common Area shall be mowed and kept litter-free. The minimum standard of maintenance for the improved Common Area shall be comparable to the standard of maintenance followed in other first class retail developments of comparable size in the Sacramento, California area; notwithstanding the foregoing, however, the Common Area shall be operated and maintained in compliance with all applicable governmental laws, rules, regulations, orders and ordinances, and the provisions of this DEC. All Common Area improvements shall be repaired or replaced with materials at least equal to the quality of the materials being repaired or replaced so as to maintain the architectural and aesthetic harmony of the Shopping Center as a whole. The maintenance and repair obligation shall include but not be limited to the following:
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(i) Drive and Parking Areas. Maintaining all paved surfaces and curbs in a smooth and evenly covered condition, including, without limitation, replacement of base, skin patch, resealing and resurfacing. (For the purpose of this section, an overlay of the drives and parking areas shall be considered a maintenance item.).
The owner of each Tract shall attempt in good faith to coordinate any resurfacing or restriping of the parking lot in the Common Area in order to maintain its appearance as an integrated parking area for the entire Shopping Center. (ii) Debris and Refuse. Periodic removal of all papers, debris, filth, refuse, ice and snow (1" on surface), including vacuuming and broom sweeping to the extent necessary to keep the Common Area in a first-class, clean and orderly condition; provided, however, that Occupant trash and/or garbage removal shall not be a Common Area Maintenance Cost (defined in (b) below) since such removal obligation is covered by this Section 4.2(a). All sweeping shall be at appropriate intervals during such times as shall not interfere with the conduct of business or use of the Common Area by Permittees.
(iii) Non-Occupant Signs and Markers. Maintaining, cleaning and replacing any appropriate directional, stop or handicapped parking signs; restriping parking lots and drive lanes as necessary to maintain parking space designation and traffic direction; and keeping clearly marked fire lanes, loading zones, no parking areas and pedestrian cross·walks.
(iv) Lighting. Maintaining, cleaning and replacing Common Area lighting facilities, including light standards, wires, conduits, lamps, ballasts and lenses, time clocks and circuit breakers.
(v) Landscaping. Maintaining and replacing of all landscape plantings, trees and shrubs in an attractive and thriving condition, trimmed and w~ed free.
Maintaining and replacing landscape planters, including those adjacent to exterior walls of buildings and automatic sprinkler systems. Modify irrigation systems to satisfy governmental water allocation or emergency requirements. (vi) Common Utility Lines. Maintaining, cleaning, replacing, and repairing any and all Common Utility Lines. PROVIDED; HOWEVER, the cost of maintaining, cleaning, replacing and repairing Common Utility Lines, if not performed by the utility company, shall be shared by the owners of the Shopping Center in the ratio that the building Floor Area of the improvements located on each Tract bears to the total building Floor Area of the improvements located on all Tracts.
(vii) Obstructions. Keeping the Common Area free from any obstructions Including those caused by the sale or display of merchandise, unless such obstruction is permitted under the provisions of this DEC.
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(viii) Sidewalks. Maintaining, cleaning and replacing of all sidewalks, including those adjacent and contiguous to buildings located within the Shopping Center. Sidewalks shall be cleaned regularly and swept at appropriate intervals during such time as shall not interfere with the conduct of business or use of the Common Area.
Notwithstanding anything in this section to the contrary, each Party shall, at its sole cost and expense, maintain and repair any exterior shipping/receiving dock area, any truck ramp or truck parking area, and any refuse, compactor or dumpster area located on its Tract.
(b) Unless and until the Approving Party designates in writing an Operator, each Party shall maintain the Common Area in its Tract in accordance with the requirements of (a) above. Commencing on the date the Approving Party designates in writing the identity of an Operator, and continuing thereafter until the Approving Party designates another Operator or determines that an Operator shaH no longer be used, the Operator shall operate and maintain the Common Area in the Shopping Center in accordance with the requirements of (a) above. Within 30 days following the commencement of such maintenance and operation, Operator shall provide the Parties an estimated budget for the balance of the then-current calendar year containing the information required by (c) below, and each Party agrees to pay its share thereof in accordance with (d) below. The Operator may hire companies affiliated with it to perform the maintenance and operation of the Common Area, but only if the rates charged by such companies are competitive with those of other companies furnishing similar services in the metropolitan area in or about the Shopping Center, it being agreed that this provision shall be construed strictly against Operator. Each Party hereby grants to Operator, its agents and employees a license to enter upon its Tract to discharge the duties to operate, maintain and repair the Common Area. Operator shall expend only such funds as are reasonably necessary for the operation, maintenance and insurance of the Common Area and shall promptly pay such costs ("Common Area Maintenance Costs") when incurred. For the purpose of this DEC, Common Area Maintenance Costs shaH not include:
(i) any late charges or fees;
(ii) any charge for lighting electricity to a Party that separately pays the electrical costs for lighting the Common Area on its Tract; (iii) any costs to clean up or repair the Common Area resulting from promotional activities or from construction, maintenance or replacement of buildings; (iv) real property taxes and assessments;
(v) Operator's profit, administrative and overhead costs (including but not limited to: office space, equipment and utilities; legal, accounting or administrative DECLARATION OF EASEMENTS AND CONDmONS- 19
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services; Operator's personnel who are not permanently located at the Shopping Center); and
(vi) entertainment, transportation, meals and lodging of anyone.
In lieu of Operator's profit, administrative and overhead costs, Operator shall be permitted to charge an amount ("Administration Fee") computed by multiplying the Common Area Maintenance Costs (exclusive of insurance premiums, fees paid to third Persons who perform all or a portion of the Common Area operation and management on Operator's behalf, and utility charges) by not more than ten percent (10%). To the extent the Operator directly or indirectly contracts with a commercial property management company to administer or oversee any portion of the maintenance of the Common Area, Operator shall not receive an Administration Fee on the portion so contracted. If any of Operator's personnel at the Shopping Center perform ·services, functions or tasks in addition to Common Area duties, then the cost of such personnel shall be equitably allocated according to time spent performing such duties.
(c) Operator shall, at least 90 days prior to the beginning of each calendar year, submit to the Approving Party an estimated budget ("Budget") for the Common Area Main· tenance Costs and the Administration Fee for operating and maintaining the Common Area of the Shopping Center located on the Operator Maintenance Areas for the ensuing calendar year. The Budget shall be in a form reasonably acceptable to the Approving Party and shall identify separate cost estimates for at least the categories specified under 4.2(a), plus:
(i) rental or purchase of equipment and supplies;
(ii) depreciation or trade-in allowance applicable to items purchased for Common Area purposes; and
(iii) Administration Fee.
If an item of maintenance or replacement is to be accomplished in phases over a period of calendar years, such as resurfacing of the drive and/or parking areas, then the Budget shall separately identify the cost attributable to such year (including the area of the Common Area affected), and shall note the anticipated cost and timing (indicating the area of the Common Area affected) of such phased work during succeeding calendar years. The cost of approved "phased" work shall be paid by the Parties, notwithstanding that when such work is performed a Party may not then be participating in the joint maintenance of the Shopping Center.
In the event the Budget is approved by the Approving Party, It shall, within twenty (20) business days thereafter, provide the remaining Parties with copies of the approved Budget.
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Operator shall use its best efforts to operate and maintain the Operator Maintenance Areas in accordance with the Budget. Notwithstanding the foregoing, Operator shall have the right to make emergency repairs to the Common Area to prevent injury or damage to person or property, it being understood that Operator shall nevertheless advise each Party of such emergency condition as soon as reasonably possible, including the corrective measures taken and the cost thereof. If the cost of the emergency action exceeds $10,000.00 in Constant Dollars then Operator may submit a supplemental billing to each Party, together with evidence supporting such payment, and each Party shall pay its share thereof within thirty (30) days.
(d) Common Area Maintenance Costs and the Administration Fee shall, except as otherwise provided herein, be allocated in the proportion that the land area of each Tract bears to the total land area of the Shopping Center. As provided in Section 5.1(d), additional costs resulting from seasonal or promotional sales in the Outdoor Sales Area are to be paid by the party holding such sales.
Each Party shall pay to the Operator in equal monthly payments, in advance, its share of the Common Area Maintenance Costs and the Administrative Fee based either upon the amount set forth in the approved Budget, or if a Budget is not approved, then the Jesser of the amount set forth in the unapproved Budget or the monthly payment established for the prior year. The Operator shall reasonably estimate such costs for the partial year during which its maintenance obligations commence and each Inline Owner shall make its first payment in the month following Operator's undertaking of such maintenance and repair of the Common Area. Within 90 days after the end of each calendar year, Operator shall provide each Party with a statement certified by an authorized Person, together with supporting invoices and other materials setting forth the actual Common Area Maintenance Costs paid by it for the operation and maintenance of the Common Area, the Administration Fee, and such Party's share of the aggregate thereof. If the amount paid by a Party for such calendar year shall have exceeded its share, Operator shall refund the excess to such Party at the time such certified statement is delivered, or if the amount paid by a Party for such calendar year shall be less than its share, such Party shall pay the balance of its share to Operator within 30 days after receipt of such certified statement.
Within two years after receipt of any such certified statement, each Party shall have the right to audit Operator's books and records pertaining to the operation and maintenance of the Common Area for the calendar year covered by such certified statement; the Party shall notify Operator of its intent to audit at least 15 days prior to the designated audit date, In the event that such audit shall disclose any error in the determination of the Common Area Maintenance Costs, the Administration Fee or in the allocation thereof to a Tract, an appropriate adjustment shall be made forthwith. The cost of any audit shall be assumed by the auditing Party unless such Party shall be entitled to a refund in excess of three percent (3%) of the amount calculated by Operator as its share for the calendar year, in which case Operator shall pay the cost of such audit.
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(e) Operator agrees to defend, indemnify and hold each Party paying it the amounts due hereunder harmless from and against any mechanic's, materialmen's and/or laborer's liens, and all costs, expenaes and liabilities in connection therewith, including. reasonable attorney's fees and court costs, arising out of the maintenance and operation by Operator of the Common Area, and in the event that the Tract of any such Party shall become subject to any such lien, Operator shall promptly cause such lien to be released and discharged of record, either by paying the indebtedness which gave rise to such lien or by posting such bond or other security as shall be required by law to obtain such release and discharge.
(f) In the event a Party maintaining the Common Area on its Tract fails to maintain it in accordance with the requirements of Section 4.2(a) above (such Party being hereinafter referred to as the "Defaulting Party") any other Party (hereinafter referred to as the "Nondefaulting Party") may send written -notice of such failure to the Defaulting Party.
Such notice shall contain an itemized statement of the specific deficiencies (hereinafter referred to as the "Deficiencies") in the Defaulting Party's performance of its obligations under Section 4.2(a). Except for an Emergency Situation, the Defaulting Party shall have ten (10) days after receipt of such notice in which to correct the Deficiencies or in which to commence to correct the Deficiencies if the Deficiencies cannot be corrected within the said ten-day period, and thereafter to proceed diligently to complete the correction of the Deficiencies. An "Emergency Situation" is a situation which threatens access to a Tract or threatens an immediate substantial loss or damage to property or any personal injury or death to persons. In the event a Defaulting Party shall fail or refuse to timely correct or to begin to correct the Deficiencies and proceed to diligently complete the same, as the case may be, the Nondefaulting Party may, in its option, correct the Deficiencies and take over the portion of the Common Area maintenance on the Defaulting Party's Tract which relates to the Deficiencies. In the event the Nondefaulting Party shall exercise its option, the Defaulting Party shall, within ten (10) days from receipt from the Nondefaulting Party, of an itemized invoice for the costs incurred by the Nondefaulting Party in correcting the Deficiencies and/or maintaining the Common Area on the Defaulting Party's Tract, pay such costs to the Nondefaulting Party, plus an administrative fee in the amount of 10% of the costs. If the invoice is not paid within said five-day period, interest on the amount due under the invoice from the date of the invoice shall be paid by the Defaulting Party at U.S.
National Bank of Oregon's prime rate of interest (or if it no longer exists a comparable regional national bank located in Oregon, plus two percent (4%) per annum until paid.
The Defaulting Party may reassume maintenance of the Common Area on its Tract upon: (i) paying any and all amounts, including interest and administrative fees, then due the Non-Defaulting Party, and (ii) providing the Nondefaulting Party with reasonable assurance that it will maintain the Tract in accordance with the requirements of Section 4.2(a) above.
(g) In the event any of the Common Area is damaged or destroyed by any cause whatsoever, whether insured or uninsured, during the term of this DEC, other than damage caused by ordinary use or wear and tear, the Party upon whose Tract such Common Area DECLARATION OF EASEMENTS AND CONDmONS • 22
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is located shall repair or restore such Common Area at its sole cost and expense with all due diligence; provided that no Party shall be required to expend more than $250,000 in COnstant Dollars in excess of insurance proceeds which may be available (or which would have been available except for a Party's failure to obtain insurance coverage as required herein or for elections relating to deductibles or self-insurance for which the Party shall be responsible to contribute) for such repair or restoration. Notwithstanding the limitation set forth in the preceding sentence, a Party may require another Party to do such restoration work if the requiring Party has agreed in writing to pay the costs in excess of such sum.
Except to the extent limited by 5.4 hereof, in the event such damage or destruction of Common Area is caused in whole or in part by another Party or third Person, the Party obligated to make such repair or restoration reserves and retains the right to proceed against such other Party or third Person for indemnity, contribution or damages. (h) Notwithstanding anything else in this Section 4.2 to the contrary, so long as the City of Yuba City is the owner of Parcel 8, it shall, at its own cost and expense, maintain, repair, and/or replace the portions of the Common Area located on its Parcel in accordance with the requirements of this Section 4.2. It is recognized and acknowledged that certain maintenance items within the Common Area of the entire Shopping Center benefit Parcel 8 and cannot be practically segregated from or allocated to Parcel 8. These items are the maintenance, repair, and/or replacement of the Common Area parking lot lighting (including the ballard lights on Parcel 8), the paved drive and parking areas, the landscaping and irrigation of areas on the exterior boundary of the Shopping Center, and the Common Utility Lines (the "Nonallocable Items"). The City of Yuba City, as the owner of Parcel 8, shall, in addition to maintaining, repairing, and/or replacing the portions of the Common Area located on Parcel 8, pay the Operator, or if there is not an Operator, the Party which has or will be paying for same, its pro rata share of that portion of the Common Area Maintenance Costs and Administration Fee, which is attributable to Nonallocable Items at the times and in the manner set forth in this Section 4.2. In the event the City of Yuba City no longer owns Parcel 8, this Section 4.2(h) shall be null and void and the Common Area Maintenance Costs and Administration Fee shall be shared pro rata as provided in the remainder of this Section 4.2.
43 Buildjn~ Irnproyernents.
(a) After completion of construction, each Party cove.nants and agrees to maintain and keep the exterior portion of the building improvements, if any, located on its Tract in first-class condition and state of repair in a manner consistent with other first-class retail developments of comparable size in the Sacramento, California area, in compliance witli all governmental laws, rules, regulations, orders, and ordinances exercising jurisdiction thereover, and in compliance with the provisions of this DEC. Each Party further agrees to store all trash and garbage in adequate containers, to locate such containers so that they are not readily visible from the parking area, and to arrange for regular removal of such trash or garbage.
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(b) In the event any of the building improvements are damaged by fire or other casualty (whether insured or not), the Party upon whose Tract such building improvements are located shall, subject to governmental regulations and/or insurance adjustment delays, immediately remove the debris resulting from such event and provide a sightly barrier, and within a reasonable time thereafter shall either (i) repair or restore the building improvements so damaged to a complete unit, such repair or restoration to be performed in accordance with all provisions of this DEC, or (ii) erect other building improvements in such location, such construction to be performed in accordance with all provisions of this DEC, or (ill) demolish the damaged portion and/or the balance of such building improvements and restore the cleared area to either a hard surface condition or a landscaped condition in which event the area shall be Common Area until a replacement building is erected. Such Party shall have the option to choose which of the foregoing alternatives to perform, but such Party shall be obligated to perform one of such alternatives. Such Party shall give notice to each other Party within ninety (90) days from the date of such casualty of which alternative it elects.
ARTICLES
OPERATION OF THE SHOPPING CENTER
5.1 ~.
(a) Subject to the limitations set forth in this Section 5.1, no part of the Shopping Center shall be used or occupied for purposes other than retail sales, Banking Offices, Restaurants and Fast Food Restaurants (defined below). The term "Banking Office" shall mean an office which provides banking services directly to consumers. PROVIDED, HOWEVER, except for the limited authorized uses set forth in Sections S.l(c)(i), (ii) and (iii) and Section S.l(e), Parcel 8 shall be used only for civic, city governmental and/or non-profit Business Offices (defined in Section S.l(c)(i)). (b) No use shall be permitted in the Shopping Center which is inconsistent with the operation of a first-class retail shopping center. Without limiting the generality of the foregoing, the following uses shall not be permitted:
(i) Any use which emits an obnoxious odor, noise, or sound which can be heard or smelled outside of any building in the Shopping Center; however, this provision shall not be interpreted to restrict the Occupant of the Waremart Tract from conducting its supermarket operations thereon, including a bakery, in the ordinary course of its business, provided that the Occupant of the Waremart Tract shall take measures normally taken by first-class supermarket operations and shopping centers to limit the emission of odors;
(ii)
assembling,
operation;
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(iii) Any "second hand" store or "surplus" store except those such as Ross Dress For Less or TJ. Maxx;
(iv) Any mobile home park, trailer court, labor camp, junkyard, or stockyard (except that this provision shall not prohibit the temporary use of construction trailers during periods of construction, reconstruction, or maintenance); (v) Any dumping, disposing, incineration, or reduction of garbage (exclusive of garbage compactors or other future technology no more intrusive than garbage compactors located near the rear of any building); (vi) Any fire sale, bankruptcy sale (unless pursuant to a court order) or auction house operation;
(vii) Any central laundry, dry cleaning plant, or laundromat; provided, however, this prohibition shall not be applicable to: 1) nominal supportive facilities for on-site service oriented to pickup and delivery by the ultimate consumer as the same may be found in retail shopping districts in the metropolitan area where the Shopping Center is located; and 2) the operation of on-site laundry facilities within a store which services only the internal needs of that store and does not provide laundry services to the general public;
(viii) Any automobile, truck, trailer, boat or recreational vehicles sales, leasing, display, body shop or repair operation;
(ix) any entertaining or recreational facility which includes movie and live performance theater(s), bowling lanes, skating rink, gym, dance hall, billiard or pool hall, massage parlor or similar facility;
(x) Any living quarters, sleeping apartments, or lodging rooms; (xi) Any veterinary hospital or animal raising facilities (except that this prohibition shall not prohibit pet shops);
(xii) Any mortuary or funeral home;
(xiii) Any adult book or adult video store or establishment selling· or exhibiting pornographic materials or drug-related paraphernalia; (xiv) Any bar, tavern or other establishment whose reasonably projected annual gross revenues from the sale of alcoholic beverages for on-premises consumption exceeds fifteen per cent (15%) of the gross revenues of such business; (xv) Any health spa, fitness center, gym or workout facility; DECLARATION OF EASEMENTS AND CONDITIONS· 25
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(xvi) Any flea market, amusement or video arcade (except up to five electronic games shall be allowed if incidental to any permitted use); (xvii) Any training or educational facility, including but not limited to:
beauty schools, barber colleges, reading rooms, places of instruction or other operations catering primarily to students or trainees rather than to customers; provided however, this prohibition shall not be applicable to on-site employee training by an Occupant incidental to the conduct of its business at the Shopping Center; or
(xviii) Any gambling facility or operation, including but not limited to: offtrack or sports betting parlor; table games such as black-jack or poker; slot machines, video poker /black-jack/keno machines or similar devices; or bingo hall.
Notwithstanding the foregoing, this prohibition shall not apply to governmental sponsored gambling activities, or charitable gambling activities, so long as such governmental and/or charitable activities are incidental to the business operation being conducted by the Occupant.
(c) The following additional uses and occupancy restrictions shall apply:
(i) No part of the Shopping Center shall be used or occupied as a Business Office or a Retail Office. PROVIDED, HOWEVER, this prohibition shall not be applicable to: (1) Business Offices located within a building which only services the internal needs of that store and does not provide business office services to the general public; and (2) Parcel 8 may be used for civic, city governmental and/or nonprofit Business Offices. The term "Business Office" shall mean an office which does not provide services directly to consumers and the term "Retail Office" shall mean an office, other than a Banking Office, w' J ich provides services directly to consumers, including, but not limited to, real estate agencies, stock brokerages, title and escrow companies, insurance agencies and medical, dental and legal clinics. (ii) No Restaurant shall be located in the Shopping Center other than:
(1) Fast Food Restaurant(s) may be located on Parcel 5 so long as each Fast Food Restaurant located on Parcel 5 does not exceed 2,000 square feet of Floor Area; (2) a Restaurant whose primary method of service is for .orders to be taken and food to be served by a waitperson at the customers' table may be located ~ on Parcel 6; (3) a Fast Food Restaurant may be located on Parcel 7; and (4) a kiosk containing not more than 100 square feet may, subject to the Approving Party's prior written approval, be located on Parcel 8 and used for the sale of coffee and pastries.
PROVIDED, HOWEVER, this prohibition shall not be applicable to the operation of a Restaurant or a Fast Food Restaurant which is incidental to the Occupants' primary purpose. The term "Restaurant" shall mean any operation or business which requires a governmental permit, license and/or authorization to prepare and/or serve food for either on or off site consumption. For the purpose of this section only, a Restaurant shall be an "incidental operation" if it occupies less than fifteen DECLARATION OF EASEMENTS AND CONDmONS- 26
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percent (15%) of the Occupant's Floor Area and does not have a separate customer entry/exit door to the outside of the building. For purposes of this section only, the term "Fast Food Restaurant" shall mean a restaurant whose marketing strategy is based on preparing and dispensing food orders in a limited period of time. The term "Fast Food Restaurant" shall not, however, include a restaurant whose primary marketing strategy is selling pizzas. Without limitation and for illustrative purposes, Fast Food Restaurant(s) include the following:
Burger King
Wendy's
Carl's Jr
Taco Bell
Arby's
Kenny Rogers
Subway
Starbuck's Coffee
Hardy's
McDonalds
Jack In The Box
Roy Rogers
Taco Time
Boston Market
Blimpie
TCBY
(iii) No portion of Parcel 8 shall, without the Approving Party's prior written approval, be used: (1) for retail sales, PROVIDED, HOWEVER, the owner of Parcel 8 may lease not more than 500 square feet of the building located on Parcel 8 to a civic, city governmental or other non-profit organization for the sale of locallygiOwn products, historical guides, artifacts and tourist-style gift items, and to distribute community information; or (2) for a Banking Office (defined in Section 5.1(a)).
(d) Until such time as Waremart constructs and operates a supermarket on the Waremart Tract, and thereafter, for so long as the Waremart Tract is being used or has during any portion of the immediately preceding twelve (12) months been so used as a retail grocery operation, no portion of the Shopping Center, other than the Waremart Tract, shall be used as a retail grocery store operation (which is hereby defined to mean any store, bakery or delicatessen, engaged in the sale of food products for off-premises preparation and consumption). This restriction shall not be deemed to prevent or prohibit the sale of such food products from not more than 2,000 square feet of Floor Area by an Occupant of Parcels 2, 3, 4, 5, 6 or 7. This restriction may be waived or modified solely by the ovmer of the Waremart Tract in writing by an instrument recorded in the real property records of Sutter County, California. The twelve-month period referred to in this section shall not include any period during which the particular use lapses due to force majeure conditions or damage, destruction, condemnation, or remodeling of the building on the Waremart Tract so long as Waremart or its successor(s) diligently proceeds with such repair and restoration of such building reasonably calculated to permit resumption for such use. (e) No merchandise, equipment or services, including but not limited to vending machines, promotional devises and similar iteJllS, shall be displayed, offered for sale or lease, or stored within the Common Area; provided however, that the foregoing prohibition shall not be applicable to (i) the storage of sh~ping carts; (ii) the seasonal display and sale DECLARATION OF EASEMENTS AND CONDITIONS- 27
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of bedding plants on the sidewalk in front of any building located on the Waremart Tract or·the remaining Inline Tracts; (iii) temporary Shopping Center promotions, except that no promotional activities will be allowed in the Common Area without the prior written approval of the Approving Party which may be withheld in its sole and absolute discretion; or (iv) newspaper distribution stands and similar public service items. In addition, if a recycling center or equipment is required by law to be located in the Shopping Center, the location thereof shall be subject to the approval of the Parties. Notwithstanding the foregoing, the Occupant of the Waremart Tract shall be permitted: . . (i) To have vending carts and the display and sale of merchandise and ready-to-eat products on sidewalks directly in front of the building located on the Waremart Tract, provided that said Occupant maintains said sidewalks at its sole cost in a neat and clean manner;
(ii) To locate a video tape return box in the parking lot of the Waremart Tract at the location shown on the Site Plan. provided that it does not protrude into any driveways and its use does not hinder or restrict the flow of traffic within the Shopping Center;
(iii) To conduct seasonal or promotional sales of merchandise from the Waremart Tract subject to the following restrictions:
(1) sales shall be limited to not more than sixty (60) days per calendar year;
(2) the sales area shall be limited to not more than 56 parking spaces within the area designated on the Site Plan as the "Outside Sales Area;"
(3) all booths, stands, displays and other structures erected in connection therewith shall be promptly removed by said Occupant of the Waremart Tract upon termination of said activities;
(4) the Occupant of the Waremart Tract shall be responsible for cleaning the Common Area where the sale is held during the sale and for restoring its condition to that existing immediately prior to said sale at the sole cost and expense of the Occupant of the Waremart Tract. In the event said Occupant does not clean or repair such area promptly, the Operator (or if there is not an Operator then any other Party) may do so and charge the cost thereof to said Occupant of the Waremart Tract; and (5) the parking lot sales shall not interfere with the free movement of vehicular traffic within the Shopping Center or with access to or from the Shopping Center.
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The Occupant of Parcels 2, 3 and 4 shall, subject to the same limitations set forth above in this Section 5.1(e), be permitted to conduct seasonal or promotional sales and merchandise from a sales area having no more than ten (10) parking spaces within the area shown on the Site Plan as the "Outside Sales Area" for the applicable Tract.
The Occupant of Parcel 6 may use the area designated on Exhibit G as the "Outdoor Dining Area" as an outdoor dining area, subject to the following restrictions: (1) the Outdoor Dining Area shall be cordoned off from the Outdoor Patio Area (which is designated as such on Exhibit G) and the Public Plaza (which is designated as such on Exhibit G) with temporary, movable bollards, ropes, fences and/or similar barriers; (2) all tables, stands, displays or other structures used or erected in connection with outdoor dining shall not be permanently affixed to the Outdoor Dining Area; and (3) the Occupant of Parcel 6, at its sole cost and expense, shall be responsible for cleaning the Outdoor Dining Area and maintaining it in good repair. In the event the Occupant of Parcel 6 does not promptly clean or repair such area, the Operator (or if there is not an Operator, then any other Party) may do so and charge the cost thereof to the owner of Parcel 6.
The Occupant of Parcel 6 may also, with the prior written consent of the owner of Parcel 8, use all or a portion of the area designated on Exhibit G as the "Outdoor Patio Area" for special events, such as weddings and receptions, subject to the following restrictions: (1) the special events shall be limited to a total of not more than six (6) days per calendar month; (2) that portion of the Outdoor Patio Area which is used for the special event shall be cordoned off from the remainder of the Outdoor Patio Area, and the Public Plaza (which is designated as such on Exhibit G) with temporary movable bollards, ropes, fences and/or similar barriers; (3) all tables, stands, displays or other structures used or erected in connection with the special event(s) shall not be permanently affiXed to the Outdoor Patio Area and shall be promptly removed by the Occupant of Parcel 6 upon termination of said activities; and (4) the Occupant of Parcel 6, at its sole cost and expense, shall be responsible for cleaning the portion of the Outdoor Patio Area where the special event(s) was held, and for restoring its condition to that existing immediately prior to the special event(s). In the event the Occupant of Parcel 6 does not promptly clean or repair such area, the Operator (or if there is not an Operator, then any other Party) may do so and charge the cost thereof to the owner of Parcel 6.
The Occupant of Parcel 8 may use all or a portion of. the Outdoor Patio Area for outdoor community events subject to the following restrictions: (1) the community event(s) shall be limited to a total of not more than six (6) days per calendar month; (2) the portion of the Outdoor Patio Area used for the community event shall be cordoned off from the remainder of the Outdoor Patio Area and the Public Plaza with temporary movable bollards, ropes, fences and/or similar barriers; (3) all tables, displays or other structures used or erected in connection with the community event(s) shall be promptly removed by the Occupant of Parcel 8 upon termination of said activities; and ( 4) the Occupant of Parcel 8, at its sole cost and expense, shall be responsible for cleaning the portion of the Outdoor Patio Area where the community event(s) was held, and for restoring its condition to that existing immediately prior to the community event(s). In the event the Occupant of DEClARATION OF EASEMENTS AND CONDmONS- 29
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Parcel 8 does not promptly clean or repair such area, the Operator (or if there is not an Operator, then any other Party) may do so and charge the cost thereof to the owner of Parcel 8.
The Occupants of Parcels 6 and 8 may trade or aggregate among themselves the days allowed for the use of the Outdoor Patio Area for special events or community events, as provided in the foregoing two paragraphs, so long as the total of the days used for such events do not exceed twelve (12) days in any calendar month. The Outdoor Patio Area may not be used more than a total of twelve (12) days per calendar month for special or community events and special and community event days may not be carried over from one month to the next.
The Occupant of Parcel 8 may, with the prior written consent of the owner of Parcel 6, use all or a portion of the Outdoor Dining Area in conjunction with its use of the Outdoor Patio Area for a community event, as described in the foregoing paragraph, subject to the following restrictions: (1) the use of the Outdoor Dining Area by the Occupant of Parcel 8 shall be limited to a total of not more than two (2) days per calendar month; (2) the portion of the Outdoor Dining Area and the Outdoor Patio Area used for the community event shall be cordoned off from the remaining portion of the Outdoor Dining Area and Outdoor Patio Area and from the Public Plaza with temporary movable bollards, ropes, fences and/or similar barriers; (3) all tables, stands, displays or other structures used or erected in connection with the community event shall be promptly removed by the Occupant of Parcel 8 upon termination of said activities; and (4) the Occupant of Parcel 8, at its sole cost and expense, shall be responsible for cleaning that portion of the Outdoor Dining Area where the community event(s) was held and for restoring its condition to that existing immediately prior to the community event(s). In the event the Occupant of Parcel 8 does not promptly clean or repair such area, the Operator and/or the Occupant of Parcel 6 (or if there is not an Operator, then any other Party) may do so and charge the cost thereof to the owner of Parcel 8. No community event may occupy both a portion of the Outdoor Patio Area and a portion of the Outdoor Dining Area for more than two days in any calendar month.
Except as otherwise provided herein (when it is being used for special events or community events in accordance with the terms of this Section S.l(e)), the Outdoor Patio Area shall be open for use by Permittees.
(f) The name "Waremart" shall not be used to identify the Shopping Center or any business or trade conducted in the Shopping Center, other than on the Waremart Tract, without Waremart's prior written consent. The Shopping Center shall be called by such name as the Approving Party may from time to time designate. (g) Except to the extent required by law, no Permittee shall be charged for the right to use the Common Area; for the purpose of this provision, a tax assessment or other form of charge applicable to parking spaces or parking lots may be deemed by the Approving Party an imposition required by law.
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(h) In order to minimize interference with normal customer parking within the Shopping Center, each Party shall cause the employees of the Occupants of its Tract to park their vehicles only in the parking spaces designated as "Employee Parking" on the Site Plan, and as to such parking spaces, each owner of the Tract upon which said employee parking spaces are located shall designate the same on its Tract by painting the letter "E" of such size and color as to be readily obseiVable in daylight hours to users of the parking areas in each such space.
(i) This DEC is not intended to, and does not, create or impose any obligation on a Party to operate, continuously operate, or cause to be operated a business or any particular business at the Shopping Center or on any Tract.
5.2 Lighting.
(a) After completion of the Common Area lighting system on its Tract, each Party hereby covenants and agrees to keep its Tract fully illuminated each day from dusk to at least 12:00 midnight. Each Party further agrees to, except to the extent additional lighting is required herein, keep the lights in the Common Area on its Tract illuminated from dusk until dawn at not less than 25% of full capacity and to keep any exterior building security lights on from dusk until dawn. During the term of this DEC, each Party grants an irrevocable license to each other Party for the purpose of permitting the lighting from one Tract to incidentally shine on the adjoining Tract.
(b) It is recognized that the Occupant of the Waremart Tract may be open for business at different hours than the Occupants of the remaining Tracts in the Shopping Center, and that the Occupant of the Waremart Tract may wish to have the Common Area lights located on certain portions of the remaining Tracts in the Shopping Center and the Waremart Tract illuminated before and/or after the period required in (a) above.
Notwithstanding anything to the contrary in this DEC, the owner of the Waremart Tract may require that the Common Area lights located on the Waremart Tract and on a portion of the remaining Tracts in the Shopping Center to be installed or modified so that the owner of the Waremart Tract controls the Common Area lights located on the Waremart Tract and a portion of the remaining Tracts in the Shopping Center (the "Affected Tracts") and may cause these Common Area lights to be operated before and/or after the period required in (a) above. The owner of the Waremart Tract shall be initially responsible for the payment of utility and maintenance charges incurred for the operation of the Common Area lighting on the Waremart Tract and the Affected Tracts. The owner(s) of the Affected Tracts shall, however, reimburse the owner of the Ware mart Tract for that portion of utility and maintenance charges attributable to operating and maintaining the Common Area lights located on their Tract during the period required in (a) above and shall promptly pay the same upon receipt of an invoice from the owner of the Waremart Tract for the same.
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5.3 Occupant Sjgns.
(a) No freestanding sign shall be permitted within the Shopping Center unless constructed in areas designated on the Site Plan, and only one such sign may be located in each designated area. The freestanding signs at the Shopping Center shall be utilized as follows:
(i) 1\vo pylon signs at the approximate location shown on the Site Plan as Pylon Sign A and Pylon Sign B (collectively the "Center Signs"); (ii) The design and construction of and the panel inserts on the Center Signs shall be subject to the prior approval of the Approving Party, which approval shall not be unreasonably denied or delayed. PROVIDED, HOWEVER:
(1) The initial design and construction of the Center Signs shall substantially conform to that depicted in Exhibit F attached hereto. (2) The Occupant(s) of Parcel 8 shall not be entitled to any signage on the Center Signs;
(3) The Occupant(s) of the Waremart Tract shall be entitled to exclusive use of a reader board on each of the Center Signs, if allowed by applicable governmental agencies;
(4) The Occupant(s) of the Waremart Tract shall be entitled to use the sign panels shown for its Tract on Exhibit F and to, in its sole discretion, determine whether its sign panel will have the highest location on the panel(s) on the Center Signs; and
(5) The Occupants of Parcels 2, 3, 4, 5, 6 and 7 shall be entitled to use the sign panels shown for its Tract on Exhibit F, PROVIDED, HOWEVER, each such Tract shall only be entitled to one sign panel for its Tract and to only identify one business on that sign panel. ( 6) The cost of maintaining, and operating each of the Center Signs shall be allocated to and paid by the Owner of each Tract in the proportion that the square footage of the available sign panel for the applicable Tract bears to the total square footage of the available sign panels for the applicable Center Sign; PROVIDED, HOWEVER, each Party shall maintain its own sign facia.
This section shall not be interpreted to restrict the Occupant of the Waremart Tract from erecting a flag pole at the location shown on the Site Plan and displaying thereon only the United States flag and/or the State of california flag, provided that the same is DECLARATION OF EASEMENTS AND CONDIDONS • 32
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permitted by local ordinances and regulations, and provided further that the said Occupant exercises proper care in the maintenance and display of said flag(s) and flag pole. (b) The location, size and design of monument signs, if any, on Parcels 5, 6, 7 and 8 shall, in addition to the approval of the applicable governmental agency(s), be subject to the prior written approval of the Approving Party, which approval may be withheld in the Approving Party's sole discretion.
(c) All Occupant identification signs attached to the exterior of a building must be approved in writing by the Approving Party and shall not be:
(i) placed on canopy roofs extending above the building roof, placed on penthouse walls, or placed so as to project above the parapet, canopy, or top of the wall upon which it is mounted;
(ii) placed at any angle to the building; provided, however, the foregoing shall not apply to any sign located under a sidewalk canopy if such sign is at least eight (8) feet above the sidewalk;
(iii) painted on the surface of any building;
(iv) flashing or audible signs;
{v) signs employing exposed raceways (unless the raceway is the same color as the building), exposed ballast boxes, or exposed transformers; or (vi) paper or cardboard signs, temporary signs (exclusive of contractor signs), stickers or decals; provided, however, the foregoing shall not prohibit the placement at the entrance of each Occupant's space a small sticker or decal, indicating hours of business, emergency telephone numbers, acceptance of credit cards, and other similar bits of information.
Notwithstanding the above, the Occupant of the Waremart Tract, during such time as it is operating a supermarket thereon, may also display professionally prepared temporary signs and banners for in-store promotions.
Unless approved by the Approving Party, and further subject to any necessary governmental approvals, no Occupant of less than forty thousand { 40,000) square feet of Floor Area shall have an exterior sign which identifies leased departments, and/or concessionaires nor, shall such sign identify specific brands or products for sale or services offered within a business establishment, unless such identification is used as part of the Occupant's trade name.
(d) Notwithstanding anything above to the contrary, each Party shall be permitted to place within the Common Area located on its Tract directional signs or informational DECLARATION OF EASEMENTS AND CONDmONS - 33
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signs such as "Handicapped Parking", the temporary display of leasing information and the temporary erection of one sign identifying each contractor working on a constru1.1ion job.
5.4 Insurance.
(a) Each Party (as to its Tract only) shall maintain or cam;e to be maintained in full force and effect Commercial General Liability Insurance with a combined single limit of liability of not less than Five Million Dollars ($5,000,000.00) in Constant Dollars for bodily or personal injury or death, and for property damage, arising out of any one occurrence; the other Parties shall be "additional insureds" under such policy.
Each Party ("Indemnitor") covenants and agrees to defend, protect, indemnify and hold harmless each other Party ("Indemnitee") from and against all claims, including any action or proceedings brought thereon, and all costs, losses, expenses and liability (including reasonable attorney's fees and cost of suit) arising from or as a result of the injury to or death of any Person, or damage to the property of any Person located on the Tract owned by each Indenmitor, except for claims caused by the negligence or willful act or omission of such lndenmitees, its licensees, concessionaires, agents, servants, or employees, or the agents, servants, or employees of any licensee or concessionaire thereof. (b) Prior to commencing any construction activities within the Shopping Center, each Party shall obtain or require its contractor to obtain and thereafter maintain so long as such construction activity is occurring, at least the minimum insurance coverages in Constant Dollars set forth below:
(i) Workers' Compensation - statutory limits
(ii) Employers' Liability - $500,000
(iii) Comprehensive General/Commercial General Liability and Business Auto Liability as follows:
(1} Bodily Injury - $1,000,000 per occurrence
(2) Property Damage - $1,000,000 per occurrence
(3) Independent Contractors Liability; same coverage as set forth in (1) and (2) above;
(4) Products/Completed Operations Coverage which shall be kept in effect for two (2) years after completion of work;
(5) "XCU" Hazard Endorsement, if applicable;
(6) "Broad Form" Property Damage Endorsement;
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(7) "Personal Injury" Endorsements;
(8) "Blanket Contractual Liability" Endorsement.
If the construction activity involves the use of another Party's Tract, then the owner of such Tract shall be an additional insured and such insurance shall provide that the same shall not be canceled, or reduced in amount or coverage below the requirements of this DEC, without at least thirty (30) days prior written notice to the named insureds and each additional insured. If such insurance is canceled or expires then the constructing Party shall immediately stop all work on or use of the other Party's Tract until either the required insurance is reinstated or replacement insurance obtained. (c) Effective upon the commencement of construction of any building on its Tract and so long as such building exists, a Party shall carry, or cause to be carried, casualty insurance with "extended" or "all-risk" coverage, in the amount of 100% of full replacement cost thereof (excluding footings, foundations or excavations).
Each Party (the "Releasing Party'') hereby releases and waives for itself, and each Person claiming by, through or under it, each other Party (the "Released Party") from any liability for any loss or damage to all property of such Releasing Party located upon the Releasing Party's Tract, which loss or damage is of the type covered by the insurance required to be maintained under Section 5.4(c), irrespective either of any negligence on the part of the Released Party which may have contributed to or caused such loss, or of the amount of such insurance required or actually carried, including any deductible or self insurance reserve. Each Party agrees to use its reasonable efforts to obtain, if needed, appropriate endorsements to its policies of insurance with respect to the foregoing release; provided, however, that failure to obtain such endorsements shall not affect the release hereinabove given. Each Party ("Indemnitor") covenants and agrees to indemnify, defend and hold harmless each other Party ("Indemnitee") from and against all claims asserted by or through any Permittees of the Indemnitor's Tract for any loss or damage to the property of such Permittee located upon the Indemnitor's Tract, which loss or damage is covered by the insurance required to be maintained under Section 5.4(c), irrespective of any negligence on the part of the Indemnitee which may have contributed to or caused such loss. (d) All insurance required by Section 5.4 shall be· procured from companies licensed in the state where the Shopping Center is located and shall be rated by Best's Insurance Reports not less than A/VII. All insurance may be provided under (i) an individual policy covering this location, (ii) a blanket policy or policies which includes other liabilities, properties and locations of such Party; provided, however, that if such blanket commercial general liability insurance policy or policies contain a general policy aggregate of less than $20,000,000 in Constant Dollars, then such insuring Party shall also maintain excess liability coverage necessary to establish a total liability insurance limit of $20,000,000 in Constant Dollars, (iii) a plan of self-insurance, provided that any Party so self-insuring notifies the other Parties of Its intent to self-Insure and agrees that upon request it shall deliver to such other Parties each calendar year a copy of its annual report that is audited DEClARATION OF EASEMENTS AND CONDmONS- 35
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by an independent certified public accountant which discloses that such Party has $80,000,000 in Constant Dollars or more of net worth, determined in accordance with ge.nerally accepted accounting principles; and (iv) a combination of any of the foregoing insurance programs. To the extent any deductible is permitted or allowed as a part of any insurance policy carried by a Party in compliance with Section 5.4, such Party shall be deemed to be covering the amount thereof under an informal plan of self-insurance; provided, however, that in no event shall any deductible exceed $50,000.00 in Constant Dollars unless such Party complies with the requirements regarding self-insurance pursuant to (iii) above. Each Party agrees to furnish to any Party requesting the same, a certificate(s) of insurance evidencing that the insurance required to be carried by such Person is in full force and effect.
The insurance required pursuant to Sections 5.4(a) and (b) above shall include the following provisions:
(i) shall provide that the policy may not be canceled or reduced in amount or coverage below the requirements of this DEC, without at least thirty (30) days prior written notice by the insurer to each insured and to each additional insured; (ii) shall provide for severability of interests;
(ill) shall provide that an act or omission of one of the insureds or additional insureds which would void or otherwise reduce coverage, shall not reduce or void the coverage as to the other named insureds; and (iv) shall provide for contractual liability coverage with respect to the indemnity obligation set forth herein, provided, however, the coverage limits of such insurance shall in no event limit the indemnity obligations of any Party hereunder. (e) Notwithstanding the requirements set forth in Sections 5.4(a) and (d) above, the City of Yuba City, as the owner of Parcel 8, may, in lieu of said liability insurance, provide self-insurance pursuant to California Government Code sections 990.4(a) and 990.8, so long as coverage for general liability with a combined single limit of liability is not less than Five Million Dollars ($5,000,000) for bodily or personal injury or death, and for property damage, arising out of any one occurrence.
5.5 Taxes and Assessments. Each Party shall pay, or cause to be paid prior to delinquency, all taxes and assessments with respect to its Tract, the buildings, ·and improvements located thereon and any personal property owned or leased by such Party in the Shopping Center, provided that if the taxes or assessments or any part thereof may be paid in installments, the Party may pay each such installment as and when the same becomes due and payable. Nothing contained in this subsection shall prevent any Party from contesting at its cost and expense any such taxes and assessments with respect to its Tract in any manner such Party elects, so long as such contest Is maintained with reasonable diligence and in good faith. At the time as such contest is concluded (allowing for appeal DECLARATION OF EASEMENTS AND CONDmONS • 36
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to the highest appellate court), the contesting Party shall promptly pay all such taxes and llS!iessments determined to be owing, together with all interest, penalties and costs thereon.
5.6 ~. In the event any mechanic's lien is filed against the Tract of one Party as a result of seiVices performed or materials furnished for the use of another Party, the Party permitting or causing such lien to be so filed agrees to cause such lien to be discharged within fifteen (15) days after the enuy of a final judgment (after all appeals) for the foreclosure of such lien and further agrees to indemnify, defend, and hold harmless the other Party and its Tract against liabilities, losses, damages, costs or expenses (including reasonable attorneys' fees and cost of suit) on account of such claim of lien. Upon request of the Party whose Tract is subject to such lien, the Party permitting or causing such lien to be filed agrees to promptly cause such lien to be released and discharged of record, either by paying the indebtedness which gave rise to such lien or by posting bond or other security as shall be required by law to obtain such release and discharge. Nothing herein shall prevent a Party permitting or causing such lien from contesting the validity thereof in any manner such Party chooses so long as such contest is pursued with reasonable diligence. In the event such contest is determined adversely (allowing for appeal to the highest appellate court), such Party shall promptly pay in full the required amount, together with any interest, penalties, costs, or other charges necessary to release such lien.
ARTICLE6
ENVIRONME .. TAL MATIERS
6.1 Duties of Users. Except as provided in Section 6.2, neither the Parties nor any Occupant(s) shall release, generate, use, store, dump, transport, handle or dispose of any Hazardous Material within the Shopping Center or otherwise permit the prtlSence of any Hazardous Material on, under or about the ShoppinB Center or transport any Hazardous Material to or from the Shopping Center. Any such use, handling or storage permitted under Section 6.2 shall be in accordance with all Environmental Laws and all other applicable laws, ordinances, rules and regulations now or hereafter promulgated by any governmental authority having jurisdiction thereof. Neither the Parties nor any Occupant(s) shall install, operate or maintain any above, below or at grade tank, sump, pit, pond, lagoon or other storage or treatment vessel or device on or about the Shopping Center unless plans therefor have been submitted to and approved by the Approving Party pursuant to Section 6.2 hereof. Each Party with respect to its Tract shall immediately notify the other Parties in writing of the following with respect to such Party's Tract: (i) any notice of violation or potential or alleged violation of any laws, ordinances or regulations which the Party shall have received from any governmental agency concerning the use, storage, release and/or disposal of Hazardous Materials; (ii) any and all inquiry, investigation, enforcement, cleanup, removal or other governmental or regulatory actions instituted or thre11tened relating to such Tract(s); (iii) all claims made or threatened by any third party relating to any Hazardous Materials; and (iv) any release of Hazardous Materials in a reportable quantity on or about the Shopping Center which such Party knows of or reasonably believes may have occurred. Such notice shall be accompanied by copies of any notices, inquiries or other documentation issued to the notifying Party in connection with such matters.
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6.2 Pennitted Use. Storage. Handling and Disposal of Hazardous Materials.
NQtwithstanding anything contained in Section 6.1 to the-eontrary, any Party, or any Occupant or Permittee may sell, store and use products containing Hazardous Materials in, on or about the Tract occupied by such Party, Occupant or Permittee or the Common Areas to the extent such products and/or equipment are incidental to nonnal shopping center operations, and are sold, stored or used in compliance with all applicable Environmental Laws. By way of example, and not limitation, such permitted materials may include paints, oils, solvents, sealers, adhesives and finishes, fertilizers, medicines, insecticides and rodent poisons and the like, which may be or contain Hazardous Materials, so long as such products are produced, packaged and purchased for retail sale and generally merchandised or solo in retail outlets or are nonnally used in maintaining or repairing shopping center improvements. A Party or an Occupant may also use other Hazardous Materials in connection with its use of its Tract if such Party or Occupant has received the Approving Party's prior consent to the same. The Approving Party shall not unreasonably withhold its consent provided {i) the Party demonstrates to the Approving Party's reasonable satisfaction that such Hazardous Materials (a) are necessary or useful to the Party's or its Occupant's business, (b) will be monitored, used, stored, handled and disposed of in compliance with all Environmental Laws, (c) will not endanger any persons or property and {d) will not invalidate or limit the coverage or increase the premiums of any insurance policy affecting or covering any portion of the Shopping Center, (ii) the Party or Occupant provides the Approving Party with such security as may be reasonably required by the Approving Party to help secure such Party's or Occupant's performance of its obligations under Section 6.3, and (iii) such Party or Occupant satisfies any other requirements any other Party may reasonably impose with respect to the Party's or Occupant's use of the subject Hazardous Materials.
6.3 Oeanup of Hazardous Materials. In the event Hazardous Materials are released within the Shopping Center in violation of any Environmental Law and such release occurred as a direct or indirect result of a Party's or its Occupant's or Permittee's use, handling, storage, or transportation of such Hazardous Material, as between the Parties, such Party or Occupant engaged in such activity shall be solely responsible and shall be liable for the prompt cleanup and remediation of any resulting contamination and all claims, costs, expenses (including reasonable attorney and consultant fees) and damages, including consequential damages, suffered by the other Party, Occupants and Permittees.
7.1 Default.
ARTICLE 7
MISCELlANEOUS
(a) The occurrence of any one or more of the following events shall constitute a material default and breach of this DEC by the non-performing Party (the "Defaulting Party"):
DECLARATION OF EASEMENTS AND CONDffiONS • 38
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(i) The failure to make any payment required to be made hereunder within ten (10) days of the due date, or
(ii) The failure to observe or perform any of the covenants, conditions or obligations of this DEC, other than as described in (i) above, within thirty (30) days after the issuance of a written notice by another Party (the Non-Defaulting Party") specifying the nature of the default claimed.
(b) With respect to any default under Section (a)-(ii) above, any Non-Defaulting Party which is an Approving Party shall have the right, but not the obligation, to cure such default by the payment of money or the performance of some other action for the account of and at the expense of the Defaulting Party; prmided, however, that in the event the default shall constitute an emergency condition, any such Non-Defaulting Party, acting in good faith, shall have the right to cure such default upon such advance notice as is reasonably possible under the circumstances or, if necessary, without advance notice, so long as notice is given as soon as possible thereafter. To effectuate any such cure, any such NonDefaulting Party shall have the right to enter upon the Tract of the Defaulting Party (but not into any building) to perform any necessary work or furnish any necessary materials or services to cure the default of the Defaulting Party. Each Party shall be responsible for the default of its Occupants. In the event any Non-Defaulting Party shall cure a default, the Defaulting Party shall reimburse the Non-Defaulting Party for all costs and expenses incurred in connection with such curative action, plus interest as provided herein, within ten (10) days of receipt of demand, together with reasonable documentation supporting the expenditures made.
(c) Costs and expenses accruing and/or assessed pursuant to Section 7.1(b) above shall constitute a lien against the Defaulting Party's Tract. The lien shall attach and take effect only upon recordation of a claim of lien in the office of the Recorder of the County of the State in which the Shopping Center is located, by the Party making the claim. The claim of lien shall include the following:
(i) The name of the lien claimant;
(ii) A statement concerning the basis for the claim of lien and identifying the lien claimant as a curing Party;
(iii) An identification of the owner or reputed owner of the Tract or interest therein against which the lien is claimed;
(iv) A description of the Tract against which the lien is claimed; (v) A description of the work perform.:d which has given rise to the claim of lien and a statement itemizing the amount thereof; and DECLARATION OF EASEMENTS AND CONDmONS - 39
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(vi) A statement that the lien is claimed pursuant to the provisions of this DEC, reciting the date, book and page of recordation hereof. The notice shall be duly verified, acknowledged and contain a certificate that a copy thereof has been served upon the Party against whom the lien is claimed, by personal service or by mailing pursuant to Section 7.4 below. The lien so claimed shall attach from the date of recordation solely in the amount claimed thereby and may be enforced in any judicial proceedings allowed by law, including without limitation, suit in the nature of a suit to foreclose a mortgage or mechanic's lien under the applicable provisions of the law of the State in which the Shopping Center is located. (d) No waiver by any Party of any default under this DEC shall be effective or binding on such Party unless made in writing by such Party and no such waiver shall be implied from any omission by a Party to take action in respect to such default No express written waiver of any default shall affect any other default or cover any other period of time other than any default and/or period of time specified in such express waiver. One or more written waivers or any default under any provision of this DEC shall not be deemed to be a waiver of any subsequent default in the performance or the same provision or any other term or provision cc.ntained in this DEC.
(e) Each Non-Defaulting Party shall have the right to prosecute any proceedings at law or in equity against any Defaulting Party hereto, or any other Person, violating or attempting to violate or defaulting upon any of the provisions contained in this DEC, and to recover damages for any such violation or default. Such proceeding shall include the right to restrain by injunction any violation or threatened violation by another of any of the terms, covenants, or conditions of this DEC, or to obtain a decree to compel performance of any such terms, covenants, or conditions, it being agreed that the remedy at law for a breach of any such term, covenant, or condition (except those, if any, requiring the payment of a liquidated sum) is not adequate. All of the remedies permitted or available to a Party under this DEC or at law or in equity shall be cumulative and not alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or av:lilable right or remedy.
7.2 Interest.
Any time a Party shall not pay any sum payable hereunder to another within five (5) days of the due date, such delinquent Party shall pay interest on such amount from the due date to and including the date such payment is received by the Person entitled thereto, at the lesser of:
(i) The highest rate permitted by law to be paid on such type of obligation by the Person obligated to make such payment or the Person to whom such payment is due, whichever is less; or
DEClARATION OF EASEMENTS AND CONDffiONS- 40
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(ii) 2% per annum in excess of the prime rate from time to time publicly aDJlOUnced by United States National Bank of Oregon or its successor (or if it no longer exists a comparable regional national bank located in Oregon).
7.3 Estoppel Certificate.
Each Party agrees that upon written request (which shall not be more frequent than three (3) times during any calendar year) of any other Party, it will issue to such Person, or its prospective mortgagee or successor, an estoppel certificate stating to the best of the issuer's knowledge that as of such date:
(i) whether it knows of any default under this DEC by the requesting Person, and if there are known defaults, specifying the nature thereof; (ii) whether this DEC has been assigned, modified or amended in any way by it and if so, then stating the nature thereof; and
(iii) whether this DEC is in full force and effect;
Such statement shall act as a waiver of any claim by the Person furnishing it to the extent such clain1 is based upon facts contrary to those asserted in the statement and to the extent the claim is asserted against a bona fide encumbrancer or purchaser for value without knowledge of facts to the contrary of those contained in the statement, and who has acted in reasonable reliance upon the statement The issuance of an estoppel certificate shall in no event subject the Person furnishing it to any liability for the negligent or inadvertent failure of such Person to disclose correct and/ or relevant information, nor shall such issuance be construed to waive any rights of the issuer to either request an audit of the Common Area Maintenance Costs for any year it is entitled to do so, or challenge acts conunitted by other Parties for which approval by the Approving Party was required but not sought or obtained.
Notices.
All notices under this DEC shall be in writing and delivered either (i) in person, (ii) by reputable over-night delivery service, so long as deliv~ry is made by obtaining a signed receipt, (iii) by certified mail, or (iv) by facsimile transmission, so long as the original notice is also forwarded by the method described in (i), (ii) or (iii).
WAREMART: Waremart, Inc.
8590 Fairview Avenue
P.O. Box 5756
Boise, ID 83705
Attn: Vice President, Real Estate
Fax Number: 208-377-0474
DECLARATION OF EASEMENTS AND CONDffiONS- 41
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Any notice give pursuant to this Agreement shall be deemed effective the day it is personally delivered or transmitted by facsimile, the day after it is delivered to the overnight delivery service, or three business days after the date it is deposited in the United States mail system.
Upon at least ten (10} days prior written notice, each Person shall have the right to change its address to any other address within the United States of America.
7.4 Approval Rj~hts.
(a) Nothing contained in this DEC shall limit the right of a Party to exercise its business judgment, or act, in a subjective manner, with respect to any matter as to which it has specifically been granted such right, or the right to act in its sole discretion or sole judgment, whether "objectively" reasonable under the circumstances, and any such exercise shall not be deemed inconsistent with any covenant of good faith and fair dealing otherwise implied by law to be part of this DEC; and the Parties intend by this DEC to set forth their entire understanding with respect to the terms, covenants, conditions and standards pursuant to which their obligations are to be judged and their performance measured. (b) Unless provision is made for a specific time period, each response to a request for an approval or consent shall be given by the Person to whom directed within thirty (30) days of receipt. Each disapproval shall be in writing and, subject to (a) above, the reasons shall be clearly stated. If a response is not given within the required time period, the requested Party shall be deemed to have given its approval.
7.5 Condemnation. In the event any portion of the Shopping Center shall be condemned, the award shall be paid to the Party owning the land or the improvement taken, except that (i) if the taking includes improvements belonging to more than one Party, such as Utility Unes or signs, the portion of the award allocable thereto shall be used to relocate, replace or restore such jointly owned improvements to a useful condition, and (ii) if the taking includes easement rights which are intended to extend beyond the term of this DEC, the portion of the award allocable to each such easement right shall be paid to the respective grantee thereof. In addition to the foregoing, if a separate claim can be filed for the taking of any other property interest existing pursuant to this DEC which does not reduce or diminish the amount paid to the Party owning the land or the improvement taken, then the owner of such other property interest shall have the right to seek an award for the taking thereof.
7.6 Bjndin1: Effect. The terms of this DEC and all easements granted hereunder shall constitute covenants running with the land and shall bind the real estate described herein and inure to the benefit of and be binding upon the signatories hereto and their respective successors and assigns who become Parties hereunder. This DEC is not intended to supersede, modify, amend, or otherwise change the provisions of any prior instrument affecting the land burdened hereby.
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7.7 Construction and Interpretation.
(a) This DEC and the Exhibits hereto contain all the representations and the entire agreement between the Parties with respect to the subject matter hereof. Any prior negotiations, correspondence, memoranda or agreements are superseded in total by this DEC and Exhibits hereto. This DEC has been fully negotiated at arms length between the signatories hereto, and after advice by counsel and other representatives chosen by such signatories, and such signatories are fully informed with respect thereto; no such signatory shall be deemed the scrivener of this DEC; and, based on the foregoing, the provisions of this DEC and the Exhibits hereto shall be construed as a whole according to their common meaning and not strictly for or against any Party.
(b) Whenever required by the context of this DEC, (i) the singular shall include the plural, and vice versa, and the masculine shall include the feminine and neuter genders, and vice versa and (ii) use of the words "including", "such as", or words of similar import, when following any general term, statement or matter shall not be construed to limit such statement, term or matter to specific items, whether or not language of non-limitation, such as "without limitation", or "but not limited to", are used with reference thereto, but rather shall be deemed to refer to all other items or matters that could reasonably fall within the broadest scope of such statement, terms or matter.
(c) The captions preceding the text of each article and section are included only for convenience of reference. Captions shall be disregarded in the construction and interpretation of this DEC. Capitalized terms are also selected only for convenience of reference and do not necessarily have any connection to the meaning that might otherwise be attached to such term in a context outside of this DEC. (d) Invalidation of any of the provisions contained in this DEC, or of the application thereof to any person by judgment or court order shall in no way affect any of the other provisions hereof or the application thereof to any other person and the same shall remain in full force and effect.
(e) This DEC may be amended by, and only by, a written agreement signed by the then current Approving Party and shall be effective only when recorded in the county and state where the Shopping Center is located; provided, howe.ver, that no such amendment shall impose any materially greater obligation on, or materially impair any right of a party or its Tract without the consent of such party. No consent to the amendment of this QEC shall ever be required of any Occupant or Person other than the Parties. Each Party may consider, approve or disapprove any proposed amendment to this DEC in its sole and absolute discretion without regard to reasonableness or timeliness. (f) This DEC may be executed in several counterparts, each of which shall be deemed an original. The signatures to this DEC may be executed and notarized on separate pages, and when attached to this DEC shall constitute one complete document.
DEClARATION OF EASEMENTS AND CONDillONS- 43
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7.8 Ne~:ation of Partnership. None of the terms or provisions of this DEC shall be. deemed to create a partnership between or among the Parties in their respective businesses or otherwise, nor shall it cause them to be considered joint venturers or members of any joint enterprise. Each Party shall be considered a separate owner, and no Party shall have the right to act as an agent for another Party, unless expressly authorized to do so herein or by separate written instrument signed by the Party to be charged.
7.9 Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or dedication of any portion of the Shopping Center or of any Tract or portion thereof to the general public, or for any public use or purpose whatsoever. Except as herein specifically provided, no right, privileges or immunities of any Party hereto shall inure to the benefit of any third-party Person, nor shall any third-party Person be deemed to be a beneficiary of any of the provisions contained herein.
7.10 Excusable Delays. Whenever performance is required of any Person hereunder, such Person shall use all due diligence to perform and take all necessary measures in good faith to perform; provided, however, that if completion of performance shall be delayed at any time by reason of acts of God, war, civil commotion, riots, strikes, picketing or other labor disputes, unavailability of labor or materials, damage to work in progress by reason of fire or other casualty, or any cause beyond the reasonable control of such Person, then the time for performance as herein specified shall be appropriately extended by the amount of the delay actually so caused. The provisions of this section shall not operate to excuse any Person from the prompt payment of any monies required by this DEC or the performance of any indemnity obligations hereunder.
7.11 Mitif.lation of Dama~:es. In all situations arising out of this DEC, all Parties shall attempt to avoid and mitigate the damages resulting from the conduct of any other Party. Each Party hereto shall take all reasonable measures to effectuate the provisions of this DEC.
7.12 DEC Shall Continue Notwithstandin~: Breach. It is expressly agreed that no breach of this DEC shall (i) entitle any Party to cancel, rescind, or otherwise terminate this DEC, or (ii) defeat or render invalid the lien of any mortgage or deed of trust made in good faith and for value as to any part of the Shopping Center. However, such limitation shall not affect in any manner any other rights or remedies which a Party may have hereunder by reason of any such breach.
7.13 ~- Time is of the essence of this DEC.
7.14 No Waiver. The failure of any Party to insist upon strict performance of any of the terms, covenants or conditions hereof shall not be deemed a waiver of any rights or remedies which that Party may have hereunder, at law or in equity and shall not be deemed a waiver of any subsequent breach or default In any of such terms, covenants or conditions.
DECLARATION OF EASEMENTS AND CONDmONS • 44
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7.15 ,Limitation of Uability.
(a) Except as specifically provided below, there shall be absolutely no corporate or personal liability of persons, firms, corporations or entities who constitute a Party hereto, including, but not limited to, officers, directors, employees or agents of a party hereto with respect to any of the terms, covenants, conditions, and provisions of this DEC. In the event of default by a Defaulting Party hereunder (as defined in Section 7.1) any Non-Defaulting Party (as defined in Section 7.1 hereot) who seeks recovery from a Defaulting Party hereto shall look solely to tbe interest of such Defaulting Party, its successors and assigns, in the Shopping Center for the satisfaction of each and every remedy of the Non-Defaulting Party; provided, however, the foregoing shall not in any way impair, limit or prejudice the right of any Party:
(i) to pursue equitable relief in connection with any term, covenants or condition of this DEC, including a proceeding for temporary restraining order, preliminary injunction, permanent injunction or specific performance; and (ii) to recover from another Party (or its guarantor) all losses suffered, liabilities incurred or costs imposed arising out of or in connection with, or on account of, such Party (or its guarantor) not funding its self insurance obligations which were assumed pursuant to Section 5.4 above.
ARTICLE 8
TERM
8.1 Term of this DEC, This DEC shall be effective as of the date first above written and shall continue in full force and effect until 11:59 p.m. on December 31, 2075; provided, however, that the easements referred to in Article II hereof which are specified as being perpetual or as continuing beyond the term of this DEC shall continue in force and effect as provided therein. Upon termination of this DEC, all rights and privileges derived from and all duties and obligations created and imposed by the provisions of this DEC, except as relates to the easements mentioned above, shall terminate and have no further force or effect; provided, however, that the termination of this DEC shall not limit or affect any remedy at law or in equity that a Party may have against any other Party with respect to any liability or obligation arising or to be performed unde~ this DEC prior to the date of such termination.
DEClARATION OF EASEMENTS AND CONDmONS - 45
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IN Wl1NESS WHEREOF, the Parties have caused this DEC to be executed effective as of the day and year first above written.
WAREMART, INC.
.,/J/12
Name "' 4 >1 £ f/11/A
Its \/.), . £'/ ..;A • ',. ""
STATE OF CAUFORNIA )
)ss.
County of Sutter )
On this~ day of C"\ • J. in the year 1997 before me, ka.ih:J CIA..ooorv , notary .~lilili~ ersonally appea~ed GAR.)' R. Bv11 ; known or identified to me, to be the l!.rl'· ·-= - ofWAREMART, INC., who subscribed said corporate name to the foregoing instrument, and acknowledged to me that he executed the foregoing instrument on behalf of W AREMART, INC.
IN Wl1NESS WHEREOF, I have hereunto set my hand and affiXed my official seal the day and year in this certificate first above written.
Residing at &t.a:_~"../t..r Comm. Expirds ___.:":::...@=O.c~~~O:LL------- 71:174
DECLARATION OF EASEMENTS AND CONDffiONS- 46
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List of Exhibits
Exhibit A Shopping Center Legal Description
Exhibit B Site Plan
Exhibit c Building Tie Exhibit
Exhibit D Permanent Access Easement Exhibit
Exhibit E Submission Guidelines ~~.'
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Exhibit F Center Sign Design .
Exhibit G Outdoor Patio Area Exhibit
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EXHIBIT "A"
PROPERTY DESCRIPTION
PROPOSED PARCEL 1
MORTON l!c PITALO, INC.
CMI Englnee~ng Planning Surveying
1788 T~bule Road. Suite 200
Sacramonto. CA 95815
916/927-2400
Fox: 916/567-Q120
All that certain real property situate In the City of Yuba City, County of Sutter, State of California, described as follows:
A portion of the Northeast one-quarter of the Northeast one-quarter of Section 28, Township 15 North, Range 3 East, M.D.B.&M., more partiCL:Jiarly described as follows:
BEGINNING at a point in the Easterly line qf that certain real property described In the Grant Deed to the Board of Church Extension of the Presbytery of Sacramento recorded In Vol. 527, Page 256, Official Records of said County, from which the Northeast corner of said Section 26 bears the following four (4) courses: (1) North 89.52'06" East 864.57 feet; (2) North 19"59'12" West 16.77 feet; (3) North 00.35'00" East 16.50 feet and (4) South 89.46'26" East 123.00 feet; thence from the point of beginning, leaving said Easterly line North 69.52'06" East 22.22 feet; thence South oo•o7'54" East 651.95 feet; thence North 89.52'06" East 179.34 feet; thence South oo•o7'54" East 54.26 feet; thence North 89.52'06" East 143.54 feet; thence North oo•07'54" West 292.11 feet; thence North 89°52'06" East 7.25 feet; thence North oo·07'54" West 247.50 feet; thence SOIJth
89.52'06" West 36.52 feet; thence North oo•07'54" West 166.60 feet; thence North 89•52'06" East 95.95 feet; thence South oo•o7'54" East 44.60 feet; thence South
89.52'06" West 15.50 feet; thence South oo•07'54" East 92.00 feet; thence North
89.52'06" East 219.52 feet; thence South oo•07'54" East 277.50 feet; thence North 89•52'06" East 57.66 feet; thence South oo•07'54" East 241.62 feet; thence North
69.52'06" East 6.00 feel; thence South oo•o7'54" East 35.00 feet; thence North 89.52'06" East 112.21 feet; thence South oo•07'54" East 88.42 feet; thence North 89.52'06" East
84.68 feet; thence North oo•07'54" West 334.55 feet; thenCE! North 89.52'57" East 13.77 feet; thence North oo•07'54" West 159.00 feet; thence North 89.52'06" West 15.80 feet to a point In the Westerly line of that certain real property described in the Grant Deed to the State of California recorded in Instrument No. 1997-00093, Official Records of said County; thence along said Westerly line South oo•35'00" West 512.90 feet to a point in the Northerly line of Vernon Avenue as shown and so designated on that certain plat of "Palora Park No. 2" recorded in Book 6 of Surveys, Page 69, Official Records ofsaid County; thence leaving said Westerly line and along the Northerly line of Vernon Avenue South 89"44'45" West1094.58 feet: thence leaving said Northerly line North oo•06'19" Easl295.36 feet to a point in the Southerly line of that certain real property described in tho Grant Deed to the Board of Church Extension of the Presbytery of Sacramento recorded in Vol. 527, Page 257, Orticial Records of said County; thence along said Southerly line and along the Southerly and Easterly lines of that certain real property described in tho Grant Deed to the Board of Church Extension recorded in Vol. 527,
89"46'28" West 191.54 feet and (2) North oo•06'19" East 506.63 feet to the point of beginning.
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MORTON t. PITALO, INC. EXHIBIT"A"
PROPERTY bESCRJPTION
PROPOSED PARCEL 2
CMI Engineering Planning SUrveying
1788 Tribute Rood, SUite 200
Sacramento. CA 95815
916/927-2400
Fox: 916/567-{)120
All that certain real property situate in the City of Yuba City, County of Sutter, State of Califomia, described as follows:
A portion of the Northeast one-quarter of the Northeast one-quarter of Section 28, Township 15 North, Range 3 East, M.D.B.&M .• more particularly described as follows:
BEGINNING at the Northeast comer of the parcel to be described hereby from which the Northeast comer of said .Section 28 bears the following four (4) courses: (1) North 89"52'06" East 570.73 feet; (2) North 19"59'12" West 16.n feet; (3) North 00"35'00" East
16.50 feet and (4) South 89"46'28" East 123.00 feet; thence from the point of beginning South 00"07'54" East 166.60 feet; thence North 89"52'06" East 38.52 feet; thence South 00"07'54" East 247.50 feet; thence South 89"52'06" West 7.25 feet; thence South 00"07'54" East 292.11 feet; thence South 89"52'06" West 143.54 feet; thence North 00"07'54" West 292.11 feet; thence South 89"52'06" West 15.22 feet; thence North 00"07'54" West 2n.5o feet; thence North 89"52'06" East 35.49 feet; thence North 00"07'54" West 136.60 feet; thence North 89"52'06" East 92.00 feet to the point of beginning.
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MORTON & PITALO, INC. EXHIBIT "A"
P~OPERTY DESCRIPTION
PROPOSED PARCEL 3
CMI Englneertng Planning Surveying
1788 Trtbute Road. Suite 200
Sacramento, CA 95815
916/927-2400
Fax: 916/567.{)120
All that certain real property situate in the City of Yuba City, County of Sutter, State of California, described as follows:
A portion of the Northeast one-quarter of the Northeast one-quarter of Section 28, Township 15 North, Range 3 East, M.D.B.&M., more particularly described as follows:
BEGINNING at the Norttw;est comer of the parcel to be described hereby from which the Northeast comer of said Section 28 bears the following six (6) courses: (1) North 89"52'06" East 104.48 feet; (2) North 00"07'54" West 136.60 feet; (3) North 89"52'06" East 166.28 fee~ (4) North 19"59'12" West 16.77 fee~ (5) North 00"35'00" East 16.50 feet and (6) South 89"46'28" East 123.00 feet; thence from the point of beginning North 89"52'06" East 104.48 feet; thence South 00"07'54" East 149.00 feet; thence North 89"52'06" East 172.03 feet; thence South 00"07'54" Eas.t 159.00 feet; thence South 89"52'57" West 13.77 feet; thence South 00"07'54" East 344.55 feet; thence South 89"52'06" West 84.88 feet; thence North 00"07'54" West 88.42 feet; thence South 89"52'06" West 112.21 feet; thence North 00"07'54" West 35.00 feet; thence South 89"52'06" West 8.00 feet; thence North 00"07'54" West 241.62 feet; thence South 89"52'06" West 57.66 feet; thence North 00"07'54" West 277.50 feet to the point of beginning.
850150 3118197
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EXHIBIT "A"
PROPERTY DESCRIPTION
PROPOSED PARCEL 4
MORTON a PITALO, INC.
CMI Engineering Planning SUrveying
1788 Tribute Road. SUite 200
Sacramento. CA 95815
916/927-2400
Fax: 916/567-<)120
All that certain real property situate In the City of Yuba City, County of Sutter, State of California, described as follows:
A portion of the Northeast one-quarter of the Northeast one-quarter of Section 28, Township 15 North, Range 3 East, M.D.B.&M., more particularly described as follows:
BEGINNING at the Northeast comer of the parcel to be described hereby from which the Northeast comer of said Section 8 bears the following six (6) courses: (1) North 89"52'06" East 35.49 feet; (2) North 00"07'54" Wast 136.60 feet; (3) North 89"52'06" East 662.73 feet; (4) North 19"59'12" West 16.77 feet; (5) North 00"35'00" East 16.50 feet and (6) South 89"46'28" East 123.00fee~ thence from the point of beginning South 00"07'54" East 2n.5o feet; thence North 89"52'06" East 15.22 feet; thence South 00"07'54" East 237.85 feet; thence South 89"52'06" West 179.34 feet; thence North 00"07'54" West 515.35 feet; thence North 89"52'06" East 164.13 feet to the point of beginning. 050150 3118197
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EXHIBIT "A"
PROPERTY DESCRIPTION
PROPOSED PARCEL 5
MORTON a PITALO, INC.
CMI Engineering Planning Surveying
1788 Tribute Read. Suite 200
Sacramento, CA 95815
916/927-2400
Fox: 916/567.0120
All that certain real property situate in the City of Yuba City, County of Sutter, State of California, described as follows:
A portion of the Northeast one-quarter of tho Northeast one-quarter of Section 28, Township 15 North, Range 3 East, M.D.B.&M., more particularly described as follows:
BEGINNING at the Northeast comer of the parcel to be desCribed hereby from which the Northeast comer of said ·Section 28 bears the following four (4) courses: (1) North 89"52'06" East 662.73 feet; {2) North 19"59'12" West 16.77 feet; (3) North 00"35'00" East
16.50 feet and (4) South 89"46'28" East 123.00 feet; thence from the point of beginning South 00"07'54" East 136.60 feet; !hence South 89"52'06" West 199.62 feet; thence North 00"07'54" West '136.60 feet; thence North 89"52'06" East 199.62 feet to tha point of beginning.
950150 3118/97
. 1.0086
• .t• ' . .• .
EXHIBIT "A"
PROPERTY DESCRIPTION
PROPOSED PARCEL 6
MORTON & PITALO, INC.
CMI Engineering Planning SuNeylng
1788 Tribute Road. Suite 200
Sacramenta, CA 95815
916/927-2400
Fox: 916/567.{)120
All that certain real property situate in the City of Yuba City, County of Sutter, State of Caiifomla, described as follows:
A portion of the Northeast one-quarter of the Northeast one-quarter of Section 28, Township 15 North, Range 3 East, M.D.B.&M., more particularly described as follows:
BEGINNING at the most Northeasterly comer of the parcel to be described hereby from which the Northeast comer of said Section 28 bears the following four (4) courses:
(1) North 89"52'06" East 74.78 feet; (2) North 19"59'12" West 16.77 feet; (3) North 00"35'00" East16.50 feet and (4) South 89"46'28" East123.00 fee~ thence from the point of beginning South 00"07'54" East 146.52 faet; thence North 89"52'06" East 98.07 feet to a point in the Westerly line of that certain real property described in the Grant Deed to the State of Califomia recorded in Instrument No. 1997-00093, Official Records of said County; thence along said Westerly line South 00"35'00" West 139.09 feet; thence leaving said Westerly line South 89"52'06" West 187.83 feet; thence North 00"07'54" West 285.60 feet; thence North 89"52'06" East 91.50 feet to the point of beginning. 950150 31181117
~0086 . Page 328 of 613
.. ~ -·- ......
EXHIBIT "A"
PROPERTY DESCRIPTION
PROPOSED PARCEL 7
MORTON a PITALO, INC.
CMI Englneerlng Planning Surveying
1788 Trfbute Rood. Sulle 200
Sacramento, CA 95815
916/927-2400
Fax: 916/567.0120
All that certain real property situate In the City of Yuba City, County of Sutter, State of California, described as follows:
A portion of the Northeast one-quarter of the Northeast one-quarter of Section 28, Township 15 North, Range 3 East, M.D.B.&M., more particularly described as follows:
BEGINNING at the Northeast comer of the parcel to be described hereby from which the Northeast comer o1 said .Section 28 bears the following four (4) courses: (1) North 89"52'06" East 166.28 feet; (2) North 19"59'12" West 16.n feet; (3) North 00"35'00" East
16.50 feet and (4) South 89"46'28" East 123.00 feet; thence from the point of beginning South 00"07'54" East 136.60 feet; thence South 89"52'06" West 324.00 feet; thence North 00"07'54" West 92.00 feet; thence North 89"52'06" East 15.50 feet; thence North 00"07'54" West 44.60 feet; thence North 89"52'06" East 308.50 feet to the point of beginning.
850150 3118197
~0086
. ' .. . ,
EXHIBIT"A"
PROPERTY DESCRIPTION
PROPOSED PARCEL 8
MORTON 1: PITALO, INC.
CMI Engineering Planning Surveying
1788 Trtbu!e Road. Sulle 200
Sacramento. CA 95815
916/927-2400
Fox: 916/567.0120
All that certain real property situate in the City of Yuba City, County of Sutter, State of California, described as follows:
A portion of the Northeast one-quarter of the Northeast one-quarter of Section 28, Tovmship 15 North, Range 3 Ea!>t, M.D.B.&M., more particularly described as follows:
BEGINNING at a point In the Westerly line of that certain real property described in the Grant Deed to the State of California recorded in Vol. 405, Page 118, Official Records of said County, from which the Northeast comer of said Section 28 bears the following three (3) courses: (1) North 19"59'12"West 16.77 feet; (2) North 00"35'00" East 16.50 feet and (3) South 89"46'28" East 123.00 feet; thence from the point of beginning and along said Westerly line South 19"59'12" East 71.48 feet to the Northwesterly comer of that certain real property described In the Grant Deed to the State of California recorded in Instrument No. 1997-00093, Official Records of said County; thence leaving said Westerly line and along the Westerly line of that certain real property described In said Instrument No. 1997-00093 Scutt. 00"35'00'' West 79.30 feet; thence leaving said Westerly line South 89"52'06" West 98.07 feet; thence North 00"07'54" West 146.52 feet; thence North 89"52'06" East 7 4. 78 feet to the point of beginning.
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EXHJBITE
1. During the conceptual design phase, the constructing party shall submit to the Approving Party the following:
(a) Building design single plans to indicate the following:
• Exterior wall configuration
• Doors and store front extent
• Canopies and overhands
• Probable column locations
(b) Exterior elevation drawings to indicate the following:
• Opaque wall areas with doors and store fronts
2. After approval has been granted of conceptual design phase submitted in accordance with the guidelines specified in paragraph 1 above, the constructing party shall submit final design phase plans to the Approving Party as follows:
(a) Building design plans delineating information outlined in the concept phase with the following added detail:
• Exterior wall! thickness
• Structural columns or bearing walls at building exterior and proposed foundation design at adjoining wall between abutting buildings
• Where common footings are to be shared, provide wall or column loan information for design of that footing
• Proposed roof plan showing slopes and location of penthouses or other major mechanical equipment
• References of key flashing details of roof to adjoining building • Proposed signage designs and locations
(b) Exterior elevation drawings delineating information outlined in the concept phase with the following added detail:
• Proposed building sign standards
• Paint color chips and samples of other materials such as brick or concrete aggregates (glass or aluminum finishes may be annotated Qn the elevations) • Proposed large scale details of key section conditions to show exterior design intent • Major penthouses or rooftop equipment profiles .
• Features such as special masonry patterns, bands or special materials and textures • Rain leaders or scuppers
• Wall sections at various exterior locations including at the demising wall to the adjoining building with key vertical dimensioning
3. The constructing party shall provide the Approving Party with a complete set of bid documents for the building and/ or improvements to be located on its Tract. !.0086
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Agenda Item 21
CITY OF YUBA CITY
STAFF REPORT
Date: December 17, 2024
To: Honorable Mayor & Members of the City Council;
From: Community Services Department
Presentation By: Ann Gillen, Community Services Director Summary
Subject: Parks and Recreation Commission Ordinance Update Recommendation: Adopt an Ordinance of the City Council of the City of Yuba City to repeal Chapter 1 (Parks and Recreation Commission) of Title 9 by title only and waive the second reading
Fiscal Impact: None
Purpose:
To dissolve the City’s Parks and Recreation Commission.
Background:
The Parks and Recreation Commission was established in 2002 as an advisory board for the City Council, the City Manager, and the Parks and Recreation Director in all matters pertaining to parks and recreation. At that time, the Commission recommended general policies concerning all parks and recreation properties, facilities, plans, programs, and activities to the Parks and Recreation Department. They were also established as the City’s tree advisory board. The Parks and Recreation Commission consists of five (5) members and one (1) alternate. The current Parks and Recreation Commission has 2 vacant seats, including 1 alternate.
Analysis:
The function and purpose of the Parks and Recreation Commission has evolved over time, and has been reduced to minimal activity. This has resulted in lack of attendance and participation at Commission meetings, which has prompted the City Council and staff to re-evaluate the relevancy and purpose of the Commission going forward. Over time, it has been recognized that the Community Services Department, Parks Division has the knowledge and resources needed to study the problems and determine the needs of the City in connection with its tree program.
On November 19, 2024, staff introduced an Ordinance to City Council to repeal Chapter 1 (Parks and Recreation Commission) of Title 9 by title only.
Fiscal Impact:
None
Alternatives:
Deny or modify the recommendation.
Recommendation:
Adopt an Ordinance of the City Council of the City of Yuba City to repeal Chapter 1 (Parks and Recreation Commission) of Title 9 by title only and waive the second reading Attachments:
1. Ordinance - Parks & Rec Commission 11.08.24
2. Title 9 - Parks & Recreation Commision
Prepared By: Submitted By:
Maddy Laffond
Community Services Administrative Assistant
Diana Langely
City Manager
ATTACHMENT 1
ORDINANCE NO. _____
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF YUBA CITY TO DELETE CHAPTER 1 (PARKS AND RECREATION COMMISSION)
OF TITLE 9 OF THE MUNICIPAL CODE
WHEREAS, the Parks and Recreation Commission was established in 2002 as an advisory board for the City Council, the City Manager, and the Parks and Recreation Director in all matters related to parks and recreation.; and
WHEREAS, the Community Services Department, Parks Division will take over as the City’s Tree Advisory Board; and
WHEREAS, in order to better align with Council priorities, the Council desires to dissolve the Parks and Recreation Commission and delete Chapter 1 of Title 9 of the Municipal Code.
NOW, THEREFORE, the City Council of the City of Yuba City does ordain as follows:
Section 1. The City Council expresses its appreciation for all members who have served on the Parks and Recreation Commission and their service to the Yuba City community.
Section 2. The City Council amends the Municipal Code to delete Chapter 1 of Title 9 in its entirety.
Section 3. The City Clerk shall certify the adoption of this Ordinance and cause it to be published, in accordance with Government Code, Section 36933, or as otherwise required by law.
Section 4. This Ordinance shall take effect and be in full force and effect from and after 30 days after its final passage and adoption.
Introduced, passed and adopted at a regular meeting of the City Council of the City of Yuba City on the 19th day of November, 2024.
AYES:
NOES:
ABSENT:
________________________
Shon Harris, Mayor
ATTEST:
____________________________
Ciara Wakefield, Deputy City Clerk
APPROVED AS TO FORM:
_________________________
Shannon Chaffin, City Attorney
Aleshire & Wynder, LLP
Agenda Item 22
CITY OF YUBA CITY
STAFF REPORT
Date: December 17, 2024
To: Honorable Mayor & Members of the City Council;
From: Administration Department
Presentation By: Diana Langley, City Manager
Summary
Subject: Annual Report from the Downtown Yuba City Business Improvement District and Proposed Levy of Annual Assessment for 2025
Recommendation: A. Adopt a Resolution Accepting and Approving the 2024-2025 Annual Report of the Downtown Yuba City Business Improvement District
B. Adopt a Resolution of Intention to Levy and Collect 2025 Annual Assessments and set a Public Hearing for January 21, 2025
Fiscal Impact: None related to levy and collection of annual assessments Purpose:
To provide notice and opportunity for comment regarding the 2025 Assessment Levy for the Downtown Yuba City Business Improvement District.
Council's Strategic Goal:
This item addresses Council's Strategic Goals of Business Friendly and Fiscal Responsibility.
Background:
Pursuant to Chapter 9, Title 3 of the Yuba City Municipal Code, the Downtown Yuba City Business Association (DBA) has submitted its Annual Report. The report highlights accomplishments for the past year and identifies activities and improvements to be funded for the coming year. The boundaries of the District and the assessments to be collected are consistent with previous years.
Annually, renewal of the DBA’s Business Improvement District (BID) is accomplished in a two-part process. First, the adoption of a Resolution declaring the City’s intent to levy an assessment and ordering a Public Hearing. At a subsequent meeting, a Public Hearing is held in consideration of a Resolution confirming the Annual Report and levying the assessments for 2025.
Revenue from the assessments levied in the BID is used to fund improvements and activities to promote the District. The types of activities to be funded include: promotion of public events, promotion of tourism, and activities that benefit businesses located and operating in the BID.
The DBA is charged with carrying out the activities of the BID and their key focus continues to be establishing a strong leadership structure, marketing Downtown and creating new and improved events on Plumas Street. Economic success of the downtown is a priority achieved through the combined efforts of all the businesses in the district.
Analysis:
The attached Downtown Business Association Annual Report outlines the accomplishments during the 2024 calendar year, as well as the budget for 2025. In the coming calendar year, on behalf of the DBA, the City anticipates collecting approximately $29,595 in assessments from both members and associate members. The BID is crucial to the economic success of the downtown merchants, especially as the economy has weathered increased inflation. The assessment district’s funds will market the downtown whereas some individual merchants would not be able to market on their own. The DBA is currently managing the marketing efforts for downtown and will continue to do so for the district and the future of the downtown. It is the expressed desire of the DBA that the BID assessments continue.
Fiscal Impact:
While there is no direct fiscal impact to the City related to the levy and collection of annual assessments, the funds generated through the BID are used to promote the downtown merchants, which provide sales tax revenue to the City.
Alternatives:
1. Do not levy assessments.
2. Identify alternate funding source for Downtown improvements and activities.
Recommendation:
A. Adopt a Resolution Accepting and Approving the 2024-2025 Annual Report of the Downtown Yuba City Business Improvement District.
B. Adopt a Resolution of Intention to Levy and Collect 2025 Annual Assessments and set a Public Hearing for January 21, 2025.
Attachments:
1. Resolution - DBA Annual Report-2024-25
2. Yuba City Downtown Annual Report 2024
3. Resolution - Intention to Levy 2024-25
Prepared By: Submitted By:
Diana Langley
City Manager
Diana Langley
City Manager
ATTACHMENT 1
RESOLUTION NO. ____
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF YUBA CITY ACCEPTING AND APPROVING THE 2024-2025 ANNUAL REPORT OF THE
DOWNTOWN YUBA CITY BUSINESS IMPROVEMENT DISTRICT
WHEREAS, pursuant to the Parking & Business Improvement Area Law of 1989, California Streets & Highway Code Section 36500 et seq. (the “Act”), the City Council adopted Ordinance No. 06-98 which became effective on January 1, 1999, and WHEREAS, pursuant to the Act and Section 3.9.020 of the Yuba City Municipal Code added by Ordinance No. 06-98, the City Council established a certain described parking and business improvement area named the Downtown Yuba City Business Improvement District (“District”); and
WHEREAS, pursuant to Section 3.9.030 of the Yuba City Municipal Code added by Ordinance No. 06-98, the City appointed the elected officers of the Yuba City Downtown Business Association to serve as an advisory board to the City Council (the “Advisory Board”) and authorized the City to enter into an agreement with the Advisory Board to carry out the purposes of the Act and Chapter 9 of the Yuba City Municipal Code; and WHEREAS, the Advisory Board has filed the 2024-2025 Annual Report with the City Clerk for consideration by the City Council.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF YUBA CITY DOES HEREBY RESOLVE, DETERMINE, AND FIND AS FOLLOWS:
1. The recitals set forth herein are true and correct.
2. Revenue from the assessments levied in the District shall be used to fund improvements and activities to promote the District. The types of activities to be funded include promotion of public events in the District, promotion of tourism within the District, and activities that benefit businesses located and operating in the District.
3. The 2024-2025 Annual Report contains a full and detailed description of the improvements and activities to be provided, the boundaries of the District and boundaries of each separate benefit zone within the District, and the proposed assessments to be levied upon the businesses within the area. A true and correct copy of the Annual Report is on file with the City Clerk of the City of Yuba City, which is approved by the City Council.
4. This Resolution is effective on its adoption.
I HEREBY CERTIFY that the foregoing resolution was introduced and read at a Regular Meeting of the City Council of the City of Yuba City on the 17th day of December, 2024, and was duly adopted at said meeting by the following vote:
AYES:
NOES:
ABSENT:
_______________________
Dave Shaw, Mayor
ATTEST:
______________________________
Ciara Wakefield, Deputy City Clerk
APPROVED AS TO FORM
COUNSEL FOR YUBA CITY
________________________________
Shannon Chaffin, City Attorney
Aleshire & Wynder, LLP
Attachment(s):
1. Exhibits A-I – Annual Report 2024-2025
ATTACHMENT 2
EXHIBITS A – I
Annual Report
2024-2025
To: Honorable Mayor and Members of the City Council
Cc: Diana Langley, City Manager
From: Board of Directors - Yuba City Downtown Business Association RE: 2024-2025 Annual Report
Date: November 19, 2024
1. NAME: Yuba City Downtown Business Association
2. FISCAL YEAR: January 1, 2025 to December 31, 2025
3. BOUNDARY/ZONE CHANGES: There are no proposed changes in the boundaries of the District. (See existing boundaries on Exhibit A)
4. ACCOMPLISHMENTS OF YUBA CITY DOWNTOWN BUSINESS
ASSOCIATION DURING 2024: (See Exhibit B)
5. LIST OF 2024-25 YCDBA DIRECTORS AND COMMITTEE MEMBERS (See Exhibit C)
6. LIST OF ASSOCIATE MEMBERS (See Exhibit D)
7. PROPOSED IMPROVEMENTS AND ACTIVITIES (FY2024-25) (See Exhibit E)
8. ESTIMATED 2024 EXPENSES (See Exhibit F)
9. ESTIMATED BUDGET (FY2025) (See Exhibit G)
10. AGING ACCOUNTS RECEIVABLE-COLLECTIONS (See Exhibit H)
11. BASIS OF ASSESSMENT (FY2025) (See Exhibit I)
EXHIBIT A
There are no proposed changes in the boundaries of the District.
EXHIBIT B
Yuba City Downtown Business Association
Mission of the Organization:
To preserve, promote and encourage aspiring businesses and provide a safe, clean center of culture and community life for residents and visitors alike.
Accomplishments for 2023/2024
Marketing Committee:
● Coordinated with City on Clean California Grant to include the following:
o YC Water Tower Painting and Lighting Upgrades - Completed o Downtown arch (Plumas Street/Bridge Street)
o Center Street Lighting
o YC Water Tower Park Feature
● Decreased building vacancy from 40% to 10% working with landlords and recruiting small business owners to downtown.
Events Committee:
● Enhanced current smaller events
o Trick-or-Treat attendance was over 1,200 children
o Bunny Hop attendance was over 500 children
● Creating additional smaller entertainment events
o Monthly Pub Crawls
o Sutter Buttes Brewing 2025 Octoberfest scheduled
● Partnering with other local events to be a destination ● Implemented online application for the Summer Stroll and Winter Stroll to comply with the City’s Special Event Ordinance
● Secured Center Street as a location for outside event: Folk in the Fall Music Festival
EXHIBIT C
List of 2025 Directors and Committee Members
Yuba City Downtown Business Association
YCDBA Officers
President – Ryan Henshaw, State Farm Insurance
Vice President – Natalie Syverson, Natalie Syverson Photography Treasurer –Scott Sargent, Sutter Buttes Brewing
Secretary - Marni Sanders, Blue Zones
Past President – Sandee Drown, The Happy Viking
YCDBA Board of Directors
Teresa Schmidt, Twin Cities Flooring (Events Chair)
Jake Livingood, Electronic Playground, LLC (Marketing Chair) Tiffani Heyford, Creative Interiors
Skip Bertsch, Skip’s Music Cafe
Alfredo Padilla, A & E Kings Boutique
EXHIBIT D
Associate Members
• The DBA has 16 Associate Member businesses. These are businesses that are not located downtown; however, they want to be a part of and show their support for the downtown district. The following are DBA Associate Members:
• City of Yuba City
• County of Sutter
• 5 Guys Printing, Inc.
• Budget Blinds of Yuba City
• Cookie Tree
• Daniel Gaines Insurance Agency, Inc.
• Enterprise Rancheria
• Express Personnel
• Harkey House Bed & Breakfast
• Holycross
• Recology Yuba-Sutter
• Results Radio
• Twin Rivers Polaris
• Visual Impact
• Wheeler Chevrolet
• Yuba Sutter Chamber of Commerce
Proposed Improvements and Activities
● Tree Light Designs on Plumas Street
● Additional small events on Plumas Street
● Historic Downtown Signage
● DBA Strategies Board Meeting in January, 2025
Estimated 2024 Expenses
YCDBA 2024 Budget
Association Income
DBAMembers
Associate Member Dues
Collection on Delinquent Aooiunt
lnrome from Event Insurance
lnrome Fro m Downtown Events
I n ro me from Kids even ts
I ncnme from Food and Beverage
lnrome from Sublet
Sponsorships
Total A,sociation Receipt,
Associiltlon Expenses
Credit Ca rd Proces.ing Fee,
Board Training and Seminar Expenses
Dues and Subscriptions
Insurance and Permits
Office and Computer Suppl ies
P.O. Box, Po stage and M.iiling
Collections/ Small Clalms Expense
Commercial Mar~ting/ Advertising and Promotio n
Employeee Exp 15 Hours a week@ $25 per hour
Contracted Employee -Judy
Employee Exp . 10 hours@$25 per hour per event
Employee Taxes
Employee - Werksman Comp
Event Entertainment
Event Expense -Other - signs
Event Expense • Other• Kids wne /Bock Capt
Event Expense - Refund Christmas Stro II
Equipment Re ntal
Mainten.mce
Mixer/ Annual Meeting
Newsletter
Non-Profit Status Fees and Costs
Printing and R eproductlon
Police
Rent
Serurity
Miscellan eous - Drew, ligllts
Bad Debt Expenses
Community Relations Expense• Savemart
Street Dero r
Landscape !'lld Flower Bowl maintenance
Telephone and Internet
Tax Preparation
Web.ite and Social Media
Total Association Expenses
Estimated Operation gain/loss Per category
Total BudBet
EXHIBITF
2024 Projected 2023 Actual
$ 29,500.00 $ 29,869.15
$ 4,000.00 $ 4,750.00
$ 1,500.00
$ 2,400.00 $ 1,170.00
$ 30,000.00 s 37,888.00
$ 2,700.00 $ 1,733.00
$ 2,900.00 $ 2,380.00
$ - s
$ 30,000.00 $ 28,500.00
$ 103,000.00 $ 106,290.15
$ 500.00 $ 449.32
$ 600.00 $ 246.62
$ 1,500.00 $ 2,126.55
s 12,000.00 $ 3,904.25
$ 500.00 $ 400.53
s 300.00 $ 294.20
$ 1,000.00
$ 1,200.00 $ 117.98
$ 19,500.00 $ 11,412.50
$ 8,537.50
$ 500.00
$ 1,780.50
$ 1,020.5 1
$ 13,000.00 $ 11,661.50
$ 385.04
$ 24,506.84
$ 13,000.00 $ 6,507.98
$ 500.00 $ 400.00
$ 650.00 s 804. 67
$ 457.00
$ 35.00 $ 25.00
$ 300.00 $ 425.36
$ 7,000.00 s 3,412.95
$ 4,000.00 $ 3,910.00
s 1,000.00
$ 6,000.00 $ 4,000.00
$ 4,757.62
s 49.72
s 8,500.00 $ 540 .39
$ 2,700.00 $ 675.00
$ 2,400.00 $ 2,449.90
$ 400.00 $ 289.00
$ 2,400.00 $ 1,400.00
$ 100 285.00 $ 96 948.43
$ 2,715.00 $ 9,341.72
Marketing
Committee
s 2,000.00
$ 300.00
$ 2,000.00
$ 500.00
$ 250.00
$ 500.00
s 1,250.00
$ 750.00
$ 2,000.00
Summer
Stroll
Budj;let
$ 2,000.00
$ 600.00
s 5,500.00
$ 300.00
$ 2,400.00
$ -
$ 15,000.00
$ 25,800.00
$ 167.00
s 1,300.00
$ 50.00
$ 500.00
$ 500.00
$ 8,000.00
$ 8,700.00
$ 375.00
YC
$ 360.00
$ 250.00
$ 20,202.00
$ 5,598.00
Summer
Stroll
Actual
$ 2,000.00
$ 1,170.00
$12,925.00
$ 1,733.00
$ 2,300.00
$15,000.00
$35,208.00
$ 212.50
$ 2,101.62
s 50.00
$ 496.61
$ 600.00
$ 14,038.00
$ 1,300.00
$ 1,949.00
$ 187.53
$ 3,4 12.95
$ 24,348.21
$10,859.79
Summer
Stroll 24
Budi;let
Summer
Stroll
Christmas
Stroll
+ Christmas /-
$ 2,000.00 $ - $ 2,000.00
$ -
$ -
$ 1,900.00 $ (570.00) $ 600.00
$ 13,000.00 $ (7,425.00) $ 5,500.00
$ 1,700.00 $ (1,433.00) $ 2,400.00
$ 2,400.00 $ 20.00 $ 500.00
$ - $ -
$14,000.00 $ - $ 15,000.00
$35,000.00 $ {9,408.00) s 26,000.00
$ -
$ - $ s (45.50) $ 167.00
$ -
$ - $ 2,500.00 $ (801.62) $ 1,300.00
$ .
$ 50.00 s - $ 50.00
$ -
$ 500.00 $ 3.39 $ 500.00
$ -
$ 600.00 s (100.00) $ 500.00
$17,000.00 $ {6,038.00) $ 4,000.00
$ 3,500.00
$ 2,500.00 $ 6,751.00 $ 3,000.00
s -
s
s .
$
$ 350.00 $ 187.47 $ 375.00
$ 3,500.00 s 3,500.00 $ 3,500.00
$ -
s 360.00 $ 360.0Q
$ 250.00 $ 250.00 s 250.00
s -
$ .
s
$ -
$ - s 3o, 1so.00 1 s (4,146.21)1 $ 14,002.00
$ 4,2so.oo I s (5,261.79)1 $ 11,998.00
s $ 26,000.00
Estimated Budget FY 2025
5
Customer Current 1-30 31-60 61-90 >90 Total
+# 5 Guys Printing, Inc 0.00 0.00 0.00 0.00 250.00 250.00 +# Enterprise Rancheria 0.00 0.00 0.00 0.00 250.00 250.00 +# Recology Yuba Sutter 0.00 0.00 0.00 0.00 250.00 250.00 +# Twin Rivers Polaris 0.00 0.00 0.00 0.00 250.00 250.00 +# Visual Impact 0.00 0.00 0.00 0.00 317.50 317.50
A&E Kings Boutique 0.00 0.00 0.00 0.00 385.00 385.00
Adventist Health & Rideout 0.00 0.00 0.00 0.00 180.00 180.00 Amplex Hearing Aids, Inc. 0.00 0.00 0.00 0.00 350.00 350.00 As you Whish Salon & Beauty Bar 0.00 0.00 0.00 0.00 385.00 385.00 Babies to Teen Consignment Shop 0.00 0.00 0.00 0.00 385.00 385.00 Beck's Shoes 0.00 0.00 0.00 0.00 770.00 770.00
Best Collateral 0.00 0.00 0.00 0.00 250.00 250.00
BFS Printing, Boxes, Etc. 0.00 0.00 0.00 0.00 560.00 560.00 Black Heart Tattoo & Art Gallery 0.00 0.00 0.00 0.00 770.00 770.00 Bombshell Salon 0.00 0.00 0.00 0.00 770.00 770.00
CoreCycle Fitness 0.00 0.00 0.00 0.00 65.00 65.00
Cowgirl Boutique 0.00 0.00 0.00 0.00 577.50 577.50
Cupcake Magic 0.00 0.00 0.00 0.00 770.00 770.00
Daisy Nails (KV Nails) Salon 0.00 0.00 0.00 0.00 384.98 384.98 Dhillon's Pizza 0.00 0.00 0.00 0.00 385.00 385.00
E & J Music Lounge 0.00 0.00 0.00 0.00 385.00 385.00
Erica's Hair Studio 0.00 0.00 0.00 0.00 385.00 385.00
Fernando's Cali Kitchen 0.00 0.00 0.00 0.00 285.00 285.00 Heart-N-Soul 0.00 0.00 0.00 0.00 385.00 385.00
Hola Services 0.00 0.00 0.00 0.00 735.00 735.00
Holiday Inn Express 0.00 0.00 0.00 0.00 250.00 250.00
Holly Van Duzer 0.00 0.00 0.00 0.00 180.00 180.00
Iguana's Mexican Grill 0.00 0.00 0.00 0.00 560.00 560.00 Justin's Kitchen 0.00 0.00 0.00 0.00 560.00 560.00
Kabob and Gyro Hub 0.00 0.00 0.00 0.00 285.00 285.00
Korean Karate 0.00 0.00 0.00 0.00 770.00 770.00
La Flor de Michoacan 0.00 0.00 0.00 0.00 770.00 770.00
Lee's Canton Restaurant 0.00 0.00 0.00 0.00 180.00 180.00 Linda's Soda Bar & Grill {C} 0.00 0.00 0.00 0.00 735.00 735.00 Lunaria by Shawn Maria Inc 0.00 0.00 0.00 0.00 385.00 385.00 NEXA Mortgage 0.00 0.00 0.00 0.00 250.00 250.00
Novedades Chanito Perez 0.00 0.00 0.00 0.00 770.00 770.00 Novedades Espinoza 0.00 0.00 0.00 0.00 385.00 385.00
Ocean Massage 0.00 0.00 0.00 0.00 385.00 385.00
Exhibit H
A/R Aging Summary
As of November 27, 2024
Phoenix Martial Arts 0.00 0.00 0.00 0.00 770.00 770.00
Phoenix Ridge 0.00 0.00 0.00 0.00 385.00 385.00
Plumas Barber (DrapedNTaped) 0.00 0.00 0.00 0.00 770.00 770.00 Plumas Interiors 0.00 0.00 0.00 0.00 385.00 385.00
Plumas St. Pub & Grill 0.00 0.00 0.00 0.00 560.00 560.00 Queen Penny 0.00 0.00 0.00 0.00 560.00 560.00
Queen Penny Display Shop 0.00 0.00 0.00 0.00 385.00 385.00 Righteous Ink 0.00 0.00 0.00 0.00 770.00 770.00
Royal Jewelers 0.00 0.00 0.00 0.00 385.00 385.00
Shadd's Vacuum Service 0.00 0.00 0.00 0.00 180.00 180.00 Si-Jo-Vi Stuff A Bear and Sawyers 0.00 0.00 0.00 0.00 385.00 385.00 Simply Divine Academy North 0.00 0.00 0.00 0.00 770.00 770.00 Sopa Thai {C} 0.00 0.00 0.00 0.00 1,000.00 1,000.00
Stanton Optical 0.00 0.00 0.00 0.00 770.00 770.00
Stay Faded 0.00 0.00 0.00 0.00 385.00 385.00
Studio 622 0.00 0.00 0.00 0.00 385.00 385.00
Succulent CBD 0.00 0.00 0.00 0.00 385.00 385.00
Sutter Buttes Brwg 0.00 0.00 0.00 0.00 380.00 380.00
Sutter Buttes Real Estate 0.00 0.00 0.00 0.00 350.00 350.00 Teegarden House & Event Center 0.00 0.00 0.00 0.00 385.00 385.00 The Art of Fades Studio 0.00 0.00 0.00 0.00 513.33 513.33 The Cellphone 0.00 0.00 0.00 0.00 770.00 770.00
The City Club 0.00 0.00 0.00 0.00 560.00 560.00
The Theater Gallery 0.00 0.00 0.00 0.00 770.00 770.00
Ubella Lash & Beauty 0.00 0.00 0.00 0.00 673.75 673.75
Wilbur Ellis 0.00 0.00 0.00 0.00 180.00 180.00
TOTAL $ 0.00 $ 0.00 $ 0.00 $ 0.00 $ 30,757.06 $ 30,757.06
District Assessment Formula
The Business Improvement District (BID) is a self-initiated business district funded by an annual assessment based on a formula developed by the Downtown Yuba City Business Improvement District Formation Committee. The assessments will be used to fund improvements and activities in the BID designed for economic stimulation and business enhancement for the businesses in the BID. The assessment formula is based on type, size and location of businesses in order to offer a fair and equitable charge for each business in the BID.
Retail, Restaurant and Service Businesses: Includes businesses that buy and resell goods such as clothing stores, shoe stores, office supplies, businesses that sell prepared foods and drinks, general office, news and advertising media, printers, photographers, personal care facilities and outlets, contractors, builders, service stations, repairing and servicing businesses, renting and leasing businesses, utilities, vending machine businesses, household finance companies, theaters and entertainment-oriented businesses, and other similar businesses not otherwise defined in the other categories.
Professional Business: Includes attorneys, architects, accountants, engineers, surveyors, physicians, dentists, optometrists, chiropractors and others in a medical/health service field, consultants, real estate brokers, financial advisors, laboratories (including dental and optical), hearing aid services, artists and designers, and similar businesses.
Lodging Businesses: Includes inns, hotels, motels, RV parks, and other similar businesses.
Financial Institutions: Includes banks, savings & loans, credit unions, and similar businesses.
Associate Members: Businesses outside the BID boundaries that would like to participate will be charged.
Note: Retail and restaurant businesses will be assessed on size which will be determined by number of employees, either full-time or the equivalent made up of multiples of part-time employees.
Business Type
Business Size Annual Assessment Zone
(Number of Employees) A B
Retail, Restaurant and
Service
Small (1-4) $385 $180
Medium (5-9) $560 $285
Large (10+) $735 $380
Professional Business $350 $180
Lodging Business $560 $285
Financial Business $875 $725