HomeMy WebLinkAboutCook, James F. Lease and Agreement regarding Fresno-Clovis Regional Wastewater Reclamation Facility Properties and Effluent- 4-11-2025Mill 1r11VPINOWI� WRIPIALIU1W 11111
2025-0051559
RECORDED AT THE REQUEST OF FRESNO County Recorder
AND WHEN RECORDED RETURN TO: Paul Dictos, CPA
Friday, Jun 27, 2025 03:11:16 PM
Titles: 1 Pages: 43
Fes: 0.00
CITY CLERK CAeSB2 Fee: 0.00
2600 FRESNO STREET Taxes: 0.00
FRESNO, CA 93721-3603 Total: 0.00
FRESNO CITY CLERK
SPACE ABOVE THIS LINE FOR RECORDER'S USE
This Lease and Agreement is recorded at the request and for the benefit of the City
of Fresno and is exempt from the payment of a recording fee pursuant to
Government Code Section 6103.
CITY OF FRESNO
In
Name:
Title:
LEASE AND AGREEMENT
Between
CITY OF FRESNO, CALIFORNIA, a Municipal Corporation
And
James F. Cook
Regarding
Fresno -Clovis Regional Wastewater Reclamation Facility Properties and Effluent
APNs:
327-030-22ST
327-040-08ST
327-040-11 ST
327-040-26ST
312907v6
THIS LEASE AGREEMENT (Agreement) is made and effective upon the date of final
signature, (Effective Date), by and between the City of Fresno, California, a California municipal
corporation (Lessor) and James F. Cook, an individual (Lessee).
RECITALS
A. Lessor owns the Fresno -Clovis Regional Wastewater Reclamation Facility, a publicly
owned treatment works (Facility), including certain appurtenant properties acquired by
Lessor for the future expansion of percolation and/or infiltration ponds around the Facility
which are the subject of this Lease and more specifically described below (Leased
Premises).
B. The Facility generates recycled undisinfected secondary effluent (Effluent).
C. Lessee desires to lease the Leased Premises and irrigate portions thereof with Effluent
for Lessee's cultivation of feed, fiber, seed, and food crops/products thereof to be used
solely for non -human consumption.
D. In pursuit of the public interest Lessor desires to lease the Leased Premises to Lessee
and dispose of Effluent upon the terms and conditions herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises, covenants and conditions
hereinafter contained, such parties, and each of them, do agree as follows:
1. Leased Premises. Lessor leases to Lessee, on the terms and conditions set forth in
this Agreement, the Leased Premises including any appurtenances/improvements thereon, in
"as is" condition. The Leased Premises are as shown more specifically on the Vicinity Map
attached as Exhibit A. The Leased Premises contain approximately the following:
APN 327-030-22ST, 42 acres
APN 327-040-08ST, 160 acres
APN-327-040-11 ST, 78 acres
APN 327-040-26ST, 120 acres
2. Term. The initial term of this Lease shall commence on the Effective Date and end
December 31, 2028. Subject to any earlier termination as provided in this Agreement,
the Lease may renew for one four-year option term upon the Parties' mutual written
agreement. Lessee must provide Lessor with written notice of Lessee's desire to extend
the lease no later than ninety days prior to expiration of the initial term.
2.1. Definition. The phrase, "the life of this Agreement," and all readily
identifiable variations thereof, when used in this Agreement, means the full
term of this Agreement, as specified in Section 2 above, unless this
Agreement shall be terminated earlier as herein provided. If the Agreement
is terminated earlier, said phrase and said variations thereof, shall mean the
period during which this Agreement shall be in full force and effect.
3. Termination.
3.1. This Agreement shall terminate upon the earlier of: (i) Lessor's written
notice following Lessee's filing for protection under the federal bankruptcy
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2
laws, or any bankruptcy petition or petition for receiver commenced by a third
party against Lessee; (ii) Lessor's written notice of termination following
Lessor's determination that the Leased Premises/portion thereof are
required for a public or governmental purpose; (iii) a party's written notice as
provided for in this Agreement; or (iv) expiration. Any such termination shall
not relieve a party of obligations due and owing at the time of termination.
3.2. Immediately upon any such termination, Lessee shall make re -delivery of the
Leased Premises as provided in Section 4.
3.3. Upon any termination of this Lease, Lessor shall (i) at Lessor's option, either
pay Lessee the reasonable fair market value of growing crops planted and
cultivated by Lessee, or allow Lessee to hold over (in the manner provided
for in Section 5 of this Agreement) in order to complete the next occurring
harvest of said crops at Lessee's sole cost and expense, and (ii) refund to
Lessee any unearned rental fees.
4. Re -Delivery. Upon any termination of this Lease, subject to Section 3 of this Agreement,
Lessee shall have no right(s), title or interest in or to the Leased Premises and Lessee shall
peaceably and quietly discontinue use of the Leased Premises and quit and deliver up such
to Lessor. Lessee shall be required to return the Leased Premises to the condition as when
received, ordinary wear and tear excepted. In the event Lessee fails to so return the Leased
Premises to Lessor in the condition as when received, Lessor shall, upon giving written
notice to Lessee, have the right to make all necessary restoration and invoice Lessee for
all related costs incurred. Lessee agrees to pay, upon demand, such reasonable charges
billed by Lessor pursuant to this section. The provisions of this Section shall survive
termination of this Lease.
5. Holding Over.
6. Rent
5.1. If Lessee remains in possession of and/or fails to vacate the Leased
Premises or any part thereof, on or before the expiration or termination date
of this Agreement, and thus hold over, with or without the written consent of
Lessor, such holding over occupancy shall be a tenancy from month to
month only. Such hold over tenancy may be terminated by either party upon
a minimum of thirty days advance written notice upon the other party. The
holdover tenancy shall then terminate effective the last day of the first full
month following notice of termination.
5.2. During any hold over, Lessee agrees to pay and shall pay to Lessor monthly
rental, fees, and charges for the Leased Premises, at the rate in effect at the
time of the commencement of the hold over.
5.3. Except as otherwise specifically provided within this Section, any such
holding over shall be subject to all the terms, covenants, conditions,
restrictions, reservations, prohibitions, warranties, agreements, and
provisions of this Agreement.
6.1, Payment. Commencing on the Effective Date of this Agreement and
continuing thereafter during the term of this Agreement, as additional
consideration to the public purposes and uses underlying this Agreement,
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including disposition and recycling of Effluent, Lessee shall pay to Lessor an
annual rental fee for the Leased Premises according to the following
schedule, subject to non-renewal/earlier termination as provided in this
Agreement:
• Year 2025 $243,200 (To be prorated based on Effective Date)
(Effective Date through December 31, 2025)
• Year 2026 $243,200 (January 1, 2026 through December 31, 2026)
Year 2027 $243,200 (January 1, 2027 through December 31, 2027)
• Year 2028 $243,200 (January 1, 2028 through December 31, 2028)
• Year 2029 $243,200 Option 1 Extension for 4 years — Year 1 of 4
• Year 2030 $243,200 Extension Year 2 of 4
• Year 2031 $243,200 Extension Year 3 of 4
Year 2032 $243,200 Extension Year 4 of 4
6.2. Total annual rental fee in each year hereunder shall be due and payable in
advance in four (4) equal installments ($60,800 each) due and payable on
each January 15th; April 15th; July 15th; and October 15th hereunder. The
annual rental fees due hereunder for any period less than a full calendar year
shall be prorated.
6.3. Late Charge. Rent shall be considered late if it is not received by Lessor
within ten calendar days after the due date. A monthly late payment charge
equal to ten (10) percent of the overdue amount of rent shall be added for
every month or part of a month that the rent is late. The late fee shall be
assessed as part of the rent, accruing monthly until the delinquent amount is
received by Lessor.
6.4. Place of Payment. All fees/charges due to be paid to Lessor by Lessee
hereunder shall be paid to Lessor (make check payable to City of Fresno) at
the address shown below or at such other address to which Lessor, by
service of written notice upon Lessee, may direct the payment thereof from
time to time during the term hereof:
City of Fresno- Department of Public Utilities
Wastewater Management Division
5607 W.Jensen Avenue
Fresno, California 93706-9458
7. Utilities and other Costs. During the term of this Agreement and except to any extent
otherwise expressly provided in this Agreement, Lessee shall pay all utility charges arising
from use of the Leased Premises to the extent utilities are available and necessary, except
for utility charges arising from operation of Effluent lift pumps. Lessee will pay, defend, and
hold Lessor free and harmless from all charges for utility services to the Leased Premises.
Lessee shall pay all utility charges directly to the provider before charges are delinquent.
Lessor shall not be liable for any loss, injury, or damage to person or property caused by
or resulting from any variation, interruption, or failure of utilities due to any cause
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whatsoever, and rent shall not abate as a result thereof.
All other costs, in the preparation of the Leased Premises for crops and all expenses in the
production and harvesting thereof, and all tools and labor necessary thereof for the
production and harvesting of the crops thereon, shall be incurred as the sole cost and
expense of Lessee.
8. Authorized Use of Premises and Effluent.
8.1. Authorized Uses of the Leased Premises and Effluent. Leased Premises
and Effluent shall be used exclusively for cultivating and harvesting fiber,
feed, and seed crops for non -human consumption. Except to any extent
expressly provided for in this agreement, Lessee shall bear all costs incurred
by it to use the Leased Premises and Effluent for this purpose.
8.2. Required Use of Effluent. Lessee shall be required to use recycled
undisinfected secondary Effluent made available by Lessor, at no cost to
Lessee. If there is a need to use other source(s) of irrigation water, Lessee
may do so at Lessee's expense upon Lessor's prior written consent. Lessee
shall pay all other water charges, electrical charges, or taxes in connection
with the delivery of well and/or Fresno Irrigation District water.
8.3. Good Farming Practices. Lessee shall, at all times, act in a good farmer
like manner and in accordance with the best practices in the area and shall
use its best endeavors and skills to operate a clean and efficient business.
Without limiting the foregoing and unless otherwise expressly provided in
this Agreement, Lessee shall (i) keep down and control the growth of noxious
weeds and grasses on the Leased Premises including non-farmable areas,
fence lines, and road rights of way, if any, provided that Lessee shall
cooperate to keep down and control the growth of noxious weeds and
grasses on non-farmable portions of the Leased Premises. Lessee
acknowledges that weeds become problematic if not checked. The Lessor,
after 15 days' notice to Lessee to abate noxious weeds on the Leased
Premises, will abate such weeds at Lessee's expense, including the cost of
any administrative fees associated with such abatement; and (ii) Lessee
shall abide by all legal and regulatory requirements of the Facility, the
requirements of the California Regional Water Quality Control Board
(CRWQCB), and the requirements of the California Code of Regulations
(CCR) Title 22, summarized in Exhibit B to this Agreement, as such may be
amended from time to time. Without waiving any rights or remedies available
to Lessor in law and equity, Lessee shall reimburse Lessor for any fines or
penalties imposed by regulatory agencies, and any costs associated with
said action, resulting from Lessee's violation of any such requirements
contained herein.
8.4. Reporting of Applications to Soil. In addition to any other reports required
by law, Lessee shall submit to Lessor, on a quarterly basis„ as well as the
year subsequent to the end of the Lease term, and at other times upon the
Lessor's written request, (i) an estimated accounting of all nitrogen
supplements used on the Leased Premises, together with a listing of all
fertilizers, herbicides, soil amendments, the types of crops and the amount
of acreage for each during the term of this Agreement, and (ii) any information
312907v6
5
necessary to comply with the reporting requirements of California Regional
Water Quality Control Board (CRWQCB) Order No. R5-2018-0080 Waste
Discharge Requirements for the Fresno -Clovis Regional Wastewater
Reclamation Facility, and any subsequent order(s) issued by the CRWQCB
pertaining to recycled water. A copy of CRWQCB Order No. R5-2018-0080
for the Facility is available from Lessor upon request. This provision shall
survive expiration or termination of this Agreement.
8.5. Limitations on Use of Leased Premises and Effluent.
8.5.1. Lessee shall neither use, suffer, nor permit the use of the Leased
Premises and Effluent for any improper, immoral, unlawful, or
unauthorized purpose(s).
8.5.2. Lessee shall neither use, suffer, nor permit the use of the Leased
Premises and Effluent for any purpose nor allow any activity therein
which would create a nuisance.
8.5.3. Except to the extent required by good farming practices as consented
to in advance by Lessor, Lessee shall not construct improvements
upon the Leased Premises or alter, improve, remove trees from or
add to the Leased Premises or any existing structure on such
Premises. Lessee may not change, modify, add, or remove any
improvements from the Leased Premises.
8.5.4. Lessee shall not plant or cultivate food crops for human consumption.
8.5.5. Lessee shall not place a mobile residence that is intended to be
occupied as a residence on the Leased Premises.
8.5.6. Lessee may store equipment used for the crops being grown on the
Leased Premises for the term of this Agreement. Stored equipment
shall not block any roadways.
8.5.7. Lessee may store bailed hay crops in the vicinity of the Leased
Premises. All bailed hay crops must be stacked in an orderly manner
and may not be stored on roadways and shall not interfere with
Lessor's daily activities. Any bail storage that is considered an
interference will be removed at Lessee's expense, including an
administrative fee.
8.6. Conflict Between "Authorized" and "Unauthorized" Uses. With respect
to any use of the Leased Premises and Effluent which may be contemplated
or undertaken under authority of this Agreement, if any such use may, in any
way whatsoever, reasonably be deemed to involve a conflict between
"Authorized" and "Unauthorized" uses as set forth herein, the prohibitions,
restrictions and limitations set forth within this Agreement shall, in any and
all such cases, prevail, and no "unauthorized" use of the Leased Premises,
in whole or in part, shall be undertaken by Lessee or Lessee's successors or
assigns, employees, agents, representatives unless and until such use is
limited to the degree/extent necessary to eliminate any element/portion
thereof giving rise to any such conflict.
8.7. Mortgage of Crops and Agricultural Liens. As further consideration for,
312907v6
6
9. Taxes.
and to secure rights and benefits granted to Lessee hereunder, Lessee
agrees to execute an agricultural lien and/or financing statement documents
upon the reasonable request of Lessor. It is anticipated that Lessee may
finance some or all of the growing of crops on the Leased Premises by a
crop loan. Lessor agrees to subordinate any security interest or lien it may
hold with respect to any crops grown on the Leased Premises to a third -party
crop financing.
9.1. Personal Property Taxes. Lessee shall pay, before delinquency, all taxes,
assessment, and other charges levied or imposed by any governmental
entity on any part or all of the personal property of Lessee that Lessee places
in, on, or about the Leased Premises.
9.2. Real Property Taxes. Lessee agrees to pay, before delinquency, as and
when due, any and all real property taxes, assessments, or charges for or
on the Leased Premises, including without limitation, possessory interest
taxes, that any government entity may levy or assess against the Leased
Premises. Taxes include, without limitation, any special assessments
imposed on or against the Leased Premises for any Lessee improvements
to the Leased Premises.
9.3. Possessory Interest. Notification to Lessee pursuant to California Revenue
and Taxation Code Section 107.6: A possessory interest subject to property
taxation may be created by entering into this Agreement and Lessee may be
subject to the payment of property taxes levied on such interest. Any interest
in real property that exists because of possession, exclusive use, or a right
to possession or exclusive use of land owned by the Lessor, and any
improvements thereon, is a taxable possessory interest unless the
possessor is exempt from taxation. With regard to any possessory interest
to be acquired by Lessee under this Agreement, Lessee, by its signature
hereunto affixed, warrants, stipulates, confirms, acknowledges and agrees
that, prior to its executing this Agreement, Lessee either took a copy of this
Agreement to the office of the Fresno County tax assessors or by some other
appropriate means independent of the Lessor or any employee, agent, or
representative of Lessor determined, to Lessee's full and complete
satisfaction, how much Lessee will be taxed, if at all.
9.4. Lessor Protection Against Taxes. Lessee shall indemnify, defend, and
hold Lessor harmless from any liability for personal and real property taxes
and assessments including, without limitation, any interest, penalty, or other
expense relating to the taxes and assessments, and from any lien therefore
or sale or other proceeding to enforce payment thereof.
10. Obligations of Lessee.
10.1. Alterations/Additions/Modifications/Improvements. Lessee shall not
make any alterations, additions, modifications, or improvements in, on, or to
any part of the Leased Premises, at any time during the term of this
Agreement, for any purpose whatsoever, unless consented to in advance by
Lessor.
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10.2. Inspection/Acceptance of Leased Premises. Lessee expressly warrants,
stipulates, acknowledges, agrees, and/or represents to Lessor as set forth
within the following sub -paragraphs of this paragraph:
10.2.1. Inspection and Examination of Leased Premises by
Lessee. Prior to executing this Agreement, Lessee inspected and
examined the Leased Premises and any improvements located in
and/or on same and the facilities appurtenant thereto and
determined and/or was assured, by means independent of Lessor
or any employee, agent, or representative of Lessor, to Lessee's full
and complete satisfaction, the condition thereof, and Lessee also
determined or was assured, to Lessee's full and complete
satisfaction, by means independent of Lessor or any employee,
agent, or representative of Lessor, of the truth of all facts material
to this Agreement, and this Agreement is/was executed by Lessee
as a result of Lessee's inspection and investigation and not as a
result of any representations made by Lessor or any employee,
agent, or representative of Lessor.
10.2.2. Acceptance of Leased Premises by Lessee in "as is"
Condition. Neither Lessor nor any agent for Lessor has made any
representation or promise regarding the Leased Premises, except
as expressly set forth in this Agreement. Lessor is leasing the
Leased Premises to Lessee in "AS IS" condition, subject to Lessor's
obligations to maintain only those portions of the Leased Premises
as set forth in this Agreement. Lessee has inspected the Leased
Premises and by taking possession accepts the Leased Premises
"AS IS," having exercised reasonable due diligence to discover any
facts or conditions regarding the Leased Premises that are within
Lessee's attention, observation, actual and constructive notice.
10.3. Liability For Damage. Lessee shall be liable for and shall promptly repair
any damage to the Leased Premises where such damage shall be
attributable to any act or omission on the part of Lessee, Lessee's
employees, contractors, subcontractors, agents, representatives,
associates, guests, and/or invitees. Should Lessee fail or be unable to
promptly affect any such repairs, Lessor shall have the right to make such
repairs, and Lessee agrees to reimburse Lessor for all reasonable costs of
such repairs, including reasonable administrative costs.
10.4. Maintenance/Repair of Leased Premises.
10.4.1. Maintenance and Repair Costs. Lessee shall keep the Leased
Premises and all its fixtures, equipment, and personal property in a
clean and orderly condition and appearance. Lessee shall undertake
at its sole cost and expense such maintenance and repairs, in a
reasonable and timely manner consistent with the circumstances, as
shall be required in order to maintain any pumps, pipelines, stand
pipes, and ditches on the Leased Premises (Premises
Improvements) in a good operating condition, provided that such
obligation shall not extend to Major Repair Events and Major Repair
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Costs as defined below and except that Lessee shall not be
responsible for normal wear and tear. Lessee shall be responsible for
any damage to the Premises Improvements resulting from Lessee's
negligence or willful misconduct.
Lessee shall use equipment in good repair that complies with
applicable regulations. Equipment must be free of leaking fluids. If
any fluids leak from the equipment or during servicing, the Lessee
shall notify the Lessor within 24 hours, specifying the type and
volume of the fluid. Lessee will be responsible for removing any soil
contaminated due to fluid leaks.
10.4.2. Major Repair Events and Costs. For the purpose of this
Agreement, a "Major Repair Event" shall consist of any of the
following in connection with the Premises Improvements, but not the
Effluent Improvements: (a) Overhaul of any pump and/or motor; (b)
Replacement of the pump bowls; (c) Repair or replacement of
standpipes or pipelines; or (d) Repair or replacement of stand pipe
gates and/or valves.
"Major Repair Costs" shall mean all expenses arising from a
Major Repair Event. Lessor shall undertake in a reasonably and
timely manner consistent with the circumstances, repairs and
replacements due to a Major Repair Event, unless the parties
negotiate otherwise. No party to this Agreement shall be in any
way obligated to enter into, continue, or conclude any such
negotiations. Lessee may agree or not agree to share in the
Major Repair Costs in its sole and absolute discretion. Lessor
shall be responsible for any damage to the Premises
Improvements resulting from Lessor's negligence or willful
misconduct.
Lessor at its sole cost and expense shall be responsible for
replacement or reconditioning of pumps and related
improvements used for the distribution of Effluent, the "Effluent
Improvements."
10.5. Disposable Waste. Lessee shall make proper arrangement for the disposal
of any and all solid or liquid waste which may result from or be incidental to
Lessee's use of the Leased Premises
10.6. Control of Hazards and Nuisances. Unless otherwise expressly provided
in this Agreement, Lessee shall keep the Leased Premises and each and
every part thereof in a neat, clean, and orderly condition, and shall prevent
the accumulation of, and shall maintain said Leased Premises free from
any refuse or waste materials which might be or constitute a potential
health, environmental, or fire hazard or public or private nuisance. Lessee
in its pursuit hereof shall not cause or knowingly permit to occur any
violation of any federal, state, or local law, ordinance, or regulation now or
hereafter enacted, related to environmental conditions in, on, under or
about the Leased Premises, or arising from Lessee's use(s) or
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occupancy(ies) thereof, including, but not limited to, soil and ground water
conditions.
11. Lessor's Right to Enter and to Emergency Discharge of Effluent. Lessor's
representatives shall have the right to enter upon all or any part of the Leased Premises
at any and all reasonable hours on any day of the week for any lawful purpose(s)
including: (i) the purpose of determining whether or not Lessee is complying with the
provisions hereof and fulfilling its obligations hereunder; (ii) the purpose of inspecting
same; (iii) the purpose of making any required repairs of an emergency nature to which
Lessee cannot adequately respond; and (iv) to perform soil sampling and testing.
Lessee understands that Lessee may be billed by Lessor for the full cost of performing
such repairs.
Lessee acknowledges and agrees that in the event of an emergency, Lessor shall have
the absolute right to discharge treated Effluent onto the Leased Premises, at any time
and in any amount, provided that Lessor shall reimburse Lessee for any actual damages
incurred by Lessee resulting directly and proximately from said emergency discharge
and further provided that Lessor shall abate and refund rental fees on the affected
acreage for the period such acreage is rendered unusable for Lessee's purposes
hereunder. Lessor shall have no other or further liability, responsibility or obligation to
Lessee as of result of such emergency discharge of Effluent. In this regard Lessee
understands and voluntarily agrees to assume the risk inherent in farming in an area
subject to discharge of Effluent.
12. Default.
12.1. Default by Lessor. Lessor shall not be in default unless Lessor fails to
perform obligations required of Lessor under this Lease within a reasonable
period of time, but in no event later than thirty days after written notice is
served upon Lessor by Lessee specifying wherein Lessor has failed to
perform any such obligation; provided, however, that if the nature of
Lessor's obligation is such that more than thirty days may reasonably be
deemed to be required for performance, then Lessor shall not be in default
if Lessor commences performance within such thirty day period and
thereafter diligently prosecutes the same to completion.
12.2. Default by Lessee.
12.2.1. Defaults. The occurrence of any of the following events shall
constitute a material default and breach of this Agreement by
Lessee:
12.2.1.1. The vacating or abandonment of the Leased Premises by
Lessee.
12.2.1.2. The failure by Lessee to use the Leased Premises for
lawful purposes only and/or failure by Lessee to comply
with or observe any statute, law, ordinance, rule,
regulation, standard or requirement of any federal, state,
or local government entity with respect to Lessee's
occupancy(ies) and/or use(s) of any part or all of the
Leased Premises, as such statutes, laws, ordinances,
rules, regulations, standards or requirements exist(ed)
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on the commencement date of the term hereof or as such
may exist at any time and from time to time during the life
hereof, where any such failure shall be evidenced by
either a finding or judgment of any court of competent
jurisdiction or where any such shall be admitted by
Lessee in any proceeding brought against Lessee by any
government entity.
12.2.1.3. The inability of and/or failure by Lessee to obtain, pay for,
and maintain in full force and effect at all times during the
life of this Agreement, without any lapse in coverage,
such insurance and surety as shall be required of Lessee
hereunder.
12.2.1.4. The occurrence of any of the following:
12.2.1.4.1. Lessee's becoming insolvent, or failing
in business, or the making by Lessee of any
general arrangement or an assignment for the
benefit of creditors;
12.2.1.4.2. The filing by or against Lessee of a
petition to have Lessee adjudged as bankrupt
or a petition for reorganization or arrangement
under any law relating to bankruptcy (unless, in
the case of a petition filed against Lessee, the
same is dismissed within sixty days);
12.2.1.4.3. The appointment of a receiver to take
possession of substantially all of Lessee's
assets located in or on the Leased Premises or
of Lessee's interest in this Agreement, where
possession is not restored to Lessee within
thirty days; or
12.2.1.4.4. The attachment, execution or other
judicial seizure of substantially all of Lessee's
assets located in or on the Leased Premises or
of Lessee's interest in this Agreement, where
such seizure in not discharged within thirty
days.
12.2.1.5. Any attempted/purported hypothecation, encumbrance,
sale, assignment, or transfer of this Agreement, in whole
or in part, and/or any of Lessee's rights, title and interests
in or to any part or all of the Leased Premises and
Effluent and/or in or to any part or all of the improvements
and appurtenances thereto which exist(ed) therein or
thereon at the Effective Date of this Agreement or which
may at any time and from time to time be
constructed/installed therein or thereon during the life of
this Agreement, or any attempted/purported sub-
letting/renting of any part or all of the Leased Premises
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and Effluent by Lessee to any other person or entity
whomsoever, or Lessee's following any occupancy/use
of the Leased Premises, in whole or in part, by any
person/entity, other than Lessee, without Lessor's prior
written consent pursuant to and in conformity with the
provisions of this Agreement.
12.2.1.6. The failure by Lessee to make any payment of rent or any
other required payment, as and when due hereunder,
where such failure shall continue for a period of ten days
following service of notice thereof upon Lessee by
Lessor.
12.2.1.7. The failure by Lessee to keep, observe, undertake, fulfill,
or perform any of the terms, covenants, conditions,
warranties, agreements, obligations, and/or provisions of
this Agreement to be kept, observed, undertaken,
fulfilled, and/or performed by Lessee, other than those
hereinabove within sub -paragraphs 12.2.1.1 through
12.2.1.6 of Section 12, where such failure shall continue
for a period of thirty days following service of notice
thereof upon Lessee by Lessor; provided, however, that
if the nature of Lessee's default is such that more than
thirty days are reasonably required for its cure, then
Lessee shall not be deemed to be in default and breach
of this Agreement if Lessee commenced such cure within
said thirty day period and thereafter diligently prosecutes
such cure to completion as soon as reasonably possible
following service of such notice upon Lessee by Lessor.
12.3, Lessor's Remedies.
12.3.1. Abandonment. If Lessee abandons the Leased Premises,
this Agreement shall continue in effect. Lessor shall not be
deemed to terminate this Agreement as a result of such material
default and breach other than by written notice of termination
served upon Lessee by Lessor, and Lessor shall have all of the
remedies available to Lessor under Section 1951.4 of the
California Civil Code so long as Lessor does not terminate
Lessee's right to possession of the Leased Premises, and Lessor
may enforce all of Lessor's rights and remedies under this
Agreement, including the right to recover the rent as it becomes
due under the Agreement. After abandonment of the Leased
Premises by Lessee, Lessor may, at any time thereafter, give
notice of termination.
12.3.2. Termination. In addition to the terms set forth in Section 3,
upon the occurrence of any material default and breach of this
Agreement by Lessee as set forth within sub -section 12.2.1
above, Lessor may then immediately, or at any time thereafter,
terminate this Agreement by service of a minimum of ten days
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12
advance written notice to such effect upon Lessee. The exact
termination date shall be specified within such notice.
12.3.2.1. Such notice shall, at a minimum, set forth the
following:
12.3.2.1.1. The default and breach which
resulted in such termination by Lessor;
and
12.3.2.1.2. A demand for possession, which,
in the event only ten days advance
notice shall be given by Lessor, shall
be effective at 12:00:01 a.m., on the
eleventh calendar day following the
date on which the notice in which such
demand is contained shall be
sufficiently served upon Lessee by
Lessor in conformity with the
provisions of subsection 16.2 of this
Agreement; or, if more than the
minimum number of days advance
notice shall be given, at 12:00:01 a.m.,
on the next day following the date
specified within such notice as being
the date of termination hereof.
12.3.2.2. Such notice may contain any other notice which
Lessor may, at its option, desire or be required to
give (e.g., "Demand for Payment" of any and all
monies due and owing).
12.3.3. Possession. Following termination of this Agreement by
Lessor pursuant to any of the provisions of subsection 12.2,
without prejudice to other remedies Lessor may have by reason
of Lessee's default and breach and/or by reason of such
termination, Lessor may:
12.3.3.1. Peaceably re-enter the Leased Premises upon
voluntary surrender thereof by Lessee; or
12.3.3.2. Remove Lessee and/or any other persons and/or
entities occupying the Leased Premises
therefrom, and remove all personal property
therefrom and store all such property not
belonging to Lessor in a public warehouse or
elsewhere at the cost of and for the account of
Lessee, using such legal proceedings as may be
available to Lessor under the laws or judicial
decisions of the State of California; or
12.3.3.3. Repossess the Leased Premises or relet the
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13
Leased Premises or any part thereof for such term
(which may be for a term extending beyond the
term of this Agreement) at such rental and upon
such other terms and conditions as shall be
determined solely by Lessor, with the right to make
reasonable alterations and repairs to the Leased
Premises.
12.3.4. Recovery. Following termination of this Agreement by
Lessor pursuant to any of the provisions of subsection 12.2,
Lessor shall have all the rights and remedies available to Lessor
under Section 1951.2 of the California Civil Code. The amount of
damages Lessor may recover following such termination of this
Agreement shall include:
12.3.4.1. The value at the time of award of the unpaid rent
which had been earned at the time of termination
of this Agreement;
12.3.4.2. The value at the time of award of the amount by
which the unpaid rent which would have been
earned after termination of this Agreement until
the time of award exceeds the amount of such
rental loss that Lessee proves could have been
reasonably avoided;
12.3.4.3. The value at the time of award of the amount by
which the unpaid rent for the balance of the term
after the time of award exceeds the amount of
such rental loss for the same period Lessee
proves could be reasonably avoided; and
12.3.4.4. Any other amount necessary to compensate
Lessor for all the detriment proximately caused by
Lessee's failure to perform Lessee's obligations
under this Agreement or which in the ordinary
course of things would be likely to result therefrom.
12.3.5. Additional Remedies. Following the occurrence of any
material default and breach of this Agreement by Lessee as set
forth within subsection 12.2.1, above, in addition to the foregoing
remedies, Lessor may maintain Lessee's right to possession, in
which case this Agreement shall continue in effect whether or not
Lessee shall have abandoned the Leased Premises and, so long
as this Agreement is not terminated by Lessor or by a decree of
a court of competent jurisdiction, Lessor shall be entitled to
enforce all of Lessor's rights and remedies hereunder, including
the right to recover the rent as it becomes due under this
Agreement, and, during any such period, Lessor shall have the
right to remedy any default of Lessee, to maintain or improve the
Leased Premises without terminating this Agreement, to incur
expenses on behalf of Lessee in seeking a new sub -tenant, to
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14
cause a receiver to be appointed to administer the Leased
Premises and any new or existing sub -leases and to add to the
rent payable hereunder all of Lessor's reasonable costs in so
doing, with interest at the maximum reasonable rate then
permitted by law from the date of such expenditure until the same
is repaid.
12.3.6. Other. In the event Lessee causes or threatens to cause a
breach of any of the covenants, terms or conditions contained in
this Agreement, Lessor shall be entitled to invoke any remedy
allowed at law, in equity, by statute or otherwise as though re-
entry, summary proceedings and other remedies were not
provided for in this Agreement.
12.3.7. Cumulative Remedies. Each right and remedy of Lessor
provided for in this subsection 12.3 or now or hereafter existing
at law, in equity, by statute or otherwise shall be cumulative and
shall not preclude Lessor from exercising any other rights or from
pursuing any other remedies provided for in this Agreement or
now or hereafter available to Lessor under the laws or judicial
decisions of the State of California.
12.3.8. Indemnification. Nothing contained within this subsection
12.3 affects the right of Lessor to indemnification by Lessee, as
herein elsewhere provided, for liability arising from personal
injuries or property damage prior to the termination of this
Agreement.
13. Destruction Of Improvements.
13.1. General. Other than as provided for in subsection 10.4, in the event that any
or all of the improvements located in or on the Leased Premises, or any part
thereof, shall be partially or totally destroyed at any time during the life
hereof, the respective rights and obligations of the parties hereto with respect
to the reconstruction, restoration, and/or repair of such improvements, and
with respect to the matter of the continuance or termination of this Agreement
following any such destruction, shall be controlled by the provisions of this
Section 13.
13.2. Definitions. For the purposes of this Agreement, the following definitions
shall apply:
13.2.1. Partial Destruction: As used in this Agreement "partial
destruction," shall mean a destruction of any improvements to
such an extent that the then currently estimated total costs of
restoring the destroyed improvements to as good a condition of
habitability and/or usability (for those certain uses as herein
authorized) as existed immediately prior to the occurrence of any
such destruction shall not exceed fifty percent of the then
currently estimated total replacement cost of the destroyed
improvements (excluding land and personal properties.)
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13.2.2. Total Destruction: As used in this Agreement "total destruction," shall
mean a destruction of any improvements to such an extent that the
then currently estimated total costs of restoring the destroyed
improvements to as good a condition of habitability and/or usability
(for those certain uses as herein authorized) as existed immediately
prior to the occurrence of any such destruction shall exceed fifty
percent of the then currently estimated total replacement cost of the
destroyed improvements (excluding land and personal properties.)
13.3. Notice by Lessee. Lessee shall notify the Lessor of any instance of damage
to or destruction of the Leased Premises immediately upon Lessee's
becoming aware of any such an occurrence.
13.4. Partial And/or Total Destruction as the Result of a Negligent or Willful
Act by Lessee. In the event any or all of the improvements located in or on
any part or all of the Leased Premises shall, at any time during the life hereof,
suffer either partial or total destruction, if such destruction shall be the result
of any negligent or willful act by Lessee, this Agreement shall continue in full
force and effect, without any abatement of rent, and Lessee shall, at Lessee's
expense, promptly commence the reconstruction, restoration, replacement,
and/or repair of such improvements and shall diligently prosecute and
complete said reconstruction, restoration, replacement, and/or repair, within
a reasonable period of time, so as to restore said improvements to as good
or better condition of habitability and/or usability (for those certain uses as
herein authorized) as existed immediately prior to the occurrence of any such
destruction.
13.5. Partial and/or Total Destruction Not the Result of a Negligent or Willful
Act by Lessee.
13.5.1. Partial Destruction Not Substantially Interfering with Lessee's
Occupancy and Use of Premises.
13.5.1.1. In the event the Leased Premises shall be partially
destroyed and such destruction shall have been caused
by other than a negligent or willful act by Lessee and
Lessee shall determine that such destruction does not
substantially interfere with Lessee's occupancy and use
of the Leased Premises or Lessee's operations therein
and thereon, Lessee shall, within ten days following the
occurrence of any such destruction, serve Lessor with
written notice of such determination along with Lessee's
request that Lessor restore such partially destroyed
improvements. Upon service of any such notice and
request by Lessee, Lessor, within thirty days after the
date of any such destruction, shall, at Lessor's option,
either:
13.5.1.1.1. Serve Lessee with written notice of
Lessor's intent to restore said premises, at
Lessor's expense, to substantially the same
condition as existed just prior to the
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occurrence of such destruction (except for
Lessee's fixtures, equipment and/or Lessee -
installed improvements which Lessor shall not
be obligated to replace, repair, and/or restore),
in which event, subject to the provisions of
subsection 13.6, below, this Agreement shall
continue in full force and effect; or
13.5.1.1.2. If Lessor determines that
restoration is not fiscally prudent,
Lessor shall serve Lessee with a
minimum of thirty days but not more
than sixty days advance written notice
of cancellation and termination of this
Agreement, in which event, subject to
the provisions of subsection 13.5.1.3,
below, this Agreement shall be
canceled and terminated as of the date
specified within such notice.
13.5.1.2. If for any reason Lessor shall fail to provide Lessee with
notice pursuant to the provisions of either subsection
13.5.1.1.1 or 13.5.1.1.2, above, within the period of time
allowed therefore, or in the event Lessor shall serve
Lessee with notice pursuant to the provisions of
13.5.1.1.1, above, and shall either fail to commence such
repair and restoration within sixty days following the date
of any such destruction, or, if commenced during such
period, shall fail to fully repair, reconstruct and/or restore
the Leased Premises within one hundred twenty days
following the date of such destruction, then, in either such
event, at any time prior to completion of the repairs,
reconstruction, and/or restoration by Lessor, Lessee
shall have the right to cancel and terminate this
Agreement by service of a minimum of 30 days advance
written notice upon Lessor to this effect, in which event,
notwithstanding Lessor's commencement or completion
of the required work following service of such notice by
Lessee, this Agreement shall be canceled and
terminated as of the date specified within Lessee's notice
to Lessor.
13.5.1.3. In the event Lessor serves Lessee with notice of
Agreement cancellation and termination as provided for
in subsection 13.5.1.1.2, above, Lessee shall have the
right, within thirty days following service of such notice
upon Lessee, to serve written notice upon Lessor of
Lessee's intention to repair such destruction at Lessee's
cost and expense, without any reimbursement from
Lessor, in which event, subject to the provisions of
312907v6
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subsection 13.6, below, this Agreement shall continue in
full force and effect, and Lessee shall proceed to make
such repairs as are required to restore the Leased
Premises, as soon as reasonably possible, to
substantially the same condition as existed just prior to
the occurrence of such destruction. If Lessee does not
serve such notice within said thirty -day period, this
Agreement shall then be canceled and terminated, as of
the date specified in Lessor's notice to Lessee.
13.5.2. Partial Destruction Substantially Interfering with Lessee's
Occupancy and Use of Premises. At any time during the life
hereof, if the Leased Premises are partially destroyed and such
destruction shall have been caused by other than a negligent or willful
act by Lessee and if such destruction may reasonably be deemed by
Lessee to substantially interfere with Lessee's occupancy and use of
the Leased Premises or Lessee's operations therein or thereon,
Lessee shall have the right to cancel and terminate this Agreement,
as of the date of such destruction, provided such right shall be
exercised by service of written notice upon Lessor to this effect within
thirty days following the date of such destruction. In the event Lessee
shall fail to make such determination and serve such notice during
such period, Lessor may then proceed pursuant to either of the
options provided Lessor within subsection 13.5.1.1.1 or 13.5.1.1.2,
above, and the provisions of subsections 13.5.1.2 and 13.5.1.3,
above, shall then become and be applicable and the actions of the
parties hereto with respect to such destruction shall then be governed
thereby.
13.5.3. Partial Destruction near End of Term. Notwithstanding the
foregoing provisions of this subsection 13.5, in the event the Leased
Premises shall be partially destroyed during the last one hundred
twenty days of the then current initial or renewal term of this
Agreement, and such destruction shall have been caused by other
than a negligent or willful act by Lessee, either party hereto may
cancel and terminate this Agreement, at any time during the
remainder of the then existing term (or option period, if any) by service
of a minimum of thirty days advance written notice to such effect upon
the other party, in which event this Agreement shall be canceled and
terminated as of the date specified within such notice.
13.5.4. Total Destruction. If the Leased Premises are totally destroyed,
at any time during the life hereof, as a result of any casualty not
caused by a negligent or willful act of Lessee, this Agreement shall
be automatically canceled and terminated as of the date of such total
destruction.
13.6. Abatement Of Rent. In the event the Leased Premises shall be partially
destroyed and such destruction shall be caused by other than a negligent or
willful act by Lessee, if Lessor or Lessee repairs or restores the Leased
Premises pursuant to the provisions of either 13.5.1.1.1, 13.5.1.3, or 13.5.2,
312907v6
18
above, the rent payable by Lessee to Lessor hereunder, for the period during
which such repairs, reconstruction, and/or restoration. continues, shall be
abated in proportion to the degree to which Lessee's use of the Leased
Premises is impaired and Lessor shall re -compute the rental to be paid by
Lessee during any such period(s) so as to require Lessee to pay rental, at
the rate(s) then applicable pursuant to the provisions of subsection 6.1, only
on that/those portion(s) of the Leased Premises then still reasonably
remaining available to Lessee for its beneficial occupancy and use during
any such period(s). Except for abatement of rent, if any, Lessee shall have
no claim against Lessor for any damage suffered by reason of any such
destruction, repair, and/or restoration.
13.7. Relief from Obligations and Equitable Adjustment of Rental Upon
Termination. Unless otherwise expressly provided in this Agreement, in the
event this Agreement shall be terminated pursuant to any of the foregoing
provisions of this Section 13, the parties hereto shall be relieved of all further
obligations, one to the other, hereunder, not accrued to the date of
cancellation and termination hereof, except that Lessee shall not be relieved
of its obligations to vacate and surrender possession of the Leased Premises
and to pay, if, as and when applicable and appropriate, prorated rental for
any and all portions of the Leased Premises occupied and/or used by Lessee
following the date of occurrence of the destruction which results in the
termination of this Agreement through the date of such termination, and
except that Lessor shall repay to Lessee any unearned rent theretofore paid
or on deposit with Lessor under this Lease not needed for crediting by Lessor
toward payment of any unpaid amount(s) due to be paid to Lessor by Lessee
pursuant to the provisions of this Agreement.
14. National Emergency and Condemnation/Eminent Domain.
14.1. Total Taking/Condemnation of Leased Premises.
14.1.1. In the event that the Government of the United States takes over
the operation of the Leased Premises or any part thereof, by
requisition or other unilateral action as the result of a national
emergency or otherwise, this Agreement shall terminate as of the
effective date of any such taking; or, if all of the Leased Premises
shall be taken by public authority pursuant to condemnation action(s)
under the laws of eminent domain, this Agreement shall terminate as
of the date of title vesting in such proceeding.
14.1.2. Unless otherwise expressly provided in this Agreement, upon
termination of this Agreement as a result of either of the events
described within subsection 14.1.1, the parties hereto shall be
relieved of any and all obligations hereunder, one to the other, which
obligations are not in default as of the date of such termination and
Lessor shall promptly return, on a pro rata basis, any then unearned
rent theretofore paid by Lessee hereunder.
14.1.3. Lessor shall not be liable to Lessee for any injury to Lessee's
business or loss of income or any other injury or loss suffered by
Lessee as a result of any such taking and/or termination.
312907v6
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14.2. Partial Taking/Condemnation of Leased Premises. In the event that only
a part of the Leased Premises shall be taken as a result of any of those
actions described in subsection 14.1.1, if such partial taking shall not
otherwise preclude Lessee's continued beneficial occupancy and use of
those portion(s) of the Leased Premises not so taken, as reasonably
determined by Lessee, this Agreement shall continue in full force and effect
and those certain parcel(s) of land so taken shall be automatically deleted
from the Premises leased by Lessor to Lessee hereunder, as of the date of
such taking and/or title vesting, and the rent then being paid to Lessor by
Lessee shall then be adjusted by taking the total rental then being paid by
Lessee pursuant to the provisions hereof on the date immediately
preceding the date of such taking and/or title vesting, and subtracting that
certain portion of rent then being paid for the portion(s) of the Leased
Premises deleted from this Agreement.
14.3. Awards. In the event that all or part of the Leased Premises shall be taken
as a result of any of those actions described in subsection 14.1.1, the rights
of the parties hereto with respect to such award(s) as shall be paid for such
taking shall be as follows:
14.3.1. Subject to subsection 14.3.2 below, Lessor shall be entitled to the
entire amount of any and all compensation awarded by reason of the
taking of the Leased Premises and any and all Lessor -owned
improvements then located therein or thereon, and Lessee waives
any right or claim to any part of said amount from Lessor or the
condemning authority.
14.3.2. Lessee shall have the right to claim and recover from the
condemning authority such compensation as may be separately
awarded or recoverable by Lessee in Lessee's own right on account
of:
14.3.2.1. The taking of or injury to any Lessee -owned
improvements then located on the Leased Premises,
including the value of the then existing leasehold interest
and to the extent of Lessee's interest therein, based on
the value of the then remaining unexpired portion of the
term of this Agreement, as said value shall be determined
in the proceedings for the taking of such operations and
awarding such compensation; and
14.3.2.2. Any and all cost or loss (including loss of business) which
may be incurred by Lessee as a result of Lessee's having
to remove Lessee's improvements and personal property
(including, but not limited to, improvements, trade fixtures
and equipment) to a new location.
14.4. Notice and Execution. Upon service of process upon Lessor in connection
with either any taking over of Leased Premises or portion thereof by the
United States Government or any condemnation or potential condemnation,
Lessor shall immediately give Lessee notice thereof in writing. Lessee shall
immediately execute and deliver to Lessor any and all instruments which
312907v6
20
may be required to fully effectuate any and all of the provisions of this Section
14 of this Agreement if, as and when any such instruments shall be required
of Lessee.
15. Indemnification, Insurance and Exemption of Lessor.
15.1. Indemnification. To the furthest extent allowed by law, Lessee shall
indemnify, hold harmless and defend City and each of its officers, officials,
employees, agents and volunteers from any and all loss, liability, fines,
penalties, forfeitures, costs and damages (whether in contract, tort or strict
liability, including but not limited to personal injury, death at any time and
property damage) incurred by City, Lessee or any other person, and from
any and all claims, demands and actions in law or equity (including
reasonable attorney's fees, litigation expenses and cost to enforce this
agreement), arising or alleged to have arisen directly or indirectly out of
performance of this Agreement. Lessee's obligations under the preceding
sentence shall apply regardless of whether City or any of its officers,
officials, employees, agents or volunteers are negligent, but shall not
apply to any loss, liability, fines, penalties, forfeitures, costs or damages
caused solely by the gross negligence, or caused by the willful
misconduct, of City or any of its officers, officials, employees, agents or
volunteers.
Lessee acknowledges that all Claims arising out of or in any way
connected with releases or discharges of a Hazardous Substance, or the
exacerbation of a Potential Environmental Hazard, occurring as a result of
Lessee or in connection with Lessee's use or occupancy of the Property,
Lessee's activities or the activities of any of Lessee's representatives, and
all costs, expenses and liabilities for environmental investigations,
monitoring, containment, abatement, removal, repair, cleanup,
restoration, remediation and other response costs, including reasonable
attorneys' fees and disbursements and any fines and penalties imposed
for the violation of any Legal Requirements relating to the environment or
human health, are expressly within the scope of the indemnity set forth
above.
Lessee's use and occupancy of the Property shall be at Lessee's sole risk
and expense. Lessee accepts all risk relating to Lessee's occupancy and
use of the Property. City shall not be liable to Lessee for, and Lessee
hereby waives and releases City from, any and all liability, whether in
contract, tort, strict liability or on any other basis, for any injury, damage,
or loss resulting from or attributable to an occurrence on or about the
Property.
Lessee shall, to the maximum extent permitted by law, indemnify, protect,
defend and hold City harmless against claims, losses, costs (including
attorneys' fees and costs), liabilities and damages resulting from the
failure of Lessee, or any of Lessee's consultants, contractors or
subcontractors, to comply with the insurance requirements set forth in this
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21
Agreement.
The provisions of this Section shall survive the expiration or termination of
this Lease.
15.2. Insurance Requirements.
15.2.1. Throughout the life of this Agreement, LESSEE shall pay for and
maintain in full force and effect all insurance as required herein with
an insurance company(ies) either (i) admitted by the California
Insurance Commissioner to do business in the State of California and
rated no less than "A-VII" in the Best's Insurance Rating Guide, or (ii)
as may be authorized in writing by CITY'S Risk Manager or his/her
designee at any time and in his/her sole discretion. The CITY, its
officers, officials, employees, agents and volunteers (hereinafter
referred to collectively as "CITY") requires policies of insurance as
stated herein shall maintain limits of liability of not less than those
amounts stated therein. However, the insurance limits available to
CITY, shall be the greater of the minimum limits specified therein or
the full limit of any insurance proceeds to the named insured.
15.2.2. If at any time during the life of the Agreement or any extension,
LESSEE or any of its subcontractors fail to maintain any required
insurance in full force and effect, all services and work under this
Agreement shall be discontinued immediately, and all payments due
or that become due to LESSEE shall be withheld until notice is
received by CITY that the required insurance has been restored to
full force and effect and that the premiums therefore have been paid
for a period satisfactory to CITY. Any failure to maintain the required
insurance shall be sufficient cause for CITY to terminate this
Agreement. No action taken by CITY pursuant to this section shall in
any way relieve LESSEE of its responsibilities under this Agreement.
The phrase "fail to maintain any required insurance" shall include,
without limitation, notification received by CITY that an insurer has
commenced proceedings, or has had proceedings commenced
against it, indicating that the insurer is insolvent.
15.2.3. The fact that insurance is obtained by LESSEE shall not be deemed
to release or diminish the liability of LESSEE, including, without
limitation, liability under the indemnity provisions of this Agreement.
The duty to indemnify CITY shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The
policy limits do not act as a limitation upon the amount of
indemnification to be provided by LESSEE. Approval or purchase of
any insurance contracts or policies shall in no way relieve from
liability nor limit the liability of LESSEE, vendors, suppliers, invitees,
contractors, subcontractors, or anyone employed directly or indirectly
by any of them.
15.2.4. Coverage shall be at least as broad as:
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1. The most current version of Insurance Services Office (ISO) Commercial General
Liability Coverage Form CG 00 01, providing liability coverage arising out of your
business operations. The Commercial General Liability policy shall be written on an
occurrence form and shall provide coverage for "bodily injury," "property damage" and
"personal and advertising injury" with coverage for premises and operations (including
the use of owned and non -owned equipment), products and completed operations, and
contractual liability (including, without limitation, indemnity obligations under the
Agreement) with limits of liability not less than those set forth under "Minimum Limits of
Insurance."
2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01,
providing liability coverage arising out of the ownership, maintenance or use of
automobiles in the course of your business operations. The Automobile Policy shall be
written on an occurrence form and shall provide coverage for all owned, hired, and non -
owned automobiles or other licensed vehicles (Code 1- Any Auto). If personal
automobile coverage is used, the CITY, its officers, officials, employees, agents and
volunteers are to be listed as additional insureds.
3. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
MINIMUM LIMITS OF INSURANCE
LESSEE, or any party the LESSEE subcontracts/contracts with, shall maintain limits of
liability of not less than those set forth below. However, insurance limits available to
CITY and each of their officers, officials, employees, agents and volunteers as additional
insureds, shall be the greater of the minimum limits specified herein or the full limit of
any insurance proceeds available to the named insured:
1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work performed
under the Agreement.
2. COMMERCIAL AUTOMOBILE LIABILITY:
$1,000,000 per accident for bodily injury and property damage.
3. WORKERS' COMPENSATION INSURANCE as required by the State of
California with statutory limits and EMPLOYER'S LIABILITY with limits of liability
not less than:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
4. PROPERTY: Limits of insurance in an amount equal to the full (100%)
replacement cost (without deduction for depreciation) of LESSEE'S business
property.
5. POLLUTION LEGAL LIABILITY with coverage for bodily injury, property
damage or pollution clean-up costs that could result from of pollution condition,
both sudden and gradual. Including a discharge of pollutants brought to the site,
a release of pre-existing pollutants at the site, or other pollution conditions with
limits of liability of not less than the following:
312907v6
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(i) $1,000,000 per occurrence; and,
(ii) $2,000,000 general aggregate per annual policy period.
UMBRELLA OR EXCESS INSURANCE
In the event LESSEE purchases an Umbrella or Excess insurance policy(ies) to meet
the "Minimum Limits of Insurance," this insurance policy(ies) shall "follow form" and
afford no less coverage than the primary insurance policy(ies). In addition, such
Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-
contributory basis for the benefit of the CITY and each of their officers, officials,
employees, agents and volunteers.
DEDUCTIBLES AND SELF -INSURED RETENTIONS
LESSEE shall be responsible for payment of any deductibles contained in any insurance
policy(ies) required herein and LESSEE shall also be responsible for payment of any
self -insured retentions.
OTHER INSURANCE PROVISIONS/ENDORSEMENTS
All policies of insurance required herein shall be endorsed to provide that the coverage
shall not be cancelled, non -renewed, reduced in coverage or in limits except after thirty
(30) calendar days written notice has been given to CITY, except ten (10) days for
nonpayment of premium. LESSEE is also responsible for providing written notice to the
CITY under the same terms and conditions. Upon issuance by the insurer, broker, or
agent of a notice of cancellation, non -renewal, or reduction in coverage or in limits,
LESSEE shall furnish CITY with a new certificate and applicable endorsements for such
policy(ies). In the event any policy is due to expire during the work to be performed for
CITY, LESSEE shall provide a new certificate, and applicable endorsements, evidencing
renewal of such policy not less than fifteen (15) calendar days prior to the expiration
date of the expiring policy.
The Commercial General, Pollution and Automobile Liability policies of insurance shall
be endorsed to name CITY, its officers, officials, employees, agents and volunteers as
additional insureds.
LESSEE shall establish additional insured status for the City and for all ongoing and
completed operations by use of endorsements providing additional insured status as
broad as that contained in ISO Form CG 20 10 11 85 or CG 20 26 04 13.
The Commercial General, Pollution and Automobile Liability policies of insurance shall
be endorsed so LESSEE's insurance shall be primary and no contribution shall be
required of City. The coverage shall contain no special limitations on the scope of
protection afforded to CITY, its officers, officials, employees, agents and volunteers.
If LESSEE maintains higher limits of liability than the minimums shown above, City
requires and shall be entitled to coverage for the higher limits of liability maintained by
LESSEE.
Should any of the required policies provide that the defense costs are paid within the
Limits of Liability, thereby reducing the available limits by any defense costs, then the
requirement for the Limits of Liability of these polices will be twice the above stated
limits.
All policies of insurance shall contain, or be endorsed to contain, a waiver of subrogation
as to CITY, its officers, officials, employees, agents and volunteers.
312907v6
24
The property insurance policy is to contain, or be endorsed to contain, the following
provisions:
1. Full replacement value of any permanent improvements on the Leased Premises,
with the CITY named as a Loss Payee.
2. The coverage shall contain:
(i) No coinsurance penalty.
(ii) No limitations or exclusions for vacancy of any part of the Premises.
(iii) No special limitations on the scope of protection afforded to City.
PROVIDING OF DOCUMENTS - LESSEE shall furnish CITY with all certificate(s) and
applicable endorsements effecting coverage required herein All certificates and
applicable endorsements are to be received and approved by the CITY'S Risk Manager
or his/her designee prior to CITY'S execution of the Agreement and before work
commences. All non -ISO endorsements amending policy coverage shall be executed
by a licensed and authorized agent or broker. Upon request of CITY, LESSEE shall
immediately furnish CITY with a complete copy of any insurance policy required under
this Agreement, including all endorsements, with said copy certified by the underwriter
to be a true and correct copy of the original policy. This requirement shall survive
expiration or termination of this Agreement. All subcontractors working under the
direction of LESSEE shall also be required to provide all documents noted herein.
SUBCONTRACTORS - -If LESSEE subcontracts or contracts any or all of the services
to be performed under this Agreement or any work on the premises, LESSEE shall be
solely responsible for ensuring that its subcontractors maintain insurance coverage at
levels no less than those required by applicable law and is customary in the relevant
industry.
15.3. Exemption of Lessor. Except to any extent expressly provided in this
Agreement, Lessee hereby specifically warrants, covenants and agrees
that Lessor shall not be liable for injury to Lessee's business or any loss of
income therefrom or for damage to the personal property of Lessee located
in or upon the Leased Premises under authority hereof, whether belonging
to Lessee, or Lessee's employees, customers, agents, contractors, sub-
contractors, tenant, sub -lessee of Lessee, or any other person
whomsoever; nor shall Lessor be liable for any injury to the person of
Lessee or Lessee's employees, agents, contractors, sub -contractors,
tenants, sub -lessees, customers, or invitees, whether or not the said
damage or injury results from conditions arising in or on any part or all of
the Leased Premises or in or on any of the improvements/facilities
appurtenant thereto or located thereon, or from other sources or places.
Lessee also covenants and agrees that Lessor shall not be liable for any
damages arising from any act or neglect on the part of any third parties.
16. General Provisions.
16.1. FSA Matters. Lessor and Lessee acknowledge that the Farm Service
Agency of the United States Department of Agriculture (FSA) has
established contract acres (formerly known as crop acreage bases) and
farm program yields for certain crops grown on the Leased Premises.
Solely for FSA purposes, the Leased Premises may be combined into
312907v6
25
another FSA farm unit as other farmland owned or leased by Lessee or any
entity in which Lessee holds a beneficial interest. In the event that Lessee
elects to participate in one or more of the farm programs administered by
FSA, Lessor agrees to execute such documents as shall be reasonably
requested by Lessee in order to participate in such programs, consistent
with constitutional and local law requirements and this Agreement. Lessee
shall comply with all applicable FSA program requirements at Lessee's
expense. Lessee also agrees to comply with all applicable FSA rules and
regulations regarding the control of weeds and erosion on all farmed and
non -farmed acres, except to any extent otherwise expressly provided in this
Agreement, and Lessee shall annually certify crops with FSA. Lessee
agrees to defend, indemnify and hold the Lessor harmless from any and all
losses, liability, claims and damages arising under this subsection 13.1.
16.2. Non -Transferability. Lessee shall not at any time sell, transfer, or assign
or sublet this Agreement and the Leased Premises, (or any specific rights
hereunder), in whole or in part, without the prior written consent of the
Lessor, which consent shall not be unreasonably withheld, provided that
solely to comply with FSA requirements Lessor's Director of Public
Utilities/designee(s) thereof and each of them may consent in
writing/execute related documents in any case of assignment or sublease,
upon the terms and conditions herein, to an immediate family member of
Lessee and each of them or to an entity in which an immediate family
member of Lessee and each of them owns in the aggregate an interest in
excess of fifty percent.
16.3. Non -Discrimination. Lessee shall not employ discriminatory practices in
the provision of services, employment of personnel, or in any other respect
on the basis of race, color, creed, religion, sex, sexual orientation, national
origin, ancestry, ethnicity, age, marital status, status as a disabled veteran
or veteran of the Vietnam era, medical condition, or physical or mental
disability. During the entire term and performance of this Agreement,
Lessee agrees as follows:
16.3.1. Lessee will comply with all laws and regulations, as
applicable. No person in the United States shall, on the grounds
of race, color, creed, religion, sex, national origin, ancestry,
ethnicity, age, marital status, status as a disabled veteran or
veteran of the Vietnam era, medical condition, or physical or
mental disability be excluded from participation in, be denied the
benefits of, or be subject to discrimination under any program or
activity made possible by or resulting from this Agreement.
16.3.2. Lessee will not discriminate against any employee or
applicant for employment because of race, color, creed, religion,
sex, national origin, ancestry, ethnicity, age, marital status, and
status as a disabled veteran or veteran of the Vietnam era,
medical condition, or physical or mental disability. Lessee shall
take affirmative action to ensure that applicants are employed,
and the employees are treated during employment, without
312907v6
26
regard to their race, color, creed, religion, sex, national origin,
ancestry, ethnicity, age, marital status, status as a disabled
veteran or veteran of the Vietnam era, medical condition, or
physical or mental disability. Such action shall include, but not be
limited to, the following: employment, upgrading, demotion or
transfer; recruitment or recruitment advertising; layoff or
termination; rates of pay or other forms of compensation; and
selection for training, including apprenticeship. Lessee agrees to
post in conspicuous places, available to employees and
applicants for employment, notices setting forth the provision of
this nondiscrimination clause.
16.3.3. Lessee will, in all solicitations or advertisements for
employees placed by or on behalf of Lessee, state that all
qualified applicants will receive consideration for employment
without regard to race, color, creed, religion, sex, national origin,
ancestry, ethnicity, age, marital status, status as a disabled
veteran or veteran of the Vietnam era, medical condition, or
physical or mental disability.
16.3.4. Lessee will send to each labor union or representative of
workers with which it has a collective bargaining agreement or
other contract or understanding, a notice advising such labor
union or workers' representatives of Lessee's commitment under
this section and shall post copies of the notice in conspicuous
places available to employees and applicants for employment.
16.4. Liens and Claims. Except to any extent expressly provided for in this
Agreement, Lessee shall not suffer or permit to be enforced against
Lessor's title to the Leased Premises, or any part thereof, any lien, claim
or demand arising from any work of construction, repair, restoration,
maintenance or removal as herein provided, or otherwise arising (except
liens, claims or demands suffered by or arising from the actions of Lessor),
and Lessee shall pay all such liens, claims and demands before any action
is brought to enforce same against said Leased Premises; and Lessee
agrees to hold Lessor and said Leased Premises free and harmless from
all liability for any and all such liens, claims or demands, together with all
costs and expenses in connection therewith. Lessor shall have the right at
any time to post and maintain on said Premises such notices as may be
necessary to protect Lessor against liability for all such liens, claims and
demands. This paragraph shall survive expiration or termination of this
Agreement.
16.5. Independent Contractor. Lessee is and throughout this Agreement be an
independent contractor and not an employee, partner or agent of the
Lessor. Neither party shall have any right to control, supervise or direct
the manner or method or choice by which the other party or its contractors
shall perform its or their work or function. However, each party shall retain
the right to verify that the other is performing its respective obligations in
accordance with the terms hereof.
312907v6
27
Neither Lessee, nor any of its officers, associates, agents or employees
shall be deemed an employee of the Lessor for any purpose. Lessee shall
not be entitled to nor shall it receive any benefit normally provided to
employees of the Lessor such as, but not limited to, vacation payment,
retirement, health care or sick pay. The Lessor shall not be responsible for
withholding income or other taxes from the payments made to Lessee.
Lessee shall be solely responsible for filing all returns and paying any
income, social security or other tax levied upon or determined with respect
to the payments made to Lessee pursuant to this Agreement.
16.6. Inability of Lessor to Perform. This Agreement and the obligations of
Lessee hereunder shall not be affected or impaired because Lessor is
unable to fulfill any of its obligations hereunder or is delayed in doing so, if
such inability or delay is caused by reason of strike, labor troubles, acts of
God, or any other cause beyond the reasonable control of Lessor.
16.7. Partnership/Joint Venture. This Agreement does not evidence a
partnership or joint venture between Lessee and Lessor. Except to the
extent expressly provided for in this Agreement, (i) the Lessor does not
grant, convey, or delegate to Lessee any tangible or intangible property
interest or express or implied agency, license, right or authority; (ii) Lessee
shall have no authority to bind the Lessor absent Lessor's express written
consent; (iii) either Party shall be free from obligations or liabilities under
contracts entered by the other; and (iv) each Party shall bear its own
costs/expenses in pursuit hereof.
16.8. Review/Examination of Agreement. Submission of this instrument by
Lessor for review, examination and/or execution by or on behalf of Lessee
does not constitute a reservation of or option to obtain a lease and this
instrument is not effective as a lease or otherwise, unless and until
authorized and executed and delivered by both Lessor and Lessee.
16.9. Interpretation of Provisions. Nothing herein contained shall be construed
or interpreted, in any manner whatsoever, as limiting, relinquishing or
waiving any of the rights of ownership enjoyed by Lessor in and to the
Leased Premises, or in any manner waiving or limiting Lessor's control over
the operation, maintenance, etc., of the Leased Premises or in derogation
of such governmental rights as Lessor possesses, except as is specifically
set forth herein.
16.10. Invalid Provisions. In the event any term, covenant, condition or provision
of this Agreement, or the application thereof to any person, entity, or
circumstance, shall to any extent be held by a court of competent
jurisdiction to be invalid, void or unenforceable, the remainder of the terms,
covenants, conditions or provisions of this Agreement, or the application
thereof to any person, entity, or circumstance, shall remain in full force and
effect and shall in no way be affected, impaired or invalidated, provided that
such invalidity, voiding or unenforceability of such covenant, condition or
provision does not materially prejudice either party in its respective rights
and obligations contained in the then remaining valid covenants, conditions
or provisions of this Agreement.
312907v6
28
16.11. Captions and Paragraph Numbers. The captions, paragraph and sub-
paragraph numbers and/or alphabetical identifiers appearing in this
Agreement are inserted solely for the purpose of convenience in reference
and in no way define, limit, construe, or describe the scope or intent of such
sections, paragraphs or subparagraphs of this Agreement nor in any way
whatsoever affect this Agreement.
16.12. Notices. Any notice required or intended to be given to either party under
the terms of this Agreement shall be in writing and shall be deemed to be
duly given if delivered personally or deposited into the United States mail,
by registered or certified mail, return receipt requested with postage
prepaid, addressed to the party to which notice is to be given at the party's
address set forth on the signature page of this Agreement or at such other
address as the parties may from time to time designate by written notice.
16.13. Personal Service. Personal service, as aforesaid, shall be deemed served
and effective upon delivery thereof. Service by mail, as aforesaid, shall be
deemed to be sufficiently served and effective as of 12:00:01 A.M., on the
fourth calendar day following the date of deposit in the United States mail
of such registered or certified mail, properly addressed and postage
prepaid.
16.14. Amendment. This Agreement may not be changed, amended, or
otherwise modified in any way whatsoever, except in writing, authorized by
Lessor and signed by both Lessor and Lessee.
16.15. Acknowledgment by Lessee. By its signature(s) hereunto affixed, Lessee
expressly acknowledges that Lessee clearly understands that neither this
Agreement, itself, nor the issuance of this Agreement by Lessor to Lessee
nor acceptance of this Agreement by Lessee constitutes, in any way
whatsoever, any agreement by or on behalf of Lessor to enter into any
further/other agreement, permit, lease, or other arrangement of any type
whatsoever, beyond the term of or in addition to this Agreement.
16.16. Interpretation. The parties acknowledge that this Agreement in its final
form is the result of the combined efforts of the parties and that, should any
provision of this Agreement be found to be ambiguous in any way, such
ambiguity shall not be resolved by construing this Agreement in favor or
against any party, but rather by construing the terms in accordance with
their generally accepted meaning.
16.17. Attorney's Fees. If either party is required to commence any proceeding
or legal action to enforce or interpret any term, covenant or condition of this
Agreement the prevailing party in such proceeding or action shall be
entitled to recover from the other party its reasonable attorney's fees and
legal expenses in addition to any other relief to which such party may be
entitled.
16.18. Exhibits. Each exhibit and attachment referenced in this Agreement is, by
the reference, incorporated into and made a part of this Agreement.
16.19. Precedence Of Documents. In the event of any conflict between the body
of this Agreement and any exhibit or Attachment hereto, the terms and
312907v6
29
conditions of the body of this Agreement shall control and take precedence
over the terms and conditions expressed within the exhibit or Attachment.
Furthermore, any terms or conditions contained within any exhibit or
Attachment hereto which purport to modify the allocation of risk between
the parties, provided for within the body of this Agreement, and shall be null
and void.
16.20. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other
remedies at law or in equity.
16.21. Non -Solicitation. Lessee represents and warrants that it has not paid or
agreed to pay any compensation, contingent or otherwise, to solicit or
procure this Agreement or any rights/benefits hereunder.
16.22. Waiver. The waiver by either party of a breach by the other of any provision
of this Agreement shall not constitute a continuing waiver or a waiver of any
subsequent breach of either the same or a different provision of this
Agreement. No provisions of this Agreement may be waived unless in
writing and signed by the party chargeable with the waiver.
16.23. Assigns/Successors. Subject to subsection 16.2, above, this Agreement
and all rights, benefits, duties, liabilities and obligations hereunder shall
inure to the benefit of, and be binding upon the parties, signatories, and
their respective principals, successors, transferees, agents, servants,
representatives and assigns.
16.24. Governing Law and Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
California. Venue for purposes of the filing of any case, controversy or
proceeding regarding the enforcement or interpretation of this Agreement
and any rights and duties hereunder shall be Fresno County, California.
16.25.Observation of Governmental Regulations. Lessee agrees that, at all
times hereunder, Lessee shall comply with and conform to all current and
future federal, state and local laws, regulations, ordinances and rules
applicable to this Agreement, and to all orders of any governmental agency
which shall be applicable to the Leased Premises, treated secondary
Effluent usage or Lessee's activities thereon. Nothing herein shall be
construed to be a limitation upon Lessor's police power.
16.26. Final Agreement. Each party acknowledges that they have read and fully
understand the contents of this Agreement. This Agreement and any
documents, instruments and materials referenced and incorporated herein
represents the entire and integrated agreement between the parties with
respect to the subject matter hereof and supersedes all prior negotiations,
representations or agreements, either written or oral. This Agreement may
be modified only by written instrument duly authorized and executed by
both Lessor and Lessee.
16.27. Counterparts. This Agreement may be executed in any number of
counterparts and any party may execute any counterpart, each of which
when executed and delivered will be deemed to be an original and all of
312907v6
30
which counterparts taken together will be deemed to be but one and the
same instrument. The execution of this Agreement by any party hereto will
not become effective until counterparts hereof have been executed by all
parties hereto.
[SIGNATURES FOLLOW ON NEXT PAGE.]
312907v6
31
IN WITNESS WHEREOF, Lessor has caused this Agreement to be executed by its duly
authorized officers, and Lessee has caused the same to be executed by its duly authorized
partner(s) with signature(s) notarized, all as of the day and year first above written.
CITY OF FRESNO,
A California municipal co'
oration
By -
Brian Barr 1 10,' Date
Director of General Services
APPROVED AS TO FORM:
ANDREW JANX
City or yj� L
6W&1�7 3,
if intanilla
nior Deputy City Attorney
James F. Cook,
By: a." �ik 3 _13 - 0,
G Date
Name: AA w1 ^ 6
Title: �erq a r—
(If corporation or LLC., Board Chair,
Pres. or Vice Pres.)
0
Name:
Title:
Date
`` (If corporation or LLC., CFO, Treasurer,
ATTEST: Secretary or Assistant Secretary)
TODD STERMER, CMC
City Clef REVIEWED BY:
By: - ` /1-2 5
Deputy Date
SVse--.-? MSC
Addresses:
CITY: LESSEE:
City of Fresno, Department of Public James F. Cook
Utilities 4042 S. Academy Ave.
Attention: Director of Public Utilities Sanger, CA 93657
2600 Fresno Street, Room 4019 Phone: (559)307-6272
Fresno, CA 93721 E-mail: cas4hay@yahoo.com
Phone: (559) 621-6888
E-mail:
Attachments:
EXHIBIT A - VICINITY MAP - PLATS OF LEASED PREMISES/
EXHIBIT B - Title 22 RECYCLED WATER RECLAMATION SPECIFICATIONS
312907v6
32
ACKNOWLEDGMENT
A notary public or other officer completing this
certificate verifies only the identity of the individual
who signed the document to which this certificate is
attached, and not the truthfulness, accuracy, or
validity of that document.
State of California
County of Fresno
On June 26, 2025
before me,
Noemi Schwartz, Notary Public
(insert name and title of the officer)
personally appeared Brian Barr ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same in
his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
NOW SCHWAM
WITNESS my hand and official seal. HutaryPuhllc Lallfarnia
Fresno County
Commission Y 2386097'
•`� My comm. Expires Dec 10. 2025
Signature (Seal)
• rx 'r-::�� k"K ,' _ �i :ire.: ..�`. - �•
�i' MAI
CALIFORNIA CERTIFICATE OF ACKNOWLEDGMENT
A notaryypublic or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached, and not
the truthfulness, accuracy, or validity of that document.
State of California )
County of ,Elsf 6l10 )
On r d � i'7 3, 2625 before me, u&v a 4i rn o o td�
(here insert name and title of the cer)
personally appeared �- n-)e0 0
who proved to me on the basis of satisfactory evidence to be the person(s}whose name(sue/are subscribed to
the within instrument and acknowledged to me that e sloe/thEy executed the same in s&- /fre°/theit-
authorized capacity(ies}, and that by &her/their signaturefs} on the instrument the perso4s), or the entity
upon behalf of which the person,() acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the
State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature CLA"&--
JUANITA PATINO
COMM. #247a357 z
Notary Public •California 0
z Fresno County
N4 Comm, £x fires Dec. 5, 2027
(Seal)
Optional Information
Although the information in this section is not required by law, it could prevent fraudulent removal and reattachment of this acknowledgment to an
unauthorized document and may prove useful to persons relying on the attached document.
Description of Attached Document
The preceding Certificate of Acknowledgment is attached to a document
titled/for the purpose of
containing pages, and dated
The signer(s) capacity or authority is/are as:
❑ Individual(s)
❑ Attorney -in -Fact
❑ Corporate Officer(s)
❑ Guardian/Conservator
❑ Partner - Limited/General
❑ Trustee(s)
❑ Other:
representing:
Title(s)
Name(s) or Persons) or Entity(ies) Signer is Representing
Method of Siqner Identification
Proved to me on the basis of satisfactory evidence:
O form(s) of identification O credible witness(es)
Notarial event is detailed in notaryjournal on:
Page # Entry #
Notary contact:
Other
❑ Additional Signer(s) ❑ Signer(s)Thumbprint(s)
11
O Copyright 2007-2018 Notary Rotary, PO Box 41400, Des Moines, IA 50311-0507. All Rights Reserved. Item Number 101772. Please contact your Authorized Reseller to purchase copies or this form.
I
'I
EXHIBIT A
VICINITY MAP - PLATS OF LEASED PREMISES
312907v6
33
r
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a
.� �. � f '�
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tiY � TrdS�'Ati
J
:v t_ en ra a�•��
-�•�+4 APN 321 0,10 17si
- i 78 acres)
AFIN 321 040 2 bt
1120 acresl
i
ll
312907v6
36
EXHIBIT "A"
LEGAL DESCRIPTIONS FOR LEASE AND AGREEMENT
Parcel 1 {APN 327-030-2.2ST
That portion of the Southeast quarter of Section 22, Township 14 South, Range 19 East,
Mount Diablo Base and Meridian, according to the Official Plat thereof, lying in the City of
Fresno, County of Fresno, State of California, excepting therefrom the East 30.00 feet of
the North half of said Section 22, more described as follows;
COMMENCING at the Southeast corner of said Section 22; thence North 00023'59" East,
on the East line of said Section 22, a distance of 90.00 feet to a point on a line parallel
with, at right angles to, and 90.00 feet North of the South line of said Section 22; thence
North 89°44'37" West, on said parallel line, a distance of 120.00 feet to the POINT OF
BEGINNING; thence North 89°44'37" West, continuing on said parallel line, a distance of
2370.40 feet to a point on a line parallel with, at right angles to, and 150.00 feet East of
the West line of said Southeast quarter of Section 22; thence North 00023'46" East, on
last said parallel line, a distance of 608.85 feet to a point on a line parallel with, at right
angles to, and 698.85 feet North of said South line; thence South 89°44'37" East, on last
said parallel line to a point on a line parallel with, at right angles to, and 1292.78 feet West
of said East line; thence North 00023'59" East, on last said parallel line, a distance of
329.36 feet to a point on a line parallel with, at right angles to, and 1028.21 feet North of
said South line; thence South 89044'37" East, on last said parallel line, a distance of
1172.78 feet to a point on a line parallel with, at right angles to, and 120.00 feet West of
said East line; thence South 00°23'59" West, on last said parallel line, a distance of 938.21
feet to the POINT OF BEGINNING.
The above data is based on Document No. 2022-0061708, Official Records of Fresno
County.
Containing an area of 42 acres, more or less.
Qp L LAMD S
op,LL EA1fc-
8636
�r OF CALi
G-/ 1-ZOZS
Parcel 2 (APN 327-040-08ST):
The Southwest quarter of Section 28, Township 14 South, Range 19 East, Mount Diablo
Base and Meridian, according to the Official Plat thereof, lying in the City of Fresno,
County of Fresno, State of California.
Excepting therefrom any adjoining or adjacent roads and street right -of way.
Except an undivided 50% of all oil, gas, minerals and other mineral rights in and under
said land, but without right of entry to the surface or to the subsurface to a depth of 500
feet of said land.
Containing an area of 160 acres (gross), more or less.
Parcel 3 (APN 327-040-11 ST)-.
The East half of the Northeast quarter of Section 33, Township 14 South, Range 19 East,
Mount Diablo Base and Meridian, according to the Official Plat thereof, lying in the City of
Fresno, County of Fresno, State of California.
Excepting therefrom any adjoining or adjacent roads and street right -of way_
Except an undivided one-half interest in and to all oil, gas, minerals and other hydrocarbon
substances in and under said property, as reserved in the deed from A. P. Harwood, et
ux, dated September 26, 1944, filed for record November 9, 1944, as Document No.
41670.
Containing an area of 78 acres (net), more or less.
Parcel 4 (APN 327-040-26T):
The West half of the southeast quarter and the West half of the East half of the Southeast
quarter of Section 33, Township 14 South, Range 19 East, Mount Diablo Base and
Meridian, according to the Official Plat thereof, lying in the City of Fresno, County of
Fresno, State of California,
Containing an area of 120.4 acres, more or less.
8636
G -17, 2oz�
EXHIBIT B
General Water Requirements
37
GENERAL WATER REQUIREMENTS
A. The discharge of undisinfected secondary effluent to surface waters or surface
water drainage courses, either by direct discharge or runoff from the use area, is
prohibited.
B. Undisinfected secondary effluent shall always remain within the approved use
area.
C. The use of undisinfected secondary effluent shall be limited to irrigation of fodder,
fiber, and seed crops for non -human consumption.
D. There shall be no irrigation or impoundment of undisinfected secondary effluent
within 50 feet of drainage courses, within 100 feet of any irrigation well or within
150 feet of any domestic well.
E. The perimeter of the use area shall be graded to prevent ponding along public
roads or other public areas.
F. Undisinfected secondary effluent shall not be applied within 25 feet of property
lines and 30 feet of public roads.
G. Public contact with undisinfected secondary effluent shall be precluded through
such means as fences, signs, or acceptable alternatives. Signs shall be as shown
herein.
H. Areas irrigated with undisinfected secondary effluent shall be managed to prevent
breeding of mosquitoes. More specifically:
a. Tail water must be returned. All irrigation water must infiltrate completely
within a 48-hour period.
b. Ditches must be maintained free of emergent, marginal, and floating
vegetation.
c. Low-pressure and unpressurized pipelines and ditches accessible to
mosquitoes shall not be used to store undisinfected secondary effluent.
I. Undisinfected secondary effluent shall be managed to prevent runoff onto adjacent
properties not owned or controlled by the User.
J. The use of must comply with the recycling requirements of Title 22, California code
of Regulations, Section 60301, et seq.
K. The use of undisinfected secondary effluent shall not cause a nuisance or pollution
as defined by the California Water Code, Section 13050.
L. Supplementing undisinfected secondary effluent by connection with a domestic
drinking water source or an irrigation or industrial well requires an air gap device
or back flow prevention device that complies with Title-17, California Code of
Regulations, Section 7583, et seq.
M. All reasonable steps shall be taken to minimize or prevent any discharge, which
was reasonable likelihood of adversely affecting human health. In such an event,
the User shall orally report the circumstances to the regional Board within 24 hours
from the time of discovery. Personnel employed to manage irrigation shall be
advised of the source of the reclaimed water and appropriate precautions during
handling.
N. The requirements prescribed herein do not authorize the commission of any act
causing injury to persons or property; do not protect the User from liability under
Federal, State, or local laws, and do not create a vested right to continue recycling.
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