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AGREEMENT FOR PURCHASE AND SALE OF REAL PROPERTY
AND ESCROW INSTRUCTIONS
Assessor's Parcel Number: 434-143-06
4061 North Blackstone Avenue, Fresno, CA 93726
This Agreement for Purchase and Sale of Real Property and Escrow Instructions
(Agreement) is entered into by and between the CITY OF FRESNO, a municipal
corporation, (City or Buyer) and KUSH HOSPITALITY INC., a California Corporation
(Seller). City and Seller are collectively referred to herein as "the Parties."
RECITALS
A. Seller is the owner of real property, located at 4061 North Blackstone Avenue,
commonly known as Clarion Pointe Motel, in the City of Fresno, Assessor's
Parcel Number 434-143-06 (Subject Property).
B. City desires to purchase the Subject Property to facilitate the development of an
Interim Homeless Shelter.
C. City has been in active negotiations with Seller for the Purchase and Sale of the
Subject Property.
D. City now wishes to purchase from Seller and Seller now wishes to sell to City, the
Subject Property, subject to the terms and conditions herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and of the covenants,
conditions, and premises hereinafter contained to be kept and performed by the
respective parties, it is mutually agreed as follows-
1. Subject Property. The Subject Property is located at 4061 North Blackstone
Avenue in the City of Fresno, County of Fresno, State of California, identified as
Assessor's Parcel Number 434-143-06, which includes fixtures and
improvements located on the property and all rights, privileges, and
appurtenances, including any permits and easements. A legal description of the
Subject Property is described in Exhibit A, attached hereto, and incorporated
herein by reference.
2. Existing Agreement. The Parties acknowledge Seller entered into an
Agreement on or about March 29, 2022, with Zero Impact Solutions, Inc. and
Zero Impact Builders, Inc., for the purchase, installation, and service of Electric
Vehicle (EV) Chargers, attached hereto as Exhibit B, and incorporated herein by
reference. The EV chargers were approved for installation by the State of
California and PG&E and are scheduled for installation on the Subject Property in
2023. Seller is attempting to secure State and PG&E approval for the EV
Chargers Agreement to be assigned to another property owned by Seller. If
Seller is unable to secure assignment of said EV Chargers Agreement to another
property owned by Seller, City will assume agreement as is applicable to the
Subject Property.
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3. Fee Title. Selier shall grant the Subject Property to City in fee, free and clear of
all liens, encumbrances, and restrictions of record.
4. Purchase Price. City shall pay Seller Eleven Million Eight Hundred Thousand
Dollars ($11,800,000) (Purchase Price) for the Subject Property.
5. Effective Date. The Effective Date of this Agreement shall be upon its duly
authorized execution by the Parties after City Council approval.
6. Right to Sell. Seller represents and warrants it holds fee title to the Subject
Property, that it has the authority to enter into this Agreement, and that the
Subject Property is free and clear of all liens, encumbrances, and restrictions of
record. Seller agrees to hold City harmless and reimburse City for any and all
losses and expenses as to the Subject Property by reason of any change in
ownership or lease held by any guest or tenant of the Seller.
7. Escrow Instructions. The sale shall be completed through an External Escrow
to be opened at Placer Title Company, located at 7700 N. Palm Avenue, Suite
101, Fresno, CA 93711 (Escrow Holder). Said escrow shall be opened upon the
following terms and conditions, and Seller and City by their signature to this
Agreement, make this paragraph their escrow instructions:
a. Deposits. The City shall deposit the sums specified in Paragraph 4 of this
Agreement and the allocable closing costs in escrow upon receipt of a
demand and statement from Escrow Holder:
i. Non -Refundable Deposit. Within ten days of the Effective Date of
this Agreement, City shall deposit with Escrow Holder the sum of
Two Hundred Fifty Thousand Dollars ($250,000) (the Non -
Refundable Deposit ). The Non -Refundable Deposit shall be
applied to the Purchase Price at Close of Escrow.
ii. Balance of Purchase Price. City shall pay the balance of the
Purchase Price, less the Nola -Refundable Deposit to Seller, in good
funds through Escrow, not later than the close of business on the
day before the Close of Escrow. Escrow Holder will forward to both
City and Seller a separate accounting of all funds received and
disbursed for each party.
Payment of said sums, less Seller's cost to clear title, if any, may be made
to Seller only when Escrow Holder possesses and is in a position to
deliver to the City, a fully executed, acknowledged, and recorded deed to
the Subject Property, free and clear of all liens, encumbrances, and
restrictions of record.
b. Feasibility Period. City shall have the right to examine the feasibility of
the Subject Property for a period of up to ten days after the parties have
executed this Agreement (the Feasibility Period).
i. Access. City shall have the right to access the Subject Property at
all times following execution of this Agreement by the Parties, for
the purpose of conducting all studies, inspections, evaluations,
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tests, or surveys of the Subject Property that City elects to have
performed upon reasonable notice to the Seller. City agrees to
indemnify and hold Seller harmless from any and all liability, loss,
cost, damage, or expense that Seller may sustain or incur by
reason of, or in connection with, such entry, studies, inspections,
evaluations, tests, or surveys conducted by City during the
Feasability Period.
ii. Feasibility Package. Seller shall deliver to City a feasibility
package within five days of execution of this Agreement. The
following shall be included as due diligence in the package to the
extent in the possession or control of Seller:
1. Any documents relating to special assessment or bonds;
2. All known current litigation affecting the Subject Property;
3. All environmental reports;
4. Copy of all fees paid related to the Subject Property;
5. Updated preliminary title report and underlying documents
and surveys;
6. All Plans and any history of repairs or maintenance;
7. List of any and all existing and in -place vendor
contracts/agreements (e.g. utilities, ect.);
8. Any existing physical, environmental, soil, engineering, etc.,
studies and reports on the Subject Property; and
9. Any other documents or information related to the Subject
Property that City shall require.
C. Defects in Title. City reserves the right to accept title to the Subject
Property to be acquired by City herein subject to certain defects in any or
all matters of record title. In consideration for Seller receiving the total sum
stated in Paragraph 4, the Seller covenants and agrees to indemnify and
hold City harmless from any and all claims and demands third parties may
make or assert and causes of action third parties may bring which arise
out of, or are in connection with the foregoing defects in title to the Subject
Property. The Seller's obligation herein to indemnify and hold City
harmless shall not exceed the amount paid to the Seller specified in
Paragraph 4.
d. Financial Liabilities. It is understood that Seller shall be responsible for
the payment of all taxes, penalties, redemptions, and costs allocable to
the Subject Property.
e. Costs. The Parties shall each pay one half of the escrow fee; Seller shall
provide City with a CLTA policy of title insurance; recording fees (if any)
shall be as customary in Fresno County; all other closing costs shall be
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paid by the City; Seller will pay any cost to convey the title to the Subject
Property.
f. Disbursement. Disbursement of the Purchase Price shall be in the
amounts, at the times, and in all respects in accordance with the terms
and conditions and subject to the limitations of this Agreement.
g. Close of Escrow. Close of Escrow for the Purchase and Sale of the
Subject Property shall occur on May 10, 2023. The following Conditions of
Sale must be met prior to Close of Escrow:
i. City's approval of contents of preliminary title report and
exceptions;
ii. City's approval of any engineering reports;
iii. No pending litigation against the Subject Property and no notices of
violation of law;
iv. City's approval of preliminary title report;
v. City's approval of physical inspection of the Subject Property;
vi. Approval of this Agreement by the City Council of the City of Fresno
prior to execution by City, and
vii. Escrow Holder is in possession of a good and sufficient grant deed,
duly executed by Seller.
viii. Seller's delivery of the Subject Property at Close of Escrow to City
without any guests or tenants;
8_ Possession. Sole and exclusive possession of the Subject Property shall be
delivered to City on the Close Date, free of all claims from Seller or any third
persons under leases or otherwise.
9. Relocation. The Parties shall take all legally required steps to minimize
displacements of persons (families, individuals, businesses, nonprofit
organizations and farms) as a result of the City's planned use of the Subject
Property and services rendered in pursuit thereof. The Parties acknowledge and
agree, that under applicable law, a displaced person must be provided relocation
assistance in accordancfe with regulations implementing the Uniform Relocation
Assistance and Real Property Acquisition Policies Act of 1970 (URA) (42 U.S.0
4601-4655).
10. Commission. At the Close of Escrow, and through escrow, Seller shall pay a
brokerage commission to Seller's broker, Joshua Mettee of Mettee & Co., Inc.,
pursuant to a separate agreement. Seller and City shall defend and indemnify
each other from any claims for commissions or fees arising from either party
dealing with any other broker or agent other than those specified herein. City is
not represented by a broker and shall not incur or be responsible for any
commission fees involving any commission fees earned upon Close of Escrow.
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11. Condition and Inspection of Subject Property. Notwithstanding any other
provision of this Agreement to the contrary, Seller has not expressly or impliedly
made any representations, guaranties, promises, statements, assurances, or
warranties of any kind concerning the Subject Property. Seller has not
conducted any investigation regarding the condition of the Subject Property.
12. Default and Remedies.=
a. City's Default. IF CLOSE OF ESCROW SHALL FAIL TO OCCUR
BECAUSE OF THE CITY'S DEFAULT UNDER THIS AGREEMENT,
SELLER'S SOLE AND EXCLUSIVE REMEDY SHALL BE TO RETAIN
THE CITY'S NON-REFUNDABLE DEPOSIT. ANY CITY DEPOSIT MADE
IN EXCESS OF THE NON-REFUNDABLE DEPOSIT SHALL BE
REFUNDABLE AT ALL TIMES AND RETURNED TO THE CITY, UPON
REQUEST.
b. Seller's Default. IF THE CLOSE OF ESCROW SHALL FAIL TO OCCUR
BECAUSE OF SELLER'S DEFAULT UNDER THIS AGREEMENT, CITY
MAY (1) TERMINATE THIS AGREEMENT, IN WHICH EVENT THE
ENTIRE NON-REFUNDABLE DEPOSIT PREVIOUSLY MADE BY CITY
AND ALL OTHER FUNDS DEPOSITED BY CITY SHALL BE RETURNED
TO CITY AND THE PARTIES SHALL THEREAFTER HAVE NO
OBLIGATIONS UNDER THIS AGREEMENT OR ADDITIONAL LIABILITY
TO ONE ANOTHER; OR (2) MAINTAIN THIS AGREEMENT IN EFFECT
AND PURSUE AN ACTION FOR SPECIFIC PERFORMANCE; OR (3)
PURSUE ANY OTHER REMEDY AT LAW OR EQUITY, INCLUDING BUT
NOT LIMITED TO AN ACTION FOR DAMAGES.
13. Indemnity. Seller shall indemnify, hold harmless, and defend the City, its
officers, agents, employees, and volunteers from any liability, loss, fines,
penalties, forfeitures, claims, expenses, and costs, whether incurred by the
Seller, City, or any other third party, arising directly or indirectly from the release,
presence or disposal of any hazardous substances or hazardous materials (as
now or hereafter defined in any law, regulation or rule) in, on, or under the
Subject Property that occurred on or before the effective date of this Agreement.
This indemnity shall include, without limitation, any claims under the
Comprehensive Environmental Response, Compensation and Liability Act of
1980, as amended (CERCLA), or any other federal, state, or local law whether
statutory or common law, ordinance, or regulation in effect as of the effective
date of this Agreement. Costs or losses covered will include, without limitation,
consultants, engineering, investigator fees, clean up or disposal costs and
reasonable attorneys' fees, and actual damages.
14. Notices. All notices, demands, consents, requests or other communications
required to or permitted to be given pursuant to this Agreement shall be in
writing, shall be given only in accordance with the provisions of this Section, shall
be addressed to the parties in the manner set forth below, and shall be
conclusively deemed to have been properly delivered: (a) upon receipt when
hand delivered during normal business hours (provided that, notices which are
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hand delivered shall not be effective unless the sending party obtains a signature
of a person at such address that the notice has been received); (b) upon receipt
when sent by facsimile if sent before 5:00 p.m. on a business day to the number
set forth below with written confirmation of a successful transmission by the
sender's facsimile machine; (c) upon the day of delivery if the notice has been
deposited in an authorized receptacle of the United States Postal Service as first-
class, registered or certified mail, postage prepaid, with a return receipt
requested (provided that, the sender has in its possession the return receipt to
prove actual delivery); or (d) one (1) business day after the notice has been
deposited with either Golden State Overnight, Fed Ex or United Parcel Service to
be delivered by overnight delivery (provided that, the sending party receives a
confirmation of actual delivery from the courier). The addresses of the parties to
receive notices are as follows:
TO SELLER: KUSH HOSPITALITY INC., a California
Corporation
C/O Joshua Mettee,
Mettee & Co., Inc.,
7621 N Del Mar Avenue, Suite 102
Fresno, CA 93711
Email: ibmettee@gmail.com
Telephone: (559) 313-7742
TO CITY: CITY OF FRESNO
Attention: City Manager
2600 Fresno Street
Fresno, CA 93721
Telephone: (559) 621-8000
TO ESCROW HOLDER: Placer Title Company
Attention: Darryl Evans, Escrow Officer
7700 N. Palm Avenue, Suite 101
Fresno, California 93711
Telephone: (559) 261-8929
Each party shall make an ordinary, good faith effort to ensure that it will accept or
receive notices that are given in accordance with this Section, and that any
person to be given notice receives such notice. If any notice is refused, the notice
shall be deemed to have been delivered upon such refusal. Any notice delivered
after 5:00 p.m. (recipient's time) or on a non -business day shall be deemed
delivered on the next business day. A party may change or supplement the
addresses given above, or designate additional addressees, for purposes of this
Section by delivering to the other party written notice in the manner set forth
above.
15. Miscellaneous Provisions:
a. Waiver. The waiver by either party of a breach by the other of any
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provision of this Agreement shall not constitute waiver or a waiver of
any subsequent breach of either the same or a different provision of
this Agreement. No provision of this Agreement may be waived unless
in writing and signed by all parties to this Agreement. Waiver of any
one provision herein shall not be deemed to be a waiver of any other
provision herein.
b. 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 action regarding
the enforcement or interpretation of this Agreement any rights and
duties hereunder shall be Fresno, California.
C. Headings. The section headings in this Agreement are for
convenience and reference only and shall not be construed or held in
any way to explain, modify, or add to the interpretation or meaning of
the provisions of this Agreement.
d. 5everability. The provisions of this Agreement are severable. The
invalidity, or unenforceability or any one provision in this Agreement
shall not affect the other provisions.
e. 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 of or against any party, but rather by construing
the terms in accordance with their generally accepted meaning.
f. 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.
g. Precedence of Documents. In the event of any conflict between the
body of this Agreement and any Exhibit or Attachment hereto, the
terms and conditions of the body of this Agreement shall control and
take precedence over the terms and conditions expressed within the
Exhibit or Attachment.
h. 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.
i. Exhibits and Attachments. Each Exhibit and Attachment referenced
herein is by such reference incorporated into and made a part of this
Agreement for all purposes.
j. Non -Material Changes. The City Manager of the City, or designee,
may execute any supplemental escrow instructions and may make
minor modifications to this Agreement, the exhibits, and the
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documents referenced herein, on behalf of the City, and by virtue of
an amendment mutually signed by Seller, provided such modifications
do not constitute a material change to this Agreement.
k. Extent of Agreement. Each party acknowledges that they have read
and fully understand the contents of this Agreement. This Agreement
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 the City and the Seller.
I. Counterparts. This Agreement may be executed in duplicate
counterparts, each of which shall be deemed an original, but all of
which, when taken together, shall constitute one and the same
instrument.
(SIGNATURES FOLLOW ON THE NEXT PAGE.)
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, on the Effective date of this Agreement as defined above.
CITY OF FRESNO,
A California municipal corporation
DuuuSigned by:
4/24/2023
Georgeanne A. White Date
City Manager
APPROVED AS TO FORM:
ANDREW JANZ
City Attorney
By: �Iq 641 aw r
Tracy N P rvanian Date
SupervisW g Deputy City Attorney
ATTEST:
TODD STERMER, CMC
City Clerk
6orul,�nLw by:
-r "l U� 4/24/2023
By: tIn A b
Date
Attachments:
Exhibit A — Legal Description
Exhibit B — EVSE Agreement
SELLER,
KUSH HOSPITALITY INC., a California
Corporation
[_o0CU$i0"ed by:
By: tan Pahl
ES$AFMCC.E: 74 20
Nrupen Patel
Name.
Title: President
(If corporation or LLC., Board
Chair, Pres. or Vice Pres.)
Date: 4/13/202 3
By: 5DocuSigncd by:
aRV1 Na
EG n�.JC:.L �•. •:±U..
]atin Patel
Name:
Title: secretary
(If corporation or LLC., CFO,
Treasurer, Secretary or Assistant
Secretary)
M
Date: 4/13/2023
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EXHIBIT A
LEGAL DESCRIPTION
REAL PROPERTY IN THE CITY OF FRESNO, COUNTY OF FRESNO, STATE OF
CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL A OF PARCEL MAP NO. 97-11, IN THE CITY OF FRESNO, COUNTY OF
FRESNO, STATE OF CALIFORNIA, ACCORDING TO THE MAP THEREOF
RECORDED IN BOOK 60 PAGE 7 OF PARCELS MAPS, FRESNO COUNTY
RECORDS.
APN 434-143-06
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EXHIBIT B
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THIS EVSE PURCHASE, INSTALLATION AND SERVICE AGREEMENT (this "Agreement"), effective
as of the effective date (the "Effective Date"), by and among Zero Impact Solutions, Inc., a
California corporation, located at 3100 Airway Ave # 127 Costa Mesa CA 92626 (hereinafter
"ZIS"); Zero Impact Builders, Inc., a California corporation, located at 3100 Airway Ave # 127
Costa Mesa CA 92626 (hereinafter "ZIB, Contractor"); Kush Hospitality Inc, at 4061 N
BLACKSTONE AVE, FRESNO CA 93726 and KS Hospitality Inc at (hereinafter "Customer"), at
7177 N ELLENDALE AVE, FRESNO CA 93722. Accordingly, ZIS, Contractor, and Customer are each
a "Party" and/or collectively the "Parties" to this Agreement.
RECITALS
WHEREAS, ZIS is a company that is in the business of providing electrical equipment, including
but not limited to Electric Vehicle Supply Equipment as defined herein, as well as providing
Cloud Services, Warranties and Support
WHEREAS, ZIB is a Contractor with CSLB License Number 1068228 that performs certain
construction, building, and installation services as set forth in the Statement of Work defined
below.
WHEREAS, the Customer is the owner and/or operator of real property located at 4061 N
Blackstone Ave, FRESNO, CA 93726,
and 6730 N Blackstone Ave, FRESNO, CA 93710 and seeks to purchase Electric Vehicle Supply
Equipment and Electrical Equipment as described in the Agreement, and the Statement of
Work attached hereto, to be installed on Customer's real property and serviced as described
herein.
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements set
forth herein and other good and valuable consideration, the receipt and sufficiency of such
consideration being hereby acknowledged by the parties to this Agreement, the parties hereby
agree as follows:
1. Definitions.
1.1. "Statement of Work" or "SOW" means the Scope of Work to be performed by
Contractor and the services, EVSE, and/or Electrical Equipment to be provided by ZIS.
1.2. Electric Vehicle Supply Equipment "EVSE" refers to the electric vehicle charging
hardware which are being provided, installed, and serviced, at the Installation Site.
1.3. "Electrical Equipment" is the transformer(s) and electrical panel(s); switches, breakers
and electrical components needed to enable the EVSE functioning, provided and
installed under the terms of this Agreement.
1.4. "Installation" refers to the Contractor's actual labor and construction involved in
affixing the EVSE and the Electrical Equipment at the Installation Site and connecting it
to existing infrastructure and rendering functional according to the Statement of Work.
1.5. "Installation Site" refers to the physical location where the equipment and services
provided within this Agreement will be permanently installed as specified in the SOW.
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1.6. "EVSE Manufacturer Warranty" is the charging hardware manufacturer warranty which
is issued for each charger and is assigned to Customer.
1.7. "EVSE Extended Service Plan" is the maintenance and servicing plan that extends for 5
years and offers added protection and support for EVSE and is included in the SOW
1.8. "Cloud Services" are a set of mandatory services provided remotely by ZIS through a
third -party licensed platform, which are required for the functioning of the EVSE.
1.9. "California Electric Vehicle Infrastructure Project (CALeVIP) Rebate" is the California
State rebate program offered to fund costs associated with herein EVSE initiative and
used to pay for customer costs incurred in this Agreement
1.10. "Reporting Rights" means the right to report and register the exclusive
ownership of the Environmental Attributes in compliance with federal, state, or local
law, if applicable, and to a federal or state agency or any other party at the Buyer's
discretion, and include without limitation those Reporting Rights accruing under
Section 1605(b) of the Energy Policy Act of 1992 and any present or future federal,
state, or local law, regulation or bill, and any voluntary, international, or foreign
emissions trading program.
1.11. "Environmental Attributes" means all aspects, claims, characteristics and
benefits associated with the generation of a quantity of electricity by a Generation
Facility, other than the energy produced, embodied in the Product REC pursuant to,
and in compliance with, the Applicable Standard, and includes all the environmental,
power source, and emission characteristics, credits, allowances, reductions, offsets, and
benefits associated with the generation of electricity from a Generation Facility and its
displacement of generation from non-renewable energy resources, and any avoided
emissions of carbon dioxide, methane, and other greenhouse gases, but does not
include, unless specifically required for compliance with the Applicable Standard (i) any
avoided emissions of nitrogen oxides (NOx) during enforcement seasons for states
participating in the Environmental Protection Agency's NOx Budget Trading Program,
(ii) production tax credits and investment tax credits associated with the Generation
Facility, (iii) any liabilities, including adverse wildlife or environmental impacts or, (iv)
unless the Parties have expressly agreed otherwise, tradable emission allowances or
other entitlements to produce emissions issued by a governmental authority and
allocated to the Generation Facility on a basis other than actual generation of avoided
emissions associated with the generation of electricity by the Generation Facility.
1.12. "Effective Date" is the date of written customer Approval of the Statement of
Work to be completed once the Rebate Funds are approved by state program.
2. Installation.
2.1. ZIS agrees to furnish the EVSE and Electrical Equipment, which will be installed by
Contractor as described in the SOW in accordance with the specifications and
installation methodology set forth therein. In addition, Contractor shall be responsible
for the work specified in the drawings and specifications outlined in the SOW.
2.2. SOW Completion. ZIS and Contractor shall complete the Statement of Work within 60
(sixty) days of the Funds Approval email sent by the CALeVIP program administrators
and Customer shall spare no effort in facilitating that completion.
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SOLUTIONS
2.3. Approvals, Certificates, Permits and Licenses. Contractor shall, with the reasonable
assistance of Customer, secure all design, engineering, construction and installation
and operating approvals, certificates and permits that may be required for the proper
execution and completion of the work.
2.4. Time of Performance. Unless otherwise provided in writing, Contractor agrees to install
the EVSE along with the Electrical Equipment in accordance with the dates set forth in
the SOW. Customer acknowledges that the rebates, as described in section 2.4 herein,
expire within twelve (12) months of their issuance. Therefore, Customer must provide
access to the Installation Site and allow Contractor to begin and finish work on the
Installation during such twelve (12) month period.
2.5. Rebate as Form of Payment. Customer agrees to authorize ZIS to apply and obtain a
California Electric Vehicle Infrastructure Project (CALeVIP) Rebate [F-00073 and F-
00074] on behalf of the Customer's organization wherein ZIS and Contractor agree to
accept these Rebates(s) as a form of payment. Customer agrees to sign rebate form
sent upon rebate approval as Schedule B within 10 days of approval. The rebate
amount shall be deducted from the total amount of monies due under the Statement
of Work SOW.
2.6. Assignment of Rebate. In consideration for services contemplated under this
Agreement, and as further embodied in the SOW to be attached as Schedule A within
60 (Sixty) days of approval and reservation of the rebate amount, Customer hereby
assigns all right, title, interest, and benefit in the Rebate Applications, rebates,
discounts, credits, and any and all monies therefrom to ZIS. Accordingly, ZIS hereby
assumes all of Customer's interests, rights, duties and obligations in the Rebate
Applications and processing therewith. In the event the Rebate Applications or rebates
therefrom are rejected, or partially unpaid for any reason whatsoever, the Customer
remains fully responsible and obligated to pay the entire balance due as set forth in the
SOW. If for any reason CALeVIP submits the rebates directly to Customer or in
Customer's name alone, Customer will transfer and endorse any rebate payment to ZIS
within seven (7) days of receipt. If Customer is unable to sign over the Rebate Check to
ZIS within 7 days, Customer shall issue a check or payment to ZIS for the amount of the
rebate check. Customer shall provide all necessary documents and signatures as
necessary, to facilitate this assignment.
2.7. Equipment Title and Warranty. Title and warranty to the EVSE and Electrical
Equipment shall pass to Customer upon receipt of rebate payment by ZIS, unless the
rebate does not cover the full amount of the cost, in which case title and warranty shall
pass upon receipt of the full payment.
2.8. Changes in Specifications. Customer, by a writing signed by Customer and sent to ZIS
and/or Contractor, shall have the right at any time to make changes in the
specifications of any goods, materials, and/or services covered by this Agreement, or
the place of inspection, or acceptance. Upon receipt of any such notice, ZIS and/or
Contractor shall proceed promptly to make such changes in accordance with the terms
of such notice. Contractor shall deliver to Customer, within ten (10) days of receipt of
Customer's change notice, a statement showing the effect of any such change in the
cost of, and/or the time required for performance of this Agreement. Customer's
3Page ,1p$
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failure to object to provisions contained in any communication from ZIS and/or
Contractor shall be deemed an acceptance of such provisions. ZIS and/or Contractor
has the right to make substitutions and modifications in the specifications of the
hardware sold, provided that such substitutions or modifications will not materially
affect overall product performance.
2.9. Excusable Delays. Neither party shall be liable for any failure or delay in performance
under this Agreement (other than for delay in the payment of money due and payable
hereunder) to the extent said failures or delays are proximately caused by causes
beyond that party's reasonable control and occurring without its fault or negligence.
Dates by which performance obligations are scheduled to be met will be extended for a
period of time equal to the time lost due to any delay so caused.
2.10. Subcontracts and Subcontractors. Contractor may hire or engage one or more
subcontractors to perform any or all its obligations under this Agreement and
respective SOW; provided, however, that Contractor shall in all cases remain primarily
responsible for all its obligations.
2.11. Insurance. Contractor shall not commence work under this Contract until it has
obtained all insurances required as hereinafter.
2.12. Meetings and Reports. Contractor, and relevant subcontractors if necessary and
if requested by Customer, shall schedule and attend regular progress meetings with
Customer for the purpose of reviewing progress of the work.
2.13. Software and Proprietary Rights. All software supplied is proprietary to ZIS
and/or its licensors. Use of the software is subject to the terms of the applicable end
user agreement.
2.14. Limitation of Liability. Neither ZIS, Contractor, nor its suppliers will be liable for
any loss, damages or penalties resulting from delay in delivery when such delay is due
to causes beyond the reasonable control of ZIS and/or Contractor, including but not
limited to supplier delay, force majeure, act of God, labor unrest, fire, explosion or
earthquake. In any such event, the delivery date will be deemed extended for a period
equal to the delay. ZIS, CONTRACTOR, AND ITS SUPPLIERS' LIABILITY ARISING OUT OF
OR RELATED TO THIS AGREEMENT AND/OR SALE WILL BE LIMITED TO THE REFUND OF
THE HARDWARE PURCHASE PRICE. IN NO EVENT WILL ZIS, CONTRACTOR, OR ITS
SUPPLIERS BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE HARDWARE BY
CUSTOMER OR FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT
DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT) WHETHER OR NOT ZIS
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON
ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. THIS EXCLUSION
INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD -PARTY CLAIMS AGAINST
CUSTOMER. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
3. Cloud Services. Customer hereby grants ZIS and any third- party platforms that ZIS is
licensing the right to operate one or more EVSE units on each Installation Site referenced in
the SOW during the term of this Agreement.
4. Environmental Attributes. The Customer agrees to transfer and allocate, without
limitation, any and all Reporting Rights to ZIS with respect to obtaining and securing
41 Page os
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SOLUTIONS
Environmental Attributes. Accordingly, all Environmental Attributes shall remain the sole
property of ZIS. These Environmental Attributes are hereinafter referred to as "Activity
Credits" and include without limitation, renewable identification numbers under the federal
Renewable Fuel Standard, greenhouse gas emission reduction credits and allowances
(whether direct or indirect), emission units or attributes, renewable energy attributes,
renewable energy certificates or RECs, "green tags," other environmental attributes, and
include other incentives that arise whether such attributes are identified by federal, state or
local law, by voluntary or other exchanges or registries. The Parties agree to the following
terms regarding Activity Credits:
4.1. Customer transfers all Activity Credits to ZIS;
4.2. Customer agrees that Customer will not register any Activity Credit with any federal,
state, local or other registry or exchange;
4.3. ZIS is authorized to use, trade, or sell Activity Credits for its sole benefit;
4.4. Customer shall reasonably cooperate by assisting ZIS in obtaining the value of any
Activity Credits that are available;
4.5. In the event that the program rules or regulations authorizing Activity Credits require
direct Customer participation in the relevant market, Customer shall participate as
necessary and ZIS shall provide assistance to the full degree authorized by the rules and
regulation;
4.6. Net revenue generated from Activity Credits will be solely the property of ZIS.
Moreover, ZIS will cover all costs to generate Activity Credits; and
4.7. ZIS shall not be entitled to generate any Activity Credits in contravention of the Fuel
Program(s).
5. Representations and Warranties
5.1. Each Party represents and warrants that it has full power and authority to enter into
and perform this Agreement and that the person signing this Agreement on its behalf
has been properly authorized to enter this Agreement.
5.2. ZIS and Contractor represent and warrant that:
5.2.1. The performance of its obligations and delivery of the services to Customer and
end users will not violate any applicable laws or regulations;
5.2.2. It has sufficient right and authority to grant to Customer all rights that ZIS and/or
Contractor grant under this Agreement;
5.2.3. It will perform the services in a professional and workmanlike manner consistent
with industry standards reasonably applicable to the performance thereof; and
5.2.4. It will comply at all times with all applicable laws and regulations related to the
provision of the services.
5.3. Customer acknowledges that ZIS is not a contractor, and that all work to be performed
with respect to any construction, building, and installation of the EVSE and Electrical
Equipment, as described herein and the SOW attached hereto, will be performed by
Contractor. ZIS DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AS TO
THE CONTRACTOR'S MATERIALS, SERVICES, AND WORKMANSHIP PROVIDED BY THE
CONTRACTOR AS PER THIS AGREEMENT AND THE SOW ATTACHED HERETO.
CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY EXPRESS OR IMPLIED
WARRANTIES FROM ZIS AS TO CONTRACTOR'S MATERIALS, SERVICES, AND
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LJUUUJILy.II CIIVCIUFJ, IL/. ZERO IMPACT
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WORKMANSHIP PROVIDED BY THE CONTRACTOR AS PER THIS AGREEMENT AND THE
SOW ATTACHED HERETO.
5.4. FURTHERMORE, CONTRACTOR DISCLAIMS ANY AND ALL EXPRESS OR IMPLIED
WARRANTIES AS TO ZIS'S SERVICES, EVSE, AND/OR ELECTRICAL EQUIPMENT PROVIDED
BY ZIS AS PER THIS AGREEMENT AND SOW. CUSTOMER ACKNOWLEDGES THAT IT HAS
NOT RELIED ON ANY EXPRESS OR IMPLIED WARRANTIES FROM CONTRACTOR AS TO
THE SERVICES, EVSE, AND/OR ELECTRICAL EQUIPMENT PROVIDED BY ZIS PER THIS
AGREEMENT AND SOW.
5.5. EXCEPT FOR ANY WARRANTY SPECIFICALLY IDENTIFIED AS AN EXPRESS WARRANTY IN
THIS AGREEMENT, ZIS AND CONTRACTOR MAKE NO WARRANTIES, EXPRESS OR
IMPLIED, BY STATUTE OR OTHERWISE, WITH RESPECT TO ANY SERVICES, PRODUCTS,
TECHNOLOGY, INTELLECTUAL PROPERTY, MATERIALS OR INFORMATION PROVIDED,
WHETHER ARISING BY COURSE OF DEALING OR PERFORMANCE, CUSTOM, USAGE IN
THE TRADE OR PROFESSION OR OTHERWISE, INCLUDING BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. EXCEPT
FOR ANY WARRANTY SPECIFICALLY IDENTIFIED AS AN EXPRESS WARRANTY, CUSTOMER
ACKNOWLEDGES AND AGREES THAT IT HAS RELIED ON NO OTHER REPRESENTATIONS
OR WARRANTIES AND THAT NO OTHER REPRESENTATIONS OR WARRANTIES HAVE
FORMED THE BASIS OF ITS BARGAIN HEREUNDER.
6. Confidentiality. Each Party acknowledges that it will have access to certain confidential
information of the other Party concerning the other Party's business, plans, technology, and
products, and other information held in confidence by the other Party ("Confidential
Information"). Confidential Information will include all information whether in tangible or
intangible form, whether or not marked or designated as confidential. Each Party agrees
that it will not use in any way, for its own account or the account of any third party, except
as expressly permitted by, or required to achieve the purposes of, this Agreement, nor
disclose to any third party any of the other Party's Confidential Information and will take
reasonable precautions to protect the confidentiality of such information, at least as
stringent as it takes to protect its own Confidential Information.
6.1. Exceptions: Information will not be deemed Confidential Information hereunder if such
information:
6.1.1. Is known to the receiving Party prior to receipt from the disclosing Party directly
or indirectly from a source other than one having an obligation of confidentiality to
the disclosing Party;
6.1.2. Becomes known (independently of disclosure by the disclosing Party) to the
receiving Party directly or indirectly from a source other than one having an
obligation of confidentiality to the disclosing Party;
6.1.3. Becomes publicly known or otherwise ceases to be secret or confidential, except
through a breach of this Agreement by the receiving Party;
6.1.4. Or is independently developed by the receiving Party without the use of
Confidential Information received from the disclosing Party.
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7. Trademarks. Subject to the terms and conditions of this agreement, Customer grants ZIS
and Contractor a non-exclusive, non -transferable license for the term of this agreement to
use its name in ZIS's or Contractor's marketing of services.
8. Default; Remedies: ZIS and/or Contractor may terminate this Agreement at any time due to
Customer's breach of this Agreement without further recourse to Customer. The
occurrence of any one or more of the following events of default constitutes a breach of
this Agreement by Customer:
8.1. If Customer defaults in the payment of any amounts due and such default continues
after Contractor has given Customer notice
8.2. Any Party may terminate immediately if ZIS and/or Contractor estimates the total cost
of everything contemplated under this Agreement is higher than the rebate amount.
8.3. If Customer, whether by action or inaction, is in default of any of its obligations under
this Agreement (other than a default in the payment of any amounts due) and such
default continues and is not remedied within 30 days after ZIS or Contractor has given
Customer a notice specifying the same, or, in the case of a default that can be cured
but not within a period of 30 days, if Customer has not (1) commenced curing such
default within such 30-day period, (2) notified ZIS or Contractor of the Customer's
intention to cure the default, or (3) continuously and diligently completed the cure of
the default.
8.4. If ZIS and/or Contractor, whether by action or inaction, is in default of any of its
obligations under this Agreement, Contractor shall have the same right to notice and an
opportunity to cure the default as Customer does in Section 8.3.
9. Arbitration. Any dispute arising out of or relating to this Agreement must be resolved by
arbitration administered by the American Arbitration Association under its Commercial
Arbitration Rules. The award shall be final and binding on the parties and may be entered
and enforced in any court having jurisdiction. The arbitration shall be held in English and the
place of arbitration shall be California. There shall be one arbitrator agreed to by the parties
within twenty (20) days of receipt by respondent of the request for arbitration or in default
thereof appointed by the American Arbitration Association.
10. Miscellaneous.
10.1. Notices and Demands. All notices, demands, consents, approvals and other
communications which are required or desired to be given by any party to another
hereunder will be through email and/or LISPS certified mail:
ZIS / ZIB Customer
Address 3100 Airway Ave #127 4061 N BLACKSTONE AVE
City, State, Zip code Costa Mesa, CA 92626 FRESNO CA 93726
Responsible Person Spiro Azkoul Nick Patel
Email clients@zi.solutions nick@holidaymanagementinc.com
Phone Number 818-877-77871 559-213-7189
10.2. Prior Agreements. This document is the entire, final and complete agreement of
the Parties pertaining to the subject matter of this Agreement and supersedes and
replaces all written and oral agreements heretofore made or existing by and between
the Parties or their agents concerning this subject.
71 Page boa
LJUI;UJIIyII CIIVCIUpt, IU..hLJOD/ ZERO � 14 PACT
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10.3. Applicable Law and Severance. This Agreement shall be construed in accordance
with and governed by the laws of the State of California, without regard to the
principles of conflicts of law. If any clause or provision of this Agreement is determined
by law to be illegal, invalid or unenforceable under present or future laws, it is the
intention of the parties that the remainder of this Agreement will not be affected
thereby.
10.4. Waiver. The failure of any party at any time to require performance of this
Agreement, will in no way affect his right hereunder to enforce the same, nor will any
waiver of any succeeding breach of such provision, act as a waiver of the provision
itself.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date set forth
above.
ZERO IMPACT SOLUTIONS,
a California �corporation DrC Signed by'
3/29/2022
By:
Spiro Azkoul
Its: Chief Executive Officer
ZERO IMPACT BUILDERS,
a California corRgration
D u ignedby: 3/29/2022
By:
_r
Spiro Azkoul
Its: Chief Executive Officer
CUSTOMER,
a California corporation 3/29/2022
Dacu ned by:
By:
8 80 CE41420
Nick Patey
Its: Representative
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