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05-024, Stevens Creek Quarry LEASE AGREEMENT This lease is entered into between Stevens Creek Quarry, Inc. a California Corporation, hereinafter referred to as "LANDLORD", and the City of Cupertino hereinafter referred to as "TENANT". Now, therefore, in consideration of the mutual covenants and agreements herein contained, the parties herein agree as follows: This lease is made this ~day of November 2004, between Stevens Creek Quarry, Inc. and the City of Cupertino, California. The Landlord is the owner of and hereby leases to the Tenant those certain premises situated in the County of Santa Clara, State of California, hereinafter referred to as "premises" and more particularly described in Paragraph "U" attached hereto. A. The premises are to be used solely for a facility for the delivery and distribution of compost to residents and for no other purpose without the written consent of the Landlord. The Tenant has the right to make any improvements, additions, building or construction with the premises area that is associated with this use upon prior approval by the Landlord. Any improvements, buildings, additions or construction made by the Tenant shall remain the property of the Tenant unless affixed to the realty. B. The Tenant shall not assign, mortgage, or hypothecate this lease, or any interest therein, or permit the use of the premises by any person or persons other than the Tenant, or the subject premises or any other part thereof, without the written consent of the Landlord. Consent of any such assignment of subletting shall not be refused without cause. C. The term of this lease shall commence on November 1,2004 and shall terminate on October 31, 2005, for a total period of 12 months. This lease shall be renewable for additional I-year terms at the option of the Landlord. In the event that conditions of this lease are not met for any reason, then the Landlord will notify the Tenant in writing of the violations and should the violations continue for a period of 10 days or more after notice, then the Lease shall terminate. Either party may terminate this agreement upon a 30-day notice. D. The Tenant agrees to compensate the Landlord, for use of the premises, by means of providing the Landlord with an allocation of compost, determined on an annual basis, but not more than half, based upon the City of Cupertino's total allocation of compost, and any excess which is unused by the City of Cupertino at the end of October. The Tenant agrees that the Landlord has first right of refusal to any and all compost material not used by the City of Cupertino. The Tenant agrees that the separate contract between the City of Cupertino and Rich Voss Trucking, Inc. is part of the terms and compensation of this lease. 11/04 E. In the event that the Tenant shall be in default of payment of compensation to the Landlord or default in payment to the Rich Voss Trucking, Inc. for the hauling of the materials or default for payment to the Landlord for development costs to the premises, the Landlord will, prior to commencing any action of termination of the lease and/or rejection from the premises, the Landlord shall give the Tenant 10 days written notice of his demand for the payments of all above agreements. F. The Tenant agrees to pay for charges for ALL UTILITIES supplied to the Tenant. G. The Tenant agrees to acquire and pay for any installation costs for any and all utilities needed and used by the Tenant. H. The Tenant agrees to indemnify and hold harmless the Landlord from and against any and all liability, arising out of or incident to any injury to person or persons and/or damage to property on or about said leased premises and/or any property bordering said premises resulting directly or indirectly, from the use or occupancy of said premises or any act of omission or breach of any obligation hereunder by the Tenant, its employees, its agents, contractors, vendors, or invitees. The Tenant agrees, as its own expense, to maintain during the life of the Lease or any extended lease term, to supply a self-insured policy in excess of One Million Dollars ($1,000,000.00) specifically naming Stevens Creek Quarry, Inc. as the Additional Insured. I. The Tenant agrees to take full responsibility for the acquisition of and payment of any permits and/or fees related to the Tenants operation and/or the premises. J. It is mutually agreed that the lettering hereunder is made upon and subject to the terms, covenants, and conditions of this Lease and that the Tenants and Landlord covenant as a material part of the consideration for this Lease, to keep and perform each and all of the said terms, covenants, and conditions by him to be kept or performed and that this lease is made upon the condition of each performance. K. Should either party hereto institute any legal action to enforce any provision hereof, the prevailing party in such action shall be entitled to receive from the losing party such amount as the Court may adjudged to be reasonable attorney's fees and costs. L. If any term, covenant, or condition or provision of this lease is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder ofthe provisions, hereof shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. M. Nothing contained in this lease shall be deemed or construed by the parties hereby or by any third person to create the relationship of principal and agent or of partnership of joint venture or of any other association other than Landlord and Tenant. N. A notice of communication under this lease by either party to the other shall be sufficiently given or delivered if dispatched by registered mail, postage paid, addressed as follows: 1. In case of notice or communication to the Landlord: 11/04 STEVENS CREEK QUARRY, INC. 12100 Stevens Canyon Road Cupertino, CA 95014 2. In case of notice or communication to the Tenant: CITY OF CUPERTINO 10300 Torre Avenue Cupertino, CA 95014 O. The Tenant agrees to maintain the said premises in a safe manner, to be clear and free of weeds and debris, to be at all times kept in a state of appearance that does not distract from the Landlord's property. P. The Tenant agrees to maintain the premises in a manner which complies with all local and county fire regulations. Q. The Tenant agrees to secure the premises and provide security in a manner that the premises do not affect the Landlord's property. R. The Tenant shall supply the Landlord with 24 hour a day access to the premises. S. The Tenant agrees to operate on the premises in a manner that will not cause any interference to the operation of the Landlord. T. The Landlord agrees to provide the Tenant a graded site for the Tenant's premises. Any additional work to be done for the Tenant to finish the site, for the Tenant's operations, that will be performed by the Landlord and will be paid for by the Tenant. Any other development of the premises, including fencing, will be paid for by the Tenant. U. The premises shall be located on the Landlord's property, bordering Stevens Canyon Road on its Northeast side and bordering both property owned by the County of Santa Clara and the Sunnyvale Rod and Gun Club on its North Side, with the Landlords property bordering it on its West and South sides. V. The Tenant agrees to support Stevens Creek Quarry, Inc., the Landlord, in use permit matters associated with this lease. W. The Tenant agrees that this lease agreement, during its life or not, in no way implies, reflects intent, or puts upon any restrictions, and/or future restrictions pertaining to the current use, current development, or future development and/or use of Stevens Creek Quarry, Inc., the Landlord's property. X. The Tenant agrees to obtain written permission from the Landlord for any uses of the Landlord's property for easements or access pertaining to the Tenants use of the premIses. Y. The terms and provisions hereof shall be binding upon and insured to the benefit ofthe heirs, executors, administrators, successors, and assigns and transferees of the Landlord including successors in interest to the subject premise. 1l/04 Executed in Cupertino, California on the 151 day of November. 2004. LANDLORD: STEVENS CREEK QUARRY, INC. TENANT: CITY jZUPERTINO fdt;IfJl/ Mayor ii..hA-J;.) A /h;.5 S Printed Name ~ A- l/A>6 - Signature Attest: . ~ CitY~ 11/04