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17-014 Lease Agreement, Stevens Creek Quarry, Inc.CUPERTINO LEASE AGREEMENT This lease is entered into between Stevens Creek Quarry , Inc . a California Corporation , ("LANDLORD "), and the City of Cupertino ("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 March , 1 2017 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, ("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 Cupertino 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 within 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 real property. 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 March 1, 2017 and shall terminate on February 28 , 2022 , for a total period of five years. 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 annually by the end of October. Compost will be used by Landlord at Stevens Creek Quarry , and will not be sold to another party. The Tenant agrees that the Landlord has first right of refusal to any and all compost material not used by the City of Cupertino . E. In the event that the Tenant shall be in default of payment of compensation to the Landlord 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 2/6/17 rejection from the Premises , give the Tenant 10 days written notice of his demand for the payments of all above agreements. F. The Tenant agrees to pay the charges for all utilities supplied to the Tenant including, but not limited to , sanitary portable toilets , portable wash stations and cell phone(s). 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 only exception to this indemnification is any liability due to the sole negligence of the Landlord. 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 Quany, 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 this Agreement is made upon and subject to the terms , covenants, and conditions of this Lease and that the Tenants and Landlord covenant as a material pmi of the consideration for this Lease , to keep and perform each and all of the 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 adjudge 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 of the provisions, hereof shall remain in full force and effect and shall in no way be affected , impaired or invalidated thereby. M. Nothing cont~ined 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: STEVENS CREEK QUARRY, INC. 12100 Stevens Canyon Road 2/6/17 Cupertino , CA 95014 2 . In case of notice or communication to the Tenant: Cheri Donnelly , Environmental Programs Manager CITY OF CUPERTINO 10300 To1Te Avenue Cupertino , CA 95014 0. The Tenant agrees to maintain the 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 Premises. The Landlord agrees to maintain an access road from Stevens Canyon Road to the compost site. Maintenance will include periodic grading, dust control and following best management practices for storm water pollution prevention. Tenant, at its sole discretion , may also perform grading of the access road as needed , in the event the Landlord is unavailable to perform the work within 24-hours of request. 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 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 Landlord's property bordering it on its West and South sides , and as generally shown on Exhibit "A". 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. Tenant has neither responsibility for , nor control over, Landlord 's use of the property outside the Premises for its operations , including but not limited to the quarry , surface mining , stockpiling , rock processing, crushing, selling, or composting operations (collectively "Quarry Operations"). Landlord shall defend , 216117 indemnify and hold harmless Tenant from any and all liability arising out of or incident to any injury to person or persons and/or damage to property arising out of the Quarry Operations. X. The Tenant agrees to obtain written permission from the Landlord for any uses of the Landlord 's prope1iy for easements or access pe1iaining to the Tenants use of the Premises. Y. The terms and provisions hereof shall be binding upon and insured to the benefit of the heirs , executors, administrators , successors, and assigns and transferees of the Landlord including successors in interest to the subject premise. Executed in Cupertino, California on the It day of March 2017 LANDLORD: TENANT: STEVENS CREEK QUARRY, INC. CIT_7') CUPERTINO 01L / ;1_ l --=-/ City Manager Attest: City Clerk :2 _ 2, L{ -{ '7 As to form: ~ ~Randolph Stevenson Hom, City Attorney 2/6/17 Compost Site Use Area Exhibit A