HomeMy WebLinkAboutLease Agreement.pdf 1 LEASE AGREEMENT
2 This Lease Agreement ("Agreement") is dated September 12, 2022 and is between
3 Foundry Park Investors, LP a California limited partnership, Solomon Family Partnership, LP
4 and Frank Solomon Jr. Living Trust, dated February 7, 2002, a California Limited Partnership
5 (collectively, "Lessor"), and the County of Fresno, a political subdivision of the State of California
6 ("Lessee").
7 Article 1
8 Premises
9 1.1 Leased Premises. The Lessor hereby leases to Lessee the office space at the
10 location commonly known as 2510 S. East Ave., Fresno, CA 93706, Suite 500 ("Premises").
11 Lessor shall provide natural gas, electricity, and janitorial services at the Premises. The Lessor
12 represents that the Premises is approximately 6,680 square feet as shown in Exhibit "A".
13 1.2 Lessor Covenants. Lessor covenants that the Premises complies with all applicable
14 laws, ordinances and regulations, including but not limited to safety regulations, health and
15 building codes, including, without limitation, the Americans with Disabilities Act, and that the
16 Premises shall remain in such compliance throughout the term of this Agreement.
17 Article 2
18 Maintenance and Improvements
19 2.1 Maintenance. Lessor shall be responsible for the structural condition of the
20 Premises and for all exterior and interior maintenance, including but not limited to the air
21 conditioning systems and units, heating systems and units, plumbing systems and units, roof,
22 painting, fire sprinkler/suppression systems and units, smoke alarm/fire detection systems,
23 landscaping, electrical systems and units, lighting systems and units, common area, parking lot
24 lighting, bird and pest control, and parking lot. Lessor covenants that the Premises shall be
25 maintained in substantially the same condition as that existing at the commencement of this
26 Agreement.
27 2.2 Lessor Improvements. Lessor shall perform the following improvements at Lessor's
28 sole expense prior to Lessee's occupation of the Premises.
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1 . New paint
2 • New carpet
3 2.3 Compliance with Laws. The Lessor shall, at its own cost, comply with all applicable
4 federal, state, and local laws and regulations in the performance of its obligations under this
5 Agreement, including but not limited to workers compensation, labor, and confidentiality laws
6 and regulations.
7 2.4 Prevailing Wage. Lessor shall comply with, and shall ensure compliance by all
8 contractors and subcontractors with, all applicable laws and regulations, including the payment
9 of prevailing wages pursuant to Section 1770 et.seq. of the Labor Code.
10 (A) For any portion of any of Lessor's work, service, and/or function (including, but not
11 limited to, any construction, alteration, installation, demolition, repair, or maintenance work),
12 to be performed, either directly or under any agreements with any contractors and/or
13 suppliers (including their respective sub-contractors at any tier) or otherwise, with respect to
14 the Premises in relation to this Agreement, (collectively, the "Work"), that is a "public work"
15 for the purposes of Chapter 1 (commencing with § 1720) of Part 7 of Division 2 of the
16 California Labor Code (collectively, "Chapter 1 of the Labor Code"), (i) Lessor shall comply
17 with, and cause all such contractors and/or suppliers (including their respective sub-
18 contractors at any tier)to comply with, all applicable provisions of Chapter 1 of the Labor
19 Code with respect to the Work, and (ii) prior to causing any Work to be performed under
20 any agreements with any contractors and/or suppliers, or otherwise, Lessor shall
21 incorporate all of the provisions of this section 1.4 into such agreements.
22 (B) Lessor shall promptly provide a copy to Lessee of any correspondence, notices,
23 and/or orders, in any written form, and/or any documents initiating legal action (collectively,
24 "DIR Administrative or Legal Action") by or on behalf of the Director of the Department of
25 Industrial Relations of the State of California, including any representative thereof
26 (collectively, the "DIR")to or against Lessor, and Lessor's written responses, in any written
27 form, thereto, that relate to any Work, or any portion thereof, provided however, Lessor's
28 provision of such copy of any DIR Administrative or Legal Action, and/or Lessor's
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1 responses thereto, or failure to provide same or to timely provide same, shall not impose
2 any obligation upon Lessee with respect to Lessor's obligations under this section 1.4.
3 Lessor acknowledges that the DIR provides the following internet resource:
4 https://www.dir.ca.gov/OPRL/DPreWageDetermination.htm
5 (C) Lessee does not make any representation, or provide any guidance, to Lessor as to
6 (i)the nature, type, or scope of the Work, or any portion thereof, to be performed by Lessor,
7 either directly or under any agreements with any contractors and/or suppliers (including
8 their respective sub-contractors at any tier), that constitutes a "public work," or (ii)the
9 sufficiency of the DIR's internet resource, above, for purposes of compliance with this
10 section 1.4.
11 2.5 Breach of Obligation to Maintain. In the event Lessor breaches its obligation to
12 maintain the Premises as herein provided, the County may give written notice to Lessor within
13 15 days of the discovery of such breach. Lessor shall then have 30 days from the date of notice
14 to cure its breach. If the period for cure expires and if, in Lessees' reasonable determination,
15 Lessor has failed to cure, then Lessee may, at their election:
16 (A) Terminate this Agreement as herein after provided. In such case, Lessee shall
17 have the right to demand Lessor refund any monies which, in the judgement of Lessee,
18 were paid to Lessor pursuant to the Agreement but which were not earned by Lessor by
19 consequence of its breach. Upon receipt of such demand, Lessor shall promptly refund
20 all such monies; or
21 (B) Cure Lessor's breach and deduct the cost of such cure, together with reasonable
22 administrative costs, from Lessees' future Rent obligation. Lessees' decision to cure
23 Lessor's breach shall not constitute a waiver of any rights or remedies that Lessee may
24 have arising from this Agreement or by operation of law.
25 (C) If Lessor's failure to maintain the Premises is of an urgent nature, and impairs
26 Lessee's ability to conduct its business operations, or occupy the Premises, then Lessor
27 shall have five (5) business days from notification of the breach to repair the Premises
28 so that Lessee may resume operations. If Lessor fails to satisfactorily perform such
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1 repairs, then Lessee may cure the default and deduct the cost from the next month's
2 Rent.
3 2.6 Right of Entry. Lessor, or its representative(s), upon twenty-four (24) hour notice,
4 shall have the right to enter the Premises at any time during business hours, or at such other
5 time as Lessee deems appropriate, to make any alterations, repairs or improvements to the
6 Premises. The normal business of Less or its invitees shall not be unnecessarily
7 inconvenienced. In the event of an emergency, Lessor may enter the Premises at any time
8 without giving prior notice to Lessee.
9 Article 3
10 Use of the Premises
11 3.1 The Lessee shall use the Premises as office space. Lessee agrees to comply with
12 applicable laws, ordinances and regulations in connection with such use.
13 Article 4
14 Rent, Invoices, and Payments
15 4.1 Monthly Rent. The Lessee agrees to pay, and the Lessor agrees to receive, monthly
16 Rent for the exclusive use of the Premises ("Rent") under this Agreement, as described in this
17 Article 4 and Exhibit B.
18 4.2 Maximum Rent. The maximum Rent payable to the Lessor under this Agreement is
19 $496,415.47. The Lessor acknowledges that the Lessee is a local government entity, and does
20 so with notice that the Lessee's powers are limited by the California Constitution and by State
21 law, and with notice that the Lessor may receive compensation under this Agreement only for
22 services performed according to the terms of this Agreement and while this Agreement is in
23 effect, and subject to the maximum amount payable under this section 4.2. The Lessor further
24 acknowledges that Lessee employees have no authority to pay the Lessor except as expressly
25 provided in this Agreement.
26 4.3 Utilities. Lessee shall pay to Lessor metered costs for Lessee's use of natural gas
27 and electricity at the Premises.
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1 4.4 Janitorial. Lessee shall pay Lessor costs for janitorial services for the Premises, as
2 requested by Lessee, and as described in Exhibit F.
3 4.5 Invoices. The Lessor shall submit monthly invoices to the Fresno County District
4 Attorney, Attn: Business Office, 2100 Tulare St, Fresno, CA 93721
5 (DAB us inessOffice@fresnocountyca.gov). The Lessor shall submit each invoice 60 days prior
6 the month in which the Lessor performs services, and within 60 days after the end of the term or
7 termination of this Agreement. The Lessor shall issue a separate invoice (from the invoice for
8 Rent) for the utility and janitorial costs described in sections 4.3 and 4.4.
9 4.6 Payment. The Lessee shall pay Rent in advance each correctly completed and
10 timely submitted invoice within 45 days after receipt. The Lessee shall remit any payment to the
11 Lessor's address specified in the invoice.
12 4.7 Incidental Expenses. The Lessor is solely responsible for all of its costs and
13 expenses that are not specified as payable by the Lessee under this Agreement.
14 Article 5
15 Term of Agreement
16 5.1 Term. This Agreement is effective on October 1, 2022 and terminates on September
17 30, 2027 except as provided in Article 8, "Termination and Suspension," below.
18 Article 6
19 Destruction or Damage from Casualty
20 6.1 If the Premises are damaged or destroyed as a result of fire, earthquake, act of God,
21 or any other identifiable event of a sudden, unexpected, or unusual nature (hereinafter
22 "Casualty"), then Lessor shall either promptly and diligently repair the damage at its own cost, or
23 terminate the Agreement as hereinafter provided.
24 (A) If Lessor elects to repair the Casualty damage to the Premises, then it shall
25 within 30 days after the date of Casualty provide written notice (hereinafter "Notice of
26 Repair") to Lessee indicating the anticipated time required to repair. Lessor shall bear
27 the cost of all repairs to the Premises, including the cost to repair any alteration or
28 fixtures installed or attached thereto by Lessee. Such repairs shall restore the Premises
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1 to substantially the same condition as the existing at the commencement of this
2 Agreement and shall be made in compliance with all applicable state and local building
3 codes. Lessor shall not be liable to Lessee for compensation for any loss of business, or
4 any inconvenience or annoyance arising from repair of the Premises as a result of the
5 Casualty except for Rent reduction as hereinafter provided. County shall be responsible
6 at its sole cost and expense for the replacement of its personal property.
7 (B) Lessor may only elect to terminate the Agreement due to Casualty if: the
8 Premises have been destroyed or substantially destroyed by said Casualty, and the
9 estimated time to repair the Premises exceeds 240 days from the date of the Casualty.
10 Lessor shall provide Lessee with written notice of its election to terminate within 30 days
11 after the date of Casualty.
12 (C) In the event of Casualty, Lessees' obligation to pay Rent shall be reduced in
13 accordance with Article 7.
14 (D) If Lessee does not receive a Notice of Repair from Lessor within 30 days after a
15 Casualty, or if the anticipated period of repair contained in the Notice of Repair exceeds
16 240 days, then Lessee may elect to terminate this Agreement as hereinafter provided. In
17 such case, Lessee shall have the right to demand that Lessor refund any monies which,
18 in the judgment of Lessee, were paid to Lessor pursuant to the Agreement, but which
19 were not earned by Lessor by consequence of the Casualty. Upon receipt of such
20 demand, Lessor shall promptly refund all such monies.
21 Article 7
22 Abatement of Rent and Other Payments Due to Casualty, Condemnation, Prohibited Use,
23 or Title Defect
24 7.1 Abatement— Notwithstanding anything to the contrary in this Agreement, (i)
25 Lessee's obligations to pay Rent, and/or any other amounts otherwise due and payable to
26 Lessor, shall be abated during any period, and to the extent, that the Premises, or any portion
27 thereof(in the case of an affected portion of the Premises, then, such abatement shall also be in
28 proportion thereof), cannot be used and occupied by Lessee pursuant to this Agreement as a
6
1 result of any Casualty with respect to the Premises, or any portion thereof, any title defect, or of
2 any Condemnation or Prohibited Use of the Premises, or any portion thereof, and (ii) any
3 abatement of Rent, and/or any other amounts otherwise due and payable to Lessor shall not be
4 deemed to be a default under this Agreement on the part of Lessee.
5 7.2 Period of Abatement—Abatement of any Rent and/or any other amounts otherwise
6 due and payable to Lessee shall only suspend the period during which Lessee is otherwise
7 required to pay Rent and/or any other amounts otherwise due and payable to Lessor. This shall
8 not relieve Lessee from its duty to pay Rent, and/or any other amounts otherwise due and
9 payable to Lessor pursuant to this Agreement once the condition giving rise to the abatement
10 has been cured, corrected, eliminated, or satisfactorily resolved. Such abatement shall continue
11 for the period commencing with the date of such title defect, or of any Casualty, Condemnation,
12 or Prohibited Use of the Premises, or any portion thereof, and ending with the cure, correction,
13 elimination or satisfactory resolution of the title defect, Casualty, Condemnation, or Prohibited
14 Use of the Premises, whereby Lessee may use and occupy the Premises, or the adversely
15 affected portion thereof, pursuant to this Agreement. Cure, correction, elimination or satisfactory
16 resolution may, upon prior mutual written approval of Lessor and Lessee (which the parties will
17 negotiate in good faith and without unreasonable delay), occur in commercially reasonable
18 stages, as determined by the nature of the problem being remedied and the impact that such
19 staged remedial action and the coordination and timing thereof would have on Lessee. Lessee's
20 Director of Internal Services/CIO, or his/her designee, shall be authorized to execute such
21 written approval for Lessee.
22 7.3 Rent — During this period of abatement, Lessee shall only pay Rent, and/or any other
23 amounts otherwise due and payable to Lessor for the portion of the Premises that Lessee is
24 able to use and occupy.
25 7.4 Rental Interruption or Loss Insurance — During the occurrence of any Casualty
26 that is covered by rental interruption insurance or rental loss insurance in Article 12, herein, the
27 proceeds of any rental interruption insurance or rental loss insurance that Lessor may receive
28
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1 as a result of such Casualty shall be applied by Lessor, to the credit of Lessee, for the Rent;
2 Lessor shall so inform Lessee of any such amounts so received.
3 Article 8
4 Termination and Suspension
5 8.1 Termination for Non-Allocation of Funds. The terms of this Agreement are
6 contingent on the approval of funds by the appropriating government agency. If sufficient funds
7 are not allocated, then the Lessee, upon at least 30 days' advance written notice to the Lessor,
8 may:
9 (A) Modify the services provided by the Lessor under this Agreement; or
10 (B) Terminate this Agreement.
11 8.2 Termination for Breach.
12 (A) Upon determining that a breach (as defined in paragraph (C) below) has
13 occurred, the Lessee may give written notice of the breach to the Lessor. The written
14 notice may suspend performance under this Agreement, and must provide at least 30
15 days for the Lessor to cure the breach.
16 (B) If the Lessor fails to cure the breach to the Lessee's satisfaction within the time
17 stated in the written notice, the Lessee may terminate this Agreement immediately.
18 (C) For purposes of this section, a breach occurs when, in the determination of the
19 Lessee, the Lessor has:
20 (1) Obtained or used funds illegally or improperly;
21 (2) Failed to comply with any part of this Agreement;
22 (3) Submitted a substantially incorrect or incomplete report to the Lessee; or
23 (4) Improperly performed any of its obligations under this Agreement.
24 8.3 Termination without Cause. In circumstances other than those set forth above, the
25 Lessee may terminate this Agreement by giving at least 30 days advance written notice to the
26 Lessor.
27 8.4 No Penalty or Further Obligation/No Acceleration of Future Rent.
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1 (A) Any termination of this Agreement by the Lessee is without penalty to or further
2 obligation of the Lessee.
3 (B) Notwithstanding anything to the contrary contained herein this Agreement or any
4 right or remedy of which Lessor may otherwise avail itself pursuant to applicable law,
5 any right of Lessor to recover any Rent as provided in this Agreement shall be without
6 acceleration of any future Rent before it is due and payable hereunder. Lessor hereby
7 expressly waives its right to accelerate Rent in the event of a termination of this
8 Agreement, pursuant to California Civil Code section 1951.2.
9 8.5 Lessee's Rights upon Termination. Upon termination for breach, the Lessee may
10 demand repayment by the Lessor of any monies disbursed to the Lessor under this Agreement
11 that, in the Lessee's sole judgment, were not expended in compliance with this Agreement. The
12 Lessor shall promptly refund all such monies upon demand. This section survives the
13 termination of this Agreement.
14 8.6 Surrender of Possession. Upon the expiration or termination of this Agreement,
15 Lessee will surrender the Premises to Lessor in such condition as that existing at the
16 commencement of this Agreement, less reasonable wear and tear, less the effects of any
17 Casualty as herein defined, and less the effects of any breach of Lessor's covenant to maintain.
18 Lessee will not be responsible for any damage with Lessee is not obligated here under to repair.
19 8.7 Fixtures. Lessor agrees that any equipment, fixtures or apparatus installed in or on
20 the Premises by Lessee shall continue to be the property of that governmental entity and may
21 be removed by that governmental entity at any time. The respective governmental entity shall
22 repair damage caused by the removal of its fixtures. Any fixtures not removed with the Lessee
23 surrender of possession shall become the property of Lessor.
24 Article 9
25 Notices
26 9.1 Contact Information. The persons and their addresses having authority to give and
27 receive notices provided for or permitted under this Agreement include the following:
28
For the Lessee:
9
1 /District Attorney Director of Internal Services/Chief Financial Officer
Attn: Business Office Internal Services Department
2 2100 Tulare Street 333 W Pontiac Way
Fresno, CA 93702 Clovis, CA 93612
3 uHtsusineSsUTTice(a�_fresnocountyca.goy
4 For the Lessor:
Foundry Park Investors
5 c/o Robert L. Jensen Associates 2160 N.
Fine
6 Fresno, CA 93727
jtancredi(c�russellgsmithinc.com
7
9.2 Change of Contact Information. Either party may change the information in section
8
9.1 by giving notice as provided in section 9.3.
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9.3 Method of Delivery. Each notice between the Lessee and the Lessor provided for or
10
permitted under this Agreement must be in writing, state that it is a notice provided under this
11
Agreement, and be delivered either by personal service, by first-class United States mail, by an
12
overnight commercial courier service, or by Portable Document Format (PDF) document
13
attached to an email.
14
(A) A notice delivered by personal service is effective upon service to the recipient.
15
(B) A notice delivered by first-class United States mail is effective three Lessee
16
business days after deposit in the United States mail, postage prepaid, addressed to the
17
recipient.
18
(C)A notice delivered by an overnight commercial courier service is effective one
19
Lessee business day after deposit with the overnight commercial courier service,
20
delivery fees prepaid, with delivery instructions given for next day delivery, addressed to
21
the recipient.
22
(D)A notice delivered by telephonic facsimile transmission or by PDF document
23
attached to an email is effective when transmission to the recipient is completed (but, if
24
such transmission is completed outside of Lessee business hours, then such delivery is
25
deemed to be effective at the next beginning of a Lessee business day), provided that
26
the sender maintains a machine record of the completed transmission.
27
9.4 Claims Presentation. For all claims arising from or related to this Agreement,
28
nothing in this Agreement establishes, waives, or modifies any claims presentation
10
1 requirements or procedures provided by law, including the Government Claims Act (Division 3.6
2 of Title 1 of the Government Code, beginning with section 810).
3 Article 10
4 Independent Contractor
5 10.1 Status. In performing under this Agreement, the Lessor, including its officers,
6 agents, employees, and volunteers, is at all times acting and performing as an independent
7 Contractor, in an independent capacity, and not as an officer, agent, servant, employee,joint
8 venturer, partner, or associate of the Lessee.
9 10.2 Verifying Performance. The Lessee has no right to control, supervise, or direct the
10 manner or method of the Lessor's performance under this Agreement, but the Lessee may
11 verify that the Lessor is performing according to the terms of this Agreement.
12 10.3 Benefits. Because of its status as an independent Lessor, the Lessor has no right to
13 employment rights or benefits available to Lessee employees. The Lessor is solely responsible
14 for providing to its own employees all employee benefits required by law. The Lessor shall save
15 the Lessee harmless from all matters relating to the payment of Lessor's employees, including
16 compliance with Social Security withholding and all related regulations.
17 10.4 Services to Others. The parties acknowledge that, during the term of this
18 Agreement, the Lessor may provide services to others unrelated to the Lessee.
19 Article 11
20 Indemnity and Defense
21 11.1 Indemnity. The Lessor shall indemnify and hold harmless and defend the Lessee
22 (including its officers, agents, employees, and volunteers) against all claims, demands, injuries,
23 damages, costs, expenses (including attorney fees and costs), fines, penalties, and liabilities of
24 any kind to the Lessee, the Lessor, or any third party that arise from or relate to the
25 performance or failure to perform by the Lessor (or any of its officers, agents, subcontractors, or
26 employees) under this Agreement. The Lessee may conduct or participate in its own defense
27 without affecting the Lessor's obligation to indemnify and hold harmless or defend the Lessee.
28 11.2 Survival. This Article 11 survives the termination or expiration of this Agreement.
11
1 Article 12
2 Insurance
3 12.1 The Lessor shall comply with all the insurance requirements in Exhibit D to this
4 Agreement.
5 Article 13
6 Inspections, Audits, and Public Records
7 13.1 Inspection of Documents. The Lessor shall make available to the Lessee, and the
8 Lessee may examine at any time during business hours and as often as the Lessee deems
9 necessary, all of the Lessor's records and data with respect to the matters covered by this
10 Agreement, excluding attorney-client privileged communications. The Lessor shall, upon
11 request by the Lessee, permit the Lessee to audit and inspect all of such records and data to
12 ensure the Lessor's compliance with the terms of this Agreement.
13 13.2 State Audit Requirements. If the compensation to be paid by the Lessee under this
14 Agreement exceeds $10,000, the Lessor is subject to the examination and audit of the
15 California State Auditor, as provided in Government Code section 8546.7, for a period of three
16 years after final payment under this Agreement. This section survives the termination of this
17 Agreement.
18 13.3 Public Records. The Lessee is not limited in any manner with respect to its public
19 disclosure of this Agreement or any record or data that the Lessor may provide to the Lessee.
20 The Lessee's public disclosure of this Agreement or any record or data that the Lessor may
21 provide to the Lessee may include but is not limited to the following:
22 (A) The Lessee may voluntarily, or upon request by any member of the public or
23 governmental agency, disclose this Agreement to the public or such governmental
24 agency.
25 (B) The Lessee may voluntarily, or upon request by any member of the public or
26 governmental agency, disclose to the public or such governmental agency any record or
27 data that the Lessor may provide to the Lessee, unless such disclosure is prohibited by
28 court order.
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1 (C)This Agreement, and any record or data that the Lessor may provide to the
2 Lessee, is subject to public disclosure under the Ralph M. Brown Act (California
3 Government Code, Title 5, Division 2, Part 1, Chapter 9, beginning with section 54950).
4 (D)This Agreement, and any record or data that the Lessor may provide to the
5 Lessee, is subject to public disclosure as a public record under the California Public
6 Records Act (California Government Code, Title 1, Division 7, Chapter 3.5, beginning
7 with section 6250) ("CPRA").
8 (E) This Agreement, and any record or data that the Lessor may provide to the
9 Lessee, is subject to public disclosure as information concerning the conduct of the
10 people's business of the State of California under California Constitution, Article 1,
11 section 3, subdivision (b).
12 (F) Any marking of confidentiality or restricted access upon or otherwise made with
13 respect to any record or data that the Lessor may provide to the Lessee shall be
14 disregarded and have no effect on the Lessee's right or duty to disclose to the public or
15 governmental agency any such record or data.
16 13.4 Public Records Act Requests. If the Lessee receives a written or oral request
17 under the CPRA to publicly disclose any record that is in the Lessor's possession or control, and
18 which the Lessee has a right, under any provision of this Agreement or applicable law, to
19 possess or control, then the Lessee may demand, in writing, that the Lessor deliver to the
20 Lessee, for purposes of public disclosure, the requested records that may be in the possession
21 or control of the Lessor. Within five business days after the Lessee's demand, the Lessor shall
22 (a) deliver to the Lessee all of the requested records that are in the Lessor's possession or
23 control, together with a written statement that the Lessor, after conducting a diligent search, has
24 produced all requested records that are in the Lessor's possession or control, or (b) provide to
25 the Lessee a written statement that the Lessor, after conducting a diligent search, does not
26 possess or control any of the requested records. The Lessor shall cooperate with the Lessee
27 with respect to any Lessee demand for such records. If the Lessor wishes to assert that any
28 specific record or data is exempt from disclosure under the CPRA or other applicable law, it
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1 must deliver the record or data to the Lessee and assert the exemption by citation to specific
2 legal authority within the written statement that it provides to the Lessee under this section. The
3 Lessor's assertion of any exemption from disclosure is not binding on the Lessee, but the
4 Lessee will give at least 10 days' advance written notice to the Lessor before disclosing any
5 record subject to the Lessor's assertion of exemption from disclosure. The Lessor shall
6 indemnify the Lessee for any court-ordered award of costs or attorney's fees under the CPRA
7 that results from the Lessor's delay, claim of exemption, failure to produce any such records, or
8 failure to cooperate with the Lessee with respect to any Lessee demand for any such records.
9 Article 14
10 Disclosure of Self-Dealing Transactions
11 14.1 Applicability. This Article 14 applies if the Lessor is operating as a corporation, or
12 changes its status to operate as a corporation.
13 14.2 Duty to Disclose. If any member of the Lessor's board of directors is party to a self-
14 dealing transaction, he or she shall disclose the transaction by completing and signing a "Self-
15 Dealing Transaction Disclosure Form" (Exhibit C to this Agreement) and submitting it to the
16 Lessee before commencing the transaction or immediately after.
17 14.3 Definition. "Self-dealing transaction" means a transaction to which the Lessor is a
18 party and in which one or more of its directors, as an individual, has a material financial interest.
19 Article 15
20 Estoppel Certificates/Subordination and Attornment
21 15.1 Estoppel Certificate. Lessee shall, at any time upon not less than thirty (30) days
22 prior request by LESSOR, execute, acknowledge and deliver to LESSOR a written estoppel
23 certificate, in a form reasonably satisfactory to both parties, certifying that this Agreement is
24 unmodified and in full force and effect (or, if there have been modifications, that the same is in
25 full force and effect as modified and stating the modifications) and, if applicable, the dates to
26 which the Rent and any other charges have been paid in advance. Any such statement
27 delivered pursuant to this Section 15.1 may be relied upon by third persons, including a
28 prospective purchaser or encumbrancer of the Premises.
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1 LESSEE'S failure to execute and deliver an estoppel certificate within thirty (30) days after
2 LESSEE'S receipt of LESSOR'S written request therefore shall be conclusive upon LESSEE
3 that this Agreement is in full force and effect, without modification except as may be represented
4 by LESSOR, that there are no uncured defaults in LESSOR'S performance, that not more than
5 one month's rental has been paid in advance, and that all other statements required to be made
6 in the estoppel certificate are conclusively made.
7 15.2 Subordination and Attornment. At Lessor's option, this Agreement shall be
8 subordinated to any mortgage or deed of trust which is now or shall hereafter be placed upon
9 the Premises, and Lessee agrees to execute and deliver any instrument which may be
10 necessary to further effect the subordination of the Agreement to any such mortgage or deed of
11 trust; provided, however, that such instrument of subordination shall provide, or the mortgagee
12 or beneficiary of such mortgage or deed of trust otherwise shall agree in writing in recordable
13 form delivered to Lessee, that the mortgagee or beneficiary, including their successors and
14 assigns, recognize Lessee's leasehold interest under this Agreement, and that so long as
15 Lessee is not in default under this Agreement, foreclosure of any such mortgage or deed of trust
16 or sale pursuant to exercise of any power of sale thereunder, or deed given in lieu thereof, shall
17 not affect this Agreement, but such foreclosure or sale, or deed given in lieu thereof, shall be
18 made subject to this Agreement, which shall continue in full force and effect, binding on Lessee,
19 as lessee, and the transferee, as lessor. Lessee shall attorn to the transferee as if said
20 transferee was Lessor under this Agreement.
21 Article 16
22 General Provisions
23 16.1 Modification. Except as provided in Articles 6,7, and 8, this Agreement may not be
24 modified, and no waiver is effective, except by written agreement signed by both parties. The
25 Lessor acknowledges that Lessee's employees have no authority to modify this Agreement
26 except as expressly provided in this Agreement.
27 16.2 Non-Assignment. Neither party may assign its rights or delegate its obligations
28 under this Agreement without the prior written consent of the other party.
15
1 16.3 Governing Law. The laws of the State of California govern all matters arising from
2 or related to this Agreement.
3 16.4 Jurisdiction and Venue. This Agreement is signed and performed in Fresno
4 Lessee, California. Lessor consents to California jurisdiction for actions arising from or related to
5 this Agreement, and, subject to the Government Claims Act, all such actions must be brought
6 and maintained in Fresno County.
7 16.5 Construction. The final form of this Agreement is the result of the parties' combined
8 efforts. If anything in this Agreement is found by a court of competent jurisdiction to be
9 ambiguous, that ambiguity shall not be resolved by construing the terms of this Agreement
10 against either party.
11 16.6 Days. Unless otherwise specified, "days" means calendar days.
12 16.7 Headings. The headings and section titles in this Agreement are for convenience
13 only and are not part of this Agreement.
14 16.8 Severability. If anything in this Agreement is found by a court of competent
15 jurisdiction to be unlawful or otherwise unenforceable, the balance of this Agreement remains in
16 effect, and the parties shall make best efforts to replace the unlawful or unenforceable part of
17 this Agreement with lawful and enforceable terms intended to accomplish the parties' original
18 intent.
19 16.9 Nondiscrimination. During the performance of this Agreement, the Lessor shall not
20 unlawfully discriminate against any employee or applicant for employment, or recipient of
21 services, because of race, religious creed, color, national origin, ancestry, physical disability,
22 mental disability, medical condition, genetic information, marital status, sex, gender, gender
23 identity, gender expression, age, sexual orientation, military status or veteran status pursuant to
24 all applicable State of California and federal statutes and regulation.
25 16.10 No Waiver. Payment, waiver, or discharge by the Lessee of any liability or obligation
26 of the Lessor under this Agreement on any one or more occasions is not a waiver of
27 performance of any continuing or other obligation of the Lessor and does not prohibit
28 enforcement by the Lessee of any obligation on any other occasion.
16
1 16.11 Entire Agreement. This Agreement, including its exhibits, is the entire agreement
2 between the Lessor and the Lessee with respect to the subject matter of this Agreement, and it
3 supersedes all previous negotiations, proposals, commitments, writings, advertisements,
4 publications, and understandings of any nature unless those things are expressly included in
5 this Agreement. If there is any inconsistency between the terms of this Agreement without its
6 exhibits and the terms of the exhibits, then the inconsistency will be resolved by giving
7 precedence first to the terms of this Agreement without its exhibits, and then to the terms of the
8 exhibits.
9 16.12 No Third-Party Beneficiaries. This Agreement does not and is not intended to
10 create any rights or obligations for any person or entity except for the parties.
11 16.13 Authorized Signature. The Lessor represents and warrants to the Lessee that:
12 (A) The Lessor is duly authorized and empowered to sign and perform its obligations
13 under this Agreement.
14 (B) The individual signing this Agreement on behalf of the Lessor is duly authorized
15 to do so and his or her signature on this Agreement legally binds the Lessor to the terms
16 of this Agreement.
17 16.14 Electronic Signatures. The parties agree that this Agreement may be executed by
18 electronic signature as provided in this section.
19 (A) An "electronic signature" means any symbol or process intended by an individual
20 signing this Agreement to represent their signature, including but not limited to (1) a
21 digital signature; (2) a faxed version of an original handwritten signature; or (3) an
22 electronically scanned and transmitted (for example by PDF document) version of an
23 original handwritten signature.
24 (B) Each electronic signature affixed or attached to this Agreement (1) is deemed
25 equivalent to a valid original handwritten signature of the person signing this Agreement
26 for all purposes, including but not limited to evidentiary proof in any administrative or
27 judicial proceeding, and (2) has the same force and effect as the valid original
28 handwritten signature of that person.
17
1 (C)The provisions of this section satisfy the requirements of Civil Code section
2 1633.5, subdivision (b), in the Uniform Electronic Transaction Act (Civil Code, Division 3,
3 Part 2, Title 2.5, beginning with section 1633.1).
4 (D) Each party using a digital signature represents that it has undertaken and
5 satisfied the requirements of Government Code section 16.5, subdivision (a),
6 paragraphs (1) through (5), and agrees that each other party may rely upon that
7 representation.
8 (E) This Agreement is not conditioned upon the parties conducting the transactions
9 under it by electronic means and either party may sign this Agreement with an original
10 handwritten signature.
11 16.15 Severability. Each provision of this Agreement is severable from any and all other
12 provisions of this Agreement. Should any provision(s) of this Agreement be for any reason
13 unenforceable, the balance shall nonetheless be of full force and effect.
14 16.16 Force Majeure. In the event that either party hereto shall be delayed or hindered in
15 or prevented from the performance of any act required hereunder by reason of strikes, lockouts,
16 adverse weather (including rain), inability to procure labor or materials, failure of power,
17 restrictive governmental laws or regulations, riots, insurrection, war, fire or other casualty, then
18 performance of such act shall be excused for the period of the delay and the period from the
19 performance of any such act shall be extended for a period equivalent to the period of such
20 delay (any such delay is herein referred to as an "Force Majeure Delay"). In no event shall
21 Lessee's inability to satisfy a monetary obligation hereunder constitute or be subject to Force
22 Majeure Delay.
23 16.17 Counterparts. This Agreement may be signed in counterparts, each of which is an
24 original, and all of which together constitute this Agreement.
25 [SIGNATURE PAGE FOLLOWS]
26
27
28
18
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1 The parties are signing this Agreement on the date stated in the introductory clause.
2
Foundry Park Investors LP, a Limited COUNTY OF FRESNO
3 Partnership
4
5 By: Russel G. Smith and Sherri Gibson Director of Internal Services/CIO
Living Trust dated August 24, 2005, General
6 Partner
i
7 �
By:
8 RusdPl G. Smith, Trustee
n
9 Date: 1 'q
i
10 And
11 Solomon Family Partnership, LP
12
By:
13 Frank E. Solomon, General Partner
14 Date:
15
By:
16 Richard A. Solomon, General Partner ,
17 Date:
18 And
19 Frank Solomon Jr. Living Trust dated
February 7, 2002
20
21 By:
Frank E. Solomon, Co-Trustee
22
Date:
23
24 By:
Richard A. Solomon, Co-Trustee
25
Date:
26 i
For accounting use only:
27 Org No.: 2860
Account No.: 7340
28 Fund No.: 0001
Subclass No.:
f
19
i
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E
f
1
I
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I
I
1 The parties are signing this Agreement on the date stated in the introductory clause.
2 r
Foundry Park Investors LP, a Limited COUNTY OF FRESNO
3 Partnership
4 '
i
5 By; Russel G. Smith and Sherri Gibson Director of Internal Services/CIO j
Living Trust dated August 24, 2005, General I
6 Partner
7 I
By:
8 Russell G. Smith, Trustee
9 Date:
10 And
11 Solom n F m rtnership, LP
12
13 Frank E. Solomon, General Partner
14 Bate: i L
15
16 Richard A, Solomon, General Partner
17 Date:
18 And
19 Frank Solomon Jr. Living Trust dated
Febru ry 7, 2002
20
21 By:
Frank E. Soolomon, Co-Trustee
22 l 7, Z`Z
Date:
23
Richard A. Solomon, Co-Trustee
25
Date:
26
For accounting use only:
27 Org No.: 2860
Account No.: 7340
28 Fund No.: 0001
Subclass No.:
I
19
Exhibit A
1 Leased Premises
2
3
4
5
7
8
9
10
11
12
13 � ^
14
15
16
17
18
19
20 �r
21
22 f
23
24
25
26 9
27
28
A-1
Exhibit B
1 Rent Schedule
2
3 Date Cost/Sq Ft Monthly Rent Annual Rent
4 Year 1 $1.19 $ 7,949.20 $ 95,390.40
5 Year 2 $1.214 $ 8,108.18 $ 97,298.21
Year 3 $1.238 $ 8,270.34 $ 99,244.17
6 Year $1.263 $ 8,435.75 $ 101,229.06
Year 5 $1.288 $ 8,604.47 $ 103,253.64
7 TOTAL $496,415.47
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
B-1
Exhibit C
Self-Dealing Transaction Disclosure Form
In order to conduct business with the Lessee of Fresno ("Lessee"), members of a
Lessor's board of directors ("Lessee Lessor"), must disclose any self-dealing transactions that
they are a party to while providing goods, performing services, or both for the Lessee. A self-
dealing transaction is defined below:
"A self-dealing transaction means a transaction to which the corporation is a party and in
which one or more of its directors has a material financial interest."
The definition above will be used for purposes of completing this disclosure form.
Instructions
(1) Enter board member's name, job title (if applicable), and date this disclosure is being
made.
(2) Enter the board member's company/agency name and address.
(3) Describe in detail the nature of the self-dealing transaction that is being disclosed to the
Lessee. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the transaction;
and
b. The nature of the material financial interest in the Corporation's transaction that
the board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on applicable
provisions of the Corporations Code.
The form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
C-1
Exhibit C
(1) Company Board Member Information:
Name: Date:
Job Title:
(2) Company/Agency Name and Address:
(3) Disclosure (Please describe the nature of the self-dealing transaction you are a
party to)
(4) Explain why this self-dealing transaction is consistent with the requirements of
Corporations Code § 5233 (a)
(5) Authorized Signature
Signature: Date:
C-2
Exhibit D
Insurance Requirements
1. Required Policies
Without limiting the Lessee's right to obtain indemnification from the Lessor or any third parties,
Lessor, at its sole expense, shall maintain in full force and effect the following insurance policies
throughout the term of this Agreement.
(A) Commercial General Liability. Commercial general liability insurance with limits of not
less than One Million Dollars ($1,000,000) per occurrence and an annual aggregate of
Two Million Dollars ($2,000,000). This policy must be issued on a per occurrence basis.
Coverage must include products, completed operations, property damage, bodily injury,
personal injury, and advertising injury. The Lessor shall obtain an endorsement to this
policy naming the Lessee of Fresno, its officers, agents, employees, and volunteers,
individually and collectively, as additional insureds, but only insofar as the operations
under this Agreement are concerned. Such coverage for additional insureds will apply as
primary insurance and any other insurance, or self-insurance, maintained by the Lessee
is excess only and not contributing with insurance provided under the Lessor's policy.
(B) Automobile Liability. Automobile liability insurance with limits of not less than Two
Hundred Fifty Thousand Dollars ($250,000) per person, Five Hundred Dollars
($500,000) per accident and for property damages of not less than Fifty Thousand
Dollars ($50,000, or such coverage with a combined single limit of Five Hundred
Thousand Dollars ($500,000). Coverage should include owned and non-owned vehicles
used in connection with this Lease.
(C)Workers Compensation. Workers compensation insurance as required by the laws of
the State of California with statutory limits.
(D) Fire Insurance and extended coverage. Lessor shall add Licensees as additional
payees thereon.
If the Lessor is a governmental entity, it may satisfy the policy requirements above through a
program of self-insurance, including an insurance pooling arrangement or joint exercise of
powers agreement.
2. Additional Requirements
(A) Verification of Coverage. Within 30 days after the Lessor signs this Agreement, and at
any time during the term of this Agreement as requested by the Lessee's Risk Manager
or the Lessee Administrative Office, the Lessor shall deliver, or cause its broker or
producer to deliver, to the Lessee Risk Manager, at 2220 Tulare Street, 16th Floor,
Fresno, California 93721, or HRRiskManagement@fresnoLesseeca.gov, and by mail or
email to the person identified to receive notices under this Agreement, certificates of
insurance and endorsements for all of the coverages required under this Agreement.
(i) Each insurance certificate must state that: (1) the insurance coverage has been
obtained and is in full force; (2) the Lessee, its officers, agents, employees, and
volunteers are not responsible for any premiums on the policy; and (3) the Lessor
has waived its right to recover from the Lessee, its officers, agents, employees,
D-1
Exhibit D
and volunteers any amounts paid under any insurance policy required by this
Agreement and that waiver does not invalidate the insurance policy.
(ii) The commercial general liability insurance certificate must also state, and include
an endorsement, that the Lessee of Fresno, its officers, agents, employees, and
volunteers, individually and collectively, are additional insureds insofar as the
operations under this Agreement are concerned. The commercial general liability
insurance certificate must also state that the coverage shall apply as primary
insurance and any other insurance, or self-insurance, maintained by the Lessee
shall be excess only and not contributing with insurance provided under the
Lessor's policy.
(iii) The automobile liability insurance certificate must state that the policy covers any
auto used in connection with this Agreement.
(B) Lessee shall maintain during the term of this Lease the following policies of insurance,
which coverages may be provided in whole or in part through one or more programs of
self-insurance;
(i) Commercial General Liability insurance with limits of not less than One Million
Dollars ($1,000,000) per occurrence and an annual aggregate of not less than
Two Million Dollars ($2,000,000). This policy shall be issued on an occurrence
basis and Lessee shall add Lessor as an additional insured.
(ii) Property insurance covering the person property of Lessee.
(C)Acceptability of Insurers. All insurance policies required under this Agreement must be
issued by admitted insurers licensed to do business in the State of California and
possessing at all times during the term of this Agreement an A.M. Best, Inc. rating of no
less than A: VI I.
(D) Notice of Cancellation or Change. For each insurance policy required under this
Agreement, the Lessor shall provide to the Lessee, or ensure that the policy requires the
insurer to provide to the Lessee, written notice of any cancellation or change in the
policy as required in this paragraph. For cancellation of the policy for nonpayment of
premium, the Lessor shall, or shall cause the insurer to, provide written notice to the
Lessee not less than 10 days in advance of cancellation. For cancellation of the policy
for any other reason, and for any other change to the policy, the Lessor shall, or shall
cause the insurer to, provide written notice to the Lessee not less than 30 days in
advance of cancellation or change. The Lessee in its sole discretion may determine that
the failure of the Lessor or its insurer to timely provide a written notice required by this
paragraph is a breach of this Agreement.
(E) Lessee's Entitlement to Greater Coverage. If the Lessor has or obtains insurance with
broader coverage, higher limits, or both, than what is required under this Agreement,
then the Lessee requires and is entitled to the broader coverage, higher limits, or both.
To that end, the Lessor shall deliver, or cause its broker or producer to deliver, to the
Lessee's Risk Manager certificates of insurance and endorsements for all of the
coverages that have such broader coverage, higher limits, or both, as required under
this Agreement.
D-2
Exhibit D
(F) Waiver of Subrogation. The Lessor waives any right to recover from the Lessee, its
officers, agents, employees, and volunteers any amounts paid under the policy of
worker's compensation insurance required by this Agreement. The Lessor is solely
responsible to obtain any policy endorsement that may be necessary to accomplish that
waiver, but the Lessor's waiver of subrogation under this paragraph is effective whether
or not the Lessor obtains such an endorsement.
(G)Lessee's Remedy for Lessor's Failure to Maintain. If the Lessor fails to keep in effect
at all times any insurance coverage required under this Agreement, the Lessee may, in
addition to any other remedies it may have, suspend or terminate this Agreement upon
the occurrence of that failure, or purchase such insurance coverage, and charge the cost
of that coverage to the Lessor. The Lessee may offset such charges against any
amounts owed by the Lessee to the Lessor under this Agreement.
(H) Subcontractors. The Lessor shall require and verify that all subcontractors used by the
Lessor to provide services under this Agreement maintain insurance meeting all
insurance requirements provided in this Agreement. This paragraph does not authorize
the Lessor to provide services under this Agreement using subcontractors.
D-3
Exhibit E
Janitorial Service
Lessor shall provide on-site supervision at all times and shall furnish all janitorial supplies and
equipment necessary to properly perform complete janitorial maintenance, including but not
limited to, the following services specified below, except light bulbs and rest room supplies such
as paper towels, toilet tissue, toilet seat covers, hand soap, deodorants, plastic liners and
sanitary napkins, which may be billed extra to Lessor if provided by janitorial company.
1. General Cleaning
a. Daily Service — Five (5) Days per Week
i. Sweep with chemically treated dust mop on all hard surface floors
ii. Vacuum thoroughly all carpeted areas
iii. Spot clean carpets
iv. Empty and clean all ashtrays
v. Empty all wastebaskets
vi. All trash to be secured in plastic bags prior to discarding in trash bin.
vii. Spot clean doors, door frames, counters and door plaques
viii. Spot clean around wall switches
ix. Clean and polish drinking fountains
x. Polish metal work in entrance areas
A. Clean entry and lobby directory glass
xii. Properly position furniture in all offices
xiii. Turn off all lights, except those which have been designated to be left on.
xiv. Check all doors and windows to make sure they are locked upon
completion of work assignments Re-check all exterior doors are locked
xv. Set alarms as needed
xvi. Report to supervisor any needed repairs
b. Weekly Services— One (1) Day per Week
i. Damp mop and disinfect all hard surface floors Thoroughly clean door
glass inside and out.
ii. Thoroughly clean interior glass windows, counters, etc. Dust desks,
chairs and all office furniture
iii. Dust ledges and windowsills
iv. Perform low dusting
v. Check for cobwebs in corners, high and low
vi. Clean metal thresholds
vii. Clean and disinfect telephones
viii. Check and replace air fresheners and batteries, as needed
c. Monthly Services— One (1) Day per Month
i. Perform high dusting, i.e., door sashes partitions
ii. Dust picture frames and clean glass
iii. Brush down walls and ceiling vents
iv. Dust desks, chairs and all office furniture
d. Quarterly Service —One (1) Day per Month
i. Thoroughly clean and refinish all hard service floors
ii. Dust/vacuum window coverings
e. Semi-annual Services—Two (2) Days per Year
i. Clean all interior and exterior glass
ii. All exterior glass cleaned by other vendor and billed extra - do not
schedule
2. Restroom Maintenance
E-1
Exhibit E
a. Daily Service — Five (5) Days per Week
i. Empty and clean all wastepaper receptacles and install new liners
ii. Empty sanitary napkin containers and replace liners
iii. Thoroughly clean and polish all countertops, dispensers and mirrors and
glass surfaces Clean and disinfect wash basins, toilet bowls and urinals
iv. Disinfect undersides and tops of toilet seats
v. Remove splash marks from walls, urinals and toilet partitions
vi. Clean walls around wash basins
vii. Thoroughly sweep and mop floors with a germicidal solution
viii. Refill soap, towel, tissue, seat cover and sanitary napkin dispensers
b. Weekly Services— One (1) Day per Week
i. Wash down ceramic tile walls and toilet compartment partitions Perform
high dusting
ii. Flush floor drains to control odors
iii. Check and replace air fresheners and batteries as needed Monthly
c. Services— One (1) Day per Month
i. Brush down vents
E-2