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L-261 Human Services
Edison/ETA/PHBH/DCFS
LEASE AGREEMENT
THIS LEASE AGREEMENT (hereinafter, "LEASE") is made and entered
into this _� day of �L,��L , 2008, by and between EDISON PLAZA
PARTNERS, LP, P. O. Box 7967. Fresno, CA 93747, (hereinafter "LESSOR"), and the
COUNTY OF FRESNO, a Political Subdivision of the State of California, 2220 Tulare
Street, 16'h Floor, Fresno, CA 93721-2120, (hereinafter"LESSEE").
1. LEASED PREMISES. LESSOR leases to LESSEE at the location
designated and commonly known as West Fresno Regional Center (hereinafter the
"Centre"), to be constructed on the south side of California Avenue between Walnut
Avenue and Plumas Street, Fresno, CA, as shown on Exhibit A, attached hereto and by
this reference incorporated herein. LESSEE shall lease approximately Twenty-Nine
Thousand Thirty-Seven (29,037) net rentable square feet which will consist of Human
Services office space (23,037 sq. ft.) and public/common area space of(6,000 sq. ft.), and
shall include on-site parking at 4.8 stalls per one thousand (1,000) square feet of net
usable building space (hereinafter the "Premises").
2. TERM. The initial term of this LEASE shall be for sixteen (16) years
commencing on the date the City of Fresno issues a Safe to Occupy certificate for the
Premises (hereinafter the "Rent Commencement Date"). The Rent Commencement Date
shall be fixed by written acknowledgment signed by the parties to the LEASE.
3. DELAY IN POSSESSION. LESSOR agrees to use reasonable efforts to
promptly complete the Premises, including all tenant improvements which shall be the
responsibility of LESSOR, and make it available for occupancy by LESSEE on or about
September 30, 2009. However, LESSOR shall not be liable for any damages caused by
any delay in the completion of such work, nor shall an), such delay affect the validity of
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this LEASE or the obligations of LESSEE hereunder; however, LESSOR and LESSEE
agree, if the Rent Commencement Date has not occurred on or before January 4, 2010,
LESSEE at its sole discretion, may assess liquidated damages against LESSOR in the
amount of One Hundred Dollars ($100.00) per calendar day beginning on January 4,
2010, and continuing until occupancy is delivered. LESSOR and LESSEE further agree
if the Rent Commencement Date does not occur on or before March 31, 2010, LESSEE
may tenninate this LEASE and have no further obligation to LESSOR hereunder.
Notwithstanding the above, all performance dates as provided in this LEASE shall be
extended by the period of any delay caused by a Force Majeure as provided in Section 33
or delays caused by LESSEE.
4. BASE RENT. LESSEE agrees to pay to LESSOR for the Premises rent in
the amount of Sixty-Five Thousand Three Hundred Thirty-Three and 25/100 Dollars
($65,333.25) (hereinafter "Base Rent") on the first day of each month. The base rent and
LESSEE'S obligation to pay LESSEE'S prorata share of building operating costs,
including janitorial and supplies, and utilities as defined in Section 5 hereinbelow, shall
commence on the Rent Commencement Date.
On the third (3rd) anniversary date from the Rent Commencement Date, and every
three (3) years thereafter, the base rent shall be adjusted based on the annual increase of
the Consumer Price Index —Urban from the Rent Commencement Date; however, in no
event shall the annual base rent be increased by more than three percent (3%) for any one
calendar year for a maximum base rent increase of nine percent (9%) on each adjustment
date.
5. BUILDING OPERATING COST. LESSEE agrees to pay to LESSOR, as
additional rent for the Premises, one twelfth of LESSEE'S prorata share of the budgeted
annual building triple net building expenses, including but not limited to all building and
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site operating expense, repairs and maintenance of building, site improvements,
insurance, real property taxes to the extent applicable, city taxes and licenses and
reserves, utilities, janitorial expenses, management fees equal to 2.5% of gross building
rentals, and the other categories of operating costs described in Exhibit B and other
operating costs specifically included as building operating costs under this LEASE
(including, without limitation, the costs and expenses described in Section 9 below)
Budgeted monthly triple net building expenses will remain fixed from the Rent
Commencement Date through June 30, 2011, and are shown on Exhibit "B" attached
hereto and incorporated herein by reference; thereafter budgeted triple net building
expenses will be adjusted annually for the next calendar year beginning July lst through
the following June 30"'.
In the case of an overpayment of building operating expenses by LESSEE, a
credit against the future rent due will be issued within 45 days after the end of the
previous triple net building expense budgeted period. Should there be an underpayment
of building operating expenses by Lessee, a statement will be delivered to LESSEE
within 45 days after the end of the previous triple net building expense budgeted period
and the underpayment will be due within 30 days of receipt. Triple net building expense
budgets will be delivered to LESSEE no less than one hundred twenty (120) days before
they take effect.
LESSOR shall provide a monthly invoice specifying the rent and building
operating costs and mail to: County of Fresno, Human Services Financial Office, Attn:
West Fresno Regional Center, P. O. Box 24055, Fresno, CA 93779.
6. UTILITIES. The LESSOR is responsible for arranging utility services to the
Premises, including but not limited to electricity, natural gas, water, garbage, sewer and
janitorial service, all of which are included in the building operating expenses under
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Section 5 Notwithstanding Section 5 above, LESSOR may adjust the monthly charge for
utilities stated in the initial or any succeeding triple net building expense budget, if the
cost of LESSEE'S use of utilities exceeds the monthly budgeted expenses by 10% or
more for any three months during the budget period. LESSEE shall be responsible for its
telephone service.
7. USE. LESSEE shall use the Premises as office space_ LESSEE agrees to
comply with all applicable laws, ordinances and regulations in connection with such use;
however, LESSEE shall have the right to back-fill any part of the Premises with other
County departments.
LESSOR covenants that the Centre shall be utilized as government, library, office
medical or professional offices/facilities only and that the Premises are suitable for the
intended use as governmental offices open to the public and for use by children.
Further, LESSOR covenants that the Premises shall be in compliance with all
applicable laws, ordinances and regulations, including but not limited to safety
regulations, health and building codes on the First Date of Occupancy and throughout the
term of this LEASE.
8. COMPLIANCE WITH ALL LAWS — As to the Premises, LESSOR and
LESSEE shall comply with, and shall ensure compliance by all contractors and
subcontractors with, all applicable laws and regulations, including the payment of
prevailing wages pursuant to Section 1770 et.seq. of the Labor Code.
9. MAINTENANCE. All costs and expenses described in this Section are
included in the building operating costs. All exterior and interior maintenance, and repair
of the building including, but not limited to, air conditioning, heating units, roof,
landscape, parking and other common area maintenance is to be the responsibility of the
LESSOR. The LESSOR is also responsible for the structural condition of the building
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and agrees that the building will always be maintained in a condition acceptable for the
LESSEE'S intended use of the Premises and includes interior and exterior painting as
needed. LESSOR shall be responsible to provide regular janitorial service to the
Premises and additional janitorial service as needed within 30 days of LESSEE request
for additional service and its cost will be included in the building operating costs.
LESSEE will be billed for any of LESSOR'S expense related to overtime services and
payment from LESSEE will be due within 45 days of receipt of LESSOR'S statement for
such services.
10. BREACH OF OBLIGATION TO MAINTAIN_ in the event LESSOR
breaches its obligation to maintain the Premises as herein provided, LESSEE shall give
written notice to LESSOR and LESSOR'S lender within fifteen (15) days of the
discovery of such breach, LESSOR or LESSOR'S lender shall then have thirty (30) days
from the date of notice to cure its breach, provided, however, that if the item of
maintenance is of such a nature that it requires more than thirty (30) days to complete,
then LESSOR or LESSOR'S lender shall have such additional time as is necessary to
complete such maintenance as long as LESSOR or LESSOR'S lender commences work
on such maintenance within said fifteen (15) day period and diligently prosecutes such
maintenance to completion.
11. DESTRUCTION OR DAMAGE FROM CASUALTY. If the Premises are
damaged or destroyed as a result of fire, earthquake, act of God, or any other identifiable
event of a sudden, unexpected, or unusual nature (hereinafter "Casualty"), then LESSOR
shall either promptly and diligently repair the damage at its' own cost, or terminate the
LEASE as hereinafter provided.
A. LESSOR'S Election to Repair: If LESSOR elects to repair the
Casualty damage to the Premises, then it shall within thirty (30) days
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after the date of Casualty provide written notice (hereinafter "Notice of
Repair") to LESSEE indicating the anticipated time required to repair.
LESSOR shall bear the cost of all repairs to the Premises, including
the cost to repair any alterations or fixtures installed or attached
thereto by LESSEE. Such repairs shall restore the Premises to
substantially the same condition as that existing at the commencement
of this LEASE; such repairs shall also be made in compliance with all
applicable state and local building codes. LESSOR shall not be liable
to LESSEE for compensation for any loss of business, or any
inconvenience or annoyance arising from repair of the Premises as a
result of the Casualty except for Rent and its prorata share of building
operating expense reduction as hereinafter provided. LESSEE shall be
responsible at its sole cost and expense for the replacement of its
personal property.
B. LESSOR'S Election to 'Terminate Due to Casualty. LESSOR may
only elect to terminate the LEASE due to Casualty if the Premises
have been destroyed or substantially destroyed by said Casualty and
the estimated time to repair the Premises exceeds one hundred twenty
(120) days from issuance of building permit. LESSOR shall provide
LESSEE with written notice of its election to terminate within thirty
(30) days after the date of Casualty.
C. Rent Reduction Due to Casualty. In the event of Casualty, LESSEE'S
obligation to pay base rent and its prorata share of building operating
expenses shall be reduced begin-ring on the date of the Casualty. Such
reduction shall be proportional to the damage caused to the Premises
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by the Casualty as determined by :LESSEE. If LESSOR elects to
repair the Premises pursuant to the terms of this LEASE, then the rent
reduction shall continue until the date of substantial completion of
repair.
D. LESSEE'S Election to Terminate Duc to Casualty. If LESSEE does
not receive a Notice of Repair from LESSOR within thirty (30) days
after a Casualty, or if the anticipated period of repair contained in the
Notice of Repair exceeds one hundred twenty days (120), then
LESSEE may elect to terminate this LEASE as hereinafter provided.
In such case, LESSEE shall have the right to demand that LESSOR
refund any monies which were paid to LESSOR pursuant to the
LEASE but which were not earned by LESSOR by consequence of the
Casualty. Upon receipt of such demand, LESSOR shall promptly
refund all such monies.
12. INDEPENDENT CONTRACTOR. In performance of the work, duties
and obligations assumed by LESSOR under this LEASE, it is mutually understood and
agreed that LESSOR, including any and all of the LESSOR'S officers, agents, and
employees will at all times be acting and performing as an independent contractor, and
shall act in an independent capacity and not as an officer, agent, servant, employee,joint
venturer, partner, or associate of the LESSEE. Furthermore, LESSEE shall have no right
to control or supervise or direct the manner or method by which LESSOR shall perform
its work and function. However, LESSEE shall retain the right to administer this LEASE
so as to verify that LESSOR is performing its obligations in accordance with the terms
and conditions thereof.
LESSOR and LESSEN shall comply with all applicable provisions of law and the
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rules and regulations, if any, of governmental authorities having jurisdiction over matters
the subject thereof.
Because of its status as an independent contractor, LESSOR shall have absolutely
no right to employment rights and benefits available to LESSEE'S employees. LESSOR
shall be solely liable and responsible for providing to, or on behalf of, its employees all
legally-required employee benefits. In addition, LESSOR shall be solely responsible and
save LESSEE harmless from all matters relating to payment of LESSOR'S employees,
including compliance with Social Security withholding and all other regulations
governing such matters. It is acknowledged that during the term of this LEASE, LESSOR
may be providing services to others unrelated to the LESSEE or to this LEASE.
13, TERMINATION. If, pursuant to the terms provided herein, LESSEE has an
election to terminate the LEASE and so elects, then notice of such termination shall be
made in writing to LESSOR by the County Administrative Officer or the Director of
General Services or their designee who shall have the power to provide such notice to
terminate the LEASE.
14. INDEMNIFICATION; HOLD HARMLESS. LESSOR agrees to
indemnify, save, hold harmless, and at LESSEE'S request, defend the LESSEE, its
officers, agents, and employees from any and all costs and expenses, damages, liabilities,
claims, and losses occurring or resulting to LESSEE in connection with the performance,
or failure to perform, by LESSOR, its officers, agents, or employees under this LEASE,
and from any and all costs and expenses, damages, liabilities, claims, and losses
occurring or resulting to any person, firm, or corporation who may be injured or damaged
by the performance, or failure to perform of LESSOR, its officers, agents, or employees
under the LEASE.
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LESSEE agrees to indemnify, save, hold harmless, and at LESSOR'S request,
defend the LESSOR, its officers, agents, and employees from any and all costs and
expenses, damages, liabilities, claims, and losses occurring or resulting to LESSOR in
connection with the performance, or failure to perform, by LESSEE, its officers, agents,
or employees under this LEASE, and from any and all costs and expenses, damages,
liabilities, claims, and losses occurring or resulting to any person, firm, or corporation
who may be injured or damaged by the performance, or failure to perform of LESSEE, its
officers, agents, or employees tinder the LEASE.
This LEASE is made upon the express condition that the LESSEE is to be free of
all liability, damages or injury arising from structural failures of the Premises including
external walls, doors, roof and floor, unless caused by the negligence or willful
misconduct of LESSEE, its officers, agents or employees. The parties acknowledge that
as between LESSOR and LESSEE, each is responsible for the negligence of its own
employees and invitees.
15. INSURANCE. LESSOR shall, at its sole expense, maintain in full force and
effect during the term of this LEASE the following policies of insurance:
A. Commercial General Liability insurance with limits of not less than
Two Million Dollars ($2,000,000) per occurrence and an annual
aggregate limit of not less than Five Million Dollars ($5,000,000).
This policy shall be issued on an occurrence basis. LESSOR. shall
name LESSEE as an additional insured; and
B. Fire insurance and extended coverage. LESSOR shall add LESSEE as
an additional loss-payee thereon.
C. LESSOR shall maintain in full force and effect a policy of all risk
property insurance covering the tenant improvements and the personal
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property of LESSEE. The County of Fresno shall be named as a loss
payee on the policy. The policy limits are to be reviewed every five
years between LESSOR and LESSEE to guarantee that there will be
adequate coverage to replace LESSEE'S tenant improvements and
personal property.
Within thirty (30) days of Date of Occupancy., the LESSOR shall provide the
LESSEE with certificates of insurance with proper endorsements naming the LESSEE as
the additional loss payee. The policy is to be written by an admitted insurer licensed to do
business in California and with an A.M. Best rating of A FSC VII or better.
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:
A. Commercial General liability insurance with limits of not less than
Two Million Dollars ($2,000,000) per occurrence and an annual
aggregate of not less than Five Million Dollars ($5,000,000). This
policy shall be issued on an occurrence basis.
B. All-Risk property insurance covering the personal property of
LESSEE.
16. SUBROGATION. LESSOR and LESSEE agree to have their respective
insurance companies issuing property damage insurance waive any rights of subrogation
that such companies may have against LESSOR or LESSEE, as the case may be, so long
as the insurance carried by LESSOR and LESSEE, respectively, is not invalidated
thereby. As long as such waivers of subrogation are contained in their respective
insurance policies, LESSOR and LESSEE hereby waive any right that either may have
against the other- on account of any loss or damage to their respective property to the
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extent such loss or damage is insured under policies of insurance for fire and all risk
coverage, theft, or other similar insurance.
17 DEFAULT. Upon the occurrence of a breach of, or default in the
performance, by either Party of any of its obligations under this LEASE, the Party not in
breach or default may provide written notice to the breaching or defaulting Party of the
breach or default. Upon receipt of the Default Notice, the breaching or defaulting Party
will have ten (10) days to cure any monetary breach or default, or thirty(30) Days to cure
any non-monetary breach or default, described in the Default Notice; provided however,
that if a non-monetary breach or default is not reasonably capable of cure within that
thirty (30) Day period, then no breach or default shall be deemed to have occurred by
reason of such failure so long as the breaching or defaulting Party gives the Party that
provided the Default Notice a written notice describing,with reasonable particularity,the
steps that the breaching or defaulting Party will take to cure the breach or default, and
promptly commences within fifteen (15) Days, and diligently and continuously
prosecutes, the cure to completion within a reasonable period (in either such case,
respectively, "Cure Period").
A. Event of Default. If the breaching or defaulting Party does not cure the
breach or default within the Cure Period (to the extent that a Cure Period
is allowed for such breach or default in the LEASE), then the breaching or
defaulting Party shall be deemed to have committed an "Event of
Default"hereunder, and the Party giving the Default Notice shall have the
right, but not the obligation, to pursue its legal and equitable rights and
remedies in respect of the Event of Default set forth herein, as applicable,
unless such remedies are otherwise provided for elsewhere in this LEASE.
B. Lessor's Remedies. Upon an uncured Event of Default by LESSEE, and
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so long as there is not an uncured Event of Default by LESSOR, LESSOR
will have the rights and remedies set forth herein, in addition to any other
rights or remedies at Law. As provided herein, LESSOR shall have the
option to do any of the following:
1) Cure the Event of Default by LESSEE and require LESSEE to
reimburse LESSOR for the reasonable cost and expense of such cure.
2) Ten-ninate this LEASE in the manner hereinafter provided on account
of the Event of Default by LESSEE, and retake possession of the
Premises. In the event of such termination, LESSEE will surrender
possession of the Premises. In the event of such termination, LESSEE
will surrender possession of the Premises, without delay or hindrance,
and to pay LESSOR or its permitted assigned all damages recoverable
at Law (without acceleration of any future Rental Payments before
they are due and payable hereunder) that LESSOR or its permitted
assignee may incur by reason of default by LESSEE including,
without limitation, any reasonable costs, loss or damage arising out of,
in connection with, or incident to any such retaking possession of the
Premises.
3) Without terminating this LEASE and to the extent permitted by Law,
(i) collect each installment of Rental Payments and other amounts
owed by LESSEE hereunder as such amounts become due and enforce
any other term or provision hereof to be kept or performed by
LESSEE, and/or(ii) exercise any and all rights to retake possession of
the Premises. In the event LESSOR or its permitted assignee does not
elect to terminate this LEASE in the manner provide for in Section
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B(2), above, LESSEE shall remain liable and agrees to keep or
perform all covenants and conditions herein contained to be kept or
performed by LESSEE and, to pay all of the rental Payments, as they
become due, to the end of the Term, in the event that the Premises is
re-let, to pay(without acceleration of any future Rental Payments
before they are due and payable hereunder) any deficiency in Rental
Payment that results therefrom; and further agrees to pay all of the
Rental Payments or deficiency in Rental Payments punctually at the,
same time and in the same manner as hereinabove provided for the
payment of Rental Payments hereunder(without acceleration of any
future Rental Payments before they are due and payable hereunder).
C. Lessee's Remedies. Upon an uncured Event of Default by LESSOR, and
so long as there is not an uncured Event of Default by LESSEE, LESSEE
will have the rights and remedies set forth herein, , in addition to any other
rights or remedies at Law, to:
1) Undertake or assert, without terminating this LEASE or relinquishing
possession of the Premises (if possession has commenced), an action
in specific performance, or other equitable remedy, to require
LESSOR'S performance of its obligations under this LEASE.
2) Recover from LESSOR damages suffered (including,but not limited
to, moving and relocation expenses) by reason of an Event of Default
by LESSOR.
18. ABATEMENT OF RENTS AND BUILDING OPERATING EXPENSES_
Notwithstanding anything to the contrary in this LEASE, and except to the extent of
amounts received by LESSOR in respect of rental value, (1) LESSEE'S obligation to pay
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the base rent and prorata share of building operating costs, and any other amounts
otherwise due and payable hereunder to LESSOR shall be abated during any period, and
to the extent, that the Premises, or any portion thereof, cannot be used and occupied by
LESSEE pursuant to this LEASE as a result of any material property loss, title defect, or
condemnation (or sale under threat of condemnation) of the Premises, or any portion
thereof, and (ii) any abatement of any base rent and prorata share of building operating
costs, or other amounts otherwise due and payable, herein pursuant to this Section 18
shall not be deemed to be an Event of Default on the part of LESSEE.
Abatement of any base rent and prorata share of building operating costs, or of
any other amounts otherwise due and payable, herein shall only suspend the period
during which LESSEE is otherwise required to pay base rent and its prorata share of
building operating costs, or any other amounts otherwise due and payable, hereunder to
LESSOR, and shall not relieve LESSEE from subsequently paying the remainder of all
such base rent and prorata share of building operating costs, and any other amounts
otherwise due and payable herein; pursuant to this LEASE once the condition giving rise
to the abatement has been repaired, restored, cured, corrected, eliminated, or satisfactorily
resolved. Such abatement shall continue for the period commencing with the date of
such material property loss, title defect, or condemnation (or sale under threat of
condemnation) of the Premises, or any portion thereof, and ending with the substantial
completion of the work of repair, restoration, cure, correction, or replacement of the
portions of the Premises so damaged, destroyed, defective, or condemned, whereby
LESSEE may use and occupy the Premises, or the adversely affected portion thereof,
pursuant to this LEASE.
The monthly base rent-and prorata share of building operating costs, and any other
amounts otherwise due and payable hereunder, by LESSEE to LESSOR with respect to
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the Premises, or any portion thereof, shall be abated to the extent that the amount of the
monthly fair rental value of the portion of the Premises m respect of which there is no
substantial interference with LESSEE'S use and occupancy of the Premises is less than
the amount of monthly base rent and prorata share of building operating costs, in which
case the monthly base rent and prorata share of building operating costs shall be abated
only by an amount equal to the difference thereof.
19. SURRENDER OF POSSESSION. Upon the expiration or termination of
this LEASE, LESSEE will surrender the Premises to LESSOR in such condition as
existing at the commencement of this LEASE less reasonable wear and tear, less the
effects of any Casualty as herein defined, and less the effects of any breach of LESSOR'S
covenant to maintain. LESSEE will not be responsible for any damage which LESSEE
was not obligated hereunder to repair.
20. FIXTURES. LESSOR agrees that any equipment, fixtures or apparatus
installed in or on the Premises by LESSEE with LESSOR'S permission shall continue to
be the property of LESSEE and may be removed by LESSEE at any time. LESSEE shall
repair any damage caused by the removal of fixtures. Any fixtures not removed when
LESSEE surrenders possession shall become the property of LESSOR.
21. RIGHT OF ENTRY. LESSOR, or its representative(s), upon twenty-four
(24) hours written notice shall have the right to enter the Premises at any time during
business hours, or at such other time as LESSEE deems appropriate, to make any
alterations, repairs or improvements to the Premises. The normal business of LESSEE or
its invitees shall not be unnecessarily inconvenienced.
22. AMENDMENT. This LEASE may be amended in writing by the mutual
consent of the parties without in any way affecting the remainder. . LESSEE hereby
agrees to cooperate with amending this LEASE as may be required by LESSOR'S lender,
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provided such changes do not materially affect LESSEE'S obligations under this LEASE.
23. ASSIGNMENTS AND SUBLETS. I_,ESSEE may assign this LEASE or
any interest under this LEASE or sublet the Leased Premises or any portion of the Leased
Premises with Landlord's prior written consent, which consent shall not be unreasonably
withheld. The Landlord's consent shall not be deemed unreasonably withheld for any
reasonable objection, including but not limited to the following: (a) the proposed assignee
or subtenant does not have the financial ability or stability to carry out the LESSEE'S
obligations under this Lease, (b) the proposed assignee or subtenant would substantially
change the use of the Leased Premises, (c) the proposed assignee or subtenant has a poor
credit history or poor history with previous landlords, or (d) the proposed assignee or
subtenant does not satisfy the standards then used by LESSOR for approving tenants in
the development in which the Leased Premises are located. LESSEE further agrees that
LESSEE shall remain responsible for payments due under this LEASE notwithstanding
any assignment or sublet agreed upon by LESSOR.
24. GOVERNING LAW. Venue for any action arising out of or relating to this
LEASE shall be in Fresno County, California. This LEASE shall be governed by the
laws of the State of California.
25. NOTICES. All notices, demands, requests, exercises, and other
communications under this LEASE by either party shall be in writing and:
A. Sent by United States Certified Mail, return receipt
requested, in which case notice shall be deemed delivered three (3) business
days after deposit, postage prepaid in the United States mail, or
B. Sent by a nationally recognized overnight courier, in
which case notice shall be deemed delivered one (1) business day after
deposit with that courier, as follows:
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LESSEE: LESSOR:
County of Fresno Edison Plaza Partners, LP
John A. Navarrette ATTN: Thomas Richards
Director of General Services P.O. Box 7967
2220 Tulare Street, 16`h Floor Fresno,CA 9374 7
Fresno, CA 93721-2120
or to such person or at such other place as either Party may from time to time designate
by written notice to the other Party.
Notice given in the foregoing manner shall be deemed sufficiently given for all
purposes hereunder on the date such notice was(i)personally delivered, deposited and
postmarked with the United States Postal Service, (ii) sent by a nationally recognized
overnight courier service, or (ill) sent by telephonic facsimile transmission, provided
however, such transmission shall be completed before 5:00 PM on the day of
transmission and such Party shall otherwise comply with this Section concerning the
giving of notice in such manner, provided further that, in any event notices of changes of
address or termination of this Agreement shall not be effective until actual receipt_
Notices given hereunder shall not be amendments or modifications to this
Agreement.
26. SIGNAGE. LESSEE shall not affix, paint, erect or inscribe any sign,
projection, awning, signal or advertisement of any kind to any part of the Premises,
Building or Centre, including without limitation, the inside or outside of windows or
doors, without the written consent of LESSOR, which shall not be unreasonably
withheld. Regardless of any consent granted by LESSOR pursuant to this Section 25, all
of LESSEE'S signs shall be installed at LESSEE'S sole cost and shall comply with all
applicable laws as well as LESSOR'S sign criteria and the sign program, if any, for the
Centre. LESSOR shall have the right to remove any signs or other matter installed
Page 17 of 23
L-261 Human Services
Edison/ETA/PHBH/CFS
without LESSOR'S permission, without being liable to LESSEE by.reason of such
removal, and to charge the cost of removal to LESSEE as additional rent hereunder,
payable with the next month's rent following a written demand by LESSOR. LESSEE
shall not have approval of LESSOR'S sign criteria.
27. PARKING. LESSOR acknowledges and agrees that LESSEE shall be
entitled to 4.8 stalls per one thousand (1,000) usable square feet of net rentable space
leased. LESSOR and LESSEE agree that a limited number of parking stalls may be
marked exclusively for LESSEE'S use only; however, LESSOR further agrees that all
remaining parking in the Centre shall remain non-exclusive.
28. RECORDATION OF MEMORANDUM. The parties agree to execute a
memorandum of this LEASE (in the form attached hereto and incorporated by reference
as Exhibit "C"). LESSEE'S Director of General Services, or his/her designee, shall be
authorized to execute the Memorandum of this LEASE for LESSEE. LESSEE shall be
authorized to record the executed Memorandum of this LEASE with the Office of the
County of Fresno Recorder. The parties shall cause their respective signatures on the
Memorandum of this LEASE to be notarized to facilitate recordation thereof.
29. RECORDATION OF SUBORDINATION,_NONDISTURBANCE &
ATTORNMENT. LESSEE hereby agrees to execute a Subordination,Nondisturbance
and Attornment Agreement (in the form attached hereto and incorporated by reference as
Exhibit"D") as requested by LESSOR'S Construction Lender or Permanent Financing
Lender upon request which may be recorded as an encumbrance on the title to the
Premises. Notwithstanding the foregoing subordination, LESSEE shall retain the right of
possession of the Premises for the entire term of the Lease, even though any mortgage
holder may foreclose the lien of its deed of trust before expiration of the LEASE.
Page 18 ol'23
L-261 Human Services
Edison/ETA/P H/BH/CFS
30. LESSOR'S CONSENT TO ALTERATIONS. LESSOR hereby agrees
LESSEE may make any improvements, alterations, additions or changes to the Premises
(collectively, the "Alterations") as required for the use as contemplated by LESSEE
provided however, any Alterations do not require any structural or other substantial
modifications to the Premises. All Alterations installed or placed in or about the Premises
shall be at the sole cost of LESSEE and shall, at the expiration or other termination of this
LEASE, be and become the property of LESSOR, unless Tenant has exercised its option
to purchase as described herein or unless LESSOR, by written notice to LESSEE prior to
the end of the LEASE, or any earlier termination of this Lease, requires LESSEE, at
LESSEE'S expense, to remove such Alterations and to repair any damage to the Premises
caused by such removal. If LESSEE fails to complete such removal and/or to repair any
damage caused by the removal of any Alternations, LESSOR may do so and charge the
cost thereof to LESSEE.
31. CONVENANI' AGAINST LIENS. LESSEE shall not cause or permit any
lien or encumbrance of any kind whatsoever, whether created by act of LESSEE,
operation of law or otherwise, to attach to or be placed upon the Premises, and any and
all liens and encumbrances created by LESSEE shall attach to LESSEE'S interest only.
LESSOR shall have the right at all times to post and keep posted on the Premises any
notice which it deems necessary for protection from such liens. LESSEE covenants and
agrees not to suffer or permit any lien of mechanics or material men or others to be
placed against the Premises, or any portion thereof, with respect to work or services
claimed to have been performed for or materials claimed to have been furnished to
LESSEE or the Premises, and, in case of any such lien attaching or notice of any lien,
LESSEE covenants and agrees to cause it to be immediately released and removed of
record. Notwithstanding anything to the contrary set forth in this LEASE, in the event
Page 19 of 23
L-261 Human Services
Ed i s on/ETA/P H/B H/C F S
that such lien is not released and removed on or before the date occurring ten (10) days
after notice of such lien is delivered by LESSOR to LESSEE, LESSOR, at its sole option,
may immediately take all action necessary to rclease and remove such lien, without any
duty to investigate the validity thereof, and all sums, costs and expenses, including
reasonable attorneys' fees and costs, incurred by LESSOR in connection with such lien
shall be deemed Additional Rent under this LEASE.
32. ESTOPPEL CERTIFICATES. Within Twenty (20) days following a
request in writing by LESSOR, LESSEE shall execute and deliver to LESSOR an
estoppel certificate in a form acceptable to LESSOR, (or such other form as may be
required by any prospective mortgagee or purchaser of the Premises, or any portion
thereof), indicating therein any exceptions thereto that may exist at that time, and shall
also contain any other information reasonably requested by LESSOR or LESSOR'S
mortgagee or prospective mortgagee. LESSEE shall execute and deliver whatever other
instruments may be reasonably required for such purposes. Failure of LESSEE to timely
execute and deliver such estoppel certificate or other instruments shall constitute an
acceptance of the Premises and an acknowledgment by LESSEE that statements included
in the estoppel certificate are true and correct, without exception.
33. FORCE MAJEURE. Any prevention, delay or stoppage due to strikes,
lockouts, labor disputes, acts of God, inability to obtain services, labor, or materials or
reasonable substitutes therefore, governmental actions, civil commotions, fire or other
casualty, and other causes beyond the reasonable control of the party obligated to
perform, except with respect to the obligations imposed with regard to Rent and other
charges to be paid by LESSEE pursuant to this LEASE (collectively, the "Force
Majeure"), notwithstanding anything to the contrary contained in this LEASE, shall
excuse the performance of such party for a period equal to any such prevention, delay or
Page 20 of 23
L-261 Human Services
Edison/ETA/PH/B H/CFS
stoppage and, therefore, if this LEASE specifies a time period for performance of an
obligation of either party, that time period shall be extended by the period of any delay in
such party's performance caused by a Force Ma}eure.
34. HAZARDOUS MATERIAL. Except to the extent commonly used in the
day-to-day operation of the Premises, LESSOR and LESSEE shall not cause, permit or
allow any toxic or hazardous substances, as defined below, to be brought upon, treated,
kept, stored, disposed of, discharged, released, produced, manufactured, generated,
retired or used upon, about or beneath the Premises or any portion thereof. Any materials
that are used shall he used in a manner consistent with Federal, state and local laws and
regulations. The use of any such substance shall be in strict conformity with the
manufacturer's instructions and all governmental restrictions respecting the manner and
timing of application thereof. LESSOR and LESSEE shall maintain records in
accordance with sound business practices and all pertinent governmental regulations
respecting the time, place, quality, quantity, kind, and method of application of all such
substances as may be utilized by either LESSOR or LESSEE, and shall furnish upon
request, true and correct copies of said records.
As used herein, the term "Hazardous Material" means any hazardous or toxic
substance, material or waste which is or becomes regulated by, or is dealt with in, any
local governmental authority, the State of California or the United States Government.
35. ENTIRE LEASE. This LEASE constitutes the entire LEASE between the
LESSOR and LESSEE with respect to the subject matter hereof and supersedes all prior
leases, negotiations, proposals, commitments, writings, advertisements, publications, and
understandings of any nature whatsoever unless expressly referenced in this LEASE.
36. COUNTERPARTS AND FACSIMILE SIGNATURES. This LEASE may
Page 21 of 23
L-261 Human Services
Ed ison/ETA/PH/BH/C FS
be executed in one or more counterparts, and, each counterpart shall be considered an
original as to the party whose signature is contained thereon once the LEASE has been
executed by all parties. Further, the facsimile signature of any party hereto shall be
accepted as an original for all purposes.
This LEASE shall be binding on and inure to the benefit of LESSOR'S heirs,
///
///
111
Page 22 of 23
L-261 Human Services
Edison/ETA/PH/BH/CF S
successors and assigns.
EXECUTED as of the date first herein written.
APPROVED AS TO LEGAL FORM: LESSOR:
COUNTY COUNSEL ED N PLAZA P RS, LP
By BY ( a
Deputy The Penstar Group
Thomas G. Rich , General artner
APPROVED AS TO ACCOUNTING FORM:
VICKI CROW,C.P.A. By
AUDITOR-CONTROLLER/TREASURER- —Eay4 ,
TAX COLLECTOR James Hendricks,GeVral Partner
By LESSEE:
COUNTY OF F NO
RECOMME D FOR APPROVAL:
By
By Henry Rr erea, Chairman JUN 17 2008
J N,4w6ette, Director of Board of Supervisors
ervices
ATTEST:BERNICE E. SEIDEL,CLERK
RECOMMENDED FOR APPROVAL: BOARD OF SUPERVISORS
By By,!S� L',UN
JkliNjornback, Director, Dc partment of Deputy
8WPIWment&Temporary i issistance
REC ED FOR APPROVAL:
RECOMMENDED FOR APPR VAL:
By
By C � Edward o no,M.D. M.P.H.
Catherine A.Huerta,Director, Department Director- e Ith fficer,Department of
of Children and Family Services Public Ilea
RECOMME ED FOR APPROVAL:
By ��1�
Giang T.N en, ., M.S.N.,Director
Departni of Behavioral Health
Organizations and Accounting Designations Attached
L-261 Property/WestFresnoRegional
Page 23 of 23
WEST FRESNO REGIONAL_ CENTER
Accounting Designations
DBH DCFS DPH E&TA
Fund 0001 0001 0001 0001
Subclass 10000 10000 10000 10000
56664610 MSHA
40%; 56302116 56402005 Children's
ESP 40%; and Mental Health and
56302999 Adult 56417640 Child
Org MH 20% Welfare 56201710 56107001
Account 7340 7340 7340 7340
C:1Documents and Settings�wages\Local Setting s\Te m pora ry Internet Flles\OLK1 BATepartment Org Detail
A00
LEGAL DESCRIPTION
The land referred to in this Report is described as follows:
All that certain real property situated in the City of Fresno, County of Fresno, State of California, described as
follows:
PARCEL ONE:
Commencing at the Northeast comer of Lot 50 in Block 1 of Long Brother's Addition, according to the Map
thereof,recorded in Book 1,Page 59 of Plats, Fresno County Records; thence South 00'20' 5 1"East along the
East line of said Lot 50,a distance of 62.73 feet to the true point of beginning; thence continuing South 00' 20'
5 1"East along the East line of said Block I and the Southerly prolongation thereof and along the East line of
Block 2 of said Long Brother's Addition, a distance of 389.76 feet to the Southeast corner of Lot 50 in said
Block 2; thence South 89' 10' 45"West along the South line of Lots 40 through 50 inclusive in Block 2, a
distance of 256.01 feet; thence North 00' 20' 51"West parallel with and 256.00 feet West of the East lines of
said Block 1 and Block 2, a distance of 396.50 feet to a point on a line parallel with and 56.00 feet South of the
North line of said Block 1; thence North 891 10' 45"East along said parallel line, a distance of 249.28 feet;
thence South 45' 34' 56"East, a distance of 9.48 feet to the true point of beginning.
APN: 477-124-25T and 477-122-27T
PARCEL TWO:
Lots I 1 through 50, inclusive, in Block 1 of Long Brother's Addition,in the City of Fresno, County of Fresno,
State of California, according to the Map thereof recorded in Book 1,Page 59 of Plats,Fresno County Records.
Excepting therefrom that portion described as follows:
Commencing at the Northeast corner of Lot 50 in Block 1 of Long Brother's Addition, according to the Map
thereof, recorded in Book 1,Page 59 of Plats,Fresno County Records; thence South 00' 20' 51"East along the
East line of said Lot 50, a distance of 62.73 feet to the true point of beginning; thence continuing South 00' 20'
5 V East along the East line of said Block 1 and the Southerly prolongation thereof and along the East line of
Block 2 of said Long Brother's Addition, a distance of 389.76 feet to the Southeast comer of Lot 50 in said
Block 2; thence South 89' 10' 45" West along the South line of Lots 40 and 50, inclusive, in said Block 2, a
distance of 256.01 feet; thence North 00' 20' 5 1- West parallel with and 256.00 feet West of the East lines of
said Block I and Block 2, a distance of 396.50 feet to a point on a line parallel with and 56.00 feet South of the
North line of said Block 1; thence North 89' 10' 45"East along said parallel line, a distance of 249.28 feet;
thence South 45' 34' 56"East, a distance of 9.48 feet to the true point of beginning.
APN: 477-122-28T
PARCEL THREE:
Parcel A of Lot Line Adjustment No. 1999-26, recorded December 15, 2000,Document No. 2000-0153883 of
Official Records, described as follows:
Lots I through 18, inclusive, in Block 2 of Long Brother's Addition according to the Map thereof recorded in
Book 1,Page 59 of Plats,Fresno County Records.
Excepting therefrom the South 84 feet of Lots 1 through 13, inclusive, of said Block 2.
APN: 477-124-30T(a portion)\
PARCEL FOUR:
Lots 29 through 40, inclusive,in Block 2 of Long Brother's Addition according to the Map thereof recorded in
Book 1,Page 59 of Plats,Fresno County Records.
Excepting therefrom the East 6 feet of said Lot 40.
APN: 477-124-30T (a portion)
PARCEL FIVE:
Lots 26, 27 and 28,in Block 2 of Long Brother's Addition according to the Map thereof recorded in Book 1,
Page 59 of Plats, Fresno County Records.
APN: 477-124-01 T
PARCEL SIX:
Lots 21 and 22, in Block 2 of Long Brother's Addition, according to the Map thereof recorded in Book 1,Page
59 of Plats, Fresno County Records.
APN: 477-124-19T
+ A ��
PARCEL SEVEN:
Lots 19 and 20,in Block 2 of Long Brother's Addition, according to the Map thereof recorded in Book 1,Page
59 of Plats,Fresno County Records.
APN: 477-124-18T
PARCEL EIGHT:
Lots 23, 24 and 25, in Block 2 of Long Brother's Addition, according to the Map thereof recorded in Book 1,
Page 59 of Plats, Fresno County Records.
APN: 477-124-22T
APN: 477-122-28T & 27T 477-124-18T, 19T,477-124-25T, 01T,30T, 22T
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EXHIBIT "B"
L-261
COUNTY OF FRESNO
West Fresno Regional Center and Library
Approximately 38,359 Net Rentable SF
At Edison Plaza
Fresno, California
OPERATING EXPENSE BUDGET
Annualized
For Building and Site
Through
June 30, 2011
HUMAN SERVICES
29,037 sq. ft.
Budgeted Operating Expenses
Square Cost Per Annual Monthly
Feet SF Cost Cost/SF
Business Tax and Licenses 29,037 $ 0.026 $ 755 $ 0.002
Real Property Taxes 2.647 76,861 0.221
Water Service 0.067 1,945 0.006
Sewer Service 0.048 1,394 0.004
Security Monitoring 0.010 290 0.001
Fire Protection 0.095 2,759 0.008
Landscape Service 0.203 5,895 0.017
Landscape Supplies 0.131 3,804 0.011
Trash Service 0.163 4,733 0.014
Repairs and Maintenance Reserve 0.813 23,607 0.068
Pest Control 0.038 1,103 0.003
Property and Liability Insurance 0,419 12,167 0.035
Janitorial Service 0.960 27,876 0.080
Janitorial Supplies 0.400 11,615 0.033
Window Washing 0.055 1,597 0.005
Parking Lot Sweeping 0.072 2,091 0.006
Property Management-2.5% 0.675 19,600 0.056
PG&E 2.160 62,720 0.180
1st Annual Operating Expense Budget $ 8.982 $260,810
Monthly Expense Prorations Through June 30, 2011 $ 21,734
Notes to Budget
1. Should utility costs exceed the budgeted monthly expenses by more than 10% for any three
months during the budget period, LESSOR may adjust the monthly budgeted utility expenses
and increase the monthly charge to LESSEE.
2. Operating expenses resulting from LESSEE requested overtime will be billed monthly as
incurred, and will be due within 30 days after receipt of each statement.
3. Within 45 days after June 30, 2011, a rent credit will be issued to LESSEE for any overpayment,
or a statement for underpayment will be delivered to LESSEE, payable within 30 days of receipt.
1 EXHIBIT "C"
2 L-261
}
3 Recording requested by: }
County of Fresno )
4 )
After recording, return to: )
5 County of Fresno }
General Services )
6 ATTN-. John A. Navarrette )
7 2220 Tulare Street, 161h Floor )
Fresno, CA 93721-2120
8
9 Memorandum of Lease
10
11 This Memorandum of Lease is made and entered in this day of
12 2008 by and between EDISON PLAZA PARTNERS, LP, P.O. Box 7967, Fresno, CA
13 93747 (hereinafter"LESSOR") and the COUNTY OF FRESNO, a Political Subdivision
14 of the State of California, 2220 Tulare Street, 16th Floor, Fresno, CA 93721-2120
15 (hereinafter "LESSEE"), who agree as follows:
16 1. LESSOR owns that improved parcel of real property located in Fresno County,
17 State of California legally described as: the South side of California Avenue
18 between Walnut Avenue and Plumas Street, Fresno, CA, and more particularly
19 described in attached Exhibit A and incorporated herein by reference
20 (hereinafter "Property"). LESSEE is leasing that portion of the real property
21 described in Exhibit B, and incorporated herein by reference (hereinafter
22 "Premises").
23 2. The Premises contains approximately 29,037 square feet of office and common
24 area space and the Property provides approximately 412 nonexclusive use
25 parking stalls.
26 3. Effective 2008 LESSOR and LESSEE entered into a lease
27 pursuant to which LESSEE leased the Premises from LESSOR.
28
1
1 4. The primary term of the LEASE is sixteen (16) years beginning upon the date of
2 occupancy which is expected to be on or about October 1, 2009.
3 5. A copy of the LEASE may be obtained from the Department of General
4 Services, Attn: Lease Services (L-271), 2220 Tulare Street, Suite 1600,
5 Fresno, CA 93721-2120.
6 IN WITNESS WHEREOF, the parties have executed this Memorandum
7 of Lease on the day and date opposite their signatures.
8
LESSOR-
9 EDISON PLAZA PARTNERS, LP
10
Date By
11 The Penstar Group
Thomas G. Richards, General Partner
12
13 Date By
H.A.W. Fifty Six, LLC
14 James Hendricks, General Partner
15 LESSEE:
16 COUNTY OF FRESNO
17 Date By
18 John A. Navarrette, Director of
General Services
19
20 APPROVED AS TO LEGAL FORM:
COUNTY COUNSEL
21
22 Date By
Deputy
23
24
L-261 PropertyEdisorVFresnoCountyHu man Services
25
26
27
28
2
Fresno County Counsel
2220 Tulare Street.5°i Floor
., 0 a
LEGAL DESCRIPTION
The hand referred to in this Report is described as follows:
All that certain real property situated in the City of Fresno,County of Fresno, State of California,described as
follows:
PARCEL ONE:
Commencing at the Northeast corner of Lot 50 in Block I of Long Brother's Addition, according to the Map
thereof, recorded in Book 1,Page 59 of Plats,Fresno County Records; thence South 00'20' 51"East along the
East line of said Lot 50,a distance of 62.73 feet to the true point of beginning;thence continuing South 000 20'
51" East along the East line of said Block I and the Southerly prolongation thereof and along the East line of
Block 2 of said Long Brother's Addition, a distance of 389.76 feet to the Southeast corner of Lot 50 in said
Block 2; thence South 891 10' 45"West along the South line of Lots 40 through 50 inclusive in Block 2, a
distance of 256.01 feet; thence North 00°20' 51"West parallel with and 256.00 feet West of the East lines of
said Block 1 and Block 2, a distance of 396.50 feet to a point on a line parallel with and 56.00 feet South of the
North line of said Block 1; thence North 89' 10' 45"East along said parallel line, a distance of 249.28 feet;
thence South 45' 34' 56"East, a distance of 9.48 feet to the true point of beginning.
APN: 477-124-25T and 477-122-27T
PARCEL TWO:
Lots 1 I through 50, inclusive, in Block 1 of Long Brother's Addition, in the City of Fresno, County of Fresno,
State of California, according to the Map thereof recorded in Book 1,Page 59 of Plats,Fresno County Records.
Excepting therefrom that portion described as follows:
Commencing at the Northeast corner of Lot 50 in Block 1 of Long Brother's Addition, according to the Map
thereof, recorded in Book 1,Page 59 of Plats,Fresno County Records; thence South 00'20' 51"East along the
East line of said Lot 50, a distance of 62.73 feet to the true point of beginning;thence continuing South 00'20'
51"East along the East line of said Block 1 and the Southerly prolongation thereof and along the East line of
BIock 2 of said Long Brother's Addition, a distance of 389.76 feet to the Southeast corner of Lot 50 in said
Block 2; thence South 89' 10' 45" West along the South line of Lots 40 and 50, inclusive, in said Block 2, a
distance of 256.01 feet; thence North 00' 20' 51"West parallel with and 256.00 feet West of the East lines of
said Block I and Block 2, a distance of 396.50 feet to a point on a lint;parallel with and 56.00 feet South of the
North line of said Block 1; thence North 89' 10' 45"East along said parallel line, a distance of 249.28 feet;
thence South 45' 34' 56" East, a distance of 9.48 feet to the true point of beginning.
APN: 477-122-28T
co
PARCEL THREE:
Parcel A of Lot Line Adjustment No. 1999-26,recorded December 15, 2000,Document No. 2000-0153883 of
Official Records, described as follows:
Lots 1 through 18, inclusive, in Block 2 of Long Brother's Addition according to the Map thereof recorded in
Book 1, Page 59 of Plats,Fresno County Records.
Excepting therefrom the South 84 feet of Lots 1 through 13, inclusive, of said Block 2.
APN: 477-124-30T(a portion)\
PARCEL FOUR:
Lots 29 through 40, inclusive, in Block 2 of Long Brother's Addition according to the Map thereof recorded in
Book 1,Page 59 of Plats,Fresno County Records.
Excepting therefrom the East 6 feet of said Lot 40.
APN: 477-124-30T (a portion)
PARCEL FIVE:
Lots 26, 27 and 28, in Block 2 of Long Brother's Addition according to the Map thereof recorded in Book 1,
Page 59 of Plats, Fresno County Records.
APN: 477-124-01 T
PARCEL SIX:
Lots 21 and 22, in Block 2 of Long Brother's Addition, according to the Map thereof recorded in Book 1,Page
59 of Plats, Fresno County Records.
APN: 477-124-l 9T
PARCEL SEVEN:
Lots 19 and 20,in Block 2 of Long Brother's Addition, according to the Map thereof recorded in Book 1,Page
59 of Plats,Fresno County Records.
APN: 477-124-18T
PARCEL EIGHT:
Lots 23, 24 and 25, in Block 2 of Long Brother's Addition, according to the Map thereof recorded in Book 1,
Page 59 of Plats, Fresno County Records,
APN: 477-124-22T
APN: 477-122-28T & 27T 477-124-18T, 19T,477-124-25T, 01T,30T, 22T
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L-261 West Fresno Region Center
EdisonPlaza/ETA/PH/BH/CFSA
Exhibit "D"
L-261
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT is entered into as of eDATE, between the COUNTY OF FRESNO
(hereinafter"Lessee) and NAME;-yOF_BANK (hereinafter `Bank").
RECITALS
A. Bank has extended credit or may hereafter extend credit to EDISON PLAZA
PARTNERS, LP (hereinafter"Borrower") secured, in whole or in part by a $DOLLARAMOUNT
deed of trust dated as of DATE and recorded on IbAft as DocumentNo '#_ of the _..
Official Records of the County of Fresno Recorder, California (the "Deed of Trust") covering that
certain real property including a building and improvements described on Exhibit A; attached
hereto and incorporated herein by this reference (hereinafter the "Property").�
B. Lessee intends to enter into a lease (hereinafter"Lease") with EDISON PLAZA
PARTNERS, LP, pursuant to which Lessee will lease the Property from Lessor concurrently with
this Agreement. Bank acknowledges that it has received a copy of the proposed Lease to be
executed by Lessee and Lessor. In connection therewith, Lessee has requested that Bank
enter into this Agreement, and Bank has agreed to do so with the understanding that the Deed
of Trust will be and at all times remain a lien or charge on the Property prior and superior to the
right of Lessee under this Lease.
C. LESSEE desires the assurance that it shall have undisturbed possession of the
Property under the Lease, as provided herein, and Bank desires that Lessee shall continue to
remain the tenant of the Property, as provided herein, so long as Lessee is not in default under
the Lease.
D. NOW, THEREFORE, for valuable consideration, in the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1. AGREEMENT. Lessee hereby covenants and agrees that, so long as the Deed
of Trust remains in force and effect:
1
L-261 West Fresno Region Center
EdisonPiaza/ETA/PH/BH/CFSA
(a) Priority of Deed of Trust. The Deed of Trust and any and all extensions,
renewals, modifications or replacements thereof shall be and at all times remain a lien or charge
on the Property prior and superior to the Lease.
(b) No Modification, Termination or Cancellation. Without Bank's prior written
consent, Lessee shall not consent to any termination or cancellation of the Lease, other than as
expressly permitted in the Lease. Without Bank's prior written consent, Lessee shall not
consent to any modification of the Lease that would reduce the term of the Lease, reduce the
rent payable under the Lease, increase the Lessor's responsibilities under the Lease or change
any notice or cure periods set forth in the Lease, other than as expressly permitted in the lease.
Notice of Default. Lessee shall notify Bank in writing concurrently with any notice given
to Lessor of any breach of or default by Lessor under the Lease that is substantially likely to
lead to a termination of the Lease, or of Lessee's intention to terminate the Lease. Lessee
agrees that Bank shall have the right (but not the obligation if Bank is not also the Lessor during
such time) to cure any such breach or default of Lessor capable of cure and specified in such
notice within thirty (30) days after such notice to Bank, and Lessee shall not terminate the Lease
if Bank cures such breach or default within such period; provided, however, if such breach or
default cannot, with reasonable diligence, be cured by Bank within such thirty (30) day period,
the commencement of action by Bank within such thirty (30) day period to remedy same shall
be deemed sufficient so long as Bank pursues such cure with diligence (but, in no event shall it
be longer then ninety (90) days, and promptly provides Lessee written notice to Lessee of
Bank's intent to cure with such diligence and how Bank will proceed to do so. The Bank's cure
of any such breach or default shall not release Lessor from liability for any such breach or
default under the Lease.(
(d) No Advance Rents. Lessee shall be entitled to full credit for any rents previously
paid to the Lessor; provided, however, that Lessee shall not make any payments or
prepayments of rent more than one (1) month in advance of the time when the same become
due under the lease.
2. ATTORNMENT, If Bank or any other transferee acquires Lessor's right, title and
interest in and to the Property pursuant to a judicial or non-judicial foreclosure of the Deed of
Trust or deed in lieu thereof or in any other manner whereby Bank or such transferee succeeds
to the title or interest of Lessor in the Property or under the Lease, and gives prior written notice
thereof to Lessee, Lessee agrees as follows for the benefit or Bank or such transferee:
(a) Payment of Rent. Lessee shall pay to Bank or such transferee all rental
payments required to be made by Lessee pursuant to the terms of the Lease for the remaining
term thereof.
(b) Continuation of Performance. Lessee shall be bound to Bank or such transferee
in accordance with all of the terms of the Lease for the remaining term thereof, and Lessee
hereby attorns to Bank or such transferee as its landlord, such attornment to be effective and
self-operative without the execution of any further instrument immediately upon Bank or such
transferee succeeding to Lessor's interest in the Lease.
(c) No Offset. Neither Bank nor such transferee shall be liable for, or subject to, any
offsets or defenses which Lessee may have by reason of any action or omission of Lessor as
the prior lessor under the Lease, or for the return of any sums which Lessee may have paid to
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Lessor as the prior lessor under the Lease as security deposits, advance rentals or otherwise,
except to the extent that such sums are actually delivered by Lessor to Bank or such transferee.
(d) Subsequent Transfer. If Bank or such transferee, by succeeding to Lessor's
interest under the Lease, becomes obligated to perform the covenants of a lessor thereunder,
then, upon any further transfer by Bank or such transferee of its interest as a lessor under the
Lease, all of such obligations shall terminate as to Bank or such transferee
3. NON—DISTURBANCE. Despite the priority of the Deed of Trust under Section
1(a) of this Agreement, in the event of a judicial or non-judicial foreclosure of the Deed of the
Trust or a deed in lieu thereof or in any other manner whereby Bank or its transferee succeeds
to the title or interest of Lessor in the Property or under the Lease, so long as there shall then
exist no breach, default or event of default by Lessee under the Lease, (a) the leasehold interest
of Lessee shall not be extinguished, terminated, or diminished by reason of any such action; (b)
the Lease shall continue in full force and effect; (c) Bank and its successors-in-interest shall
recognize and accept Lessee as the tenant under the Lease, subject to the terms and
conditions of the Lease as modified by this Agreement; (d) Lessee's peaceful and quiet use,
possession and enjoyment of the Property, according to the terms of the Lease, shall not be
disturbed; (e) the Lease shall automatically become a lease directly between Bank or its
transferee and Lessee.
4. MISCELLANEOUS.
(a) Remedies Cumulative. All remedies provided herein are cumulative, not
exclusive, and shall be in addition to any and all other rights and remedies provide by law.
(b) Costs, Expenses and Attorneys' Fees. If any party hereto institutes any judicial
or administrative action or proceeding to enforce any rights or obligations under this Agreement,
or seeking damages or any other judicial or administrative remedy, the prevailing party shall be
entitled to recover from the other party all costs and expenses, including reasonable attorneys'
fees (to include outside counsel fees and all allocated costs of the prevailing party's in-house
counsel), whether incurred at the trial or appellate level, and including any of the foregoing
incurred in connection with any bankruptcy proceeding (including without limitation, any
adversary proceeding, contested matter or motion brought by Bank or any other person) relating
to Lessee, Lessor or the Lease.
(c) Further Assurance. At the request of any party hereto, each other party shall
execute, acknowledge and deliver such other documents and/or instrument as may be
reasonably required by the requesting party in order to carry out the purpose of this Agreement,
provided that no such document or instrument shall modify the rights and obligations of the
parties set forth herein.
(d) Borrower; Lessor. if borrower and Lessor are the same, each reference in this
Agreement to Borrower or Lessor shall be deemed a reference to said person or entity in its
respective capacity.
(e) Successors Assigns* Governing Law. This Agreement shall be binding upon
and inure to the benefit of the heirs, executors, legal representatives, successors, assigns and
other transferees of the parties hereto, and shall be governed by and construed in accordance
with the laws of the State of California. Venue for action arising out of or relating to this
Agreement shall be in the County of Fresno, California. In order for this Agreement to inure to
the benefit of Bank's transferees of the Deed of Trust, Lessee shall receive written notice from
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Bank of the transfer of the Deed of Trust to such transferee (or subsequent transferors, as the
case may be).
(f) Conflicts. In the event of any inconsistency between the terms of this Agreement
and the Lease, the terms of this Agreement shall control.
(g) Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute and be
construed as one and the same instrument.
(h) Modifications. This Agreement may be modified only by an agreement in writing
signed by the parties or their successors or assigns.
(i) Entire Agreement. This Agreement merges and supercedes all prior
negotiations, representations and contracts between the parties, and constitutes the entire
agreement between the parties concerning the subject matter hereof.
(k) Recordation. The Lessee shall be authorized to record this Agreement in the
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Office of the County of Fresno Recorder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
LESSEE: BANK:
COUNTY OF FRESNO NAME OF BANK
By By
John A. Navarrette, Director of Name/Title — President/Vice President
General Services
APPROVED AS TO LEGAL FORM: By
DENNIS A. MARSHALL, COUNTY COUNSEL Name/Title — Secretary/Financial Officer
By Address:
Deputy
APPROVED AS TO ACCOUNTING FORM:
VICKI CROW, C.P.A.
ADITOR-CONTROLLER/TREASURER-
TAX COLLECTOR
By
OBTAIN NOTARY ACKNOWLEDGEMENTS
5
Co. N C
LEGAL DESCRIPTION
The land referred to in this Report is described as follows:
All that certain real property situated in the City of Fresno,County of Fresno, State of California,described as
follows:
PARCEL ONE:
Commencing at the Northeast corner of Lot 50 in Block 1 of Long Brother's Addition, according to the Map
thereof, recorded in Book 1,Page 59 of Plats,Fresno County Records; thence South 00'20' 51"East along the
East line of said Lot 50,a distance of 62.73 feet to the true point of beginning;thence continuing South 00' 20'
51"East along the East line of said Block 1 and the Southerly prolongation thereof and along the East line of
Block 2 of said Long Brother's Addition,a distance of 389.76 feet to the Southeast corner of Lot 50 in said
Block 2; thence South 89' 10' 45"West along the South line of Lots 40 through 50 inclusive in Block 2, a
distance of 256.01 feet; thence North 00' 20' 51"West parallel with and 256.00 feet West of the East lines of
said Block 1 and Block 2, a distance of 396.50 feet to a point on a line parallel with and 56.00 feet South of the
North line of said Block 1; thence North 89' 10' 45"East along said parallel line, a distance of 249.28 feet;
thence South 45' 34' 56"East, a distance of 9.48 feet to the true point of beginning.
APN: 477-124-25T and 477-122-27T
PARCEL TWO:
Lots 1 I through 50, inclusive, in Block 1 of Long Brother's Addition, in the City of Fresno, County of Fresno,
State of California, according to the Map thereof recorded in Book 1,Page 59 of Plats,Fresno County Records.
Excepting therefrom that portion described as follows:
Commencing at the Northeast corner of Lot 50 in Block I of Long Brother's Addition, according to the Map
thereof, recorded in Book 1, Page 59 of Plats,Fresno County Records; thence South 00°20' 51"East along the
East line of said Lot 50, a distance of 62.73 feet to the true point of beginning; thence continuing South 00' 20'
51" East along the East line of said Block 1 and the Southerly prolongation thereof and along the East line of
Block 2 of said Long Brother's Addition, a distance of 389.76 feet to the Southeast corner of Lot 50 in said
Block 2; thence South 89' 10' 45" West along the South line of Lots 40 and 50, inclusive, in said Block 2, a
distance of 256.01 feet; thence North 00' 20' 51" West parallel with and 256.00 feet West of the East lines of
said Block 1 and Block 2, a distance of 396.50 feet to a point on a line parallel with and 56.00 feet South of the
North Iine of said Block 1; thence North 89' 10' 45"East along said parallel line, a distance of 249.28 feet;
thence South 45' 34' 56" East, a distance of 9.48 feet to the true point of beginning_
APN: 477-122-28T
PARCEL THREE:
Parcel A of Lot Line Adjustment No. 1999-26,recorded December 15,2000,Document No. 2000-0153883 of
Official Records, described as follows:
Lots 1 through 18,inclusive, in Block 2 of Long Brother's Addition according to the Map thereof recorded in
Book 1, Page 59 of Plats, Fresno County Records.
Excepting therefrom the South 84 feet of Lots 1 through 13, inclusive, of said Block 2.
APN: 477-124-30T(a portion)\
PARCEL FOUR:
Lots 29 through 40, inclusive, in Block 2 of Long Brother's Addition according to the Map thereof recorded in
Book 1,Page 59 of Plats,Fresno County Records.
Excepting therefrom the East 6 feet of said Lot 40.
APN: 477-124-30T (a portion)
PARCEL FIVE:
Lots 26, 27 and 28, in BIock 2 of Long Brother's Addition according to the Map thereof recorded in Book 1,
Page 59 of Plats, Fresno County Records.
APN: 477-124-01 T
PARCEL SIX:
Lots 21 and 22, in Block 2 of Long Brother's Addition, according to the Map thereof recorded in Book 1,Page
59 of Plats, Fresno County Records.
APN: 477-124-19T
PARCEL SEVEN:
Lots 19 and 20, in Block 2 of Long Brother's Addition, according to the Map thereof recorded in Book 1,Page
59 of Plats,Fresno County Records.
APN: 477-124-I 8T
PARCEL EIGHT:
Lots 23, 24 and 25,in Block 2 of Long Brother's Addition, according to the Map thereof recorded in Book 1,
Page 59 of Plats, Fresno County Records.
APN: 477-124-22T
APN: 477-122-28T & 27T 477-124-18T, 19T,477-124-25T, 01T, 30T,22T