HomeMy WebLinkAboutAgreement A-18-020 with Sultana LLC.pdf Agreement No. 18-020
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1 LEASE AGREEMENT
2 THIS LEASE AGREEMENT (hereinafter LEASE) is made and entered into this 9th day
3 of January , 2018, by and between 5561 Sultana LLC a California Limited Liability
4 Company, 18321 Ventura Blvd., Suite 980, Tarzana, CA 91356 ("LESSOR"), and the
5 COUNTY OF FRESNO, a political subdivision of the State of California, 333 W. Pontiac Way,
6 Clovis, CA 93612 ("LESSEE"). LESSOR and LESSEE shall also be referred to herein
7 singularly as a "Party" and collectively as "Parties."
8 1. LEASED PREMISES - LESSOR hereby leases to LESSEE approximately
9 9,552 square feet of office space at the location currently known as Gallery Plaza Shopping
10 Center("Shopping Center"), 5091 N. Fresno St., Suites 115, 116, 117 and 122, Fresno, CA
11 93710 (hereinafter the "Premises").
12 2. TERM —
13 A. The primary term of this Lease shall be three (3) years ("Primary Term")
14 commencing on the date LESSEE first takes occupancy of the Premises
15 (hereinafter"Commencement Date") as set forth in a written acknowledgement
16 signed by LESSOR and LESSEE's Director of Internal Services, specifying that
17 LESSOR has substantially completed the Tenant Improvements provided for in
18 Section 9 herein and a building occupancy permit has been issued by the local
19 governing agency. It is understood by the parties herein that LESSEE's occupancy
20 of the Premises shall commence only after said written acknowledgement is
21 executed, which such acknowledgement shall not be unreasonably withheld or
22 delayed. If the Commencement Date is not the first day of a calendar month,then
23 the Primary Term shall include such partial calendar month and a full three-year
24 term starting thereafter on the first day of the month following such partial calendar
25 month.
26 B. Upon expiration of the Primary Term, this Lease shall automatically renew for
27 one (1) additional two-year period, unless LESSEE provides written notice of
28 non-renewal to LESSOR at least six (6) months prior to the expiration of the
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1 Primary Term. LESSEE's Director of Internal Services is hereby authorized to
2 provide such notice of non-renewal.
3 3. RENT- LESSEE shall pay rent on a monthly basis for the Premises ("Base
4 Rent") beginning on the Commencement Date (subject to Section 9 herein below), as shown
5 in the below payment schedule. Base Rent shall increase by three percent (3%) each year on
6 the anniversary of the Commencement Date:
7 Rent Period Rent/Month
8 Year One $ 9,552.00
Year Two $ 9,838.56
9 Year Three $ 10,133.72
Year Four $ 10,437.73
10 Year Five $ 10,750.86
11 If the Commencement Date does not occur on the first (1st) day of a month or if the
12 Term ends on a day other than the last day of the month, then Base Rent for any such partial
13 month shall be prorated based on the rate specified above for Year One.
14 4. ADDITIONAL RENT— In addition to the Base Rent, LESSEE shall pay on a
15 monthly basis as "Additional Rent,"the annual operations costs for the Premises to LESSOR,
16 consisting of 100% of: LESSOR'S actual out of pocket cost for real estate taxes, insurance
17 and all common area maintenance expenses ("CAM") incurred by LESSOR allocable to the
18 Premises (collectively, "Operation Costs"). The estimated Operation Costs for the 2017
19 calendar year based on current Operation Costs are $33,432.00; provided, however, this
20 figure is simply an estimate and shall not be deemed or otherwise construed as a
21 representation, warranty or covenant by LESSOR as to the actual Operation Costs for the
22 2017 calendar year. Based on the foregoing estimate, beginning on the Commencement
23 Date, LESSEE shall pay Additional Rent to LESSOR for each month or partial month at the
24 rate of$2,786 per month, unless LESSOR provides LESSEE with an revised budget or a
25 statement (as described hereinbelow) showing that LESSOR's actual Operation Costs have
26 increased, at which time LESSEE shall pay Additional Rent in accordance with LESSOR's
27 revised budget estimate or statement.
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2 Within 120 days after the end of each calendar year or its fiscal year, LESSOR
3 shall make good faith efforts and endeavor to furnish to LESSEE a statement covering
4 the calendar or fiscal year (as the case may be)just expired, showing by cost category
5 the actual Operation Costs incurred for that year, and the monthly payments made by
6 LESSEE during that year for the Operation Costs. If LESSEE's share of the Operation
7 Costs exceeds LESSEE's prior payments, LESSEE shall pay to LESSOR, as
8 Additional Rent, the deficiency within 45 days after receipt of such annual statement. If
9 LESSEE's payments for the calendar or fiscal year (as the case may be) exceed
10 LESSEE's actual share of the Operation Costs, and provided LESSEE is not in arrears
11 as to the payment of any Base Rent or Additional Rent, LESSEE may offset the excess
12 against any payments of Operation Costs next due LESSOR.
13 5. UTILITIES— LESSEE shall pay directly those metered costs for its use of
14 natural gas and electricity, water, garbage, sewer and all costs associated with its use of
15 telephone service.
16 6. USE—LESSEE shall use the Premises as office space for its Department of
17 Social Services or for any other County of Fresno department, office, or agency. LESSEE
18 agrees to comply with all applicable laws, ordinances and regulations in connection with such
19 use. LESSEE covenants that the Premises are suitable for the intended use.
20 LESSOR covenants that: ; (i) the Premises are in compliance with all applicable local,
21 state and federal laws, ordinances and regulations, including but not limited to safety
22 regulations, health and building codes; and (ii) the Premises shall remain in such compliance
23 throughout the term of this LEASE.
24 7. MAINTENANCE AND REPAIRS— LESSOR shall be responsible for all exterior
25 and interior maintenance, including repair of air conditioning, heating units, plumbing systems,
26 electrical systems and interior light fixture ballasts, fire sprinkler system, roof, painting, flooring,
27 landscape, parking and other common area maintenance at the Premises. LESSOR is also
28 responsible for the structural condition of the building and agrees that the building will always
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1 be maintained in a condition acceptable for the LESSEE'S intended use of the Premises.
2 LESSOR's maintenance responsibilities shall include carpet replacement and exterior and
3 interior painting, as needed, due to normal wear and tear, but not more often than once every
4 five years.
5 In the event building systems such as air conditioning and heating units malfunction,
6 restroom fixtures are not draining properly, or water intrusion, leaks or other events that
7 immediately impact the occupancy of the Premises by LESSEE occur, LESSOR shall use its
8 best efforts to respond within twenty-four(24) hours after contact by LESSEE to diligently
9 pursue repairs and replace equipment to restore the systems to full working order. Structural
10 issues, including but not limited to damaged doors, walls, roof, and windows shall be a priority,
11 and shall be addressed within a reasonable time after such are reported. LESSOR covenants
12 that the Premises shall be maintained in substantially the same condition as that existing at
13 the commencement of this LEASE, normal wear and tear excepted.
14 LESSEE shall be responsible for damages and repairs caused by LESSEE's
15 employees or clients.
16 8. JANITORIAL SERVICES AND COST— LESSOR, at LESSOR's sole cost and
17 expense, shall procure and provide janitorial services and supplies at the Premises
18 (hereinafter"Janitorial Services"). Such Janitorial Services shall be provided five (5) days per
19 week and shall include the services and supplies as described in Exhibit "A", attached hereto
20 and by this reference incorporated herein.
21 LESSEE shall reimburse LESSOR for LESSOR's actual monthly cost for Janitorial
22 Services. This monthly Janitorial Cost shall be in addition to the Base Rent and Additional
23 Rent. LESSOR shall mail an invoice by the fifteenth (15th) day of each month for the Janitorial
24 Cost to: County of Fresno, Department of Social Services, Attn: DSS Business Office, Gallery
25 Plaza— DSS, P.O. Box 1912, Fresno, CA 93718.
26 LESSOR and LESSEE may agree to select a different janitorial service to correct
27 deterioration in the quality of the janitorial service, or for any other reason mutually agreed
28 upon by the parties.
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1 9. TENANT IMPROVEMENTS TO PREMISES/PAYMENT TERMS - LESSOR
2 shall construct tenant improvements (hereinafter"Tenant Improvements") as described in
3 Exhibit"B", attached hereto and incorporated herein by reference. LESSOR shall use
4 commercially reasonable efforts to ensure that Tenant Improvements are completed within
5 180 days of the execution of this Lease. Further, any modifications to Exhibit "B" or to the final
6 Tenant Improvement drawings, plans and specifications shall be approved in writing by both
7 LESSOR and LESSEE's Director of Social Services, or their respective designees, prior to
8 commencement of construction of such modifications, which approval shall not be
9 unreasonably withheld or delayed. LESSOR shall provide all labor, material and equipment
10 for the completion of the above-described work in accordance with Exhibit"B", and the final
11 Tenant Improvement drawings, plans and specifications.
12 LESSOR and LESSEE agree that the total cost for the Tenant Improvements shall not
13 exceed the sum of$1,290,151.95. LESSEE shall pay the cost in an amount not to exceed
14 $1,290,151.95, plus interest thereon, as follows: LESSEE'S cost for Tenant Improvements
15 (hereinafter the"TI Rent") shall be amortized over three (3) years with interest accruing at 6%
16 percent per year as described in Exhibit"C", attached hereto and by this reference
17 incorporated herein; provided, however, that LESSOR and LESSEE agree that Exhibit "C" is
18 intended as a hypothetical amortization schedule and upon determination of the actual cost of
19 the Tenant Improvements, the hypothetical amortization schedule will be replaced with an
20 amortization schedule reflecting computations based on the actual cost of the Tenant
21 Improvements. LESSEE shall make monthly payments to LESSOR for the Tenant
22 Improvements, which shall be in addition to the Base Rent and Additional Rent.
23 Should either party to this LEASE terminate this LEASE prior to completion of the three
24 (3) year amortization period to pay for the Tenant Improvements described in this Section 9,
25 then LESSEE shall pay to LESSOR, in one lump sum, an amount equal to the unamortized
26 principal balance of LESSEE's share of the cost of the Tenant Improvements within forty-five
27 (45) days after the LEASE termination date.
28 10. ALTERATIONS — LESSEE shall make no alterations, installations, changes or
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1 additions in or to the Premises, including any building thereat (collectively, "Alterations"),
2 without first obtaining LESSOR's express written permission. Alterations shall not include
3 moveable office furniture, office furnishings and office equipment.
4 11. COMPLIANCE WITH ALL LAWS —As to the Premises, LESSOR
5 acknowledges public funds are used for payments made by LESSEE under this LEASE and
6 for"public works" projects. Accordingly, LESSOR shall comply with, and shall ensure
7 compliance by all contractors and subcontractors with all applicable laws and regulations,
8 including the payment of prevailing wages pursuant to Section 1770 et. seq. of the Labor
9 Code.
10 12. BREACH OF OBLIGATION TO MAINTAIN - In the event LESSOR breaches its
11 obligation to maintain the Premises as herein provided, LESSEE shall give written notice to
12 LESSOR within fifteen (15) days of the discovery of such breach. LESSOR shall then have
13 thirty (30) days from the date of notice to cure its breach; however, that if such default
14 continues for thirty (30) days after written notice thereof from LESSEE to LESSOR then
15 LESSOR will not be in default hereunder if within such thirty (30) day period, LESSOR
16 commences the curing of such default and diligently and in good faith prosecutes the same to
17 completion. If the period for cure expires and if, in LESSEE'S sole and reasonable
18 determination, LESSOR has failed to cure, then LESSEE may, at its election:
19 (A) terminate this LEASE by providing thirty (30) days prior written notice. In
20 such case, LESSEE shall have the right to demand LESSOR refund any
21 monies which, in the reasonable judgment of LESSEE, were paid to LESSOR
22 pursuant to the LEASE but which were not earned by LESSOR by
23 consequence of its breach. Upon receipt of such demand, LESSOR shall
24 promptly refund all such monies; or
25 (B) after providing LESSOR with 10 days written notice of its intention to cure
26 LESSOR'S breach, LESSEE may cure such breach and deduct the
27 reasonable cost of such cure from LESSEE'S future rent obligation.
28 LESSEE'S decision to cure LESSOR'S breach shall not constitute a waiver of
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1 any rights or remedies that LESSEE may have arising from this LEASE or by
2 operation of law, except that LESSEE shall not have the right to terminate
3 described above with respect to the circumstances related to such cured
4 breach.
5 13. DESTRUCTION OR DAMAGE FROM CASUALTY - If the Premises are
6 damaged or destroyed as a result of fire, earthquake, act of God, or any other identifiable
7 event of a sudden, unexpected, or unusual nature (hereinafter"Casualty"), then LESSOR shall
8 either promptly and diligently repair the damage at its own cost, or terminate this LEASE as
9 provided herein below.
10 (A) LESSOR'S Election to Repair: If LESSOR elects to repair the Casualty
11 damage to the Premises, then it shall within fifteen (15) days after the date of
12 Casualty or as soon as possible thereafter provide written notice (hereinafter
13 "Notice of Repair") to LESSEE indicating the anticipated time required to
14 repair. LESSOR shall bear the cost of all repairs to the Premises, including
15 the cost to repair any alterations or fixtures installed or attached thereto by
16 LESSEE. Such repairs shall restore the Premises to substantially the same
17 condition as that existing at the commencement of this LEASE; such repairs
18 shall also be made in compliance with all applicable state and local building
19 codes. LESSOR shall not be liable to LESSEE for compensation for any loss
20 of business, or any inconvenience or annoyance arising from repair of the
21 Premises as a result of the Casualty except for rent reduction as hereinafter
22 provided. LESSEE shall be responsible at its sole cost and expense for the
23 replacement of its personal property.
24 (B) LESSOR'S Election to Terminate Due to Casualty: LESSOR may only elect
25 to terminate this LEASE due to Casualty if: the Premises have been
26 destroyed or substantially destroyed by said Casualty; and the estimated time
27 to repair the Premises exceeds sixty (60) days from the date of the Casualty.
28 LESSOR shall provide LESSEE with written notice of its election to terminate
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1 within forty-five (45) days after the date of Casualty, specifying a termination
2 date not less than thirty (30) days from the date of said notice.
3 (C) Rent Reduction Due to Casualty: In the event of Casualty, LESSEE'S
4 obligation to pay rent (both Base Rent and Additional Rent) shall be reduced
5 beginning on the date of the Casualty. Such reduction shall be proportional to
6 the damage caused to the Premises by the Casualty as reasonably
7 determined by LESSEE. If LESSOR elects to repair the Premises pursuant to
8 the terms of this LEASE, to the extent the Premises remain unusable by
9 LESSEE, the rent reduction shall continue until the date of substantial
10 completion of repair.
11 (D) LESSEE'S Election to Terminate Due to Casualty: If LESSEE does not
12 receive a Notice of Repair from LESSOR within fifteen (15) days or as soon
13 as reasonably possible after a Casualty, or if the anticipated period of repair
14 contained in the Notice of Repair exceeds ninety (90) days, then LESSEE
15 may elect to terminate this LEASE by providing thirty (30) days prior written
16 notice to LESSOR. In such case, LESSEE shall have the right to demand
17 that LESSOR refund any monies which, in the reasonable judgment of
18 LESSEE, were paid to LESSOR pursuant to the LEASE but which were not
19 earned by LESSOR by consequence of the Casualty. Upon receipt of such
20 demand, LESSOR shall promptly refund all such monies.
21 14. TERMINATION NOTICES — In the case of LESSEE, the County Administrative
22 Officer, Director of Internal Services/Chief Information Officer, Director of Social Services or a
23 designee of one of them, is authorized to provide termination notices as described herein to
24 terminate this LEASE. Termination of this Agreement must be approved by the County of
25 Fresno Board of Supervisors.
26 15. NON FUNDING TERMINATION -This LEASE is contingent on the allocation of
27 funds by a governmental agency. Should funds not be allocated, this LEASE may be
28 terminated by the Board of Supervisors at any time by giving at least thirty (30) days prior
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1 written notice to LESSOR.
2 16. HOLD HARMLESS - LESSOR agrees to indemnify, save, hold harmless, and
3 at LESSEE'S request, defend the LESSEE, its officers, agents, and employees from any and
4 all costs and expenses, damages, liabilities, claims, and losses occurring or resulting to
5 LESSEE in connection with the performance, or failure to perform, by LESSOR, its officers,
6 agents, or employees under this LEASE, and from any and all costs and expenses, damages,
7 liabilities, claims, and losses occurring or resulting to any person, firm, or corporation who may
8 be injured or damaged by the performance, or failure to perform of LESSOR, its officers,
9 agents, or employees under this LEASE. This LEASE is made upon the express condition
10 that the LESSEE is to be free of all liability, damages or injury arising from structural failures of
11 the leased Premises, including, but not limited to, external walls, glass, doors, roof and floor.
12 LESSEE will indemnify, defend, and hold LESSOR harmless from and against any
13 claims in any manner directly or indirectly caused, occasioned or contributed to by reason of
14 the negligence, whether active or passive, of LESSEE or anyone acting under its direction or
15 control or on its behalf in connection with or incidental to the performance of this LEASE or
16 any claims otherwise arising in connection with LESSEE'S use and occupancy of the
17 Premises.
18 The parties acknowledge that as between LESSOR and LESSEE, each is responsible
19 for any claims arising from the acts or omissions of its own employees and invitees and
20 notwithstanding anything to the contrary in this Section 16, each party hereby waives any
21 claim or right to consequential or punitive damages. The parties acknowledge that as between
22 LESSOR and LESSEE, each is responsible for the negligence of its own employees and
23 invitees.
24
25 17. INSURANCE -Without limiting the LESSEE'S right to obtain indemnification
26 from LESSOR or any third parties, LESSOR, at its sole expense, shall maintain in full force
27 and effect, the following insurance policies or a program of self-insurance throughout the term
28 of the Agreement:
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1 a. Commercial General Liability- Commercial General Liability Insurance with
2 limits of not less than One Million Dollars ($1,000,000) per occurrence and an
3 annual aggregate of Two Million Dollars ($2,000,000). This policy shall be
4 issued on a per occurrence basis. LESSEE may require specific coverages
5 including completed operations, products liability, contractual liability,
6 Explosion-Collapse-Underground, fire legal liability, or any other liability
7 insurance deemed necessary because of the nature of this contract.
8 b. Property Insurance—All-Risk property insurance.
9 c. Worker's Compensation -A policy of Worker's Compensation insurance as
10 may be required by the California Labor Code.
11 LESSOR shall obtain endorsements to the Commercial General Liability insurance
12 naming the County of Fresno (hereinafter"County"), its officers, agents, and employees,
13 individually and collectively, as additional insured, but only insofar as the operations under this
14 LEASE are concerned. Such coverage for additional insured shall apply as primary insurance
15 and any other insurance or self-insurance maintained by its officers, agents, and employees
16 shall be excess only and not contributing with insurance provided under LESSOR'S policies
17 herein. This insurance shall not be cancelled or changed without a minimum or thirty (30) days
18 advance written notice given to County.
19 Within (30) days from the date LESSOR executes this LEASE, LESSOR shall provide
20 certificates of insurance and endorsement as stated above for all of the foregoing policies, as
21 required herein, to the County of Fresno, Attn: ISD Lease Services (L-321), 333 W. Pontiac
22 Way, Clovis, CA 93612, stating that such insurance coverages have been obtained and are in
23 full force; that the LESSEE, its officers, agents and employees will not be responsible for any
24 premiums on the policies; that such Commercial General Liability insurance names the
25 LESSEE, its officers, agents, and employees, individually and collectively, as additional
26 insured, but only insofar as the operations under this LEASE are concerned; that such
27 coverage for additional insured shall apply as primary insurance and any other insurance or
28 self- insurance shall not be cancelled or changed without a minimum of thirty (30) days
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1 advance written notice given to LESSEE.
2 In the event LESSOR fails to keep in effect at all times insurance coverage as herein
3 provided, the LESSEE may, in addition to other remedies it may have, suspend or terminate
4 this Lease upon the occurrence of such event.
5 All policies shall be with admitted insurers licensed to do business in the State of
6 California. Insurance purchased shall be purchased from companies possessing a current A.M
7 Best Company rating of A FSC VII or better.
8 LESSEE shall maintain during the term of this Lease the following policies of
9 insurance, which coverages may be provided in whole or in part through one or more
10 programs of self-insurance:
11 a. Commercial General liability insurance with limits of not less than One
12 Million Dollars ($1,000,000.00) per occurrence and an annual aggregate of not less than Two
13 Million Dollars ($2,000,000.00). This policy shall be issued on an occurrence basis.
14 b. All-Risk property insurance.
15 18. SURRENDER OF POSSESSION/HOLDOVER - Upon the expiration or
16 termination of this LEASE, LESSEE will surrender the Premises to LESSOR in such condition
17 as existing at the commencement of this LEASE or upon completion of the Tenant
18 Improvements (whichever is applicable) less reasonable wear and tear, less the effects of any
19 Casualty as herein defined, and less the effects of any breach of LESSOR'S covenant to
20 maintain. LESSEE will not be responsible for any damage which LESSEE was not obligated
21 hereunder to repair.
22 If LESSEE holds over after the expiration of the Primary Term or Renewal Period or
23 earlier termination thereof, with or without the express or implied consent of LESSOR,
24 such tenancy shall be tenancy at sufferance only, and shall not constitute a renewal
25 hereof or an extension for any further term. In such case LESSEE shall pay one
26 hundred three percent (103%) of the Base Rent in effect just prior to expiration or
27 termination, until either party gives thirty (30) days written notice of termination, reciting
28 therein the effective date of cancellation. LESSOR hereby expressly reserves the right
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1 to require LESSEE to surrender possession of the Premises to LESSOR as provided in
2 this LEASE upon the expiration or other termination of this Lease. The provisions of
3 this Section 18 shall not be deemed to limit or constitute a waiver of any other rights or
4 remedies of LESSOR provided herein or at law.
5 19. FIXTURES - LESSOR agrees that any equipment, fixtures or apparatus
6 installed in or on the Premises by LESSEE shall continue to be the property of LESSEE and
7 may be removed by LESSEE at any time. LESSEE shall repair any damage caused by the
8 removal of fixtures. Any fixtures not removed when LESSEE surrenders possession shall
9 become the property of LESSOR.
10 20. RIGHT OF ENTRY- LESSOR, or its representative(s), upon giving 24 hours
11 written notice, or immediately in the event of an emergency, shall have the right to enter the
12 Premises at any time during business hours, or at such other time as LESSEE deems
13 appropriate, to make any alterations, repairs or improvements to the Premises. The normal
14 business of LESSEE or its invitees shall not be unnecessarily inconvenienced.
15 21. AMENDMENT -This LEASE may be amended in writing by the mutual consent
16 of the parties without in any way affecting the remainder.
17 22. ASSIGNMENT- Neither Party shall assign, transfer or sub-let this LEASE, or the
18 rights or duties under this LEASE, without the prior written consent of the other Party, which
19 consent shall not be unreasonably withheld or denied, except that LESSOR may sell or refinance
20 the Premises or any part thereof, in which case LESSOR shall promptly notify LESSEE in writing
21 of such sale or refinancing.
22 23. GOVERNING LAW-Venue for any action arising out of or relating to this
23 LEASE shall be in Fresno County, California. This LEASE shall be governed by the laws of
24 the State of California.
25 24. NOTICES -All notices to be given under this LEASE by either Party to the other
26 Party shall be in writing, and given by any one of the following methods:
27 (i) Personal delivery; or
28 (ii) Sent by certified United States mail, first class postage prepaid, with
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1 return receipt requested, to the applicable addresses as set forth below, in which case such
2 notice shall be deemed given three (3) business days if LESSOR is the recipient, or three (3)
3 LESSEE business days if LESSEE is the recipient, after such deposit and postmark with the
4 United States Postal Service; or
5 (iii) Sent by a reputable overnight commercial courier, in which case such
6 notice shall be deemed given one (1) business day if LESSOR is the recipient, or one (1)
7 LESSEE business day if LESSEE is the recipient, after such deposit with that courier to the
8 applicable addresses as set forth below; or
9 The addresses and telephone numbers of the Parties for purposes of giving receiving
10 notices under this LEASE are as follows:
11 LESSEE: LESSOR:
12 County of Fresno (L-312) 5561 Sultana, LLC
Robert W. Bash, Director of Internal ATTN: Rob Langer
13 Services/Chief Information Officer 18321 Ventura Blvd, Suite 980
333 W. Pontiac Tarzana, CA 91356
14 Clovis, CA 93612
15
Provided however, such notices may be given to such person or at such other place as
16
either of the Parties may from time to time designate by giving written notice to the other Party,
17
and provided further however, in any event, notices of changes of address or termination of
18
this LEASE shall not be effective until actual delivery of such notice. Notices given hereunder
19
shall not be amendments or modifications to this LEASE.
20
25. INDEPENDENT CONTRACTOR - In performance of the work, duties and
21
obligations assumed by LESSOR under this LEASE, it is mutually understood and agreed that
22
LESSOR, including any and all of the LESSOR'S officers, agents, and employees will at all times
23
be acting and performing as an independent contractor, and shall act in an independent capacity
24
and not as an officer, agent, servant, employee, joint venture, partner, or associate of the
25
LESSEE. Furthermore, LESSEE shall have no right to control or supervise or direct the manner
26
or method by which LESSOR shall perform its work and function. However, LESSEE shall retain
27
the right to administer this LEASE so as to verify that LESSOR is performing its obligations in
28
accordance with the terms and conditions thereof.
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1 LESSOR and LESSEE shall comply with all applicable provisions of law and the rules
2 and regulations, if any, of governmental authorities having jurisdiction over matters the subject
3 thereof.
4 Because of its status as an independent contractor, LESSOR shall have absolutely no
5 right to employment rights and benefits available to LESSEE'S employees. LESSOR shall be
6 solely liable and responsible for providing to, or on behalf of its employees, all legally-required
7 employee benefits. In addition, LESSOR shall be solely responsible and save LESSEE
8 harmless from all matters relating to payment of LESSOR'S employees, including compliance
9 with Social Security withholding and all other regulations governing such matters. It is
10 acknowledged that during the term of this LEASE, LESSOR may be providing services to
11 others unrelated to the LESSEE or to this LEASE.
12 26. DISCLOSURE OF SELF DEALING TRANSACTIONS —This provision is only
13 applicable if the LESSOR is operating as a corporation (a for-profit or non-profit corporation) or
14 if during the term of this LEASE, the LESSOR changes its status to operate as a corporation.
15 Members of LESSOR'S Board of Directors shall disclose any self-dealing transactions
16 that they are a party to while LESSOR is providing goods or performing services under this
17 LEASE. A self-dealing transaction shall mean a transaction to which the LESSOR is a party
18 and in which one or more of its directors has a material financial interest. Members of the
19 Board of Directors shall disclose any self-dealing transactions that they are a party to by
20 completing and signing a Self-Dealing Transaction Disclosure Form Exhibit"D", attached
21 hereto and by this reference incorporated herein, and submitting it to the County of Fresno
22 prior to commencing with the self-dealing transaction or immediately thereafter.
23 27. ESTOPPEL CERTIFICATE— LESSEE shall, at any time upon not less than
24 thirty (30) days prior request by LESSOR, execute, acknowledge and deliver to LESSOR a
25 written estoppel certificate, in a form satisfactory to LESSOR, certifying that this Lease is
26 unmodified and in full force and effect (or, if there have been modifications, that the same is in
27 full force and effect as modified and stating the modifications) and, if applicable, the dates to
28 which the Rent and any other charges have been paid in advance. Any such statement
COUNTY OF FRESNO
Fresno,California 14
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L-321
5561 Sultana/Gallery Plaza/DSS/5610
1 delivered pursuant to this Section 26 may be relied upon by third persons, including a
2 prospective purchaser or encumbrancer of the Premises.
3 LESSEE'S failure to execute and deliver an estoppel certificate within thirty (30) days
4 after LESSEE'S receipt of LESSOR'S written request therefore shall be conclusive upon
5 LESSEE that this Lease is in full force and effect, without modification except as may be
6 represented by LESSOR, that there are no uncured defaults in LESSOR'S performance, that
7 not more than one month's rental has been paid in advance, and that all other statements
8 required to be made in the estoppel certificate are conclusively made.
9 28. SUBORDINATION AND ATTORNMENT—At LESSOR'S option, this Lease
10 shall be subordinated to any mortgage or deed of trust which is now or shall hereafter be
11 placed upon the Premises, and LESSEE agrees to execute and deliver any instrument which
12 may be necessary to further effect the subordination of the Lease to any such mortgage or
13 deed of trust; provided, however, that such instrument of subordination shall provide, or the
14 mortgagee or beneficiary of such mortgage or deed of trust otherwise shall agree in writing in
15 recordable form delivered to LESSEE, that the mortgagee or beneficiary, including their
16 successors and assigns, recognize LESSEE's leasehold interest under this Lease and that so
17 long as LESSEE is not in default under this Lease, foreclosure of any such mortgage or deed
18 of trust or sale pursuant to exercise of any power of sale thereunder, or deed given in lieu
19 thereof, shall not affect this Lease but such foreclosure or sale, or deed given in lieu thereof,
20 shall be made subject to this Lease which shall continue in full force and effect, binding on
21 LESSEE, as lessee, and the transferee, as lessor. LESSEE shall attorn to the transferee as if
22 said transferee was LESSOR under this Lease.
23 29. ENERGY CONSUMPTION DISCLOSURE — If LESSEE (or any party claiming
24 by, through or under LESSEE) pays directly to the provider for any energy consumed at the
25 Premises, LESSEE shall, promptly upon request, deliver to LESSOR (or, at LESSOR's option,
26 execute and deliver to LESSOR an instrument enabling LESSOR to obtain from such provider)
27 any data about such consumption that LESSOR, in its reasonable judgement, is required to
28 disclose to a prospective buyer, tenant or mortgagee or prospective mortgagee under
COUNTY OF FRESNO
Fresno,California 15
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L-321
5561 Sultana/Gallery Plaza/DSS/5610
1 California Public Resources Code § 25402.10 or any similar law.
2 30. COUNTERPARTS —This Lease may be executed in one or more counterparts
3 (which may be facsimile or .pdf e-mail counterparts followed by originals), each of which will
4 be deemed an original and all, taken together, will constitute one and the same instrument.
5 31. FORCE MAJEURE - In the event that either party hereto shall be delayed or
6 hindered in or prevented from the performance of any act required hereunder by reason of
7 strikes, lockouts, adverse weather (including rain), inability to procure labor or materials, failure
8 of power, restrictive governmental laws or regulations, riots, insurrection, war, fire or other
9 casualty or other reason of a similar nature beyond the reasonable control of the party delayed
10 in performing work or doing the act required under the terms of this Lease, then performance
11 of such act shall be excused for the period of the delay and the period from the performance of
12 any such act shall be extended for a period equivalent to the period of such delay (any such
13 delay is herein referred to as an "Force Majeure Delay"). In no event shall LESSEE'S inability
14 to satisfy a monetary obligation hereunder constitute or be subject to Force Majeure Delay.
15 32. AUTHORITY- Each individual executing this LEASE on behalf of LESSOR
16 represents and warrants that such individual is duly authorized to execute and deliver this
17 LEASE on behalf of 5561 Sultana LLC a California Limited Liability Company, and that this
18 LEASE is binding upon 5561 Sultana LLC, a California Limited Liability Company, in
19 accordance with its terms.
20 26. ENTIRE LEASE - This LEASE constitutes the entire LEASE between the
21 LESSOR and LESSEE with respect to the subject matter hereof and supersedes all prior
22 leases, negotiations, proposals, commitments, writings, advertisements, publications, and
23 understandings of any nature whatsoever unless expressly referenced in this LEASE.
24 ///
25 HI
26 ///
27 HI
28 HI
COUNTY OF FRESNO
Fresno,California 16
V
L-321
5561 Sultana/Gallery Plaza/DSS/5610
1 This LEASE shall be binding on and inure to the benefit of LESSOR'S heirs,
2 successors and assigns. EXECUTED as of the date first herein written.
3
4 LESSOR: LESSEE:
5561 Sultana LLC, a California Limited COUNTY OF-FRESNO
5 Liability Company
By
6 By: Highpoint Capital, LLC, a California Sal ui t ro,C airman of the Board of
limited liability company
Its:Asset Man er Supervisors o the County of Fresno
7 �
8 ATTEST:
By: Bernice E. Seidel
Jeffrey Selt •'lUanager Clerk to the Board of Supervisors
9 County of Fresno, State of California
10 By
11 Deputy
12
13
14
15
16
17
18
19 Fund 0001
Subclass 10000
20 Org No. 5610
Acct. No. 7340
21
22
Te-s,_ -
23
FVacL Oc��
24 SObdass IOoc�o
25 00' nSo 15 6 LO
26 AkLA_/so 15 S6
27
28
COUNTY OF FRESNO
Fresno,California 17
EXHIBIT"A"
JANITORIAL DUTIES
L-321
PERFORMED DAILY
• Vacuum all carpeted areas
• Sweep and/or dry mop floors
• Dust cleared desk and table surfaces, clean counters
• Empty all waste baskets and dispose of trash in appropriate trash bins
• Clean smudges and unsightly appearances from doorjambs, light
switches,glass partitions and counters
• Clean and sanitize all sinks,toilets and urinals
• Clean all restroom mirrors,tile and splash walls
• Spot clean restroom walls and partitions
• Refill supplies in restroom (paper towels,toilet tissue,soap, etc)
PERFORMED EVERY MONTH
• Dust all blinds and sills
PERFORMED AS REQUIRED
• Wet mop floors
• Remove interior cobwebs
• Dust wall picture frames and partition tops
• High dust, including walls, light fixtures.vents and ledges above normal reach door ledges
• Wash/clean light fixtures,walls,A/C vents
• Dust/clean baseboards
• Spot clean carpets
• Steam clean all carpets
• Strip and wax all vinyl and tile flooring
• Interior windows
0 Exterior windows
Exhibit "B"
L-321
EXHIBIT B
DSS GALLERY PLAZA, FRESNO CA
TENANT IMPROVEMENT ALLOWANCES
• Lease Area is established to be 9,552 sf.
a Preparation for 4-restrooms; utility room with janitor sink, 2-drinking fountains, and
breakroom: saw cut; removal; add plumbing, backfill, patch slab.
• 150-If backfill and concrete repair of interior trenching for plumbing.
• 973 If of 10-ft height interior metal stud partition w/drywall.
• Paint: 1-coat primer, 2-coats finish on drywall surfaces.
• Breakroom: 7-If base cabinet with granite top; 10-If upper cabinet.
Doors: 2-exterior rear doors; 1-new storefront entry door w/ADA assist, panic hardware;
seal 3-exterior front storefront doors (the remainder of the storefront to be delivered in
existing condition); 30-interior solid core, paint-grade doors (includes 23-doors w/
tempered glass window); metal frames; hardware as required for locations (closers;
privacy; panic; lockset).
• Acoustic Ceiling `Second Look' ceiling tile in suspended grid; Drywall ceiling in
restrooms.
• Carpet Tile flooring: 2,500-sf(Mgr, Secy, Spvsr, View, Work Area, Ha112, Ha113).
• Vinyl Composition Tile flooring: 2,010-sf(Reception, Hall1, Breakroom, Utility, Toy
Cart, Server).
• Ceramic Tile: None identified; Restrooms w/ fiberglass reinforced wall panels (FRP).
• Sheet Vinyl flooring w/Cove: 340-sf(4-Restrooms),
• 2-public restrooms/2-staff restrooms: Toilet, sink, faucet, mirror, accessories per ADA.
• Break Room: Connections for sink, disposal, and refrigerator (by Lessee).
• Miscellaneous Inclusions: ADA Signage; lighting in ceiling grid; power outlets in fixed
walls; emergency lighting/alarm; HVAC system; electrical system; (2) exterior outlets for
security camera (by Lessee); audio connection for View Room; View Room one-way,
tempered 4040 windows; 4-electrical conduit risers within Work Area walls; fire
extinguishers; fire alarm boxes; 2-drinking fountains (I-ADA); all rooms with rubber
Base except Restrooms.
• Lessor reserves option to utilize existing electrical meters, HVAC units,gas meters, and other
existing utility services. Plan measurements are approximate and final improvements shall be
determined by Lessor.Any items not specified shall be at the discretion of the Lessor. Any specified
items not immediately available may be replaced with substantially similar items at the discretion of
the Lessor..
• Server Room will be connected to the primary HVAC system and is not provided with special cooling
system
• Satellite or Internet TV(not provided by Lessor) will be utilized in lieu of CableTV.
• Power for internal server, surveillance/security equipment locations identified by Lessee is included;
respective systems are not included.
Page 1 of 3
iJ
Exhibit"B"
L-321
• Walls to be constructed with an acoustic rating of STC50 or better(insulation or sound board may be
required); Interior doors solid core wood.
• Interior signage in excess of that required for ADA is not included.
• LF of walls (above) does not include existing walls which shall not be refinished but will be
repaired/patched as necessary.
• Notwithstanding anything to the contrary contained herein, no cabinets, shelving, furniture,
equipment, fixtures, personal property, or similar items are provided by Lessor
• In the event of a conflict between this Exhibit B and the Lease, the Lease shall prevail.
Page 2 of 3
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Exhibit"C"
L-321
Tenant Improvements
Amortization Schedule
Year Monthly Annual
Year One $ 39,284.92 $ 470,987.04
Year Two $ 39,284.92 $ 470,987.04
Year Three $ 39,284.92 $ 470,987.04
Exhibit "D"
L - 321
SELF-DEALING TRANSAC110N DISCLOSURE FORM
In order to conduct business with the County of Fresno (hereinafter referred to as "County"),
members of a contractor's board of directors (hereinafter referred to as "County Contractor"),
must disclose any self-dealing transactions that they are a party to while providing goods,
performing services, or both for the County. 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 utilized 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 County. 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.
(5) Form must be signed by the board member that is involved in the self-dealing
transaction described in Sections (3) and (4).
Mail the completed form to: County of Fresno
Attn: Lease Services (L-321)
Internal Services Department
333 W. Pontiac Way
Clovis, CA 93612
Exhibit T"
L - 321
(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:
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