HomeMy WebLinkAboutAgreement A-17-645 with Pontiac 3 5 LLC Building 5 Lease.pdf Agreement No. 17-645
L-32B ID83
Building w0p1b
I LEASE AGREEMENT
2 THIS.LEASE AGREEMENT.(hereinafter"Lease")Is made and entered into this 12th
3 day of December 2017(the`BTWive Date),by and between PONTIAC 3&5 LLC,
4 a California limited liability_company,`2780 N. Miami Ave., Ste, 101, Fresno,Q-A 93727,
5 (hereinafter"LESSOR"),and.66 COUNTY OF FRE-SNO, apolitical subdivision of:the State-of
6 California,33.3 W.Pontiao.yVay,Clovis,CA 93612(hereinafter OLE88EE"). LESSOR and
7 LESSEE may be referreq to In this Lease individually as a"Party"or collectively at times as
8 the"Partkis".
9. 1 PREMISES—LESSOR hereby leases to LESSEE the real property at the
10 location commonly known-as 2 00 W. Pontiac,Clovis,CA 93612,which'Includes gbuilding
11 containing.approximately 37.,282 square feet,of office space and 65,252 of warehouse.space
12 (the"Wilding"),together with surrounding common area parking,and which comprises a
13. portion Of Fresno County Atsessbr.6-Parcel Number 493-070-34s, as depicted by red
14 ouffirting on Attachment'A",whfch is attached to and by this reference incorporated herein
15 (the"Premises"), LESSOR represents,covenants,,and warrants to LESSEE that Prior to
16 delivery of the.Lessor Occupancy Notice(as defined below 0 p rmft, ny new
Lessor shall not e a
17 mortgages,deeds,of trust,leaseholds,pledges, conditions or restrictions, liens or
18 encumbrances against the Premises that are riot already in existence,with the exception of
19 items permitted under Section 38 or other items that are expressly subordinate to this Lease.
20 Upon LE,5SIEE's receipt of the Lessor Oodupanoy Notice(as defined.below),and continuing
21 thereafter and during the term:of this Leaspi LESSEE shall have the right to record a
22 memorandum of We Lease against the Premises In the official records of the County
23 Recorder("Memorandum of Lease"').
24 2. imm
25 1. LESSOR represents-that,it is under contract to purchase the property of
96 which the Premises is'a part("Property")from the current property-owner
27 (hereinafter"5eller")and that such con tract obligates LE6,SSOR to lease
28 the Premises,or a portion thereof,.to Seller or Seller's assignee%upon the
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1 LEASE AGREEMENT
2 THIS LEASE AGREEMENT(hereinafter"Lease") is made and entered into this 12th
3 day of December , 2017(the"Effective Date"), by and between PONTIAC 3&5 LLC,
4 a California limited liability company, 2780 N. Miami Ave., Ste. 101, Fresno, CA 93727,
5 (hereinafter"LESSOR"), and the COUNTY OF FRESNO, a political subdivision of the State of
6 California, 333 W. Pontiac.Way, Clovis, CA 93612 (hereinafter"LESSEE"). LESSOR and
7 LESSEE may be referred to in this Lease individually as a"Party"or collectively at times as
8 the"Parties".
9 1. PREMISES LESSOR hereby leases to LESSEE the real property at the
10 location commonly known as 200 W. Pontiac, Clovis, CA 93612, which includes a building
11 containing.approximately 37,282 square feet of office space and 65,252 of warehouse space
12 (the"Building"),together with surrounding common area parking, and which comprises a
13 portion of Fresno County Assessor's Parcel Number 493-070-34s, as depicted by red
14 outlining on Attachment"A", which is attached to and by this reference incorporated herein
15 (the"Premises"). LESSOR represents, covenants, and warrants to LESSEE that prior to
16 delivery of the Lessor Occupancy Notice(as defined below), Lessor shall not permit'any new
17 mortgages, deeds of trust, leaseholds, pledges, conditions or restrictions, liens or
18 encumbrances against the Premises that are not already in existence,with the exception of
19 items permitted under Section 38 or other items that are expressly subordinate to this Lease.
20 Upon LESSEE's receipt of the Lessor Occupancy Notice(as defined below), and continuing
21 thereafter and during the term of this Lease, LESSEE shall have the right to record a
22 memorandum of this Lease against the Premises-in the official records of the County
23 Recorder("Memorandum of Lease").
24 2. TERM—
25 1 LESSOR represents that it is under contract to purchase the property of
26 which the Premises is a part("Property")from the current property owner
27 (hereinafter"Seller")and that such contract obligates LESSSOR to lease
28 the Premises, or a portion thereof,to Seller or Seller's assignee upon the
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1 transfer of title to LESSOR (the"Seller Lease"). The Seller Lease shall be
2 for a term of two years, with the tenant having three, one-year extension
3 options, for a total potential term of five years. LESSOR covenants not to
4 grant any further extension of the Seller Lease. LESSOR's covenants,
5 represents, and warrants to LESSEE that in any sale of the Property prior
6 to recordation of the Memorandum of Lease, LESSOR shall provide the
7 transferee with notice of this Lease and provide that the sale is made
8 subject to this Lease. LESSOR's obligations under this Lease contingent
9 upon LESSOR taking title to the Property, which closing is expected to
10 occur not later than December 28, 2018 (the"Property Closing"). Upon the
11 termination or expiration of the Seller Lease and vacation of the Premises
12 by the tenant under the Seller Lease, LESSOR shall provide written notice
13 to LESSEE that the Property is available for occupancy ("Lessor
14 Occupancy Notice").
15 2. The term of this Lease shall be ten (10) years (the"Term" or"term")
16 commencing on the date LESSEE first takes occupancy of the Premises
17 (hereinafter"Rent Commencement Date") as set forth in a written
18 acknowledgement signed by LESSOR and LESSEE's Director of Internal
19 Services, which may only be given after LESSSEE's receipt of the Lessor
20 Occupancy Notice. It is understood by the parties herein that LESSEE's
21 occupancy of the Premises shall commence only after said written
22 acknowledgement is executed which such acknowledgement shall not be
23 unreasonably withheld or delayed; furthermore, occupancy must
24 commence on the first(1st) day of a month, unless otherwise agreed by
25 the parties in writing.
26 3. RENT/OPERATION COSTS—LESSEE shall pay to LESSOR on a monthly
27 basis both Base Rent and Additional Rent (as both terms are defined hereinbelow). Base
28 Rent and Additional Rent shall hereinafter be collectively referred to as the "Rent."
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1 1. Base Rent—LESSEE shall pay rent on a monthly basis for the Premises
2 ("Base Rent") beginning on the Rent Commencement Date as shown in the
3 below payment schedule.
4 Rent Period Office Warehouse Total
5 Year One $ 57,041.46 $ 36,541.12 $ 93,582.58
Year Two $ 58,182.29 $ 37,271.94 $ 95,454.23
6 Year Three $ 59,345.93 $ 38,017.38 $ 97,363.32
Year Four $ 60,532.85 $ 38,777.73 $ 99,310.58
7 Year Five $ 61,743.51 $ 39,553.28 $ 101,296.79
Year Six $ 62,978.38 $ 40,344.35 $ 103,322.73
8 Year Seven $ 64,237.95 $ 41,151.24 $ 105,389.18
9 Year Eight $ 65,522.71 $ 41,974.26 $ 107,496.97
Year Nine $ 66,833.161 $ 42,813.75 $ 109,646.91
10 IYearTen $ 68,169.821 $ 43,670.02 $ 111,839.85
11 2. ADDITIONAL RENT—In addition to the Base Rent, LESSEE shall pay on
12 a monthly basis as"Additional Rent", the annual operations costs for the
13 Premises to LESSOR, consisting of 100% of LESSOR'S actual out of
14 pocket cost for real estate taxes, insurance and all maintenance related
15 expenses incurred by LESSOR allocable to the Premises (collectively,
16 "Operation Costs") as listed in the Operating Budget attached hereto as
17 Attachment"B" and incorporated herein by reference. Anticipated total
18 Operation Costs for the 2021 calendar year based on current Operation
19 Costs are $866,207.23 as set forth in Attachment"B,"though the parties
20 acknowledge that Attachment"B" is simply an estimate for informational
21 purposes only, that the Rent Commencement date may be earlier or later
22 than 2021, and that this estimate shall not be deemed or otherwise
23 construed as a representation, warranty or covenant by LESSOR as to the
24 actual Operation Costs for the 2021 calendar year. Based on the foregoing
25 estimate, beginning on the Rent Commencement Date, LESSEE shall pay
26 Additional Rent to LESSEE for each month or partial month at the rate of
27 $72,183.94 per month, unless LESSOR provides LESSEE with an revised
28 budget or a statement(as described hereinbelow) showing that LESSOR's
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1 actual Operation Costs have increased, at which time LESSEE shall pay
2 Additional Rent in accordance with LESSOR's revised budget estimate or
3 statement.
4 Within 90 days after the end of each calendar year this Lease is in force, LESSOR
5 shall make good faith efforts and endeavor to furnish to LESSEE, a statement covering the
6 calendar year just expired, showing by cost category the actual Operation Costs incurred for
7 that year, the monthly payments made by LESSEE during that year for the Operation Costs,
8 and the bills or records supporting each of such costs and the allocations of such costs to
9 LESSEE. If LESSEE's share of the Operation Costs exceeds LESSEE's prior payments,
10 LESSEE shall pay to LESSOR, as Additional Rent, the deficiency, within 45 days after receipt
11 of such annual statement and supporting information/documentation. If LESSEE's payments
12 for the calendar year exceed LESSEE's actual share of the Operation Costs, and provided
13 LESSEE is not in arrears as to the payment of any Base Rent or Additional Rent, LESSEE
14 may offset the excess against any payments of Operation Costs next due LESSOR.
15 4. UTILITIES—
16 LESSEE shall pay market rate to the LESSOR for metered electricity, which amounts
17 shall be included as a component of Operation Costs payable monthly to LESSOR as
18 Additional Rent.
19 LESSEE is responsible for contracting directly with the applicable utility provider and
20 paying directly thereto for natural gas, water/sewer, garbage, telephone and internet services
21 for the Premises and any and all other utility services LESSEE requires in connection with its
22 use of the Premises.
23 If any utilities are not separately metered from the adjacent building, LESSEE shall
24 reimburse LESSOR for its proportionate share of such utilities as reasonably determined by
25 LESSOR.
26 5. MAINTENANCE AND REPAIRS—LESSOR shall be responsible for all
27 exterior and interior maintenance, including repair of air conditioning, heating units, plumbing
28 systems, electrical systems, elevators, and interior/exterior lights and fixture ballasts, fire
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1 sprinkler system, roof, painting, flooring, landscape, parking and other maintenance at the
2 Premises, as set forth in the Premises Services Agreement, attached hereto as
3 Attachment"C" and incorporated herein by reference. LESSOR is also responsible for the
4 structural condition of the building and agrees that the building will always be maintained in a
5 condition acceptable for the LESSEE'S intended use of the Premises. LESSOR's
6 maintenance responsibilities shall include carpet replacement and exterior and interior
7 painting, as needed, due to normal wear and tear. All items of maintenance and repair as set
8 forth in Attachment"C" shall be included as a component of Operation Costs payable monthly
9 to LESSOR as Additional Rent.
10 In the event building systems such as air conditioning and heating units malfunction,
11 restroom fixtures are not draining properly, or water intrusion, leaks or other events that
12 immediately impact the occupancy of the Premises by LESSEE occur, LESSOR shall use its
13 best efforts to respond within twenty-four(24) hours after contact by LESSEE to diligently
14 pursue repairs and replace equipment to restore the systems to full working order. Structural
15 issues, including but not limited to damaged doors, walls, roof, and windows shall be a
16 priority, and shall be addressed within the same day such are reported. LESSOR covenants
17 that the Premises shall be maintained in substantially the same condition as existing on the
18 Rent Commencement Date.
19 LESSEE shall be responsible for damages and repairs caused by LESSEE or
20 LESSEE's employees, clients, contractors, or other invitees.
21 6. USE - LESSEE shall use the Premises as office space for its Department of
22 Social Services or for any other County department. LESSEE shall comply with all applicable
23 laws, ordinances and regulations in connection with such use.
24 Subject to Section 34, LESSOR covenants that: (i) as of the Rent
25 Commencement Date, the Premises shall be in compliance with all applicable local, state and
26 federal laws, ordinances and regulations, including but not limited to safety regulations, health
27 and building codes; and (ii) the Premises shall remain in such compliance throughout the
28 term of this LEASE, subject to LESSOR's right to cure pursuant to Section 12.
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1 7. JANITORIAL SERVICES AND COST—LESSOR shall procure and provide
2 janitorial services and supplies at the Premises (hereinafter"Janitorial Services"). Such
3 Janitorial Services shall be provided five (5) days per week and shall include the services and
4 supplies as described in Attachment"C". All such expenses for Janitorial Services shall be
5 included as a component of Operation Costs payable monthly to LESSOR as Additional Rent.
6 LESSOR and LESSEE may agree to select a different janitorial service to correct
7 deterioration in the quality of the janitorial service, or for any other reason mutually agreed
8 upon by the parties.
9 8. ALTERATIONS—LESSEE shall make no, alterations, installation, changes or
10 additions in or to the Premises or Building (collectively, "Alterations")without written consent
11 from LESSOR. Alterations shall not include moveable office furniture, office furnishings and
12 office equipment.
13 9_ INDEPENDENT CONTRACTOR— In performance of the work, duties and
14 obligations assumed by LESSOR under this Lease, if any, it is mutually understood and agreed
15 that LESSOR, including any and all of the LESSOR'S officers, agents, and employees will at all
16 times be acting and performing as an independent contractor, and shall act in an independent
17 capacity and not as an officer, agent, servant, employee,joint venture, partner, or associate of
18 the LESSEE. Furthermore, LESSEE shall have no right to control or supervise or direct the
19 manner or method by which LESSOR shall perform its work and function; provided, LESSOR
20 shall satisfy and comply with its obligations as set forth herein.
21 LESSOR and LESSEE shall comply with all applicable provisions of law and the rules
22 and regulations, if any, of governmental authorities having jurisdiction over matters the
23 subject thereof.
24 Because of its status as an independent contractor, LESSOR shall have absolutely no
25 right to employment rights and benefits available to LESSEE'S employees. LESSOR shall be
26 solely liable and responsible for providing to, or on behalf of, its employees all legally-required
27 employee benefits. In addition, LESSOR shall be solely responsible and save LESSEE
28 harmless from all matters relating to payment of LESSOR'S employees, including compliance
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1 with Social Security withholding and all other law and regulations governing such matters. It
2 is acknowledged that during the term of this Lease, LESSOR may be providing services to
3 others unrelated to the LESSEE or to this Lease.
4 10. COMPLIANCE WITH ALL LAWS—If any work is undertaken at the Premises by
5 or on behalf of LESSOR, LESSOR shall comply with, and shall ensure compliance by all
6 contractors and subcontractors with, all applicable laws and regulations, including the payment
7 of prevailing wages pursuant to Section 1770 et. seq. of the Labor Code. Notwithstanding the
8 foregoing, neither this Lease nor either party contemplates LESSOR undertaking any
9 improvements to the Premises during the term of this Lease.
10 11. NON FUNDING TERMINATION —This LEASE is contingent on the allocation
11 of funds by a governmental agency. Should funds not be allocated, this LEASE may be
12 terminated by the Board of Supervisors at any time by giving at least thirty(30) days prior
13 written notice to LESSOR.
14 12. BREACH OF OBLIGATION TO MAINTAIN —In the event LESSOR breaches
15 its obligation to maintain the Premises as herein provided, LESSEE shall give written notice
16 to LESSOR within fifteen (15) days of the discovery of such breach. LESSOR shall then
17 have thirty(30) days from the date of such notice to cure its breach; however, if such default
18 continues beyond thirty (30) days after written notice thereof from LESSEE to LESSOR then
19 LESSOR will not be in default hereunder if within such thirty(30) day period, LESSOR
20 commences the curing of such default and diligently and in good faith prosecutes the same to
21 completion. If the period for cure expires and if, in LESSEE'S sole and reasonable
22 determination, LESSOR has failed to cure, then LESSEE may, at its election:
23 (A) terminate this LEASE by providing thirty (30) days prior written notice. In such
24 case, LESSEE shall have the right to demand LESSOR refund any monies
25 which, in the reasonable judgment of LESSEE, were paid to LESSOR
26 pursuant to the LEASE but which were not earned by LESSOR by
27 consequence of its breach. Upon receipt of such demand, LESSOR shall
28 promptly refund all such monies; or
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1 (B) cure LESSOR'S breach and deduct the cost of such cure, together with
2 reasonable administrative costs, from LESSEE'S future rent obligation.
3 LESSEE'S decision to cure LESSOR'S breach shall not constitute a waiver of
4 any rights or remedies that LESSEE may have arising from this LEASE or by
5 operation of law, except that LESSEE shall not have the right to terminate
6 described above with respect to the circumstances related to such cured
7 breach.
8 13. CONDEMNATION OR PROHIBITED USE— If the Premises, or any portion
9 thereof, is appropriated, condemned, or taken by any governmental authority or public agency
10 other than LESSEE by use or exercise of eminent domain proceedings or other proceedings,
11 or by inverse condemnation, or is sold under threat of use or exercise of eminent domain by
12 any governmental authority or public agency other than LESSEE, or if by reason of law,
13 ordinance, regulation, or court judgment, LESSEE's use or occupancy of the Premises, or
14 any portion thereof, shall be materially and adversely affected for the period set forth in
15 clause (i) below, but excluding therefrom any day that is not a LESSEE business day
16 (hereinafter collectively"Condemnation or Prohibited Use"), then LESSEE shall have the right
17 to do either of the following:
18 (i) If the Condemnation or Prohibited Use has a material adverse effect on
19 LESSEE's use and occupancy of the Premises and is reasonably anticipated
20 to impact such use in excess of ninety(90) days, then LESSEE may terminate
21 this LEASE by giving written notice thereof to LESSOR. Such notice shall
22 specify a date of termination of this LEASE not less than one hundred eighty
23 (180) calendar days, and not more than two-hundred ten (210) calendar days,
24 from the date of such notice, or from the date that LESSEE's use of the
25 Premises will be materially adversely affected pursuant to the notice LESSEE
26 receives from LESSOR of such appropriation, condemnation, taking, or sale
27 that shall prohibit LESSEE's use or occupancy of the Premises, or the affected
28 part thereof, whichever is earlier. The County Administrative Officer or the
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1 Director of Internal Services/Chief Information Officer, or a designee of one of
2 them, shall have the authority to provide such notice on behalf of LESSEE.
3 (ii) LESSEE may renegotiate with LESSOR with respect to the terms of any
4 amounts to be owed by LESSEE hereunder, including any portion or
5 installment of the Base Rent, when such are due and payable, and/or any
6 other amounts otherwise due and payable hereunder, for the remainder of
7 Premises not affected by such Condemnation or Prohibited Use during the
8 balance of the term of this LEASE. Any such renegotiated terms of the Base
9 Rent, and/or any other amounts otherwise to be due and payable herein shall
10 be sought in good faith and without unreasonable delay by the Parties, and
11 made only by written amendment, pursuant to Section 20, herein.
12 14. DESTRUCTION OR DAMAGE FROM CASUALTY— If the Premises are
13 damaged or destroyed as a result of fire, earthquake, act of God, or any other identifiable
14 event of a sudden, unexpected, or unusual nature (hereinafter"Casualty"), then LESSOR
15 shall either promptly and diligently repair the damage at its own cost, or terminate this Lease
16 as hereinafter provided. If LESSOR obtains any proceeds from the Property Insurance Policy
17 (as defined in Section 16 hereinbelow) that are not otherwise payable to any mortgagee or
18 beneficiary, and this Lease is not terminated as a result of such Casualty pursuant to the
19 terms hereof, then LESSOR shall promptly apply all of such insurance proceeds toward the
20 repair and restoration of the Premises pursuant to LESSOR's obligations under this
21 Section 14.
22 (A) LESSOR'S Election to Repair: If LESSOR elects to repair the Casualty
23 damage to the Premises, then it shall within fifteen (15) days after the date of
24 Casualty or as soon as possible thereafter provide written notice(hereinafter
25 "Notice of Repair")to LESSEE indicating the anticipated time required to
26 repair. LESSOR shall bear the cost of all repairs to the Premises, including
27 the cost to repair any alterations or fixtures installed or attached thereto by
28 LESSEE. Such repairs shall restore the Premises to substantially the same
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1 condition as existing on the Rent Commencement Date; such repairs shall
2 also be made in compliance with all applicable state and local building
3 codes. LESSOR shall not be liable to LESSEE for compensation for any
4 loss of business, or any inconvenience or annoyance arising from repair of
5 the Premises as a result of the Casualty except for rent reduction as
6 hereinafter provided. LESSEE shall be responsible at its sole cost and
7 expense for the replacement of its personal property.
8 (B) LESSOR'S Election to Terminate Due to Casualty: LESSOR may only elect
9 to terminate this LEASE due to Casualty if: the Premises have been
10 destroyed or substantially destroyed by said Casualty; and the estimated
11 time to repair the Premises exceeds sixty(60) days from the date of the
12 Casualty. LESSOR shall provide LESSEE with written notice of its election to
13 terminate within forty-five (45) days after the date of Casualty, specifying a
14 termination date not less than thirty (30) days from the date of said notice.
15 (C) Rent Reduction Due to Casualty: In the event of Casualty, LESSEE'S
16 obligation to pay rent shall be reduced beginning on the date of the Casualty.
17 Such reduction shall be proportional to the damage caused to the Premises
18 by the Casualty as reasonably determined by LESSEE. If LESSOR elects to
19 repair the Premises pursuant to the terms of this LEASE, to the extent the
20 premises remain unusable then the rent reduction shall continue until the
21 date of substantial completion of repair.
22 (D) LESSEE'S Election to Terminate Due to Casualty: If LESSEE does not
23 receive a Notice of Repair from LESSOR within fifteen (15) days or as soon
24 as reasonably possible after a Casualty, or if the anticipated period of repair
25 contained in the Notice of Repair exceeds ninety(90) days, then LESSEE
26 may elect to terminate this LEASE by providing thirty (30) days prior written
27 notice to LESSOR. In such case, LESSEE shall have the right to demand
28 that LESSOR refund any monies which, in the reasonable judgment of
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1 LESSEE, were paid to LESSOR pursuant to the LEASE but which were not
2 earned by LESSOR by consequence of the Casualty. Upon receipt of such
3 demand, LESSOR shall promptly refund all such monies.
4 15. HOLD HARMLESS— LESSOR will indemnify, defend, and hold LESSEE
5 harmless from and against any and all liabilities, claims, demands, actions, proceedings,
6 costs, expenses or damages of any kind or nature (collectively, "Claims") in any manner
7 directly or indirectly caused, occasioned or contributed to by reason of the negligence,
8 whether active or passive, of LESSOR or anyone acting under its direction or control or on its
9 behalf in connection with or incidental to the performance of LESSOR'S obligations pursuant
10 to this Lease.
11 LESSEE will indemnify, defend, and hold LESSOR harmless from and against any
12 Claims in any manner directly or indirectly caused, occasioned or contributed to by reason of
13 the negligence, whether active or passive, of LESSEE or anyone acting under its direction or
14 control or on its behalf in connection with or incidental to the performance of this Lease or any
15 Claims otherwise arising in connection with LESSEE'S use and occupancy of the Premises.
16 The parties acknowledge that as between LESSOR and LESSEE, each is
17 responsible for any Claims arising from the acts or omissions of its own employees and
18 invitees and notwithstanding anything to the contrary in this Section 15, each Party hereby
19 waives any claim for or right to consequential or punitive damages.
20 16. INSURANCE—
21 A. LESSOR shall maintain in full force and effect, the following insurance
22 policies throughout the term of the Lease:
23 1. Commercial General Liability- Commercial General Liability Insurance
24 covering the common areas located on the Premises with limits of not less
25 than Two Million Dollars ($2,000,000) per occurrence and an annual
26 aggregate of Four Million Dollars ($4,000,000). This policy shall be issued
27 on a per occurrence basis.
28 2. Property Insurance—A"Property Insurance Policy"which is defined herein
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1 to mean a policy of special form, so called "all-risk" of physical loss
2 property insurance insuring against fire, theft, vandalism, malicious
3 mischief, sprinkler leakage and such additional perils as are now or
4 hereafter may be included in broad form coverage(at LESSOR or
5 LESSEE's option or if otherwise required by LESSOR's mortgagee, if any,
6 also to include coverage against earthquake and flood)from time to time in
7 general use in the State of California covering the full replacement value of
8 all alterations, additions, partitions, improvements, machinery, equipment,
9 and fixtures made or placed by LESSEE in the Premises, covering the
10 Building and other improvements on the Premises, and covering any other
11 perils which LESSEE deems reasonably necessary and so requests to be
12 covered by written notice to LESSOR. The Property Insurance Policy shall
13 name LESSOR and the holder of any mortgage or deed of trust
14 encumbering the Premises (if any), as its interest may appear, as a loss
15 payee under such policy. The limits for such insurance shall be for not less
16 than the full replacement value of the Building as improved and existing as
17 of the date of Casualty (the "Minimum Insured Amount"). On the Rent
18 Commencement Date, from time to time as LESSEE makes improvements
19 to the Building, upon LESSOR's request, and at such other times during
20 the Term as LESSEE elects in its discretion, LESSEE shall deliver to
21 LESSOR written notice of the Minimum Insured Amount and LESSOR shall
22 communicate such Minimum Insured Amount to its insurer. Neither
23 LESSOR nor LESSEE shall do or permit anything to be done which
24 invalidates any such insurance policies.
25 3. Rental Loss Insurance-A policy of rental interruption or rental loss
26 insurance against loss, total or partial, of the use and occupancy of the
27 Premises, in an amount sufficient to pay the Base Rent and Additional
28 Rent required to be paid by LESSEE hereunder for a twenty—four (24)
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1 month period, as a result of any of the hazards covered by the Property
2 Insurance Policy required hereunder.
3 4. Worker's Compensation-Worker's Compensation insurance, if required by
4 the California Labor Code.
5 LESSOR shall obtain endorsements to the Commercial General Liability
6 insurance naming the County of Fresno (hereinafter"County"), its officers, agents, and
7 employees, individually and collectively, as additional insured, but only insofar as the
8 operations under this Lease are concerned. This insurance shall not be cancelled or
9 changed without a minimum or thirty (30) days advance written notice given to County.
10 Within (30) days after the Rent Commencement Date, LESSOR shall provide
11 certificates of insurance and endorsement as stated above for all of the foregoing policies, as
12 required herein, to the County of Fresno, Attn: ISD Lease Services (L-328), 333 W. Pontiac
13 Way, Clovis, CA 93612 stating that such insurance coverages have been obtained and are in
14 full force; that such Commercial General Liability insurance names the LESSEE, its officers,
15 agents, and employees, individually and collectively, as additional insured as required herein
16 and that such insurance shall not be cancelled or changed without a minimum of thirty(30)
17 days advance, written notice given to LESSEE.
18 In the event LESSOR fails to keep in effect at all times insurance coverage as
19 herein provided, then LESSEE may, after thirty (30) days written notice to LESSOR, obtain
20 such insurance on LESSOR'S behalf and offset Base Rent by the amount of such insurance
21 premiums incurred by LESSEE after providing written notice of such amounts and proof of
22 insurance to LESSOR.
23 The costs incurred by LESSOR in obtaining and maintaining the insurance policies
24 required of LESSOR hereunder(including any deductibles payable in the event of a loss
25 covered by such policies) shall be referred to herein collectively as "LESSOR'S Insurance
26 Costs" and shall be reimbursable to LESSOR as Additional Rent in accordance with Section 3
27 hereinabove.
28 B. LESSEE shall maintain during the term of this Lease the following policies of
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1 insurance, which coverages may be provided in whole or in part through one
2 or more programs of self-insurance (provided that any such self-insurance
3 program shall not diminish or reduce LESSEE'S liability hereunder):
4 i. Commercial General Liability insurance with limits of not less than
5 Two Million Dollars ($2,000,000.00) per occurrence and an annual
6 aggregate of not less than Four Million Dollars ($4,000,000.00).
7 This policy shall be issued on an occurrence basis, shall name
8 LESSOR as additional insured, and shall be primary and non-
9 contributing as to occurrences and claims in connection with events
10 occurring within the Building (as opposed to in the common area of
11 the Premises for which LESSOR'S Commercial General Liability
12 policy shall be primary).
13 ii. All-Risk property insurance. A Special form casualty insurance
14 coverage which shall include fire and such other perils as are
15 customarily included in such insurance maintained by prudent
16 tenants leasing similar space in the same general area of the
17 Premises, in an amount adequate to cover the replacement cost of
18 (i) LESSEE'S merchandise, trade fixtures, furnishings, equipment
19 and other personal property of LESSEE located on or within the
20 Premises, and (ii) at LESSEE's option, the leasehold
21 improvements, alterations and additions to the Premises for which
22 LESSOR shall be named as a loss payee under such insurance,
23 provided however, the proceeds of such insurance shall be
24 delivered to and used by LESSOR to repair or replace the affected
25 leasehold improvements, alterations and additions, and if not so
26 used, shall be paid to LESSEE.
27 LESSEE shall provide copies of the insurance policies, appropriately authenticated by
28 the insurer, or original insurance certificates reasonably acceptable to LESSOR, evidencing
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1 the insurance coverages called for above. Such copies of policies or certificates shall be
2 furnished to LESSOR upon execution of this Lease. The policies or certificates shall contain
3 a provision that the insurer will not cancel or refuse to renew the policies, or change in any
4 material way the nature or extent of the coverage provided by such policies without first giving
5 LESSOR thirty (30) days prior written notice. Thirty(30) days prior to expiration of any
6 policies of insurance carried by LESSEE, LESSEE shall provide proof of continuing coverage.
7 Waiver of Subrogation. Neither LESSOR nor LESSEE shall be liable to the other or to
8 any insurance company(by way of subrogation or otherwise) insuring the other party for any
9 loss or damage to any building, structure or other tangible property, or any resulting loss of
10 income and benefits, even though such loss or damage might have been occasioned by the
11 negligence of such party, its agents or employees, if any such loss or damage is covered by
12 insurance benefiting the party suffering such loss or damage or was required to be covered
13 by insurance pursuant to this Lease. LESSOR and LESSEE shall require their respective
14 insurance companies to include a standard waiver of subrogation provisions in their
15 respective policies.
16 All policies hereunder shall be with admitted insurers licensed to do business in the
17 State of California. Insurance purchased shall be purchased from companies possessing a
18 current A.M Best Company rating of A FSC VI I or better.
19 17. SURRENDER OF POSSESSION / HOLDOVER—Upon the expiration or
20 termination of this Lease, LESSEE will surrender the Premises to LESSOR broom clean and
21 otherwise in such condition as existing on the Rent Commencement Date, less reasonable
22 wear and tear, but including all improvements made by LESSEE. If LESSEE holds over after
23 the expiration of the Term or earlier termination thereof, with or without the express or implied
24 consent of LESSOR, such tenancy shall be tenancy at sufferance only, and shall not
25 constitute a renewal hereof or an extension for any further term, and in such case LESSEE
26 shall pay one hundred three percent(103%) of the Base Rent in effect just prior to expiration
27 or termination, until either party gives the other thirty (30) days written notice of termination,
28 reciting therein the effective date of cancellation. LESSOR hereby expressly reserves the
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1 right 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 this
3 Section 17 shall not be deemed to limit or constitute a waiver of any other rights or remedies
4 of LESSOR provided herein or at law.
5 18. 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 pay for the repair of any damage
8 caused by the removal of fixtures. Any fixtures not removed after LESSEE surrenders
9 possession shall become the property of LESSOR.
10 19. RIGHT OF ENTRY—LESSOR, or its representative(s), upon twenty-four(24)
11 hour 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. In the event
15 of an emergency, LESSOR may enter the Premises at any time without giving prior notice to
16 LESSEE.
17 20. AMENDMENT—This Lease may be amended in writing by the mutual consent
18 of the parties without in any way affecting the remainder of this Lease.
19 21. NON-ASSIGNMENT—Neither Party shall assign, transfer or sub-let this LEASE,
20 or the rights or duties under this LEASE,without the prior written consent of the other Party,
21 which consent shall not be unreasonably withheld or denied, except that LESSOR may sell or
22 refinance the Premises or any part thereof, in which case LESSOR shall promptly notify
23 LESSEE in writing of such sale or refinancing. Further, in the event of any such assignment,
24 sublease or transfer of LESSEE's rights or obligations hereunder, the originally named LESSEE
25 hereunder(i.e.,the COUNTY OF FRESNO, a political subdivision of the State of California)
26 shall remain fully and primarily liable for all duties and obligations of LESSEE under this
27 Lease.
28 22. GOVERNING LAW—Venue for any action arising out of or relating to this
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1 Lease shall be in Fresno County, California. This Lease shall be governed by the laws of the
2 State of California.
3 23. AUDITS AND INSPECTIONS—The LESSOR shall at any time during
4 business hours, and as often as the COUNTY may deem necessary, make available to the
5 COUNTY for examination all of its records and data with respect to the matters covered by
6 this Agreement. The LESSOR shall, upon request by the COUNTY, permit the COUNTY to
7 audit and inspect all of such records and data necessary to ensure LESSOR compliance with
8 the terms of this Agreement.
9 If this Agreement exceeds ten thousand dollars ($10,000.00), LESSOR shall be subject to the
10 examination and audit of the Auditor General for a period of three (3) years after final
11 payment under contract(Government Code Section 8546.7).
12 24. NOTICES—All notices to be given under this Lease by either Party to the
13 other Party shall be in writing, and given by any one of the following methods:
14 (i) Personal delivery to the applicable address as set for below; or
15 (ii) Sent by certified United States mail, first class postage prepaid, with
16 return receipt requested, to the applicable addresses as set forth below, in which case such
17 notice shall be deemed given three (3) business days if LESSOR is the recipient, or three(3)
18 days if LESSEE is the recipient, after such deposit and postmark with the United States
19 Postal Service; or
20 (iii) Sent by a reputable overnight commercial courier, in which case such
21 notice shall be deemed given one (1) business day if LESSOR is the recipient, or one (1) day
22 if LESSEE is the recipient, after such deposit with that courier to the applicable addresses as
23 set forth below.
24 The addresses and telephone numbers of the Parties for purposes of giving
25 receiving notices under this Lease are as follows:
26
27
28
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1
2 LESSEE: LESSOR:
3 County of Fresno PONTIAC 3 & 5 LLC, a California
County Administrative Office (CAO) limited liability company
2281 Tulare Street, Suite 304 Attn: Clayton Medina
4 Hall of Records 2780 N. Miami Ave., Ste. 10
Fresno, CA 93721 Fresno, CA 93727
5 (559) 600-1710 (559) 346-1400
6 with copies to:
7 County of Fresno
(L-328)
8 Director of Internal Services
9 333 W. Pontiac Way
Clovis, CA 93612
10 (559) 600-6200
11
12 Provided however, such notices may be given to such person or at such other place as
13 either of the Parties may from time to time designate by giving written notice to the other Party,
14 and provided further however, in any event notices of changes of address or termination of this
15 Lease shall not be effective until actual delivery of such notice. Notices given hereunder shall
16 not be amendments or modifications to this Lease. Further,for all claims arising from or related
17 to this agreement, nothing
gin this agreement establishes, waives, or modifies any claims
18 presentation requirements or procedures provided by law, including but not limited to the
19 Government Claims Act(Division 3.6 of Title 1 of the Government Code, beginning with section
20 810).
21 25. DISCLOSURE OF SELF DEALING TRANSACTIONS—This provision is only
22 applicable if the LESSOR is operating as a corporation (a for-profit or non-profit corporation)
23 or if during the term of this Lease, the LESSOR changes its status to operate as a
24 corporation.
25 Members of LESSOR'S Board of Directors shall disclose any self-dealing transactions
26 that they are a party to while LESSOR is providing goods or performing services under this
27 Lease. A self-dealing transaction shall mean a transaction to which the LESSOR is a party
28 and in which one or more of its directors has a material financial interest. Members of the
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1 Board of Directors shall disclose any self-dealing transactions that they are a party to by
2 completing and signing a Self-Dealing Transaction Disclosure Form Attachment"D", attached
3 hereto and by this reference incorporated herein, and submitting it to the County of Fresno
4 prior to commencing with the self-dealing transaction or immediately thereafter.
5 26. SUCCESSORS—This Lease shall inure to the benefit of and be binding upon
6 the heirs, executors, administrators, successors and assigns of the respective parties hereto,
7 always providing that nothing in this Section 26 shall impair any of the provisions herein
8 above set forth prohibiting assignment or other transfer of this Lease by LESSEE without the
9 prior written consent of LESSOR.
10 27. LESSEE'S DEFAULT AND LESSOR'S REMEDIES—
11 A. LESSEE'S Default. LESSEE shall be in default under this Lease if LESSEE
12 fails to perform any of its obligations hereunder and (i) if the failure is in the
13 payment of Base Rent, or any other failure which can be cured by the payment
14 of money, the failure continues uncured for a period of five (5) days after
15 written notice thereof from LESSOR (provided, however, LESSOR shall have
16 no obligation to provide such written notice more than two (2) times in any
17 twelve (12) consecutive month period), or(ii) if the failure is in any of the other
18 provisions of this Lease and such failure continues uncured for a period of
19 thirty (30) days after written notice thereof from LESSOR, unless such cure is
20 not capable of completion within thirty (30) days, in which case LESSEE shall
21 be afforded such additional time as may be reasonably necessary to complete
22 the cure provided LESSEE commences the cure within thirty (30) days of
23 LESSOR'S notice and diligently pursues such cure to completion, or, in the
24 event of a threatened injury to life or property due to such failure, continues for
25 such lesser period as LESSOR may specify in such written notice.
26 B. LESSOR'S Remedies. In the event of a default by LESSEE then, besides any
27 other rights and remedies of LESSOR at law or equity, LESSOR shall have the
28 following rights and remedies. All remedies herein conferred on LESSOR
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1 shall, to the fullest extent permitted by law, be deemed cumulative and no one
2 exclusive of the other or of any other remedy conferred by law or in equity, and
3 nothing herein shall prevent LESSOR from pursuing any and all other
4 remedies it may have upon LESSEE'S default.
5 1. Election to Continue or Terminate Lease. LESSOR shall have the right to
6 elect either to continue or terminate this Lease, as follows:
7 (a) Continuation of Lease. LESSOR shall have the remedy described
8 in California Civil Code Section 1951.4 (LESSOR may continue this
9 Lease in effect after LESSEE'S breach and abandonment and
10 recover rent as it becomes due, if LESSEE has the right to sublet or
11 assign, subject only to reasonable limitations). Accordingly, if
12 LESSOR does not elect to terminate this Lease on account of any
13 default by LESSEE, LESSOR may, from time to time,without
14 terminating this Lease, enforce all of its rights and remedies under
15 this Lease, including the right to recover all Rent as it becomes due.
16 (b) Termination of Lease. LESSOR shall have the right to terminate
17 this Lease, by giving written notice of termination to LESSEE or, if
18 LESSEE'S address is unknown, by posting such notice on the
19 Premises. Absent such written notice, no acts of LESSOR
20 (including entering, repairing, preparing to re-let, or re-letting the
21 Premises) shall be construed as an election to terminate the Lease.
22 In the event that LESSOR elects to terminate this Lease, then
23 LESSOR shall be entitled to its statutory unlawful detainer remedy.
24 C. No Event of Default. Notwithstanding anything herein to the contrary, LESSEE
25 shall NOT be in default under this LEASE solely because of the failure to pay
26 any amounts to be owed by LESSEE hereunder — including any portion or
27 installment of the Base Rent, when they are to be due and payable herein,
28 and/or any other amounts otherwise due and payable herein—to the extent such
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1 amounts are subject to abatement as set forth in Section 30, hereinbelow.
2 D. No Acceleration of Future Rent or Other Payments/Amounts. Notwithstanding
3 anything to the contrary contained herein this Lease or any right or remedy of
4 which LESSOR may otherwise avail itself pursuant to applicable law, any right
5 of LESSOR to recover any rents (including Base Rent and Additional Rent)
6 and/or any other amounts to be paid by LESSEE as provided in this Lease shall
7 be without acceleration of any future Base Rent and/or any future Additional
8 Rent, and/or any other amounts to be paid by LESSEE herein, before they are
9 due and payable hereunder. LESSOR hereby expressly waives its right to
10 accelerate rent in the event of a termination of this Lease pursuant to California
11 Civil Code section 1951.2.
12 28. WAIVER— No covenant or condition of this Lease shall be deemed waived,
13 except by the written consent of LESSOR or LESSEE, as appropriate, and any forbearance
14 or indulgence by the party entitled to performance shall not constitute a waiver of the
15 covenant or condition to be performed. Until complete performance of such covenant or
16 condition, the party entitled to performance shall have the right to invoke any remedy
17 available to it under this Lease or by law, despite such forbearance or indulgence. The
18 subsequent acceptance of Rent hereunder by LESSOR shall not be deemed to be a waiver of
19 any preceding default by LESSEE of any term, covenant or condition of this Lease, other than
20 the failure of LESSEE to pay the particular Rent so accepted, regardless of LESSOR'S
21 knowledge of such preceding default at the time of acceptance of such Rent.
22 29. LATE CHARGES —LESSEE hereby acknowledges that late payment by
23 LESSEE to LESSOR of Rent or other sums due hereunder shall cause LESSOR to incur
24 costs not contemplated by this Lease, the exact amount of which will be extremely difficult to
25 ascertain. Such costs include, but are not limited to, processing and accounting charges.
26 Accordingly, if any installment of Rent or any other sums due from LESSEE shall not be
27 received by LESSOR or LESSOR'S assignee within forty-five (45) days after the date due,
28 then LESSEE shall pay to LESSOR a late charge equal to three(3%) percent of such
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1 overdue amount plus any attorney's fees incurred by LESSOR by reason of LESSEE'S failure
2 to pay Rent and/or other sums when due hereunder; provided that any payment postmarked
3 by the 5th of the month shall be presumed to be mailed in a timely manner. The parties
4 hereby agree that such late charge represents a fair and reasonable estimate of the cost that
5 LESSOR will incur by reason of the late payment by LESSEE. Acceptance of such late
6 charges by LESSOR shall in no event constitute a waiver of LESSEE'S default with respect to
7 such overdue amounts, nor prevent LESSOR from exercising any of the other rights and
8 remedies granted hereunder. In addition, LESSEE shall pay to LESSOR interest at the
9 Interest Rate on any delinquent payments, commencing ninety (90) days after the date
10 payment was due and continuing until paid.
11 30. INTEREST—Any amount owing from one party to the other under this Lease
12 which is not paid within ninety (90) days of the date when due shall thereafter bear interest at
13 the Interest Rate. As used herein, the term "Interest Rate" means a per annum rate of
14 interest equal to the lesser of(i) five percent (5%) per annum over the then most recent
15 annual prime or reference rate of interest announced by Bank of America N.A. (or in the event
16 Bank of America N.A. ceases to publish a prime or reference rate, the prime rate of a
17 comparable national banking institution reasonably agreed upon by the parties), or(ii)the
18 maximum rate permitted by applicable law.
19 31. ABATEMENT OF BASE RENTS, AND OTHER PAYMENTS — Notwithstanding
20 anything to the contrary in this LEASE, (i) LESSEE's obligations to pay the Base Rent, and/or
21 Additional Rent and/or any other amounts otherwise due and payable hereunder to LESSOR
22 shall be abated during any period, and to the extent, that the Premises, or any portion thereof
23 (in the case of an affected portion of the Premises, then, such abatement shall also be in
24 proportion thereof), cannot be used and occupied by LESSEE pursuant to this LEASE as a
25 result of any material property damage or loss or title defect(excluding any permitted
26 encumbrances at execution date), or of any Condemnation or Prohibited Use of the
27 Premises, or any portion thereof, and (ii) any abatement of any Base Rent, and/or Additional
28 Rent and/or other amounts otherwise due and payable, herein pursuant to this Section shall
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1 not be deemed to be a default under this LEASE on the part of LESSEE.
2 Abatement of any Base Rent, and/or Additional Rent and/or of any other amounts
3 otherwise due and payable hereunder shall only suspend the period during which LESSEE is
4 otherwise required to pay Base Rent, and/or Additional Rents and/or any other amounts
5 otherwise due and payable, hereunder to LESSOR, and shall not relieve LESSEE from
6 subsequently paying the remainder of all such Base Rent, and/or Additional Rents and/or any
7 other amounts otherwise due and payable herein, pursuant to this LEASE once the condition
8 giving rise to the abatement has been cured, corrected, eliminated, or satisfactorily resolved.
9 Such abatement shall continue for the period commencing with the date of such material loss
10 or title defect, or of any Condemnation or Prohibited Use of the Premises, or any portion
11 thereof, and ending with the cure, correction, elimination or satisfactory resolution of the
12 material loss or title defect whereby LESSEE may use and occupy the Premises, or the
13 adversely affected portion thereof, pursuant to this LEASE. Cure, correction, elimination or
14 satisfactory resolution may, upon prior mutual written approval of LESSOR and LESSEE
15 (which the parties will negotiate in good faith and without unreasonable delay), occur in
16 commercially reasonable stages, as determined by the nature of the problem being remedied
17 and the impact that such staged remedial action and the coordination and timing thereof
18 would have on LESSEE, LESSEE's Director of Internal Services/Chief Information Officer, or
19 his/her designee, shall be authorized to execute such written approval for LESSEE.
20 The monthly Base Rent and Additional Rent, and any other amounts otherwise due
21 and payable hereunder, by LESSEE to LESSOR with respect to the Premises, or any portion
22 thereof, shall be abated to the extent that the amount of the monthly fair rental value of the
23 portion of the Premises in respect of which there is no substantial interference with LESSEE's
24 use and occupancy of the Premises is less than the amount of monthly Base Rent and
25 Additional Rents and any other amounts otherwise due and payable hereunder, in which case
26 the monthly Base Rent, and/or Additional Rent and/or any other amounts otherwise due and
27 payable hereunder shall be abated only by an amount equal to the difference thereof.
28 During the occurrence of any Casualty which is covered by rental interruption
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1 insurance or rental loss insurance (See Section 16A(3) herein)the proceeds of any rental
2 interruption insurance or rental loss insurance that LESSOR may receive as a result of such
3 Casualty shall be applied by LESSOR, to the credit of LESSEE, for any monthly Base Rent,
4 Additional Rent and any other amounts otherwise due and payable hereunder; in such
5 instance of such amounts so received, LESSOR shall so inform LESSEE of any such
6 amounts so received.
7 Nothing contained in this Section 31 shall obligate LESSEE for payments of Base
8 Rent and/or Additonal Rent and/or any other amounts otherwise due and payable hereunder
9 if this LEASE is terminated pursuant to Section 11 herein.
10 32. LESSOR EXCULPATION — It is expressly understood and agreed that
11 notwithstanding anything in this Lease to the contrary, and notwithstanding any applicable law
12 to the contrary, the liability of LESSOR and the LESSOR'S members, owners, agents,
13 employees, and partners (including any successor landlord) (collectively, the "LESSOR
14 Parties") and any recourse by LESSEE against LESSOR or the LESSOR Parties shall be
15 limited solely and exclusively to an amount which is equal to the ownership interest of
16 LESSOR in the Building in which the Premises is located (excluding any proceeds thereof),
17 and neither LESSOR, nor any of LESSOR's members shall have any personal liability
18 therefor, and LESSEE hereby expressly waives and releases such personal liability on behalf
19 of itself and all persons claiming by, through or under LESSEE.
20 33. ENERGY CONSUMPTION DISCLOSURE— If LESSEE (or any party claiming
21 by, through or under LESSEE) pays directly to the provider for any energy consumed at the
22 Premises, LESSEE shall, promptly upon request, deliver to LESSOR (or, at LESSOR'S
23 option, execute and deliver to LESSOR an instrument enabling LESSOR to obtain from such
24 provider) any data about such consumption that LESSOR, in its reasonable judgment, is
25 required to disclose to a prospective buyer, tenant or mortgagee or prospective mortgagee
26 under California Public Resources Code§ 25402.10 or any similar law.
27 34. DISABILITY ACCESS INSPECTION —Neither the Building nor the common
28 areas located on the Premises have undergone inspection by a Certified Access Specialist
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1 (CASp) within the meaning of California Civil Code Section 1938, and LESSOR is not
2 providing any representations or warranties regarding whether the Premises meets all
3 applicable construction-related accessibility standards.
4 35. COUNTERPARTS—This Lease may be executed in one or more counterparts
5 (which may be facsimile or .pdf e-mail counterparts followed by originals), each of which will
6 be deemed an original and all, taken together, will constitute one and the same instrument.
7 36. FORCE MAJEURE — In the event that either party hereto shall be delayed or
8 hindered in or prevented from the performance of any act required hereunder by reason of
9 strikes, lockouts, adverse weather(including rain), inability to procure labor or materials,
10 failure of power, restrictive governmental laws or regulations, riots, insurrection, war, fire or
11 other casualty or other reason of a similar nature beyond the reasonable control of the party
12 delayed in performing work or doing the act required under the terms of this Lease, then
13 performance of such act shall be excused for the period of the delay and the period from the
14 performance of any such act shall be extended for a period equivalent to the period of such
15 delay (any such delay is herein referred to as an "Force Majeure Delay"). In no event shall
16 LESSEE'S inability to satisfy a monetary obligation hereunder constitute or be subject to
17 Force Majeure Delay.
18 37. ESTOPPEL CERTIFICATE—LESSEE shall, at any time upon not less than
19 thirty(30) days prior request by LESSOR, execute, acknowledge and deliver to LESSOR a
20 written estoppel certificate, in a form satisfactory to LESSOR, certifying that this Lease is
21 unmodified and in full force and effect(or, if there have been modifications, that the same is in
22 full force and effect as modified and stating the modifications) and, if applicable, the dates to
23 which the Rent and any other charges have been paid in advance. Any such statement
24 delivered pursuant to this Section 37 may be relied upon by third persons, including a
25 prospective purchaser or encumbrancer of the Premises.
26 LESSEE'S failure to execute and deliver an estoppel certificate within thirty (30) days
27 after LESSEE'S receipt of LESSOR'S written request therefore shall be conclusive upon
28 LESSEE that this Lease is in full force and effect,without modification except as may be
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1 represented by LESSOR, that there are no uncured defaults in LESSOR'S performance,that
2 not more than one month's rental has been paid in advance, and that all other statements
3 required to be made in the estoppel certificate are conclusively made.
4 38. SUBORDINATION AND ATTORNMENT—At LESSOR'S option, this Lease
5 shall be subordinated to any mortgage or deed of trust which is now or shall hereafter be
6 placed upon the Premises, and LESSEE agrees to execute and deliver any instrument which
7 may be necessary to further effect the subordination of the Lease to any such mortgage or
8 deed of trust; provided, however, that such instrument of subordination shall provide, or the
9 mortgagee or beneficiary of such mortgage or deed of trust otherwise shall agree in writing in
10 recordable form delivered to LESSEE, that the mortgagee or beneficiary, including their
11 successors and assigns, recognize LESSEE's leasehold interest under this Lease and that so
12 long as LESSEE is not in default under this Lease, foreclosure of any such mortgage or deed
13 of trust or sale pursuant to exercise of any power of sale thereunder, or deed given in lieu
14 thereof, shall not affect this Lease but such foreclosure or sale, or deed given in lieu thereof,
15 shall be made subject to this Lease which shall continue in full force and effect, binding on
16 LESSEE, as lessee, and the transferee, as lessor. LESSEE shall attorn to the transferee as if
17 said transferee was LESSOR under this Lease.
18 39. AUTHORITY— Each individual executing this Lease on behalf of LESSOR
19 represents and warrants that such individual(s) are duly authorized to execute and deliver this
20 Lease on behalf of PONTIAC 3 &5 LLC, a California limited liability company and that this
21 Lease is binding upon PONTIAC 3 & 5 LLC, a California limited liability company in
22 accordance with its terms.
23 40. ENTIRE AGREEMENT—This Lease constitutes the entire Lease between the
24 LESSOR and LESSEE with respect to the subject matter hereof and supersedes all prior
25 leases, negotiations, proposals, commitments, writings, advertisements, publications, and
26 understandings of any nature whatsoever unless expressly referenced in this Lease.
27 41. CONTINGENCY — Notwithstanding anything to the contrary contained herein,
28 LESSEE may, it its option, terminate this Lease in the event of the following:
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1 (i) The Property Closing does not occur by March 31, 2019; or
2 (ii) The tenant under the Seller Lease has not vacated the Premises by June
3 30, 2024.
4 Should LESSEE elect to terminate this Lease pursuant to (i) or (ii) hereinabove, this
5 Lease shall terminate upon LESSEE providing to LESSOR at least fifteen (15) business days
6 advance written notice of such termination, unless (a) as to any termination based on (i)
7 hereinabove only, LESSOR takes fee title prior to expiration of such fifteen (15) business day
8 period, or (b) as to any termination based on (ii) hereinabove, tenant under the Seller Lease
9 vacates the Premises prior to expiration of such fifteen (15) business day period. LESSOR
10 shall not be subject to any liability for delayed possession.
11 42. SEVERABILITY — Each provision of this Lease is severable from any and all
12 other provisions of this Lease. Should any provision(s) of this Lease be for any reason
13 unenforceable, the balance shall nonetheless be of full force and effect.
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1 IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first
2 hereinabove written.
3 LESSOR: LESSEE:
4 PONTIAC 3 & 5 LLC, a California COUNTY OF FRESNO
limited liability company
5
6 By: - By: L� ...e
7 Clayton Medina, CFO of Manager Brian Pacheco, Chairman Board of
Supervisors of the County,of Fresno
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9 ATTEST:
Bernice E. Seidel
10 Clerk to the Board of Supervisors
County of Fresno, State of California
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1 By:
2 ,
Depu y
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COUNTY OF FRESNO 28
Fresno,California
1 ATTACHMENT "A"
2 Premises Map
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COUNTY OF FRESNO
Fresno,California 29
1 ATTACHMENT "B"
2
Maintenance
3 Operating Budget
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Services Per Sq Ft Monthly Annually
5 Utility(Electrical) $ 0.182 $ 18,661.19 $ 223,934.26
Property Taxes $ 0.140 $ 14,354.76 $ 172,257.12
6 Landscaping $ 0.029 $ 2,973.49 $ 35,681.83
7 Maintenance Supplies $ 0.055 $ 5,639.37 $ 67,672.44
Pest Control $ 0.001 $ 102.53 $ 1,230.41
8 One Site Maintenance $ 0.061 $ 6,254.57 $ 75,054.89
Insurance $ 0.042 $ 4,306.43 $ 51,677.14
9 Janitorial Service $ 0.101 $ 10,355.93 $ 124,271.21
Janitorial Supplies $ 0.032 $ 3,281.09 $ 39,373.06
10 Administrative Fee $ 0.061 $ 6,254.57 $ 75,054.89
11 Total $ 0.704 $ 72,183.94 $ 866,207.23
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COUNTY OF FRESNO
Fresno,California 30
1
ATTACHMENT "C"
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Premises Services Agreement
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4 Landscape
5 1. Maintenance of all Landscaped areas on the Premises
2. All Tree Maintenance
6 3. Plant replacement
7 Parking Lot
1. Contract Vacuuming
8 a. 1 x a month sweeping of all parking lot stalls
9 2. Resurfacing or repaving
10 Exterior Building Maintenance
1. Pressure Washing to be performed
11 a. 2 x year-Window washing all floors
b. 1 x month -Window Washing for 1st floor windows only
12 2. Painting
13 a. Graffiti removal as needed
3. Pest Control
14 a. 1 x month, exterior only—Treat and spray the outside of the building
4. Common Area Repairs
15 a. Vandalism repairs as needed
16 5. Roof Repairs
17 Janitorial
1. Daily:
18 a. Vacuum all carpeted areas
b. Sweep and/or dry mop floors
19 c. Dust cleared desk and table surfaces, clean counters
d. Empty all waste baskets and dispose of trash in appropriate trash bins
20 e. Clean smudges and unsightly appearances form door jambs, light switches,
21 glass partitions, and counters
f. Clean and sanitize all sinks, toilets, and urinals
22 g. Clean all restroom mirrors, tile and splash walls
h. Spot clean restroom walls and partitions
23 i. Refill supplies in Restrooms (paper towels, toilet tissue, soap, etc.)
2. Monthly:
24 a. Dust all blinds and sills
25 3. Perform as Required:
a. Wet mop floors
26 b. Remove interior cobwebs
c. Dust wall picture frames and partition tops
27 d. High dust, including walls, light fixtures, vents and ledges above normal reach,
door ledges
28 e. Wash/clean light fixtures, walls, A/C vents
f. Dust/clean baseboards
COUNTY OF FRESg, Spot clean carpets
Fresno,California forma 31
1 h. Steam clean all carpets
2 i. Strip and wax all vinyl and tile flooring
j. Clean Interior windows
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HVAC
4 1. Contract Maintenance
5 a. Quarterly Service Agreement
6 Interior Building Maintenance
1. Electrical Repairs
7 2. Plumbing
a. Service calls
8 i. Urinal
ii. Toilet
9 iii. Fixture repairs
10 3. Elevator Contract Maintenance
a. Cost is based on two elevators
11 b. Service to be performed quarterly
12 Vendors
13 1. Lessee shall have the right to approve all vendors.
14 On-Site Management
1. Property Management available upon request
15 2. 1 x week- Property Management assessment of interior and exterior of building visits
with lead personnel
16 3. Property Management or their representative will visit the building on a daily basis
Monday through Friday.
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18 Utilities
1. Utility- Gas-Tenant pays direct to PG&E
19 2. Utility- Electric-Tenant pays to LESSOR
3. Elevator Phone Line
20 a. To allow access to make emergency calls in case of an entrapment
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Fire Safety
22 1. Maintenance of Fire Alarm System
23 a. Testing system on quarterly basis per FFD regulations
b. Testing system on a yearly basis per FFD regulations
24 c. Testing system on a 5-year basis per FFD regulations
2. Fire System Phone Line
25 a. Phone line to ensure fire alarm system is active and able to communicate to
26 central monitoring station
27 Insurance
1. Property Insurance based on then current Building value
28 2. General Liability
3. Other coverages, including earthquake insurance
COUNTY OFFRESNO
Fresno,California 32
1 Property Taxes
2 1. Property taxes and assessments
3 Operating Expenses
1. Operating expenses shall be considered Additional Rent under the Lease.
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2. Additional rent shall be paid by Lessee on or about the 1 sf of the month along with
5 monthly Base Rent. Each payment shall be equal to 1/12fh of the annual budget.
6 3. Lessor shall endeavor to deliver to Lessee an annual good faith Operating Expense
7 budget at least 120 days prior to the start of the next calendar year.
8 4. Within 90 days after the year is completed, Lessor shall submit to Lessee a
reconciliation of the actual Operating Expenses.
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5. Any overpayment of Operating Expenses shall, at Lessor's option, either be refunded to
10 Lessee within thirty (30) days after Lessor's delivery of the statement setting forth such
amount OR credited against Lessee's installment(s) of the rent next becoming due
11 under this Lease. Any underpayment shall be paid by Lessee to Lessor within 45 days.
12 Modification to Agreement
13 This agreement may be modified upon the mutual agreement of both parties.
14 Administration Fee
Lessee shall pay a 9.5%Administration Fee to Lessor on all expenses.
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16 Repairs
Lessor shall make any necessary repairs and replacements during the course of the
17 life of the lease of every kind and nature and which shall be considered an operating
expense.
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All repairs, replacement, maintenance, restoration or operation of the building and on
19 any floor or conference room are considered as part of this agreement and will be an
20 operating expense whether paid or incurred and without any limitation.
21 Term of Agreement
The term of this agreement will be for the life of the Lease.
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Termination of Agreement
23 This Premises Services Agreement or any portion thereof may be terminated by
Lessee with a 60-day notice for cause.
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*To the extent Lessor and Lessee agree upon modifications to the services to be provided by
26 Landlord pursuant hereto, the budget shall be modified to reflect such modifications and
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Tenant's estimated monthly payment shall be adjusted accordingly.
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COUNTY OF FRESNO
Fresno,California 33
1 ATTACHMENT "D"
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3 SELF-DEALING TRANSACTION DISCLOSURE FORM
4 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'),
5 must disclose any self-dealing transactions that they are a party to while providing goods,
6 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
7 which one or more of its directors has a material financial interest"
8 The definition above will be utilized for purposes of completing this disclosure form.
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10 INSTRUCTIONS
(1) Enter board member's name,job title (if applicable), and date this disclosure is being
11 made.
12 (2) Enter the board member's company/agency name and address.
13 (3) Describe in detail the nature of the self-dealing transaction that is being disclosed to
14 the County. At a minimum, include a description of the following:
a. The name of the agency/company with which the corporation has the
15 transaction; and
16 b. The nature of the material financial interest in the Corporation's transaction
17 that the board member has.
(4) Describe in detail why the self-dealing transaction is appropriate based on
18 applicable provisions of the Corporations Code.
19 (5) Form must be signed by the board member that is involved in the self-dealing
20 transaction described in Sections (3) and (4).
21 Mail the completed form to: County of Fresno
Attn: Lease Services (L-328)
22 Internal Services Department
333 W. Pontiac Way
23 Clovis, CA 93612
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COUNTY OF FRESNO
Fresno,California 34
1 (1)Company Board Member Information:
2 Name: Date:
Job Title:
3 (2)Company/Agency Name and Address:
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8 (3)Disclosure(Please describe the nature of the self-dealing transaction you are a party to):
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4)Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233
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25 (5)Authorized Signature
26 Signature: Date:
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COUNTY OFFRESNO
Fresno,California 35