HomeMy WebLinkAboutAgreement A-17-646 with Pontiac 2 LLC Building 2 Lease.pdf Agreement No. 17-646
L-326/DSS
Building 2/5610
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 2 LLC, a
4 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 3500 Pelco Way, Clovis, CA 93612, which includes a building
11 containing approximately 21,966 square feet of office space and 87,117 of warehouse space
12 (the "Building"), together with surrounding common area parking (Fresno County Assessor's
13 Parcel Number 493-070-70s), as depicted on Attachment"A" hereto and by this reference
14 incorporated herein (the"Premises"). LESSOR represents, covenants, and warrants to
15 LESSEE that prior to delivery of the Lessor Occupancy Notice (as defined below), Lessor
16 shall not permit any new mortgages, deeds of trust, leaseholds, pledges, conditions or
17 restrictions, liens or encumbrances against the Premises that are not already in existence,
18 with the exception of items permitted under Section 38 or other items that are expressly
19 subordinate to this Lease. Upon LESSEE's receipt of the Lessor Occupancy Notice(as
20 defined below), and continuing thereafter and during the term of this Lease, LESSEE shall
21 have the right to record a memorandum of this Lease against the Premises in the official
22 records of the County Recorder("Memorandum of Lease").
23 2. TERM—
24 1. LESSOR represents that it is under contract to purchase the property of
25 which the Premises is a part("Property")from the current property owner
26 (hereinafter"Seller"') and that such contract gives Seller the option to
27 either extend the closing date of such sale or lease back the Premises after
28 the transfer of title through September 28, 2018 (the "Seller Lease").
COUNTY OF FRESNO
Fresno,California 1
L-326/DSS
Building 2/5610
1 LESSOR covenants not to grant any further extension of the Seller Lease.
2 LESSOR covenants, represents, and warrants to LESSEE that in any sale
3 of the Property prior to recordation of the Memorandum of Lease, Lessor
4 shall provide the transferee with notice of this Lease and provide that the
5' sale is made subject to this Lease. LESSOR's obligations under this
6 Lease are contingent upon LESSOR, taking title to the Property,which
7 closing is expected to occur either March 30, 2018 or September 28, 2018
8 (the "Property Closing"). Upon the termination or expiration of the Seller
9 Lease and vacation of the Premises by the tenant under the Seller Lease,
10 or upon completion of the Property Closing if there is no Seller Lease,
11 LESSOR shall provide written notice to LESSEE that the Property is
12 available for occupancy ("Lessor Occupancy Notice").
13 2. The term of this Lease shall be ten (10) years (the"Term" or"term")
14 commencing on the date LESSEE first takes occupancy of the Premises
15 (hereinafter"Rent Commencement Date") as set forth in a written
16 acknowledgement signed by LESSOR and LESSEE's Director of Internal
17 Services,which may only be given after LESSSEE's receipt of the Lessor
18 Occupancy Notice. It is understood by the parties herein that LESSEE's
19 occupancy of the Premises shall commence only after said written
20 acknowledgement is executed which such acknowledgement shall not be
21 unreasonably withheld or delayed; furthermore, occupancy must
22 commence on the first(1st) day of a month, unless otherwise agreed by the
23 parties in writing.
24 3. RENT/OPERATION COSTS—LESSEE shall pay to LESSOR on a monthly
25 basis both Base Rent and Additional Rent(as both terms are defined hereinbelow). Base
26 Rent and Additional Rent shall hereinafter be collectively referred to as the "Rent."
27 1. Base Rent—LESSEE shall pay rent on a monthly basis for the Premises
28 ("Base Rent") beginning on the Rent Commencement Date as shown in the
COUNTY OF FRESNO
Fresno,California 2
L-326/DSS
Building 2/5610
1 below payment schedule:
2 Rent Period Office Warehouse Total
Year One $ 33,607.98 $ 48,785.52 $ 82,393.50
3 Year Two $ 34,280.14 $ 49,761.23 $ 84,041.37
4 Year Three $ 34,965.74 $ 50,756.46 $ 85,722.20
Year Four $ 35,665.06 $ 51,771.58 $ 87,436.64
5, Year Five $ 36,378.36 $ 52,807.02 $ 89,185.37
Year Six $ 37,105.93 $ 53,863.16 $ 90,969.08
6 Year Seven $ 37,848.04 $ 54,940.42 $ 92,788.46
Year Eight $ 38,605.00 $ 56,039.23 $ 94,644.23
7 Year Nine $ 39,377.11 $ 57,160.01 $ 96,537.12
Year Ten $ 40,164.65 $ 58,303.21 $ 98,467.86
8
2. ADDITIONAL RENT— In addition to the Base Rent, LESSEE shall pay on
9
a monthly basis as "Additional Rent", the annual operations costs for the
10
Premises to LESSOR, consisting of 100% of LESSOR'S actual out of
11
pocket cost for real estate taxes, insurance and all maintenance related
12
expenses incurred by LESSOR allocable to the Premises (collectively,
13
"Operation Costs") as listed in the Operating Budget attached hereto as
14
Attachment"B" and incorporated herein by reference. Anticipated total
15
Operation Costs for the 2018 calendar year based on current Operation
16 Costs are $921,533.18 as set forth in Attachment "B,"though the parties
17
acknowledge that Attachment"B" is simply an estimate for informational
18
purposes only and shall not be deemed or otherwise construed as a
19
representation, warranty or covenant by LESSOR as to the actual
20
Operation Costs for the 2018 calendar year. Based on the foregoing
21
estimate, beginning on the Rent Commencement Date, LESSEE shall pay
22
Additional Rent to LESSEE for each month or partial month at the rate of
23
$76,794.43 per month, unless LESSOR provides LESSEE with an revised
24
budget or a statement (as described hereinbelow) showing that LESSOR's
25
actual Operation Costs have increased, at which time LESSEE shall pay
26
Additional Rent in accordance with LESSOR's revised budget estimate or
27
statement.
28
Within 90 days after the end of each calendar year this Lease is in force, LESSOR
COUNTY OF FRESNO ,
Fresno,California 3
L-326/DSS
Building 2/5610
1 shall make good faith efforts and endeavor to furnish to LESSEE, a statement covering the
2 calendar year just expired, showing by cost category the actual Operation Costs incurred for
3 that year, the monthly payments made by LESSEE during that year for the Operation Costs,
4 and the bills or records supporting each of such costs and the allocations of such costs to
5' LESSEE. If LESSEE's share of the Operation Costs exceeds LESSEE's prior payments,
6 LESSEE shall pay to LESSOR, as Additional Rent, the deficiency, within 45 days after receipt
7 of such annual statement and supporting information/documentation. If LESSEE's payments
8 for the calendar year exceed LESSEE's actual share of the Operation Costs, and provided
9 LESSEE is not in arrears as to the payment of any Base Rent or Additional Rent, LESSEE
10 may offset the excess against any payments of Operation Costs next due LESSOR.
11 4. UTILITIES—
12 LESSEE shall pay market rate to the LESSOR for metered electricity, which amounts
13 shall be included as a component of Operation Costs payable monthly to LESSOR as
14 Additional Rent.
15 LESSEE is responsible for contracting directly with the applicable utility provider and
16 paying directly thereto for natural gas, water/sewer, garbage, telephone and internet services
17 for the Premises and any and all other utility services LESSEE requires in connection with its
18 use of the Premises.
19 5. MAINTENANCE AND REPAIRS—LESSOR shall be responsible for all
20 exterior and interior maintenance, including repair of air conditioning, heating units, plumbing
21 systems, electrical systems, elevators, and interior/exterior lights and fixture ballasts, fire
22 sprinkler system, roof, painting, flooring, landscape, parking and other maintenance at the
23 Premises, as set forth in the Premises Services Agreement, attached hereto as
24 Attachment"C" and incorporated herein by reference. LESSOR is also responsible for the
25 structural condition of the building and agrees that the building will always be maintained in a
26 condition acceptable for the LESSEE'S intended use of the Premises. LESSOR's
27 maintenance responsibilities shall include carpet replacement and exterior and interior
28 painting, as needed, due to normal wear and tear. All items of maintenance and repair as set
COUNTY OF FRESNO /
Fresno,California 4
L-326/DSS
Building 215610
1 forth in Attachment"C" shall be included as a component of Operation Costs payable monthly
2 to LESSOR as Additional Rent.
3 In the event building systems such as air conditioning and heating units malfunction,
4 restroom fixtures are not draining properly, or water intrusion, leaks or other events that
5' immediately impact the occupancy of the Premises by LESSEE occur, LESSOR shall use its
6 best efforts to respond within twenty-four(24) hours after contact by LESSEE to diligently
7 pursue repairs and replace equipment to restore the systems to full working order. Structural
8 issues, including but not limited to damaged doors, walls, roof, and windows shall be a
9 priority, and shall be addressed within the same day such are reported. LESSOR covenants
10 that the Premises shall be maintained in substantially the same condition as existing on the
11 Rent Commencement Date.
12 LESSEE shall be responsible for damages and repairs caused by LESSEE or
13 LESSEE's employees, clients, contractors, or other invitees.
14 6. USE - LESSEE shall use the Premises as office space for its Department of
15 Social Services or for any other County department. LESSEE shall comply with all applicable
16 laws, ordinances and regulations in connection with such use.
17 Subject to Section 34, LESSOR covenants that: (i) as of the Rent
18 Commencement Date, the Premises shall be in compliance with all applicable local, state and
19 federal laws, ordinances and regulations, including but not limited to safety regulations, health
20 and building codes; and (ii) the Premises shall remain in such compliance throughout the
21 term of this LEASE, subject to LESSOR's right to cure pursuant to Section 12.
22 7. JANITORIAL SERVICES AND COST—LESSOR shall procure and provide
23 janitorial services and supplies at the Premises (hereinafter"Janitorial Services"). Such
24 Janitorial Services shall be provided five (5) days per week and shall include the services and
25 supplies as described in Attachment"C". All such expenses for Janitorial Services shall be
26 included as a component of Operation Costs payable monthly to LESSOR as Additional Rent.
27 LESSOR and LESSEE may agree to select a different janitorial service to correct
28 deterioration in the quality of the janitorial service, or for any other reason mutually agreed
COUNTY OF FRESNO
Fresno,California 5
L-326/DSS
Building 2/5610
1 upon by the parties.
2 8. ALTERATIONS—LESSEE shall make no, alterations, installation, changes or
3 additions in or to the Premises or Building (collectively, "Alterations")without written consent
4 from LESSOR. Alterations shall not include moveable office furniture, office furnishings and
5' office equipment.
6 9. INDEPENDENT CONTRACTOR— In performance of the work, duties and
7 obligations assumed by LESSOR under this Lease, if any, it is mutually understood and agreed
8 that LESSOR, including any and all of the LESSOR'S officers, agents, and employees will at all
9 times be acting and performing as an independent contractor, and shall act in an independent
10 capacity and not as an officer, agent, servant, employee,joint venture, partner, or associate of
11 the LESSEE. Furthermore, LESSEE shall have no right to control or supervise or direct the
12 manner or method by which LESSOR shall perform its work and function; provided, LESSOR
13 shall satisfy and comply with its obligations as set forth herein.
14 LESSOR and LESSEE shall comply with all applicable provisions of law and the rules
15 and regulations, if any, of governmental authorities having jurisdiction over matters the
16 subject thereof.
17 Because of its status as an independent contractor, LESSOR shall have absolutely no
18 right to employment rights and benefits available to LESSEE'S employees. LESSOR shall be
19 solely liable and responsible for providing to, or on behalf of, its employees all legally-required
20 employee benefits. In addition, LESSOR shall be solely responsible and save LESSEE
21 harmless from all matters relating to payment of LESSOR'S employees, including compliance
22 with Social Security withholding and all other law and regulations governing such matters. It
23 is acknowledged that during the term of this Lease, LESSOR may be providing services to
24 others unrelated to the LESSEE or to this Lease.
25 10. COMPLIANCE WITH ALL LAWS—If any work is undertaken at the Premises by
26 or on behalf of LESSOR, LESSOR shall comply with, and shall ensure compliance by all
27 contractors and subcontractors with, all applicable laws and regulations, including the payment
28 of prevailing wages pursuant to Section 1770 et. seq. of the Labor Code. Notwithstanding the
COUNTY OF FRESNO 6
Fresno,California
L-326/DSS
Building 2/5610
1 foregoing, neither this Lease nor either party contemplates LESSOR undertaking any
2 improvements to the Premises during the term of this Lease.
3 11. NON FUNDING TERMINATION—This LEASE is contingent on the allocation
4 of funds by a governmental agency. Should funds not be allocated, this LEASE may be
5' terminated by the Board of Supervisors at any time by giving at least thirty (30) days prior
6 written notice to LESSOR.
7 12. BREACH OF OBLIGATION TO MAINTAIN —In the event LESSOR breaches
8 its obligation to maintain the Premises as herein provided, LESSEE shall give written notice
9 to LESSOR within fifteen (15) days of the discovery of such breach. LESSOR shall then
10 have thirty(30) days from the date of such notice to cure its breach; however, if such default
11 continues beyond thirty (30) days after written notice thereof from LESSEE to LESSOR then
12 LESSOR will not be in default hereunder if within such thirty (30) day period, LESSOR
13 commences the curing of such default and diligently and in good faith prosecutes the same to
14 completion. If the period for cure expires and if, in LESSEE'S sole and reasonable
15 determination, LESSOR has failed to cure, then LESSEE may, at its election:
16 (A) terminate this LEASE by providing thirty (30) days prior written notice. In such
17 case, LESSEE shall have the right to demand LESSOR refund any monies
18 which, in the reasonable judgment of LESSEE, were paid to LESSOR
19 pursuant to the LEASE but which were not earned by LESSOR by
20 consequence of its breach. Upon receipt of such demand, LESSOR shall
21 promptly refund all such monies; or
22 (B) cure LESSOR'S breach and deduct the cost of such cure, together with
23 reasonable administrative costs, from LESSEE'S future rent obligation.
24 LESSEE'S decision to cure LESSOR'S breach shall not constitute a waiver of
25 any rights or remedies that LESSEE may have arising from this LEASE or by
26 operation of law, except that LESSEE shall not have the right to terminate
27 described above with respect to the circumstances related to such cured
28 breach.
COUNTY OF FRESNO
Fresno,California 7
L-326/DSS
Building 2/5610
1 13. CONDEMNATION OR PROHIBITED USE—If the Premises, or any portion
2 thereof, is appropriated, condemned, or taken by any governmental authority or public agency
3 other than LESSEE by use or exercise of eminent domain proceedings or other proceedings,
4 or by inverse condemnation, or is sold under threat of use or exercise of eminent domain by
5 any governmental authority or public agency other than LESSEE, or if by reason of law,
6 ordinance, regulation, or court judgment, LESSEE's use or occupancy of the Premises, or
7 any portion thereof, shall be materially and adversely affected for the period set forth in
8 clause (i) below, but excluding therefrom any day that is not a LESSEE business day
9 (hereinafter collectively "Condemnation or Prohibited Use"), then LESSEE shall have the right
10 to do either of the following:
11 (i) If the Condemnation or Prohibited Use has a material adverse effect on
12 LESSEE's use and occupancy of the Premises and is reasonably anticipated
13 to impact such use in excess of ninety (90) days, then LESSEE may terminate
14 this LEASE by giving written notice thereof to LESSOR. Such notice shall
15 specify a date of termination of this LEASE not less than one hundred eighty
16 (180) calendar days, and not more than two-hundred ten (210) calendar days,
17 from the date of such notice, or from the date that LESSEE's use of the
18 Premises will be materially adversely affected pursuant to the notice LESSEE
19 receives from LESSOR of such appropriation, condemnation, taking, or sale
20 that shall prohibit LESSEE's use or occupancy of the Premises, or the affected
21 part thereof, whichever is earlier. The County Administrative Officer or the
22 Director of Internal Services/Chief Information Officer, or a designee of one of
23 them, shall have the authority to provide such notice on behalf of LESSEE.
24 (ii) LESSEE may renegotiate with LESSOR with respect to the terms of any
25 amounts to be owed by LESSEE hereunder, including any portion or
26 installment of the Base Rent, when such are due and payable, and/or any
27 other amounts otherwise due and payable hereunder, for the remainder of
28 Premises not affected by such Condemnation or Prohibited Use during the
COUNTY OF FRESNO
Fresno,California 8
L-326/DSS
Building 2/5610
1 balance of the term of this LEASE. Any such renegotiated terms of the Base
2 Rent, and/or any other amounts otherwise to be due and payable herein shall
3 be sought in good faith and without unreasonable delay by the Parties, and
4 made only by written amendment, pursuant to Section 20, herein.
5' 14. 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
8 shall either promptly and diligently repair the damage at its own cost, or terminate this Lease
9 as hereinafter provided. If LESSOR obtains any proceeds from the Property Insurance Policy
10 (as defined in Section 16 hereinbelow)that are not otherwise payable to any mortgagee or
11 beneficiary, and this Lease is not terminated as a result of such Casualty pursuant to the
12 terms hereof, then LESSOR shall promptly apply all of such insurance proceeds toward the
13 repair and restoration of the Premises pursuant to LESSOR's obligations under this
14 Section 14.
15 (A) LESSOR'S Election to Repair: If LESSOR elects to repair the Casualty
16 damage to the Premises, then it shall within fifteen (15) days after the date of
17 Casualty or as soon as possible thereafter provide written notice(hereinafter
18 "Notice of Repair")to LESSEE indicating the anticipated time required to
19 repair. LESSOR shall bear the cost of all repairs to the Premises, including
20 the cost to repair any alterations or fixtures installed or attached thereto by
21 LESSEE. Such repairs shall restore the Premises to substantially the same
22 condition as existing on the Rent Commencement Date; such repairs shall
23 also be made in compliance with all applicable state and local building
24 codes. LESSOR shall not be liable to LESSEE for compensation for any
25 loss of business, or any inconvenience or annoyance arising from repair of
26 the Premises as a result of the Casualty except for rent reduction as
27 hereinafter provided. LESSEE shall be responsible at its sole cost and
28 expense for the replacement of its personal property.
COUNTY OF FRESNO -
Fresno,California 9
L-326/DSS
Building 2/5610
1 (B) LESSOR'S Election to Terminate Due to Casualty: LESSOR may only elect
2 to terminate this LEASE due to Casualty if: the Premises have been
3 destroyed or substantially destroyed by said Casualty; and the estimated
4 time to repair the Premises exceeds sixty(60) days from the date of the
5' Casualty. LESSOR shall provide LESSEE with written notice of its election to
6 terminate within forty-five (45) days after the date of Casualty, specifying a
7 termination date not less than thirty (30) days from the date of said notice.
8 (C) Rent Reduction Due to Casualty: In the event of Casualty, LESSEE'S
9 obligation to pay rent shall be reduced beginning on the date of the Casualty.
10 Such reduction shall be proportional to the damage caused to the Premises
11 by the Casualty as reasonably determined by LESSEE. If LESSOR elects to
12 repair the Premises pursuant to the terms of this LEASE, to the extent the
13 premises remain unusable then the rent reduction shall continue until the
14 date of substantial completion of repair.
15 (D) LESSEE'S Election to Terminate Due to Casualty: If LESSEE does not
16 receive a Notice of Repair from LESSOR within fifteen (15) days or as soon
17 as reasonably possible after a Casualty, or if the anticipated period of repair
18 contained in the Notice of Repair exceeds ninety (90) days, then LESSEE
19 may elect to terminate this LEASE by providing thirty(30) days prior written
20 notice to LESSOR. In such case, LESSEE shall have the right to demand
21 that LESSOR refund any monies which, in the reasonable judgment of
22 LESSEE, were paid to LESSOR pursuant to the LEASE but which were not
23 earned by LESSOR by consequence of the Casualty. Upon receipt of such
24 demand, LESSOR shall promptly refund all such monies.
25 15. HOLD HARMLESS— LESSOR will indemnify, defend, and hold LESSEE
26 harmless from and against any and all liabilities, claims, demands, actions, proceedings,
27 costs, expenses or damages of any kind or nature (collectively, "Claims") in any manner
28 directly or indirectly caused, occasioned or contributed to by reason of the negligence,
COUNTY OF FRESNO
Fresno,California 10
L-326/DSS
Building 2/5610
1 whether active or passive, of LESSOR or anyone acting under its direction or control or on its
2 behalf in connection with or incidental to the performance of LESSOR'S obligations pursuant
3 to this Lease.
4 LESSEE will indemnify, defend, and hold LESSOR harmless from and against any
5' Claims in any manner directly or indirectly caused, occasioned or contributed to by reason of
6 the negligence, whether active or passive, of LESSEE or anyone acting under its direction or
7 control or on its behalf in connection with or incidental to the performance of this Lease or any
8 Claims otherwise arising in connection with LESSEE'S use and occupancy of the Premises.
9 The parties acknowledge that as between LESSOR and LESSEE, each is
10 responsible for any Claims arising from the acts or omissions of its own employees and
11 invitees and notwithstanding anything to the contrary in this Section 15, each Party hereby
12 waives any claim for or right to consequential or punitive damages.
13 16. INSURANCE—
14 A. LESSOR shall maintain in full force and effect, the following insurance
15 policies throughout the term of the Lease:
16 1. Commercial General Liability- Commercial General Liability Insurance
17 covering the common areas located on the Premises with limits of not less
18 than Two Million Dollars ($2,000,000) per occurrence and an annual
19 aggregate of Four Million Dollars ($4,000,000). This policy shall be issued
20 on a per occurrence basis.
21 2. Property Insurance—A "Property Insurance Policy"which is defined herein
22 to mean a policy of special form, so called "all-risk" of physical loss
23 property insurance insuring against fire, theft, vandalism, malicious
24 mischief, sprinkler leakage and such additional perils as are now or
25 hereafter may be included in broad form coverage (at LESSOR or
26 LESSEE's option or if otherwise required by LESSOR's mortgagee, if any,
27 also to include coverage against earthquake and flood) from time to time in
28 general use in the State of California covering the full replacement value of
COUNTY OF FRESNO
Fresno,California 11
L-326/DSS
Building 2/5610
1 all alterations, additions, partitions, improvements, machinery, equipment,
2 and fixtures made or placed by LESSEE in the Premises, covering the
3 Building and other improvements on the Premises, and covering any other
4 perils which LESSEE deems reasonably necessary and so requests to be
5' covered by written notice to LESSOR. The Property Insurance Policy shall
6 name LESSOR and the holder of any mortgage or deed of trust
7 encumbering the Premises (if any), as its interest may appear, as a loss
8 payee under such policy. The limits for such insurance shall be for not less
9 than the full replacement value of the Building as improved and existing as
10 of the date of Casualty (the "Minimum Insured Amount"). On the Rent
11 Commencement Date, from time to time as LESSEE makes improvements
12 to the Building, upon LESSOR's request, and at such other times during
13 the Term as LESSEE elects in its discretion, LESSEE shall deliver to
14 LESSOR written notice of the Minimum Insured Amount and LESSOR shall
15 communicate such Minimum Insured Amount to its insurer. Neither
16 LESSOR nor LESSEE shall do or permit anything to be done which
17 invalidates any such insurance policies.
18 3. Rental Loss Insurance-A policy of rental interruption or rental loss
19 insurance against loss, total or partial, of the use and occupancy of the
20 Premises, in an amount sufficient to pay the Base Rent and Additional
21 Rent required to be paid by LESSEE hereunder for a twenty—four (24)
22 month period, as a result of any of the hazards covered by the Property
23 Insurance Policy required hereunder.
24 4. Worker's Compensation -Worker's Compensation insurance, if required by
25 the California Labor Code.
26 LESSOR shall obtain endorsements to the Commercial General Liability
27 insurance naming the County of Fresno (hereinafter"County"), its officers, agents,and
28 employees, individually and collectively, as additional insured, but only insofar as the
COUNTY OF FRESNO
Fresno,California 12
L-326/DSS
Building 215610
1 operations under this Lease are concerned. This insurance shall not be cancelled or
2 changed without a minimum or thirty(30) days advance written notice given to County.
3 Within (30) days after the Rent Commencement Date, LESSOR shall provide
4 certificates of insurance and endorsement as stated above for all of the foregoing policies, as
5' required herein, to the County of Fresno, Attn: ISD Lease Services (L-326), 333 W. Pontiac
6 Way, Clovis, CA 93612 stating that such insurance coverages have been obtained and are in
7 full force; that such Commercial General Liability insurance names the LESSEE, its officers,
8 agents, and employees, individually and collectively, as additional insured as required herein
9 and that such insurance shall not be cancelled or changed without a minimum of thirty (30)
10 days advance, written notice given to LESSEE.
11 In the event LESSOR fails to keep in effect at all times insurance coverage as
12 herein provided, then LESSEE may, after thirty (30) days written notice to LESSOR, obtain
13 such insurance on LESSOR'S behalf and offset Base Rent by the amount of such insurance
14 premiums incurred by LESSEE after providing written notice of such amounts and proof of
15 insurance to LESSOR.
16 The costs incurred by LESSOR in obtaining and maintaining the insurance policies
17 required of LESSOR hereunder(including any deductibles payable in the event of a loss
18 covered by such policies) shall be referred to herein collectively as "LESSOR'S Insurance
19 Costs" and shall be reimbursable to LESSOR as Additional Rent in accordance with Section 3
20 hereinabove.
21 B. LESSEE shall maintain during the term of this Lease the following policies of
22 insurance, which coverages may be provided in whole or in part through one
23 or more programs of self-insurance (provided that any such self-insurance
24 program shall not diminish or reduce LESSEE'S liability hereunder):
25 i. Commercial General Liability insurance with limits of not less than
26 Two Million Dollars ($2,000,000.00) per occurrence and an annual
27 aggregate of not less than Four Million Dollars ($4,000,000.00).
28 This policy shall be issued on an occurrence basis, shall name
COUNTY OF FRESNO
Fresno,California 13
L-326/DSS
Building 2/5610
1 LESSOR as additional insured, and shall be primary and non-
2 contributing as to occurrences and claims in connection with events
3 occurring within the Building (as opposed to in the common area of
4 the Premises for which LESSOR'S Commercial General Liability
5' policy shall be primary).
6 ii. All-Risk property insurance. A Special form casualty insurance
7 coverage which shall include fire and such other perils as are
8 customarily included in such insurance maintained by prudent
9 tenants leasing similar space in the same general area of the
10 Premises, in an amount adequate to cover the replacement cost of
11 (i) LESSEE'S merchandise, trade fixtures, furnishings, equipment
12 and other personal property of LESSEE located on or within the
13 Premises, and (ii) at LESSEE's option, the leasehold
14 improvements, alterations and additions to the Premises for which
15 LESSOR shall be named as a loss payee under such insurance,
16 provided however, the proceeds of such insurance shall be
17 delivered to and used by LESSOR to repair or replace the affected
18 leasehold improvements, alterations and additions, and if not so
19 used, shall be paid to LESSEE.
20 LESSEE shall provide copies of the insurance policies, appropriately authenticated by
21 the insurer, or original insurance certificates reasonably acceptable to LESSOR, evidencing
22 the insurance coverages called for above. Such copies of policies or certificates shall be
23 furnished to LESSOR upon execution of this Lease. The policies or certificates shall contain
24 a provision that the insurer will not cancel or refuse to renew the policies, or change in any
25 material way the nature or extent of the coverage provided by such policies without first giving
26 LESSOR thirty (30) days prior written notice. Thirty(30) days prior to expiration of any
27 policies of insurance carried by LESSEE, LESSEE shall provide proof of continuing coverage.
28 Waiver of Subrogation. Neither LESSOR nor LESSEE shall be liable to the other or to
COUNTY OF FRESNO
Fresno,California 14
L-326/DSS
Building 2/5610
1 any insurance company(by way of subrogation or otherwise) insuring the other party for any
2 loss or damage to any building, structure or other tangible property, or any resulting loss of
3 income and benefits, even though such loss or damage might have been occasioned by the
4 negligence of such party, its agents or employees, if any such loss or damage is covered by
5' insurance benefiting the party suffering such loss or damage or was required to be covered
6 by insurance pursuant to this Lease. LESSOR and LESSEE shall require their respective
7 insurance companies to include a standard waiver of subrogation provisions in their
8 respective policies.
9 All policies hereunder shall be with admitted insurers licensed to do business in the
10 State of California. Insurance purchased shall be purchased from companies possessing a
11 current AM Best Company rating of A FSC VII or better.
12 17. SURRENDER OF POSSESSION / HOLDOVER—Upon the expiration or
13 termination of this Lease, LESSEE will surrender the Premises to LESSOR broom clean and
14 otherwise in such condition as existing on the Rent Commencement Date, less reasonable
15 wear and tear, but including all improvements made by LESSEE. If LESSEE holds over after
16 the expiration of the Term or earlier termination thereof, with or without the express or implied
17 consent of LESSOR, such tenancy shall be tenancy at sufferance only, and shall not
18 constitute a renewal hereof or an extension for any further term, and in such case LESSEE
19 shall pay one hundred three percent(103%) of the Base Rent in effect just prior to expiration
20 or termination, until either party gives the other thirty (30) days written notice of termination,
21 reciting therein the effective date of cancellation. LESSOR hereby expressly reserves the
22 right to require LESSEE to surrender possession of the Premises to LESSOR as provided in
23 this Lease upon the expiration or other termination of this Lease. The provisions of this
24 Section 17 shall not be deemed to limit or constitute a waiver of any other rights or remedies
25 of LESSOR provided herein or at law.
26 18. FIXTURES—LESSOR agrees that any equipment, fixtures or apparatus
27 installed in or on the Premises by LESSEE shall continue to be the property of LESSEE and
28 may be removed by LESSEE at any time. LESSEE shall pay for the repair of any damage
COUNTY OF FRESNO
Fresno,California 15
L-326/DSS
Building 2/5610
1 caused by the removal of fixtures. Any fixtures not removed after LESSEE surrenders
2 possession shall become the property of LESSOR.
3 19. RIGHT OF ENTRY—LESSOR, or its representative(s), upon twenty-four(24)
4 hour notice, or immediately in the event of an emergency, shall have the right to enter the
5' Premises at any time during business hours, or at such other time as LESSEE deems
6 appropriate, to make any alterations, repairs or improvements to the Premises. The normal
7 business of LESSEE or its invitees shall not be unnecessarily inconvenienced. In the event
8 of an emergency, LESSOR may enter the Premises at any time without giving prior notice to
9 LESSEE.
10 20. AMENDMENT—This Lease may be amended in writing by the mutual consent
11 of the parties without in any way affecting the remainder of this Lease.
12 21. NON-ASSIGNMENT—Neither Party shall assign,transfer or sub-let this LEASE,
13 or the rights or duties under this LEASE,without the prior written consent of the other Party,
14 which consent shall not be unreasonably withheld or denied, except that LESSOR may sell or
15 refinance the Premises or any part thereof, in which case LESSOR shall promptly notify
16 LESSEE in writing of such sale or refinancing. Further, in the event of any such assignment,
17 sublease or transfer of LESSEE's rights or obligations hereunder, the originally named LESSEE
18 hereunder(i.e.,the COUNTY OF FRESNO, a political subdivision of the State of California)
19 shall remain fully and primarily liable for all duties and obligations of LESSEE under this
20 Lease.
21 22. GOVERNING LAW—Venue for any action arising out of or relating to this
22 Lease shall be in Fresno County, California. This Lease shall be governed by the laws of the
23 State of California.
24 23. AUDITS AND INSPECTIONS—The LESSOR shall at any time during
25 business hours, and as often as the COUNTY may deem necessary, make available to the
26 COUNTY for examination all of its records and data with respect to the matters covered by
27 this Agreement. The LESSOR shall, upon request by the COUNTY, permit the COUNTY to
28 audit and inspect all of such records and data necessary to ensure LESSOR compliance with
COUNTY OF FRESNO
Fresno,California 16
L-326/DSS
Building 2/5610
1 the terms of this Agreement.
2 If this Agreement exceeds ten thousand dollars ($10,000.00), LESSOR shall be subject to the
3 examination and audit of the Auditor General for a period of three (3) years after final
4 payment under contract(Government Code Section 8546.7).
5' 24. NOTICES—All notices to be given under this Lease by either Party to the
6 other Party shall be in writing, and given by any one of the following methods:
7 (i) Personal delivery to the applicable address as set for below; or
8 (ii) Sent by certified United States mail, first class postage prepaid, with
9 return receipt requested, to the applicable addresses as set forth below, in which case such
10 notice shall be deemed given three (3) business days if LESSOR is the recipient, or three (3)
11 days if LESSEE is the recipient, after such deposit and postmark with the United States
12 Postal Service; or
13 (iii) Sent by a reputable overnight commercial courier, in which case such
14 notice shall be deemed given one (1) business day if LESSOR is the recipient, or one (1) day
15 if LESSEE is the recipient, after such deposit with that courier to the applicable addresses as
16 set forth below.
17 The addresses and telephone numbers of the Parties for purposes of giving
18 receiving notices under this Lease are as follows:
19
LESSEE: LESSOR:
20
County of Fresno PONTIAC 2 LLC, a California
21 County Administrative Office (CAO) limited liability company
2281 Tulare Street, Suite 304 Attn: Clayton Medina
22 Hall of Records 2780 N. Miami Ave., Ste. 10
23 Fresno, CA 93721 Fresno, CA 93727
(559) 600-1710 (559) 346-1400
24 with copies to:
25 County of Fresno
(L-326)
26 Director of Internal Services
27 333 W. Pontiac Way
Clovis, CA 93612
28 (559) 600-6200
COUNTY OF FRESNO
Fresno,California 17
L-326/DSS
Building 2/5610
1 Provided however, such notices may be given to such person or at such other place as
2 either of the Parties may from time to time designate by giving written notice to the other Party,
3 and provided further however, in any event notices of changes of address or termination of this
4 Lease shall not be effective until actual delivery of such notice. Notices given hereunder shall
5' not be amendments or modifications to this Lease. Further,for all claims arising from or related
6 to this agreement, nothing in this agreement establishes, waives, or modifies any claims
7 presentation requirements or procedures provided by law, including but not limited to the
8 Government Claims Act(Division 3.6 of Title 1 of the Government Code, beginning with section
9 810).
10 25. DISCLOSURE OF SELF DEALING TRANSACTIONS—This provision is only
11 applicable if the LESSOR is operating as a corporation (a for-profit or non-profit corporation)
12 or if during the term of this Lease, the LESSOR changes its status to operate as a
13 corporation.
14 Members of LESSOR'S Board of Directors shall disclose any self-dealing transactions
15 that they are a party to while LESSOR is providing goods or performing services under this
16 Lease. A self-dealing transaction shall mean a transaction to which the LESSOR is a party
17 and in which one or more of its directors has a material financial interest. Members of the
18 Board of Directors shall disclose any self-dealing transactions that they are a party to by
19 completing and signing a Self-Dealing Transaction Disclosure Form Attachment"D", attached
20 hereto and by this reference incorporated herein, and submitting it to the County of Fresno
21 prior to commencing with the self-dealing transaction or immediately thereafter.
22 26. SUCCESSORS—This Lease shall inure to the benefit of and be binding upon
23 the heirs, executors, administrators, successors and assigns of the respective parties hereto,
24 always providing that nothing in this Section 26 shall impair any of the provisions herein
25 above set forth prohibiting assignment or other transfer of this Lease by LESSEE without the
26 prior written consent of LESSOR.
27 27. LESSEE'S DEFAULT AND LESSOR'S REMEDIES—
28 A. LESSEE'S Default. LESSEE shall be in default under this Lease if LESSEE
COUNTY OF FRESNO
Fresno,California 18
L-326/DSS
Building 2/5610
1 fails to perform any of its obligations hereunder and (i) if the failure is in the
2 payment of Base Rent, or any other failure which can be cured by the payment
3 of money, the failure continues uncured for a period of five (5) days after
4 written notice thereof from LESSOR (provided, however, LESSOR shall have
5' no obligation to provide such written notice more than two (2)times in any
6 twelve (12) consecutive month period), or(ii) if the failure is in any of the other
7 provisions of this Lease and such failure continues uncured for a period of
8 thirty (30) days after written notice thereof from LESSOR, unless such cure is
9 not capable of completion within thirty (30) days, in which case LESSEE shall
10 be afforded such additional time as may be reasonably necessary to complete
11 the cure provided LESSEE commences the cure within thirty(30) days of
12 LESSOR'S notice and diligently pursues such cure to completion, or, in the
13 event of a threatened injury to life or property due to such failure, continues for
14 such lesser period as LESSOR may specify in such written notice.
15 B. LESSOR'S Remedies. In the event of a default by LESSEE then, besides any
16 other rights and remedies of LESSOR at law or equity, LESSOR shall have the
17 following rights and remedies. All remedies herein conferred on LESSOR
18 shall, to the fullest extent permitted by law, be deemed cumulative and no one
19 exclusive of the other or of any other remedy conferred by law or in equity, and
20 nothing herein shall prevent LESSOR from pursuing any and all other
21 remedies it may have upon LESSEE'S default.
22 1. Election to Continue or Terminate Lease. LESSOR shall have the right to
23 elect either to continue or terminate this Lease, as follows:
24 (a) Continuation of Lease. LESSOR shall have the remedy described
25 in California Civil Code Section 1951.4 (LESSOR may continue this
26 Lease in effect after LESSEE'S breach and abandonment and
27 recover rent as it becomes due, if LESSEE has the right to sublet or
28 assign, subject only to reasonable limitations). Accordingly, if
COUNTY OF FRESNO
Fresno,California 19
L-326/DSS
Building 2/5610
1 LESSOR does not elect to terminate this Lease on account of any
2 default by LESSEE, LESSOR may, from time to time, without
3 terminating this Lease, enforce all of its rights and remedies under
4 this Lease, including the right to recover all Rent as it becomes due.
5' (b) Termination of Lease. LESSOR shall have the right to terminate
6 this Lease, by giving written notice of termination to LESSEE or, if
7 LESSEE'S address is unknown, by posting such notice on the
8 Premises. Absent such written notice, no acts of LESSOR
9 (including entering, repairing, preparing to re-let, or re-letting the
10 Premises) shall be construed as an election to terminate the Lease.
11 In the event that LESSOR elects to terminate this Lease,then
12 LESSOR shall be entitled to its statutory unlawful detainer remedy.
13 C. No Event of Default. Notwithstanding anything herein to the contrary, LESSEE
14 shall NOT be in default under this LEASE solely because of the failure to pay
15 any amounts to be owed by LESSEE hereunder — including any portion or
16 installment of the Base Rent, when they are to be due and payable herein,
17 and/or any other amounts otherwise due and payable herein—to the extent such
18 amounts are subject to abatement as set forth in Section 30, hereinbelow.
19 D. No Acceleration of Future Rent or Other Payments/Amounts. Notwithstanding
20 anything to the contrary contained herein this Lease or any right or remedy of
21 which LESSOR may otherwise avail itself pursuant to applicable law, any right
22 of LESSOR to recover any rents (including Base Rent and Additional Rent)
23 and/or any other amounts to be paid by LESSEE as provided in this Lease shall
24 be without acceleration of any future Base Rent and/or any future Additional
25 Rent, and/or any other amounts to be paid by LESSEE herein, before they are
26 due and payable hereunder. LESSOR hereby expressly waives its right to
27 accelerate rent in the event of a termination of this Lease pursuant to California
28 Civil Code section 1951.2.
COUNTY OF FRESNO
Fresno,California 20
L-326/DSS
Building 2/5610
1 28. WAIVER— No covenant or condition of this Lease shall be deemed waived,
2 except by the written consent of LESSOR or LESSEE, as appropriate, and any forbearance
3 or indulgence by the party entitled to performance shall not constitute a waiver of the
4 covenant or condition to be performed. Until complete performance of such covenant or
5' condition, the party entitled to performance shall have the right to invoke any remedy
6 available to it under this Lease or by law, despite such forbearance or indulgence. The
7 subsequent acceptance of Rent hereunder by LESSOR shall not be deemed to be a waiver of
8 any preceding default by LESSEE of any term, covenant or condition of this Lease, other than
9 the failure of LESSEE to pay the particular Rent so accepted, regardless of LESSOR'S
10 knowledge of such preceding default at the time of acceptance of such Rent.
11 29. LATE CHARGES—LESSEE hereby acknowledges that late payment by
12 LESSEE to LESSOR of Rent or other sums due hereunder shall cause LESSOR to incur
13 costs not contemplated by this Lease, the exact amount of which will be extremely difficult to
14 ascertain. Such costs include, but are not limited to, processing and accounting charges.
15 Accordingly, if any installment of Rent or any other sums due from LESSEE shall not be
16 received by LESSOR or LESSOR'S assignee within forty-five (45) days after the date due,
17 then LESSEE shall pay to LESSOR a late charge equal to three (3%) percent of such
18 overdue amount plus any attorney's fees incurred by LESSOR by reason of LESSEE'S failure
19 to pay Rent and/or other sums when due hereunder; provided that any payment postmarked
20 by the 5th of the month shall be presumed to be mailed in a timely manner. The parties
21 hereby agree that such late charge represents a fair and reasonable estimate of the cost that
22 LESSOR will incur by reason of the late payment by LESSEE. Acceptance of such late
23 charges by LESSOR shall in no event constitute a waiver of LESSEE'S default with respect to
24 such overdue amounts, nor prevent LESSOR from exercising any of the other rights and
25 remedies granted hereunder. In addition, LESSEE shall pay to LESSOR interest at the
26 Interest Rate on any delinquent payments, commencing ninety(90) days after the date
27 payment was due and continuing until paid.
28 30. INTEREST—Any amount owing from one party to the other under this Lease
COUNTY OF FRESNO
Fresno,California 21
L-326/DSS
Building 2/5610
1 which is not paid within ninety (90) days of the date when due shall thereafter bear interest at
2 the Interest Rate. As used herein, the term "Interest Rate" means a per annum rate of
3 interest equal to the lesser of(i)five percent (5%) per annum over the then most recent
4 annual prime or reference rate of interest announced by Bank of America N.A. (or in the event
5' Bank of America N.A. ceases to publish a prime or reference rate, the prime rate of a
6 comparable national banking institution reasonably agreed upon by the parties), or(ii) the
7 maximum rate permitted by applicable law.
8 31. ABATEMENT OF BASE RENTS, AND OTHER PAYMENTS—Notwithstanding
9 anything to the contrary in this LEASE, (i) LESSEE's obligations to pay the Base Rent, and/or
10 Additional Rent and/or any other amounts otherwise due and payable hereunder to LESSOR
11 shall be abated during any period, and to the extent, that the Premises, or any portion thereof
12 (in the case of an affected portion of the Premises, then, such abatement shall also be in
13 proportion thereof), cannot be used and occupied by LESSEE pursuant to this LEASE as a
14 result of any material property damage or loss or title defect(excluding any permitted
15 encumbrances at execution date), or of any Condemnation or Prohibited Use of the
16 Premises, or any portion thereof, and (ii) any abatement of any Base Rent, and/or Additional
17 Rent and/or other amounts otherwise due and payable, herein pursuant to this Section shall
18 not be deemed to be a default under this LEASE on the part of LESSEE.
19 Abatement of any Base Rent, and/or Additional Rent and/or of any other amounts
20 otherwise due and payable hereunder shall only suspend the period during which LESSEE is
21 otherwise required to pay Base Rent, and/or Additional Rents and/or any other amounts
22 otherwise due and payable, hereunder to LESSOR, and shall not relieve LESSEE from
23 subsequently paying the remainder of all such Base Rent, and/or Additional Rents and/or any
24 other amounts otherwise due and payable herein, pursuant to this LEASE once the condition
25 giving rise to the abatement has been cured, corrected, eliminated, or satisfactorily resolved.
26 Such abatement shall continue for the period commencing with the date of such material loss
27 or title defect, or of any Condemnation or Prohibited Use of the Premises, or any portion
28 thereof, and ending with the cure, correction, elimination or satisfactory resolution of the
COUNTY OF FRESNO
Fresno,California 22
L-326/DSS
Building 2/5610
1 material loss or title defect whereby LESSEE may use and occupy the Premises, or the
2 adversely affected portion thereof, pursuant to this LEASE. Cure, correction, elimination or
3 satisfactory resolution may, upon prior mutual written approval of LESSOR and LESSEE
4 (which the parties will negotiate in good faith and without unreasonable delay), occur in
5' commercially reasonable stages, as determined by the nature of the problem being remedied
6 and the impact that such staged remedial action and the coordination and timing thereof
7 would have on LESSEE, LESSEE's Director of Internal Services/Chief Information Officer, or
8 his/her designee, shall be authorized to execute such written approval for LESSEE.
9 The monthly Base Rent and Additional Rent, and any other amounts otherwise due
10 and payable hereunder, by LESSEE to LESSOR with respect to the Premises, or any portion
11 thereof, shall be abated to the extent that the amount of the monthly fair rental value of the
12 portion of the Premises in respect of which there is no substantial interference with LESSEE's
13 use and occupancy of the Premises is less than the amount of monthly Base Rent and
14 Additional Rents and any other amounts otherwise due and payable hereunder, in which case
15 the monthly Base Rent, and/or Additional Rent and/or any other amounts otherwise due and
16 payable hereunder shall be abated only by an amount equal to the difference thereof.
17 During the occurrence of any Casualty which is covered by rental interruption
18 insurance or rental loss insurance (See Section 16A(3) herein) the proceeds of any rental
19 interruption insurance or rental loss insurance that LESSOR may receive as a result of such
20 Casualty shall be applied by LESSOR, to the credit of LESSEE, for any monthly Base Rent,
21 Additional Rent and any other amounts otherwise due and payable hereunder; in such
22 instance of such amounts so received, LESSOR shall so inform LESSEE of any such
23 amounts so received.
24 Nothing contained in this Section 31 shall obligate LESSEE for payments of Base
25 Rent and/or Additonal Rent and/or any other amounts otherwise due and payable hereunder
26 if this LEASE is terminated pursuant to Section 11 herein.
27 32. LESSOR EXCULPATION— It is expressly understood and agreed that
28 notwithstanding anything in this Lease to the contrary, and notwithstanding any applicable law
COUNTY OF FRESNO
Fresno,California 23
L-326/DSS
Building 2/5610
1 to the contrary, the liability of LESSOR and the LESSOR'S members, owners, agents,
2 employees, and partners (including any successor landlord) (collectively, the "LESSOR
3 Parties") and any recourse by LESSEE against LESSOR or the LESSOR Parties shall be
4 limited solely and exclusively to an amount which is equal to the ownership interest of
5' LESSOR in the Building in which the Premises is located (excluding any proceeds thereof),
6 and neither LESSOR, nor any of LESSOR's members shall have any personal liability
7 therefor, and LESSEE hereby expressly waives and releases such personal liability on behalf
8 of itself and all persons claiming by, through or under LESSEE.
9 33. ENERGY CONSUMPTION DISCLOSURE — If LESSEE (or any party claiming
10 by, through or under LESSEE) pays directly to the provider for any energy consumed at the
11 Premises, LESSEE shall, promptly upon request, deliver to LESSOR (or, at LESSOR'S
12 option, execute and deliver to LESSOR an instrument enabling LESSOR to obtain from such
13 provider) any data about such consumption that LESSOR, in its reasonable judgment, is
14 required to disclose to a prospective buyer, tenant or mortgagee or prospective mortgagee
15 under California Public Resources Code § 25402.10 or any similar law.
16 34. DISABILITY ACCESS INSPECTION —Neither the Building nor the common
17 areas located on the Premises have undergone inspection by a Certified Access Specialist
18 (CASp)within the meaning of California Civil Code Section 1938, and LESSOR is not
19 providing any representations or warranties regarding whether the Premises meets all
20 applicable construction-related accessibility standards.
21 35. COUNTERPARTS—This Lease may be executed in one or more counterparts
22 (which may be facsimile or .pdf e-mail counterparts followed by originals), each of which will
23 be deemed an original and all, taken together, will constitute one and the same instrument.
24 36. FORCE MAJEURE—In the event that either party hereto shall be delayed or
25 hindered in or prevented from the performance of any act required hereunder by reason of
26 strikes, lockouts, adverse weather(including rain), inability to procure labor or materials,
27 failure of power, restrictive governmental laws or regulations, riots, insurrection, war, fire or
28 other casualty or other reason of a similar nature beyond the reasonable control of the party
COUNTY OF FRESNO /
Fresno,California 24
L-326/DSS
Building 2/5610
1 delayed in performing work or doing the act required under the terms of this Lease,then
2 performance of such act shall be excused for the period of the delay and the period from the
3 performance of any such act shall be extended for a period equivalent to the period of such
4 delay (any such delay is herein referred to as an "Force Majeure Delay"). In no event shall
5' LESSEE'S inability to satisfy a monetary obligation hereunder constitute or be subject to
6 Force Majeure Delay.
7 37. ESTOPPEL CERTIFICATE—LESSEE shall, at any time upon not less than
8 thirty(30) days prior request by LESSOR, execute, acknowledge and deliver to LESSOR a
9 written estoppel certificate, in a form satisfactory to LESSOR, certifying that this Lease is
10 unmodified and in full force and effect (or, if there have been modifications, that the same is in
11 full force and effect as modified and stating the modifications) and, if applicable, the dates to
12 which the Rent and any other charges have been paid in advance. Any such statement
13 delivered pursuant to this Section 37 may be relied upon by third persons, including a
14 prospective purchaser or encumbrancer of the Premises.
15 LESSEE'S failure to execute and deliver an estoppel certificate within thirty(30) days
16 after LESSEE'S receipt of LESSOR'S written request therefore shall be conclusive upon
17 LESSEE that this Lease is in full force and effect, without modification except as may be
18 represented by LESSOR, that there are no uncured defaults in LESSOR'S performance, that
19 not more than one month's rental has been paid in advance, and that all other statements
20 required to be made in the estoppel certificate are conclusively made.
21 38. SUBORDINATION AND ATTORNMENT—At LESSOR'S option, this Lease
22 shall be subordinated to any mortgage or deed of trust which is now or shall hereafter be
23 placed upon the Premises, and LESSEE agrees to execute and deliver any instrument which
24 may be necessary to further effect the subordination of the Lease to any such mortgage or
25 deed of trust; provided, however, that such instrument of subordination shall provide, or the
26 mortgagee or beneficiary of such mortgage or deed of trust otherwise shall agree in writing in
27 recordable form delivered to LESSEE, that the mortgagee or beneficiary, including their
28 successors and assigns, recognize LESSEE's leasehold interest under this Lease and that so
COUNTY OF FRESNO
Fresno,California 25
L-326/DSS
Building 2/5610
1 long as LESSEE is not in default under this Lease, foreclosure of any such mortgage or deed
2 of trust or sale pursuant to exercise of any power of sale thereunder, or deed given in lieu
3 thereof, shall not affect this Lease but such foreclosure or sale, or deed given in lieu thereof,
4 shall be made subject to this Lease which shall continue in full force and effect, binding on
5' LESSEE, as lessee, and the transferee, as lessor. LESSEE shall attorn to the transferee as if
6 said transferee was LESSOR under this Lease.
7 39. AUTHORITY—Each individual executing this Lease on behalf of LESSOR
8 represents and warrants that such individual(s) are duly authorized to execute and deliver this
9 Lease on behalf of PONTIAC 2 LLC, a California limited liability company and that this Lease
10 is binding upon PONTIAC 2 LLC, a California limited liability company in accordance with its
11 terms.
12 40. ENTIRE AGREEMENT —This Lease constitutes the entire Lease between the
13 LESSOR and LESSEE with respect to the subject matter hereof and supersedes all prior
14 leases, negotiations, proposals, commitments, writings, advertisements, publications, and
15 understandings of any nature whatsoever unless expressly referenced in this Lease.
16 41. CONTINGENCY — Notwithstanding anything to the contrary contained herein,
17 LESSEE may, it its option, terminate this Lease in the event of the following:
18 (i) The Property Closing (if there is no Seller Lease)does not occur
19 by December 31, 2018; or
20 (ii) If there is a Seller Lease,the tenant has not vacated the Premises
21 by December 31, 2018.
22 Should LESSEE elect to terminate this Lease pursuant to (i) or (ii) hereinabove, this
23 Lease shall terminate upon LESSEE providing to LESSOR at least fifteen (15) business days
24 advance written notice of such termination, unless (a) as to any termination based on (i)
25 hereinabove only, LESSOR takes fee title prior to expiration of such fifteen (15) business day
26 period, or (b) as to any termination based on (ii) hereinabove, tenant under the Seller Lease
27 vacates the Premises prior to expiration of such fifteen (15) business day period. LESSOR
28 shall not be subject to any liability for delayed possession.
COUNTY OF FRESNO
Fresno,California 26
L-326/DSS
Building 2/5610
1 42. SEVERABILITY — Each provision of this Lease is severable from any and all
2 other provisions of this Lease. Should any provision(s) of this Lease be for any reason
3 unenforceable, the balance shall nonetheless be of full force and effect.
4
5' [SIGNATURES ON FOLLOWING PAGE(S)]
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COUNTY OF FRESNO
Fresno,California 27
L-326/DSS
Building 2/5610
1 IN WITNESS WHEREOF, the parties have executed this Lease as of the day and year first
2 hereinabove written.
3 LESSOR: LESSEE:
PONTIAC 2 LLC, a California limited COUNTY OF FRESNO
4 liability comps
5 By. By:
AWL
6 Clayton Wdina, CFO Manager Brian Pacheco, Chairman Board of
Supervisors of the County of Fresno
7
ATTEST-
8 Bernice E. Seidel
9 Clerk to the Board of Supervisors
County of Fresno, State of California
10
By:
11 Deputy
12
13
14
15
16
17
18
19
20
21
22 cab G�GISS 1 fJ O OC7
23
24
25
26
27
28
COUNTY OF FRESNO
Fresno,California 28
L-326/DSS
Building 2/5610
1 ATTACHMENT "A"
2 Premises Map
3
4
r
5 f r
6 — r.
.. r •r r
r r r
7 r
r
8 ;. r r
9
10 r
i f
e
•r � �r
12 r
r r.-
13 — ---
r
r
14 r r r15
..
r ! [
16
r r rr r r
19
r r r r ,
20
21
22
23
24
25
26
27
28
COUNTY OF FRESNO
Fresno,California 29
L-326/DSS
Building 2/5610
1 ATTACHMENT "B"
2 Maintenance
3 Operating Budget
4 Services Per Sq Ft Monthly Annually
5' Utility(Electrical) $ 0.182 $ 19,853.11 $ 238,237.27
Property Taxes $ 0.140 $ 15,271.62 $ 183,259.44
6 Landscaping $ 0.029 $ 3,163.41 $ 37,960.88
Maintenance Supplies $ 0.055 $ 5,999.57 $ 71,994.78
7 Pest Control $ 0.001 $ 109.08 $ 1,309.00
8 One Site Maintenance $ 0.061 $ 6,654.06 $ 79,848.76
Insurance $ 0.042 $ 4,581.49 $ 54,977.83
9 Janitorial Service $ 0.101 $ 11,017.38 $ 132,208.60
Janitorial Supplies $ 0.032 $ 3,490.66 $ 41,887.87
10 Administrative Fee $ 0.061 $ 6,654.06 $ 79,848.76
Total $ 0.704 $ 76,794.43 $ 921,533.18
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
COUNTY OF FRESNO
Fresno,California 30
L-326/DSS
Building 2/5610
1 ATTACHMENT "C"
2 Premises Services Agreement
3
4 Landscape
1. Maintenance of all Landscaped areas on the Premises
5' 2. All Tree Maintenance
3. Plant replacement
6
Parking Lot
7 1. Contract Vacuuming
8 a. 1 x a month sweeping of all parking lot stalls
2. Resurfacing or repaving
9
Exterior Building Maintenance
10 1. Pressure Washing to be performed
a. 2 x year-Window washing all floors
11 b. 1 x month-Window Washing for 1s'floor windows only
12 2. Painting
a. Graffiti removal as needed
13 3. Pest Control
a. 1 x month, exterior only—Treat and spray the outside of the building
14 4. Common Area Repairs
a. Vandalism repairs as needed
15 5. Roof Repairs
16 Janitorial
17 1. Daily:
a. Vacuum all carpeted areas
18 b. Sweep and/or dry mop floors
c. Dust cleared desk and table surfaces, clean counters
19 d. Empty all waste baskets and dispose of trash in appropriate trash bins
e. Clean smudges and unsightly appearances form door jambs, light switches,
20 glass partitions, and counters
21 f. Clean and sanitize all sinks, toilets, and urinals
g. Clean all restroom mirrors, tile and splash walls
22 h. Spot clean restroom walls and partitions
i. Refill supplies in Restrooms (paper towels, toilet tissue, soap, etc.)
23 2. Monthly:
a. Dust all blinds and sills
24 3. Perform as Required:
25 a. Wet mop floors
b. Remove interior cobwebs
26 c. Dust wall picture frames and partition tops
d. High dust, including walls, light fixtures, vents and ledges above normal reach,
27 door ledges
e. Wash/clean light fixtures, walls, A/C vents
28 f. Dust/clean baseboards
g. Spot clean carpets
COUNTY OF FRESNO 31
Fresno,California
L-326/DSS
Building 2/5610
1 h. Steam clean all carpets
i. Strip and wax all vinyl and tile flooring
2 j. Clean Interior windows
3 HVAC
1. Contract Maintenance
4 a. Quarterly Service Agreement
5 Interior Building Maintenance
6 1. Electrical Repairs
2. Plumbing
7 a. Service calls
i. Urinal
8 ii. Toilet
9 iii. Fixture repairs
3. Elevator Contract Maintenance
10 a. Cost is based on two elevators
b. Service to be performed quarterly
11
Vendors
12 1. Lessee shall have the right to approve all vendors.
13 On-Site Management
14 1. Property Management available upon request
2. 1 x week- Property Management assessment of interior and exterior of building visits
15 with lead personnel
3. Property Management or their representative will visit the building on a daily basis
16 Monday through Friday.
17 Utilities
18 1. Utility- Gas-Tenant pays direct to PG&E
2. Utility- Electric-Tenant pays to LESSOR
19 3. Elevator Phone Line
a. To allow access to make emergency calls in case of an entrapment
20
21 Fire Safety
22 1. Maintenance of Fire Alarm System
a. Testing system on quarterly basis per FFD regulations
23 b. Testing system on a yearly basis per FFD regulations
c. Testing system on a 5-year basis per FFD regulations
24 2. Fire System Phone Line
a. Phone line to ensure fire alarm system is active and able to communicate to
25 central monitoring station
26 Insurance
27 1. Property Insurance based on then current Building value
2. General Liability
28 3. Other coverages, including earthquake insurance
COUNTY OF FRESNO
Fresno,California 32
L-326/DSS
Building 2/5610
1 Property Taxes
1. Property taxes and assessments
2
Operating Expenses
3 1. Operating expenses shall be considered Additional Rent under the Lease.
4 2. Additional rent shall be paid by Lessee on or about the 1 st of the month along with
monthly Base Rent. Each payment shall be equal to 1/12th of the annual budget.
5'
3. Lessor shall endeavor to deliver to Lessee an annual good faith Operating Expense
6 budget at least 120 days prior to the start of the next calendar year.
7 4. Within 90 days after the year is completed, Lessor shall submit to Lessee a
8 reconciliation of the actual Operating Expenses.
9 5. Any overpayment of Operating Expenses shall, at Lessor's option, either be refunded to
Lessee within thirty(30) days after Lessor's delivery of the statement setting forth such
10 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
This agreement may be modified upon the mutual agreement of both parties.
13
Administration Fee
14 Lessee shall pay a 9.5%Administration Fee to Lessor on all expenses.
15
Repairs
16 Lessor shall make any necessary repairs and replacements during the course of the
life of the lease of every kind and nature and which shall be considered an operating
17 expense.
18 All repairs, replacement, maintenance, restoration or operation of the building and on
any floor or conference room are considered as part of this agreement and will be an
19 operating expense whether paid or incurred and without any limitation.
20 Term of Agreement
21 The term of this agreement will be for the life of the Lease.
22 Termination of Agreement
This Premises Services Agreement or any portion thereof may be terminated by
23 Lessee with a 60-day notice for cause.
24
25 *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
27 Tenant's estimated monthly payment shall be adjusted accordingly.
28
COUNTY OF FRESNO
Fresno,California 33
I ATTACHMENT "D"
2
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,
performing services, or both for the County. A self-dealing transaction is defined below:
6
'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.
9
INSTRUCTIONS
10
(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-326)
22 Internal Services Department
333 W. Pontiac Way
23 Clovis, CA 93612
24
25
26
27
28
COUNTY OF FRESNO
Fresno,California 34
1 (1)Company Board Member Information:
2 Name: Date:
Job Title:
3 (2)Company/Agency Name and Address:
4
5
6
7
8 (3)Disclosure(Please describe the nature of the self-dealing transaction you are a party to):
9
10
11
12
13
14
15
16
17
18
4)Explain why this self-dealing transaction is consistent with the requirements of Corporations Code 5233
19 (a):
20
21
22
23
24
25 (5)Authorized Signature
26 Signature: Date:
27
28
COUNTY OF FRESNO
Fresno,California 35